UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549



FORM 10-K

ý   ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

For the fiscal year ended December 31, 2010

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)

Securities registered pursuant to Section 12(b) of the Act:

Title of each class  

 

Name of each exchange on which registered
 
Common Stock, Par Value $0.01 per share   New York Stock Exchange

Securities registered pursuant to Section 12(g) of the Act: None

Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act. Yes  ý     No  o

Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or Section 15(d) of the Act. Yes  o     No  ý

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  ý     No  o

Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K is not contained herein, and will not be contained, to the best of registrant's knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendment to this Form 10-K.  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 Act). Yes o No ý

The aggregate market value of the voting and non-voting common equity held by non-affiliates of the registrant as of June 30, 2010, the last business day of the registrant's most recently completed second fiscal quarter, based on the closing price of the stock on the New York Stock Exchange on such date was $1,818,131,741.

As of February 22, 2011, 413,616,166 shares of the registrant's common stock were outstanding.

Documents incorporated by reference:

Portions of the Registrant's Proxy Statement for its Annual Meeting of Stockholders scheduled for May 26, 2011 are incorporated by reference into Part III.


HERTZ GLOBAL HOLDINGS, INC. AND SUBSIDIARIES

TABLE OF CONTENTS

 
   
  Page  

INTRODUCTORY NOTE

    1  

PART I

           
     

ITEM 1.

 

BUSINESS

    3  
     

ITEM 1A.

 

RISK FACTORS

    25  
     

ITEM 1B.

 

UNRESOLVED STAFF COMMENTS

    36  
     

ITEM 2.

 

PROPERTIES

    36  
     

ITEM 3.

 

LEGAL PROCEEDINGS

    37  
     

ITEM 4.

 

(REMOVED AND RESERVED)

    39  
     

EXECUTIVE OFFICERS OF THE REGISTRANT

    40  

PART II

           
     

ITEM 5.

 

MARKET FOR REGISTRANT'S COMMON EQUITY, RELATED STOCKHOLDER MATTERS AND ISSUER PURCHASES OF EQUITY SECURITIES

    43  
     

ITEM 6.

 

SELECTED FINANCIAL DATA

    45  
     

ITEM 7.

 

MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS

    47  
     

ITEM 7A.

 

QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK

    79  
     

ITEM 8.

 

FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA

    80  

 

REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

    80  

 

CONSOLIDATED BALANCE SHEETS

    81  

 

CONSOLIDATED STATEMENTS OF OPERATIONS

    82  

 

CONSOLIDATED STATEMENTS OF CHANGES IN EQUITY

    83  

 

CONSOLIDATED STATEMENTS OF CASH FLOWS

    85  

 

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

    86  
     

ITEM 9.

 

CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND FINANCIAL DISCLOSURE

    144  
     

ITEM 9A.

 

CONTROLS AND PROCEDURES

    144  
     

ITEM 9B.

 

OTHER INFORMATION

    144  

PART III

           
     

ITEM 10.

 

DIRECTORS, EXECUTIVE OFFICERS AND CORPORATE GOVERNANCE

    145  
     

ITEM 11.

 

EXECUTIVE COMPENSATION

    145  
     

ITEM 12.

 

SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT AND RELATED STOCKHOLDER MATTERS

    145  
     

ITEM 13.

 

CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS, AND DIRECTOR INDEPENDENCE

    145  
     

ITEM 14.

 

PRINCIPAL ACCOUNTING FEES AND SERVICES

    145  

PART IV

           
     

ITEM 15.

 

EXHIBITS, FINANCIAL STATEMENT SCHEDULES

    146  


SIGNATURES


 

 

147

 


EXHIBIT INDEX


 

 

149

 

Table of Contents


INTRODUCTORY NOTE

Unless the context otherwise requires, in this Annual Report on Form 10-K, or "Annual Report," (i) "Hertz Holdings" means Hertz Global Holdings, Inc., our top-level holding company, (ii) "Hertz" means The Hertz Corporation, our primary operating company and a direct wholly-owned subsidiary of Hertz Investors, Inc., which is wholly-owned by Hertz Holdings, (iii) "we," "us" and "our" mean Hertz Holdings and its consolidated subsidiaries, including Hertz, (iv) "HERC" means Hertz Equipment Rental Corporation, Hertz's wholly-owned equipment rental subsidiary, together with our various other wholly-owned international subsidiaries that conduct our industrial, construction and material handling equipment rental business, (v) "cars" means cars, crossovers and light trucks (including sport utility vehicles and, outside North America, light commercial vehicles), (vi) "program cars" means cars purchased by car rental companies under repurchase or guaranteed depreciation programs with car manufacturers, (vii) "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 (viii) "equipment" means industrial, construction and material handling equipment.

Cautionary Note Regarding Forward-Looking Statements

Certain statements contained or incorporated by reference in this Annual Report and in reports we subsequently file with the United States Securities and Exchange Commission, or the "SEC," on Forms 10-K, 10-Q and file or furnish on Form 8-K, and in related comments by our management, include "forward-looking statements." Forward-looking statements include information concerning our liquidity and our possible or assumed future results of operations, including descriptions of our business strategies. These statements often include words such as "believe," "expect," "project," "anticipate," "intend," "plan," "estimate," "seek," "will," "may," "would," "should," "could," "forecasts" or similar expressions. These statements are based on certain assumptions that we have made in light of our experience in the industry as well as our perceptions of historical trends, current conditions, expected future developments and other factors we believe are appropriate in these circumstances. We believe these judgments are reasonable, but you should understand that these statements are not guarantees of performance or results, and our actual results could differ materially from those expressed in the forward-looking statements due to a variety of important factors, both positive and negative, that may be revised or supplemented in subsequent reports on SEC Forms 10-K, 10-Q and 8-K. Some important factors that could affect our actual results include, among others, those that may be disclosed from time to time in subsequent reports filed with the SEC, those described under "Risk Factors" set forth in Item 1A of this Annual Report, and the following, which were derived in part from the risks set forth in Item 1A of this Annual Report:

1


Table of Contents

You should not place undue reliance on forward-looking statements. All forward-looking statements attributable to us or persons acting on our behalf are expressly qualified in their entirety by the foregoing cautionary statements. All such statements speak only as of the date made, and we undertake no obligation to update or revise publicly any forward-looking statements, whether as a result of new information, future events or otherwise.

2


Table of Contents


PART I

ITEM 1.    BUSINESS

Our Company

We own what we believe is the largest worldwide airport general use car rental brand, operating from approximately 8,500 locations in 146 countries as of December 31, 2010. Our Hertz brand name is one of the most recognized in the world, signifying leadership in quality rental services and products. Hertz operates both corporate and licensee locations in cities and airports in North America, Europe, Latin America, Australia, Asia and New Zealand. In addition, we have licensee locations in cities and airports in Africa and the Middle East. We are the only car rental company that has an extensive network of company-operated rental locations both in the United States and in all major European markets. We believe that we maintain the leading airport car rental brand market share, by overall reported revenues, in the United States and at the 83 major airports in Europe where we have company-operated locations and where data regarding car rental concessionaire activity is available. We believe that we also maintain the second largest market share, by revenues, in the off-airport car rental market in the United States. In our equipment rental business segment, we rent equipment through approximately 320 branches in the United States, Canada, France, Spain, Italy and China, as well as through our international licensees. We and our predecessors have been in the car rental business since 1918 and in the equipment rental business since 1965. We have a diversified revenue base and a highly variable cost structure and are able to dynamically manage fleet capacity, the most significant determinant of our costs. Our revenues have grown at a compound annual growth rate of 4.7% over the last 20 years, with year-over-year growth in 16 of those 20 years.

Corporate History

Hertz Holdings was incorporated in Delaware in 2005 to serve as the top-level holding company for the consolidated Hertz business. Hertz was incorporated in Delaware in 1967. Hertz is 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. Ford Motor Company, "Ford," acquired an ownership interest in Hertz in 1987. Prior to this, Hertz was a subsidiary of UAL Corporation (formerly Allegis Corporation), which acquired Hertz's outstanding capital stock from RCA Corporation in 1985.

On December 21, 2005, investment funds associated with or designated by:

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

    The Carlyle Group, or "Carlyle," and

    BAML Capital Partners, or "BAMLCP" (formerly known as Merrill Lynch Global Private Equity),

or collectively the "Sponsors," acquired all of Hertz's common stock from Ford Holdings LLC. We refer to the acquisition of all of Hertz's common stock by the Sponsors as the "Acquisition." Following our initial public offering in November 2006 and subsequent offerings in June 2007, May 2009 and June 2009, the Sponsors currently own approximately 51% of the common stock of Hertz Holdings.

In January 2009, Bank of America Corporation, or "Bank of America," acquired Merrill Lynch & Co., Inc., the parent company of BAMLCP. Accordingly, Bank of America is now an indirect beneficial owner of our common stock held by BAMLCP and certain of its affiliates.

Our Markets

We operate in the global car rental industry and in the equipment rental industry.

3


Table of Contents

ITEM 1.    BUSINESS (Continued)

Worldwide Car Rental

We believe that the global car rental industry exceeds $35 billion in annual revenues. According to Auto Rental News, car rental revenues in the United States are estimated to be approximately $20 billion for 2010 and grew in 2010 by 2.5%. We believe car rental revenues in Europe account for approximately $15 billion in annual revenues, with the airport portion of the industry comprising approximately 40% of the total. Within Europe, the largest markets are France, Germany, Italy, the United Kingdom and Spain. We believe total rental revenues for the car rental industry in Europe in 2010 were approximately $11.8 billion in nine countries—France, Germany, Italy, the United Kingdom, Spain, The Netherlands, Switzerland, Belgium and Luxembourg—where we have company-operated rental locations and approximately $2.6 billion in eight other countries—Greece, Ireland, Portugal, Sweden, Norway, Denmark, Austria and Finland—where our brand is present through our licensees.

We estimate that rentals by airline travelers at or near airports, or "airport rentals," accounted for approximately one-half of the total market in the United States in 2010. This portion of the market is significantly influenced by developments in the travel industry and particularly in airline passenger traffic, or "enplanements." We believe domestic enplanements increased in 2010 by approximately 0.4% and are expected to increase by 1.8% in 2011. The International Air Transport Association, or "IATA," projected in December 2010 that annual global enplanements would increase 5.2% in 2011.

The off-airport portion of the industry has rental volume primarily driven by local business use, leisure travel and the replacement of cars being repaired. Because Europe has generally demonstrated a lower historical reliance on air travel, the European off-airport car rental market is significantly more developed than it is in the United States. However, we believe that in recent years, industry revenues from off-airport car rentals in the United States have grown faster than revenues from airport rentals.

Worldwide Equipment Rental

We estimate the size of the U.S. equipment rental industry, which is highly fragmented with few national competitors and many regional and local operators, declined to approximately $28 billion in annual revenues for 2010 from approximately $29 billion in 2009, but the part of the rental industry dealing with equipment of the type HERC rents is somewhat smaller than that. We believe that the industry grew at a 1.7% compound annual growth rate between 2000 and 2010. Other market data indicates that the equipment rental industries in France, Spain, Italy and China generate approximately $4.5 billion, $2.5 billion, $2.1 billion and $5.1 billion in annual revenues, respectively, although the portions of those markets in which HERC competes are smaller.

The equipment rental industry serves a broad range of customers from small local contractors to large industrial national accounts and encompasses a wide range of rental equipment from small tools to heavy earthmoving equipment. We believe U.S. non-residential construction spending decreased at an annual rate of 10% in 2010 but is projected to increase at an annual rate of 4% in 2011. We also believe that rental equipment accounted for approximately 40% of all equipment sold into the U.S. construction industry in 2010, up from approximately 5% in 1993. In addition, we believe that the trend toward rental instead of ownership of equipment in the U.S. construction industry will continue and that as much as 50% of the equipment used in the industry could be rental equipment by 2014.

Our Business Segments

Our business consists of two reportable segments, car rental and equipment rental. General corporate expenses, certain interest expense (including net interest on corporate debt), as well as other business activities, such as third-party claim management services are included as "other reconciling items."

4


Table of Contents

ITEM 1.    BUSINESS (Continued)

Car Rental: Our "company-operated" rental locations are those through which we, or an agent of ours, rent cars that we own or lease. We maintain a substantial network of company-operated car rental locations both in the United States and internationally, and what we believe to be the largest number of company-operated airport car rental locations in the world, enabling us to provide consistent quality and service worldwide. Our licensees and associates also operate rental locations in over 140 countries and jurisdictions, including most of the countries in which we have company-operated rental locations.

Equipment Rental: We believe, based on an article in Rental Equipment Register published in May 2010, that HERC is one of the largest equipment rental companies in the United States and Canada combined. HERC rents a broad range of earthmoving equipment, material handling equipment, aerial and electrical equipment, air compressors, generators, pumps, small tools, compaction equipment and construction-related trucks. HERC also derives revenues from the sale of new equipment and consumables.

Set forth below are charts showing revenues by reportable segment, and revenues by geographic area, both for the year ended December 31, 2010 and revenue earning equipment at net book value as of December 31, 2010 (the majority of our international operations are in Europe).

Revenues by Segment for
Year Ended December 31, 2010 (1)

$7.6 billion

GRAPHIC

Revenues by Geographic Area for
Year Ended December 31, 2010

$7.6 billion

 

Revenue Earning Equipment at net book
value as of December 31, 2010

$8.9 billion

GRAPHIC

 

GRAPHIC

(1)
Car rental segment revenue includes fees and certain cost reimbursements from licensees. See Note 10 to the Notes to our consolidated financial statements included in this Annual Report under the caption "Item 8—Financial Statements and Supplementary Data."

5


Table of Contents

ITEM 1.    BUSINESS (Continued)

For further information on our business segments, including financial information for the years ended December 31, 2010, 2009 and 2008, see Note 10 to the Notes to our consolidated financial statements included in this Annual Report under the caption "Item 8—Financial Statements and Supplementary Data."

Worldwide Car Rental

Operations

We rent a wide variety of makes and models of cars. We generally accept reservations only for a class of vehicles, although we accept reservations for specific makes and models of vehicles in our Prestige Collection national-scale luxury rental program, our Hertz Fun Collection experiential rental program, our Green Collection environmentally friendly rental program and a limited number of models in high-volume, leisure-oriented destinations. We rent cars on an hourly (in select markets), daily, weekend, weekly, monthly or multi-month basis, with rental charges computed on a limited or unlimited mileage rate, or on a time rate plus a mileage charge. Our rates vary at different locations depending on local market conditions and other competitive and cost factors. While cars are usually returned to the locations from which they are rented, we also allow one-way rentals from and to certain locations. In addition to car rentals and licensee fees, we generate revenues from reimbursements by customers of airport concession fees and vehicle licensing costs, fueling charges, and charges for ancillary customer products and services such as supplemental equipment (child seats and ski racks), loss or collision damage waiver, theft protection, liability and personal accident/effects insurance coverage, Hertz NeverLost navigation systems and satellite radio services.

Our international car rental operations have company-operated locations in France, Germany, Italy, Australia, the United Kingdom, Spain, Canada, Brazil, The Netherlands, Switzerland, New Zealand, Belgium, Puerto Rico, China, the Czech Republic, the Slovak Republic, Luxembourg and the U.S. Virgin Islands.

As of December 31, 2010, we had 2,360 staffed rental locations in the United States, of which approximately one-fifth were airport locations and four-fifths were off-airport locations, and we regularly rent cars from approximately 1,340 other locations that are not staffed. As of December 31, 2010, we had approximately 1,120 staffed rental locations internationally, of which approximately one-fifth were airport locations and four-fifths were off-airport locations, and we regularly rent cars from approximately 120 other locations that are not staffed. We believe that our extensive U.S. and international network of company-operated locations contributes to the consistency of our service, cost control, fleet utilization, yield management, competitive pricing and ability to offer one-way rentals.

In order to operate airport rental locations, we have obtained concessions or similar leasing, licensing or permitting agreements or arrangements, or "concessions," granting us the right to conduct a car rental business at all major, and many other airports in each country where we have company-operated rental locations, except for airports where our licensees operate rental locations. Our concessions were obtained from the airports' operators, which are typically governmental bodies or authorities, following either negotiation or bidding for the right to operate a car rental business there. The terms of an airport concession typically require us to pay the airport's operator concession fees based upon a specified percentage of the revenues we generate at the airport, subject to a minimum annual guarantee. Under most concessions, we must also pay fixed rent for terminal counters or other leased properties and facilities. Most concessions are for a fixed length of time, while others create operating rights and payment obligations that are terminable at any time.

6


Table of Contents

ITEM 1.    BUSINESS (Continued)

The terms of our concessions typically do not forbid us from seeking, and in a few instances actually require us to seek, reimbursement from customers of concession fees we pay; however, in certain jurisdictions the law limits or forbids our doing so. Where we are required or permitted to seek such reimbursement, it is our general practice to do so. The number of car rental concessions available at airports varies considerably, but, except at small, regional airports, it is rarely less than four. Certain of our concession agreements require the consent of the airport's operator in connection with material changes in our ownership. See "Item 1A—Risk Factors" in this Annual Report.

The Hertz brand is one of the most recognized brands in the world. Our customer surveys, in the United States, indicate that Hertz is the car rental brand most associated with the highest quality service. This is consistent with numerous published best-in class car rental awards that we have won, both in the United States and internationally, over many years. We have sought to support our reputation for quality and customer service in car rental through a variety of innovative service offerings, such as our customer loyalty program (Hertz #1 Club), our global expedited rental program (Hertz #1 Club Gold), our one-way rental program (Rent-it-Here/Leave-it-There), our national-scale luxury rental program (Prestige Collection), our national-scale experiential rental program (Hertz Fun Collection), our environmentally friendly rental program (Green Collection) and our in-car navigational services (Hertz NeverLost). We intend to maintain our position as a premier company through an intense focus on service, quality and product innovation.

In late 2008, we introduced Connect by Hertz, a new global car-sharing service, which rents cars by the hour, at various locations in the U.S., Canada and Europe. In April 2009, we completed the acquisition of Eileo, S.A.S., or "Eileo," a Paris, France-based developer of car sharing technology. Eileo's end-to-end solutions are utilized by Connect by Hertz. Connect by Hertz allows customers to sign up for the service and start renting cars by the hour. Customers pay an annual or monthly membership fee, pick up cars in locations scattered around a city, at a university or a corporate campus without checking in at a Hertz rental office, and then pay an hourly car-rental fee. Connect by Hertz fees include fuel, insurance, 24/7 roadside assistance, in-car customer service and 180 miles per day.

In April 2009, we completed the acquisition of certain assets of Advantage Rent A Car, or "Advantage." Advantage is a popular brand for price-oriented customers at key U.S. leisure travel destinations. The purchase agreement provided us with the rights to purchase certain rights, trademarks and copyrights to use the Advantage brand name, website and phone numbers. In addition, the agreement provides us with the option to have assigned to us certain leases, fixed assets, airport concession agreements and other agreements associated with approximately 20 locations that Advantage is or previously was operating. As of December 31, 2010, we had 46 corporate Advantage brand rental locations in the United States and Europe and 14 affiliates in Latin America and the Carribean.

During the fourth quarter of 2010, we completed the acquisition of Flexicar, a leading Australian car sharing company.

Beginning in December 2010, we made the next generation of electric vehicles available to the general public through our Connect by Hertz car sharing operation. We plan to add additional electric vehicles to our fleet over the coming months making electric vehicles available at locations in Manhattan, Washington D.C. and San Francisco and we plan further deployment of electric vehicles and plug-in hybrid electric vehicles in both the U.S. and other countries throughout 2011.

Based on the latest available data, in the United States, the Hertz brand had the highest market share, by revenues, in 2009 and in the first nine months of 2010 at approximately 200 of the largest airports where we have company-operated locations. Out of the approximately 170 major European airports at which we have company-operated rental locations, data regarding car rental concessionaire activity for the

7


Table of Contents

ITEM 1.    BUSINESS (Continued)


year ended December 31, 2010 was available at 83 of these airports. Based upon this data, we believe that we were the largest airport car rental company, measured by aggregate airport rental revenues during that period, at those 83 airports taken together. In the United States, we intend to maintain or expand our market share in the airport rental business. For a further description of our competitors, market share and competitive position see "—Competition" below.

At our major airport rental locations, as well as at some smaller airport and off-airport locations, customers participating in our Hertz #1 Club Gold program are able to rent vehicles in an expedited manner. In the United States, participants in our Hertz #1 Club Gold program often bypass the rental counter entirely and proceed directly to their vehicles upon arrival at our facility. For the year ended December 31, 2010, rentals by Hertz #1 Club Gold members accounted for approximately 37% of our worldwide rental transactions. We believe the Hertz #1 Club Gold program provides a significant competitive advantage to us, particularly among frequent travelers, and we have, through travel industry relationships, targeted such travelers for participation in the program.

In addition to our airport locations, we operate off-airport locations offering car rental services to a variety of customers. Our off-airport rental customers include people wishing to rent cars closer to home for business or leisure purposes, as well as those needing to travel to or from airports. Our off-airport customers also include people who have been referred by, or whose rental costs are being wholly or partially reimbursed by, insurance companies following accidents in which their cars were damaged, those expecting to lease cars that are not yet available from their leasing companies and those needing cars while their vehicle is being repaired or is temporarily unavailable for other reasons; we call these customers "replacement renters." At many of our off-airport locations we will provide pick-up and delivery services in connection with rentals.

When compared to our airport rental locations, an off-airport rental location typically services the same variety of customers, uses smaller rental facilities with fewer employees, conducts pick-up and delivery services and deals with replacement renters using specialized systems and processes. In addition, on average, off-airport locations generate fewer transactions per period than airport locations. At the same time, though, our airport and off-airport rental locations employ common car fleets, are supervised by common country, regional and local area management, use many common systems and rely on common maintenance and administrative centers. Moreover, airport and off-airport locations, excluding replacement rentals, benefit from many common marketing activities and have many of the same customers. As a consequence, we regard both types of locations as aspects of a single, unitary, car rental business.

We believe that the off-airport portion of the car rental market offers opportunities for us on several levels. First, presence in the off-airport market can provide customers a more convenient and geographically extensive network of rental locations, thereby creating revenue opportunities from replacement renters, non-airline travel renters and airline travelers with local rental needs. Second, it can give us a more balanced revenue mix by reducing our reliance on airport travel and therefore limiting our exposure to external events that may disrupt airline travel trends. Third, it can produce higher fleet utilization as a result of the longer average rental periods associated with off-airport business, compared to those of airport rentals. Fourth, replacement rental volume is far less seasonal than that of other business and leisure rentals, which permits efficiencies in both fleet and labor planning. Finally, cross-selling opportunities exist for us to promote off-airport rentals among frequent airport Hertz #1 Club Gold program renters and, conversely, to promote airport rentals to off-airport renters. In view of those benefits, along with our belief that our market share for off-airport rentals is generally smaller than our market share for airport rentals, we intend to seek profitable growth in the off-airport rental market, both in the United States and internationally.

8


Table of Contents

ITEM 1.    BUSINESS (Continued)

Since January 1, 2008, we increased the number of our off-airport rental locations in the United States by approximately 22% to approximately 1,930 locations. Our strategy includes selected openings of new off-airport locations, the disciplined evaluation of existing locations and the pursuit of same-store sales growth. We anticipate that same-store sales growth will be driven by our traditional leisure and business traveler customers and by increasing penetration of the insurance replacement market, of which we currently have a low market share. In the United States during the year ended December 31, 2010, approximately one-third of our rental revenues at off-airport locations were related to replacement rentals. We believe that if we successfully pursue our strategy of profitable off-airport growth, the proportion of replacement rental revenues will increase. As we move forward, our determination of whether to continue to expand our U.S. off-airport network will be based upon a combination of factors, including, commercial activity and potential profitability as well as the concentration of target insurance company policyholders, car dealerships and auto body shops. We also intend to increase the number of our staffed off-airport rental locations internationally based on similar criteria.

Our worldwide car rental segment generated $6,486.2 million in revenues during the year ended December 31, 2010.

Customers and Business Mix

We categorize our car rental business based on two primary criteria—the purpose for which customers rent from us (business or leisure) and the type of location from which they rent (airport or off-airport). The table below sets forth, for the year ended December 31, 2010, the percentages of rental revenues and rental transactions in our U.S. and international operations derived from business and leisure rentals and from airport and off-airport rentals.

 
  Year ended December 31, 2010  
 
  U.S.   International  
 
  Revenues   Transactions   Revenues   Transactions  

Type of Car Rental

                         

By Customer:

                         
 

Business

    46 %   51 %   51 %   54 %
 

Leisure

    54     49     49     46  
                   

    100 %   100 %   100 %   100 %
                   

By Location:

                         
 

Airport

    72 %   75 %   54 %   58 %
 

Off-airport

    28     25     46     42  
                   

    100 %   100 %   100 %   100 %
                   

Customers who rent from us for "business" purposes include those who require cars in connection with commercial activities, the activities of governments and other organizations or for temporary vehicle replacement purposes. Most business customers rent cars from us on terms that we have negotiated with their employers or other entities with which they are associated, and those terms can differ substantially from the terms on which we rent cars to the general public. We have negotiated arrangements relating to car rental with many large businesses, governments and other organizations, including most Fortune 500 companies.

Customers who rent from us for "leisure" purposes include not only individual travelers booking vacation travel rentals with us but also people renting to meet other personal needs. Leisure rentals,

9


Table of Contents

ITEM 1.    BUSINESS (Continued)


generally, are longer in duration and generate more revenue per transaction than do business rentals, although some types of business rentals, such as rentals to replace temporarily unavailable cars, have a long average duration. Business rentals and leisure rentals have different characteristics and place different types of demands on our operations. We believe that maintaining an appropriate balance between business and leisure rentals is important to the profitability of our business and the consistency of our operations.

Our business and leisure customers rent from both our airport and off-airport locations. Demand for airport rentals is correlated with airline travel patterns, and transaction volumes generally follow enplanement trends on a global basis. Customers often make reservations for airport rentals when they book their flight plans, which make our strong relationships with travel agents, associations and other partners (e.g., airlines) a key competitive advantage in generating consistent and recurring revenue streams.

Off-airport rentals typically involve people wishing to rent cars closer to home for business or leisure purposes, as well as those needing to travel to or from airports. This category also includes people who have been referred by, or whose rental costs are being wholly or partially reimbursed by, insurance companies because their cars have been damaged. In order to attract these renters, we must establish agreements with the referring insurers establishing the relevant rental terms, including the arrangements made for billing and payment. While we estimate our share of the insurance replacement rental market was approximately 10% of the estimated insurance rental revenue volume for the year ended December 31, 2010, we have identified 204 insurance companies, ranging from local or regional carriers to large, national companies, as our target insurance replacement market. As of December 31, 2010, we were a preferred or recognized supplier of 188 of these 204 insurance companies.

We conduct active sales and marketing programs to attract and retain customers. Our commercial and travel industry sales force calls on companies and other organizations whose employees and associates need to rent cars for business purposes. In addition, our sales force works with membership associations, tour operators, travel companies and other groups whose members, participants and customers rent cars for either business or leisure purposes. A specialized sales force calls on companies with replacement rental needs, including insurance and leasing companies and car dealers. We also advertise our car rental offerings through a variety of traditional media channels, such as television and newspapers, direct mail and the Internet. In addition to advertising, we also conduct a variety of other forms of marketing and promotion, including travel industry business partnerships and press and public relations activities.

In almost all cases, when we rent a car, we rent it directly to an individual who is identified in a written rental agreement that we prepare. Except when we are accommodating someone who cannot drive, the individual to whom we rent a car is required to have a valid driver's license and meet other rental criteria (including minimum age and creditworthiness requirements) that vary on the basis of location and type of rental. Our rental agreements permit only licensed individuals renting the car, people signing additional authorized operator forms and certain defined categories of other individuals (such as fellow employees, parking attendants and in some cases spouses or domestic partners) to operate the car.

With rare exceptions, individuals renting cars from us are personally obligated to pay all amounts due under their rental agreements. They typically pay us with a charge, credit or debit card issued by a third party, although certain customers use a Hertz charge account that we have established for them, usually as part of an agreement between us and their employer. For the year ended December 31, 2010, all amounts charged to Hertz charge accounts established in the United States and by our international subsidiaries, were billed directly to a company or other organization or were guaranteed by a company. We also issue rental vouchers and certificates that may be used to pay rental charges, mostly for prepaid

10


Table of Contents

ITEM 1.    BUSINESS (Continued)


and tour-related rentals. In addition, where the law requires us to do so, we rent cars on a cash basis. For the year ended December 31, 2010, no customer accounted for more than 1.5% of our car rental revenues.

In the United States for the year ended December 31, 2010, 84% of our car rental revenues came from customers who paid us with third-party charge, credit or debit cards, while 8% came from customers using Hertz charge accounts or direct billing, 7% came from customers using rental vouchers or another method of payment and 1% came from cash transactions. In our international operations for the year ended December 31, 2010, 52% of our car rental revenues came from customers who paid us with third-party charge, credit or debit cards, while 27% came from customers using Hertz charge accounts, 20% came from customers using rental vouchers or another method of payment and 1% came from cash transactions. For the year ended December 31, 2010, bad debt expense represented 0.2% of car rental revenues for our U.S. operations and 0.3% of car rental revenues for our international operations.

Reservations

When customers reserve cars for rental from us and our licensees, they may seek to do so through travel agents or third-party travel websites. In many of those cases, the travel agent or website will utilize a third-party operated computerized reservation system, also known as a global distribution system, or "GDS," to contact us and make the reservation.

In major countries, including the United States and all other countries with company-operated locations, customers may also reserve cars for rental from us and our licensees worldwide through local, national or toll-free telephone calls to our reservations center, directly through our rental locations or, in the case of replacement rentals, through proprietary automated systems serving the insurance industry. Additionally, we accept reservations for rentals from us and our licensees worldwide through our websites.

For the year ended December 31, 2010, approximately 32% of the worldwide reservations we accepted came through travel agents using GDSs, while 30% came through our websites, 22% through phone calls to our reservations center, 11% through third-party websites and 5% through local booking sources.

Fleet

We believe we are one of the largest private sector purchasers of new cars in the world. During the year ended December 31, 2010, we operated a peak rental fleet in the United States of approximately 321,300 cars and a combined peak rental fleet in our international operations of approximately 170,800 cars, and in each case exclusive of our licensees' fleet. During the year ended December 31, 2010, our approximate average holding period for a rental car was thirteen months in the United States and fourteen months in our international operations.

Under our repurchase programs, the manufacturers agree to repurchase cars at a specified price or guarantee the depreciation rate on the cars during established repurchase or auction periods, subject to, among other things, certain car condition, mileage and holding period requirements. Repurchase prices under repurchase programs are based on either a predetermined percentage of original car cost and the month in which the car is returned or the original capitalized cost less a set daily depreciation amount. Guaranteed depreciation programs guarantee on an aggregate basis the residual value of the cars covered by the programs upon sale according to certain parameters which include the holding period, mileage and condition of the cars. These repurchase and guaranteed depreciation programs limit our residual risk with respect to cars purchased under the programs and allow us to determine

11


Table of Contents

ITEM 1.    BUSINESS (Continued)

depreciation expense in advance, however, typically the acquisition cost is higher for these program cars.

Program cars as a percentage of all cars purchased by our U.S., International and worldwide operations were as follows:

 
  Years ended December 31,  
 
  2010   2009   2008   2007   2006  

U.S. 

    54 %   48 %   55 %   42 %   61 %

International

    56 %   57 %   59 %   65 %   71 %

Worldwide

    55 %   51 %   57 %   50 %   64 %

We have purchased a significant percentage of our car rental fleet from General Motors Corporation and its successor, General Motors Company, together "General Motors." During the year ended December 31, 2010, approximately 34% of the cars acquired by our U.S. car rental fleet, and approximately 16% of the cars acquired by us for our international fleet, were manufactured by General Motors. We have also increased the percentage of our car rental fleet purchased from Toyota Motor Corporation, or "Toyota." During the year ended December 31, 2010, approximately 17% of the cars acquired by our U.S. car rental fleet, and approximately 4% of the cars acquired by us for our international fleet, were manufactured by Toyota. During the year ended December 31, 2010, approximately 10% of the cars acquired by us domestically were manufactured by Ford and its subsidiaries and approximately 24% of the cars acquired by us for our international fleet were manufactured by Ford and its subsidiaries.

Purchases of cars are financed through cash from operations and by active and ongoing global borrowing programs. See "Item 7—Management's Discussion and Analysis of Financial Condition and Results of Operations—Liquidity and Capital Resources," in this Annual Report.

We maintain automobile maintenance centers at certain airports and in certain urban and off-airport areas, which provide maintenance facilities for our car rental fleet. Many of these facilities, which include sophisticated car diagnostic and repair equipment, are accepted by automobile manufacturers as eligible to perform and receive reimbursement for warranty work. Collision damage and major repairs are generally performed by independent contractors.

We dispose of non-program cars, as well as program cars that become ineligible for manufacturer repurchase or guaranteed depreciation programs, through a variety of disposition channels, including auctions, brokered sales, sales to wholesalers and dealers and, to a lesser extent and primarily in the United States, sales at retail through a network of nine company-operated car sales locations dedicated exclusively to the sale of used cars from our rental fleet.

During 2009, we launched Rent2Buy, an innovative program designed to sell used rental cars. The program was operating in 28 states as of December 31, 2010. Customers have an opportunity for a three-day test rental of a competitively priced car from our rental fleet. If the customer purchases the car, he or she is credited with up to three days of rental charges, and the purchase transaction is completed through the internet and by mail in those states where permitted.

During the year ended December 31, 2010, of the cars that were not repurchased by manufacturers, we sold approximately 75% at auction, 11% through dealer direct, 8% through our Rent2Buy program or at retail locations and approximately 6% through other channels.

12


Table of Contents

ITEM 1.    BUSINESS (Continued)

Licensees

We believe that our extensive worldwide ownership of car rental operations contributes to the consistency of our high-quality service, cost control, fleet utilization, yield management, competitive pricing and our ability to offer one-way rentals. However, in certain U.S. and international markets, we have found it more efficient to utilize independent licensees, which rent cars that they own. Our licensees operate locations in over 140 countries, including most of the countries where we have company-operated locations. See "Item 1A—Risk Factors" in this Annual Report.

We believe that our licensee arrangements are important to our business because they enable us to offer expanded national and international service and a broader one-way rental program. Licenses are issued principally by our wholly-owned subsidiaries, under franchise arrangements to independent licensees and affiliates who are engaged in the car rental business in the United States and in many other countries.

Licensees generally pay fees based on a percentage of their revenues or the number of cars they operate. The operations of all licensees, including the purchase and ownership of vehicles, are financed independently by the licensees, and we do not have any investment interest in the licensees or their fleets. Licensees in the U.S. share in the cost of our U.S. advertising program, reservations system, sales force and certain other services. Our European and other international licensees also share in the cost of our reservations system, sales force and certain other services. In return, licensees are provided the use of the Hertz brand name, management and administrative assistance and training, reservations through our reservations channels, the Hertz #1 Club and #1 Club Gold programs, our "Rent-it-Here/Leave-it-There" one-way rental program and other services. In addition to car rental, certain licensees outside the United States engage in car leasing, chauffeur-driven rentals and renting camper vans under the Hertz name.

U.S. licensees ordinarily are limited as to transferability without our consent and are terminable by us only for cause or after a fixed term. Licensees in the United States may generally terminate for any reason on 90 days' notice. In Europe and certain other international jurisdictions, licensees typically do not have early termination rights. Initial license fees or the price for the sale to a licensee of a company-owned location may be payable over a term of several years. We continue to issue new licenses and, from time to time, purchase licensee businesses.

During the year ended December 31, 2010, we added eight locations by acquiring former licensees of our domestic and international car rental operations. See Note 3 to the Notes to our consolidated financial statements included in this Annual Report under the caption "Item 8—Financial Statements and Supplementary Data."

Competition

In the United States, our principal car rental industry competitors are Avis Budget Group, Inc., or "ABG," which currently operates the Avis and Budget brands, Enterprise Rent-A-Car Company, or "Enterprise," which also operates the National Car Rental and Alamo brands, and Dollar Thrifty Automotive Group, Inc., or "Dollar Thrifty," which operates the Dollar and Thrifty brands. In the United States, the Hertz brand had the highest market share, by revenues, in 2009 and in the first nine months of 2010 at approximately 200 of the largest airports where we have company-operated locations

We have a significant presence in the off-airport market. We believe that we maintain the second largest market share, by revenues, in the off-airport car rental market in the United States. Since January 1, 2008, we increased the number of our off-airport rental locations in the United States by approximately 22% to approximately 1,930 locations. Revenues from our U.S. off-airport operations represented $1,079.5 million, $953.1 million and $975.9 million of our total car rental revenues in the years ended December 31, 2010, 2009 and 2008, respectively. Many smaller companies also operate in the airport and off-airport rental markets.

13


Table of Contents

ITEM 1.    BUSINESS (Continued)

In Europe, in addition to us, the principal pan-European participants in the car rental industry are Avis Europe plc (which is not an affiliate of ABG but is operating under a license from ABG), which operates the Avis and Budget brands, and Europcar. Europcar also operates the National Car Rental and Alamo brands in the United Kingdom and Germany, and through franchises in Spain, Italy and France. In certain European countries, there are also other companies and brands with substantial market shares, including Sixt AG (operating the Sixt brand) and Enterprise (operating the Enterprise brand) in the United Kingdom, Ireland and Germany. In every European country, there are also national, regional or other, smaller companies operating in the airport and off-airport rentals markets. Apart from Enterprise-branded operations, all of which Enterprise owns, the other major car rental brands are present in European car rental markets through a combination of company-operated and franchisee- or licensee-operated locations.

Competition among car rental industry participants is intense and is primarily based on price, vehicle availability, service, reliability, distribution locations and product innovation. We believe, however, that the prominence and service reputation of the Hertz brand and our extensive worldwide ownership of car rental operations provide us with a competitive advantage.

Worldwide Equipment Rental

Operations

We, through HERC, operate an equipment rental business in the United States, Canada, France, Spain, Italy and China. On the basis of total revenues, we believe HERC is one of the largest equipment rental companies in the United States and Canada combined. HERC has operated in the United States since 1965.

HERC's principal business is the rental of equipment. HERC offers a broad range of equipment for rental; major categories include earthmoving equipment, material handling equipment, aerial and electrical equipment, air compressors, pumps, generators, small tools, compaction equipment and construction-related trucks.

Ancillary to its rental business, HERC is also a dealer of certain brands of new equipment in the United States and Canada, and sells consumables such as gloves and hardhats at many of its rental locations.

HERC's comprehensive line of equipment enables it to supply equipment to a wide variety of customers from local contractors to large industrial plants. The fact that many larger companies, particularly those with industrial plant operations, now require single source vendors, not only for equipment rental, but also for management of their total equipment needs fits well with HERC's core competencies. Arrangements with such companies may include maintenance of the tools and equipment they own, supplies and rental tools for their labor force and custom management reports. HERC supports this through its dedicated in-plant operations, tool trailers and plant management systems.

14


Table of Contents

ITEM 1.    BUSINESS (Continued)

As of December 31, 2008, 2009 and 2010, HERC had branches in the following countries:

 
  Total   U.S.   Canada   France   Spain   Italy   China  

January 1, 2008

    376     248     34     84     10          
 

Net increase (decrease)

    (34 )   (27 )   2     (4 )   (6 )       1  
 

Additions relating to acquisitions

    3     1             2          
                               

December 31, 2008

    345     222     36     80     6         1  
 

Net increase (decrease)

    (24 )   (8 )   (1 )   (14 )   (3 )       2  
 

Additions relating to acquisitions

    1                 1          
                               

December 31, 2009

    322     214     35     66     4         3  
 

Net increase (decrease)

    (7 )   (10 )   3     (1 )           1  
 

Additions relating to acquisitions

    7     6                 1      
                               

December 31, 2010

    322     210     38     65     4     1     4  
                               

HERC's rental locations generally are situated in industrial or commercial zones. A growing number of locations have highway or major thoroughfare visibility. The typical location includes a customer service center, an equipment service area and storage facilities for equipment. The branches are built or conform to the specifications of the HERC prototype branch, which stresses efficiency, safety and environmental compliance. Most branches have stand-alone maintenance and fueling facilities and showrooms.

HERC's broad equipment line in the United States and Canada includes more equipment with an acquisition cost of under $10,000 per unit, ranging from air compressors and generators to small tools and accessories, in order to supply customers who are local contractors with a greater proportion of their overall equipment rental needs. As of December 31, 2010, these activities, referred to as "general rental activities," were conducted at approximately 40% of HERC's U.S. and Canadian rental locations. Before it begins to conduct general rental activities at a location, HERC typically renovates the location to make it more appealing to walk-in customers and adds staff and equipment in anticipation of subsequent demand.

In early 2010, Hertz launched Hertz Entertainment Services, a division which provides single-source car and equipment rental solutions to the entertainment and special events industries. Hertz Entertainment Services provides customized vehicle and equipment rental solutions to movie, film and television productions, live sports and entertainment events, and all-occasion special events, such as weddings, conventions, and fairs. Hertz Entertainment Services are tailored to fit the needs of large and small productions alike with competitive pricing and customized, monthly billing. Hertz delivers vehicles and equipment to production locations and a dedicated staff is available 24/7 to address specific client needs. Productions can also rent equipment for use at special events such as lighting, generators and other machinery.

In February 2010, HERC entered into a joint venture with Saudi Arabia based Dayim Holdings Company, Ltd. to set up equipment rental operations in the Kingdom of Saudi Arabia. The new joint venture entity will rent and sell equipment and tools to construction and industrial markets throughout the Kingdom of Saudi Arabia.

Our worldwide equipment rental segment generated $1,070.1 million in revenues during the year ended December 31, 2010.

15


Table of Contents

ITEM 1.    BUSINESS (Continued)

Customers

HERC's customers consist predominantly of commercial accounts and represent a wide variety of industries, such as construction, petrochemical, automobile manufacturing, railroad, power generation and shipbuilding. Serving a number of different industries enables HERC to reduce its dependence on a single or limited number of customers in the same business and somewhat reduces the seasonality of HERC's revenues and its dependence on construction cycles. HERC primarily targets customers in medium to large metropolitan markets. For the year ended December 31, 2010, no customer of HERC accounted for more than 2% of HERC's rental revenues. Of HERC's combined U.S. and Canadian rental revenues for the year ended December 31, 2010, approximately 40% were derived from customers operating in the construction industry (the majority of which were in the non-residential sector) and approximately 30% were derived from customers in the industrial business, while the remaining revenues were derived from rentals to governmental and other types of customers.

Unlike in our car rental business, where we enter into rental agreements with the end-user who will operate the cars being rented, HERC ordinarily enters into a rental agreement with the legal entity—typically a company, governmental body or other organization—seeking to rent HERC's equipment. Moreover, unlike in our car rental business, where our cars are normally picked up and dropped off by customers at our rental locations, HERC delivers much of its rental equipment to its customers' job sites and retrieves the equipment from the job sites when the rentals conclude. HERC extends credit terms to many of its customers to pay for rentals. Thus, for the year ended December 31, 2010, 95% of HERC's revenues came from customers who were invoiced by HERC for rental charges, while 4% came from customers paying with third-party charge, credit or debit cards and 1% came from customers who paid with cash or used another method of payment. For the year ended December 31, 2010, bad debt expense represented 0.4% of HERC's revenues.

Fleet

HERC acquires its equipment from a variety of manufacturers. The equipment is typically new at the time of acquisition and is not subject to any repurchase program. The per-unit acquisition cost of units of rental equipment in HERC's fleet varies from over $200,000 to under $100. As of December 31, 2010, the average per-unit acquisition cost (excluding small equipment purchased for less than $5,000 per unit) for HERC's fleet in the United States was approximately $36,000. As of December 31, 2010, the average age of HERC's rental fleet in the United States was 50 months, 50 months in Canada, 49 months in France, 31 months in Spain, 21 months in Italy and 19 months in China.

HERC disposes of its used equipment through a variety of channels, including private sales to customers and other third parties, sales to wholesalers, brokered sales and auctions.

Licensees

HERC licenses the Hertz name to equipment rental businesses in five countries in Europe. The terms of those licenses are broadly similar to those we grant to our international car rental licensees.

Competition

HERC's competitors in the equipment rental industry range from other large national companies to small regional and local businesses. In each of the six countries where HERC operates, the equipment rental industry is highly fragmented, with large numbers of companies operating on a regional or local scale. The number of industry participants operating on a national scale is, however, much smaller. HERC is one of the principal national-scale industry participants in the U.S., Canada and France. HERC's

16


Table of Contents

ITEM 1.    BUSINESS (Continued)


operations in the United States represented approximately 65% of our worldwide equipment rental revenues during the year ended December 31, 2010. In the United States and Canada, the other top national-scale industry participants are United Rentals, Inc., or "URI," RSC Equipment Rental, Inc., or "RSC," and Sunbelt Rentals. A number of individual Caterpillar dealers also participate in the equipment rental market in the United States, Canada, France, Spain and Italy. In France, the other principal national-scale industry participants are Loxam, Kiloutou and Laho. Aggreko also participates in the power generation rental markets in France, Spain and Italy.

Competition in the equipment rental industry is intense, and it often takes the form of price competition. HERC's competitors, some of which may have access to substantial capital, may seek to compete aggressively on the basis of pricing. To the extent that HERC matches downward competitor pricing without reducing our operating costs, it could have an adverse impact on our results of operations. We believe that HERC's competitive success has been primarily the product of its more than 40 years of experience in the equipment rental industry, its systems and procedures for monitoring, controlling and developing its branch network, its capacity to maintain a comprehensive rental fleet, the quality of its sales force and its established national accounts program.

Other Operations

Our wholly-owned subsidiary, Hertz Claim Management Corporation, or "HCM," provides claim administration services to us and, to a lesser extent, to third parties. These services include investigating, evaluating, negotiating and disposing of a wide variety of claims, including third-party, first-party, bodily injury, property damage, general liability and product liability, but not the underwriting of risks. HCM conducts business at five regional offices in the United States. Separate subsidiaries of ours conduct similar operations in seven countries in Europe.

Seasonality

Generally, car rental and equipment rental are seasonal businesses, with decreased levels of business in the winter months and heightened activity during spring and summer. 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. However, certain operating expenses, including real estate taxes, rent, insurance, utilities, maintenance and other facility-related expenses, the costs of operating our information technology systems and minimum staffing costs, remain fixed and cannot be adjusted for seasonal demand. See "Item 1A—Risk Factors" in this Annual Report. The following tables set forth this seasonal effect by providing quarterly revenues for each of the quarters in the years ended December 31, 2010 and 2009.

17


Table of Contents

ITEM 1.    BUSINESS (Continued)

GRAPHIC

Employees

As of December 31, 2010, we employed approximately 22,900 persons, consisting of approximately 15,500 persons in our U.S. operations and 7,400 persons in our international operations. International employees are covered by a wide variety of union contracts and governmental regulations affecting, among other things, compensation, job retention rights and pensions. Labor contracts covering the terms of employment of approximately 5,800 employees in the United States (including those in the U.S. territories) are presently in effect under approximately 140 active contracts with local unions, affiliated primarily with the International Brotherhood of Teamsters and the International Association of Machinists. Labor contracts covering approximately 1,500 of these employees will expire during 2011. We have had no material work stoppage as a result of labor problems during the last ten years, and we believe our labor relations to be good. Nonetheless, we may be unable to negotiate new labor contracts on terms advantageous to us, or without labor interruptions.

In addition to the employees referred to above, we employ a substantial number of temporary workers, and engage outside services, as is customary in the industry, principally for the non-revenue movement of rental cars and equipment between rental locations and the movement of rental equipment to and from customers' job sites.

Risk Management

Three types of generally insurable risks arise in our operations:

    legal liability arising from the operation of our cars and on-road equipment (vehicle liability);

    legal liability to members of the public and employees from other causes (general liability/workers' compensation); and

    risk of property damage and/or business interruption and/or increased cost of working as a consequence of property damage.

18


Table of Contents

ITEM 1.    BUSINESS (Continued)

In addition, we offer optional liability insurance and other products providing insurance coverage, which create additional risk exposures for us. Our risk of property damage is also increased when we waive the provisions in our rental contracts that hold a renter responsible for damage or loss under an optional loss or damage waiver that we offer. We bear these and other risks, except to the extent the risks are transferred through insurance or contractual arrangements.

In many cases we self-insure our risks or insure risks through wholly-owned insurance subsidiaries. We mitigate our exposure to large liability losses by maintaining excess insurance coverage, subject to deductibles and caps, through unaffiliated carriers. For our international operations outside of Europe, we maintain some liability insurance coverage with unaffiliated carriers. We also maintain property insurance through our captive insurer, Probus Insurance Company Europe Limited, or "Probus" (with the risk reinsured with unaffiliated insurance carriers) in Europe, subject to deductibles.

Third-Party Liability

In our domestic operations, we are required by applicable financial responsibility laws to maintain insurance against legal liability for bodily injury (including death) or property damage to third parties arising from the operation of our cars and on-road equipment, sometimes called "vehicle liability," in stipulated amounts. In most places, we satisfy those requirements by qualifying as a self-insurer, a process that typically involves governmental filings and demonstration of financial responsibility, which sometimes requires the posting of a bond or other security. In the remaining places, we obtain an insurance policy from an unaffiliated insurance carrier and indemnify the carrier for any amounts paid under the policy. As a result of such arrangements, we bear economic responsibility for domestic vehicle liability, except to the extent we successfully transfer such liability to others through insurance or contractual arrangements.

For our car and equipment rental operations in Europe, we have established a wholly-owned insurance subsidiary, Probus, a direct writer of insurance domiciled in Ireland. In European countries with company-operated locations, we have purchased from Probus the vehicle liability insurance required by law, and Probus reinsured the risks under such insurance with Hertz International RE, a reinsurer organized in Ireland, or "HIRE," and / or HIRE Bermuda Limited, a wholly-owned reinsurance company domiciled in Bermuda. Thus, as with our domestic operations, we bear economic responsibility for vehicle liability in our European car and equipment rental operations, except to the extent that we transfer such liability to others through insurance or contractual arrangements. For our international operations outside of Europe, we maintain some form of vehicle liability insurance coverage with unaffiliated carriers. The nature of such coverage, and our economic responsibility for covered losses, varies considerably. In all cases, though, we believe the amounts and nature of the coverage we obtain is adequate in light of the respective potential hazards.

Both domestically and in our international operations, from time to time in the course of our business we become legally responsible to members of the public for bodily injury (including death) or property damage arising from causes other than the operation of our cars and on-road equipment, sometimes known as "general liability." As with vehicle liability, we bear economic responsibility for general liability losses, except to the extent we transfer such losses to others through insurance or contractual arrangements.

To mitigate these exposures, we maintain excess liability insurance coverage with unaffiliated insurance carriers at an aggregate of $200 million for policy period ended December 21, 2010 and $200 million for the policy period ended December 21, 2011. In the past this policy limit has ranged from $100 million to $235 million for policy periods from December 2004 through December 2009. For our international car rental operations outside of Europe, we also maintain liability insurance coverage with unaffiliated

19


Table of Contents

ITEM 1.    BUSINESS (Continued)


carriers in such amounts as we deem adequate in light of the respective potential hazards, where such insurance is obtainable on commercially reasonable terms.

Our domestic rental contracts, both for car rental and for equipment rental, typically provide that the renter will indemnify us for liability arising from the operation of the rented vehicle or equipment (for car rentals in certain places, though, only to the extent such liability exceeds the amount stipulated in the applicable financial responsibility law). In addition, many of HERC's domestic rental contracts require the renter to maintain liability insurance under which HERC is entitled to coverage. While such provisions are sometimes effective to transfer liability to renters, their value to us, particularly in cases of large losses, may be limited. The rental contracts used in our international operations sometimes contain provisions relating to insurance or indemnity, but they are typically more limited than those employed in our domestic operations.

In our domestic car rental operations, we offer an optional liability insurance product, Liability Insurance Supplement, or "LIS," that provides vehicle liability insurance coverage substantially higher than state minimum levels to the renter and other authorized operators of a rented vehicle. LIS coverage is provided under excess liability insurance policies issued by an unaffiliated insurance carrier, the risks under which are reinsured with a subsidiary of ours, HIRE Bermuda Limited. As a consequence of those reinsurance arrangements, rental customers' purchases of LIS do not reduce our economic exposure to vehicle liability. Instead, our exposure to vehicle liability is potentially increased when LIS is purchased, because insured renters and other operators may have vehicle liability imposed on them in circumstances and in amounts where the applicable rental agreement or applicable law would not, absent the arrangements just described, impose vehicle liability on us.

In both our domestic car rental operations and our company-operated international car rental operations in many countries, we offer optional products providing insurance coverage, or "PAI/PEC" coverage, to the renter and the renter's immediate family members traveling with the renter for accidental death or accidental medical expenses arising during the rental period or for damage or loss of their property during the rental period. PAI/PEC coverage is provided under insurance policies issued by unaffiliated carriers or, in some parts of Europe, by Probus, and the risks under such policies either are reinsured with HIRE or another subsidiary of ours or are the subject of indemnification arrangements between us and the carriers. Rental customers' purchases of PAI/PEC coverage create additional risk exposures for us, since we would not typically be liable for the risks insured by PAI/PEC coverage if that coverage had not been purchased.

Our offering of LIS and PAI/PEC coverage in our domestic car rental operations is conducted pursuant to limited licenses or exemptions under state laws governing the licensing of insurance producers. In our international car rental operations, our offering of PAI/PEC coverage historically has not been regulated; however, in the countries of the European Union, the regulatory environment for insurance intermediaries is evolving, and we cannot assure you that we will be able to continue offering PAI/PEC coverage without substantial changes in its offering process or in the terms of the coverage or that such changes, if required, would not render uneconomic our continued offering of the coverage. We do not sell insurance products in Australia.

Provisions on our books for self-insured vehicle liability losses are made by charges to expense based upon evaluations of estimated ultimate liabilities on reported and unreported claims. As of December 31, 2010, this liability was estimated at $278.7 million for our combined domestic and international operations.

20


Table of Contents

ITEM 1.    BUSINESS (Continued)

Damage to Our Property

We bear the risk of damage to our property, unless such risk is transferred through insurance or contractual arrangements.

To mitigate our risk of large, single-site property damage losses globally, we maintain property insurance with unaffiliated insurance carriers in such amounts as we deem adequate in light of the respective hazards, where such insurance is available on commercially reasonable terms.

Our rental contracts typically provide that the renter is responsible for damage to or loss (including loss through theft) of rented vehicles or equipment. We generally offer an optional rental product, known in various countries as "loss damage waiver," "collision damage waiver," "theft protection" or "accident excess reduction," under which we waive or limit our right to make a claim for such damage or loss. This product is not regulated as insurance, but it is subject to specific laws in roughly half of the U.S. jurisdictions where we operate.

Collision damage costs and the costs of stolen or unaccounted-for vehicles and equipment, along with other damage to our property, are charged to expense as incurred.

Other Risks

To manage other risks associated with our businesses, or to comply with applicable law, we purchase other types of insurance carried by business organizations, such as worker's compensation and employer's liability, commercial crime and fidelity, performance bonds and directors' and officers' liability insurance from unaffiliated insurance companies in amounts deemed by us to be adequate in light of the respective hazards, where such coverage is obtainable on commercially reasonable terms.

Governmental Regulation and Environmental Matters

Throughout the world, we are subject to numerous types of governmental controls, including those relating to prices and advertising, privacy and data protection, currency controls, labor matters, charge card operations, insurance, environmental protection, used car sales and licensing.

Environmental

The environmental requirements applicable to our operations generally pertain to (i) the operation and maintenance of cars, trucks and other vehicles, such as heavy equipment, buses and vans; (ii) the ownership and operation of tanks for the storage of petroleum products, including gasoline, diesel fuel and oil; and (iii) the generation, storage, transportation and disposal of waste materials, including oil, vehicle wash sludge and waste water. We have made, and will continue to make, expenditures to comply with applicable environmental laws and regulations.

The use of cars and other vehicles is subject to various governmental requirements designed to limit environmental damage, including those caused by emissions and noise. Generally, these requirements are met by the manufacturer, except in the case of occasional equipment failure requiring repair by us. Measures are taken at certain locations in states that require the installation of Stage II Vapor Recovery equipment to reduce the loss of vapor during the fueling process.

We utilize tanks worldwide, approximately 500 of which, at December 31, 2010, are underground and approximately 1,800 of which are aboveground, to store petroleum products, and we believe our tanks are maintained in material compliance with environmental regulations, including federal and state financial responsibility requirements for corrective action and third-party claims due to releases. Our compliance program for our tanks is intended to ensure that (i) the tanks are properly registered with the

21


Table of Contents

ITEM 1.    BUSINESS (Continued)


state or other jurisdiction in which the tanks are located and (ii) the tanks have been either replaced or upgraded to meet applicable leak detection and spill, overfill and corrosion protection requirements.

We are also incurring and providing for expenses for the investigation and cleanup of contamination from the discharge of petroleum substances at, or emanating from, currently and formerly owned and leased properties, as well as contamination at other locations at which our wastes have reportedly been identified. The amount of any such expenses or related natural resource damages for which we may be held responsible could be substantial. The probable losses that we expect to incur for such matters have been accrued, and those losses are reflected in our consolidated financial statements. As of December 31, 2010 and 2009, the aggregate amounts accrued for environmental liabilities reflected in our consolidated balance sheets in "Other accrued liabilities" were $1.6 million and $2.0 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 ongoing 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 site. 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 nature of the contamination, 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).

With respect to cleanup expenditures for the discharge of petroleum substances at, or emanating from, currently and formerly owned or leased properties, we have received reimbursement, in whole or in part, from certain U.S. states that maintain underground storage tank petroleum cleanup reimbursement funds. Such funds have been established to assist tank owners in the payment of cleanup costs associated with releases from registered tanks. With respect to off-site U.S. locations at which our wastes have reportedly been identified, we have been and continue to be required to contribute to cleanup costs due to strict joint and several cleanup liability imposed by the federal Comprehensive Environmental Response, Compensation, and Liability Act of 1980 and comparable state superfund statutes.

Environmental legislation and regulations and related administrative policies have changed rapidly in recent years, both in the United States and in other countries. There is a risk that governmental environmental requirements, or enforcement thereof, may become more stringent in the future and that we may be subject to legal proceedings brought by government agencies or private parties with respect to environmental matters. In addition, with respect to the cleanup of contamination, additional locations at which waste generated by us or substances used by us may have been released or disposed, and of which we are currently unaware, may in the future become the subject of cleanup for which we may be liable, in whole or in part. Further, at airport-leased properties, we may be subject to environmental requirements imposed by airports that are more restrictive than those obligations imposed by environmental regulatory agencies. Accordingly, while we believe that we are in substantial compliance with applicable requirements of environmental laws, we cannot offer assurance that our future environmental liabilities will not be material to our consolidated financial position, results of operations or cash flows.

22


Table of Contents

ITEM 1.    BUSINESS (Continued)

Dealings with Renters

In the United States, car and equipment rental transactions are generally subject to Article 2A of the Uniform Commercial Code, which governs "leases" of tangible personal property. Car rental is also specifically regulated in more than half of the states of the United States. The subjects of state regulation include the methods by which we advertise, quote and charge prices, the consequences of failing to honor reservations, the terms on which we deal with vehicle loss or damage (including the protections we provide to renters purchasing loss or damage waivers) and the terms and method of sale of the optional insurance coverage that we offer. Some states (including California, New York, Nevada and Illinois) regulate the price at which we may sell loss or damage waivers, and many state insurance regulators have authority over the prices and terms of the optional insurance coverage we offer. See "—Risk Management" above for further discussion regarding the loss or damage waivers and optional insurance coverages that we offer renters. Internationally, regulatory regimes vary greatly by jurisdiction, but they do not generally prevent us from dealing with customers in a manner similar to that employed in the United States.

Both in the United States and internationally, we are subject to increasing regulation relating to customer privacy and data protection. In general, we are limited in the uses to which we may put data that we collect about renters, including the circumstances in which we may communicate with them. In addition, we are generally obligated to take reasonable steps to protect customer data while it is in our possession. Our failure to do so could subject us to substantial legal liability or seriously damage our reputation.

Changes in Regulation

Changes in government regulation of our businesses have the potential to materially alter our business practices, or our profitability. Depending on the jurisdiction, those changes may come about through new legislation, the issuance of new laws and regulations or changes in the interpretation of existing laws and regulations by a court, regulatory body or governmental official. Sometimes those changes may have not just prospective but also retroactive effect; this is particularly true when a change is made through reinterpretation of laws or regulations that have been in effect for some time. Moreover, changes in regulation that may seem neutral on their face may have either more or less impact on us than on our competitors, depending on the circumstances. Several U.S. State Attorneys General have taken the position that car rental companies either may not pass through to customers, by means of separate charges, expenses such as vehicle licensing and concession fees or may do so only in certain limited circumstances. Recent or potential changes in law or regulation that affect us relate to insurance intermediaries, customer privacy and data security and rate regulation, each as described under "Item 1A—Risk Factors" in this Annual Report.

In addition, our operations, as well as those of our competitors, also could be affected by any limitation in the fuel supply or by any imposition of mandatory allocation or rationing regulations. We are not aware of any current proposal to impose such a regime in the United States or internationally. Such a regime could, however, be quickly imposed if there were a serious disruption in supply for any reason, including an act of war, terrorist incident or other problem affecting petroleum supply, refining, distribution or pricing.

Relationship with Ford

Prior to the Acquisition, Ford, through its wholly-owned subsidiary Ford Holdings, was Hertz's only stockholder. As a result of the Acquisition, Hertz Holdings indirectly owned all of Hertz's outstanding common stock. Based upon this ownership, we historically had an extensive relationship with Ford,

23


Table of Contents

ITEM 1.    BUSINESS (Continued)


however since the Sponsors acquired us, our relationships with Ford have steadily decreased, and we no longer deem any of our current relationships with Ford to be material.

Available Information

We file annual, quarterly and current reports and other information with the United States Securities and Exchange Commission, or the "SEC." You may read and copy any documents that we file at the SEC's public reference room at 100 F Street, N.E., Washington, D.C. 20549. You may call the SEC at 1-800-SEC-0330 to obtain further information about the public reference room. In addition, the SEC maintains an Internet website (www.sec.gov) that contains reports, proxy and information statements and other information about issuers that file electronically with the SEC, including Hertz Holdings. You may also access, free of charge, our reports filed with the SEC (for example, our Annual Report on Form 10-K, our Quarterly Reports on Form 10-Q and our Current Reports on Form 8-K and any amendments to those forms) indirectly through our Internet website (www.hertz.com). Reports filed with or furnished to the SEC will be available as soon as reasonably practicable after they are filed with or furnished to the SEC. The information found on our website is not part of this or any other report filed with or furnished to the SEC.

24


Table of Contents


ITEM 1A.    RISK FACTORS

In addition to the other information in this Annual Report, you should carefully consider each of the following risks and uncertainties. We believe that the following information identifies the material risks and uncertainties affecting our company, but it is possible that other risks and uncertainties might significantly impact us. Risks that we are not aware of could arise, and issues that we now view as minor could become more important. Any of those risks and uncertainties may have a material adverse effect on our business, financial condition, results of operations and cash flows.

Risks Related to Our Business

Our car rental business, which provides the majority of our revenues, is particularly sensitive to reductions in the levels of airline passenger travel, and reductions in air travel could materially adversely impact our financial condition and results of operations.

The car rental industry is particularly affected by reductions in business and leisure travel, especially with respect to levels of airline passenger traffic. Reductions in levels of air travel, whether caused by general economic conditions, airfare increases (such as due to capacity reductions or increases in fuel costs borne by commercial airlines) or other events (such as work stoppages, military conflicts, terrorist incidents, natural disasters, epidemic diseases, or the response of governments to any of these events) could materially adversely affect us.

We face intense competition that may lead to downward pricing or an inability to increase prices.

The markets in which we operate are highly competitive. We believe that price is one of the primary competitive factors in the car and equipment rental markets and that the Internet has enabled cost-conscious customers, including business travelers, to more easily obtain the lowest rates available from rental companies. If we try to increase our pricing, our competitors, some of whom may have greater resources and better access to capital than us, may seek to compete aggressively on the basis of pricing. In addition, our competitors may reduce prices in order to attempt to gain a competitive advantage or to compensate for declines in rental activity. To the extent we do not match or remain within a reasonable competitive margin of our competitors' pricing, our revenues and results of operations could be materially adversely affected. If competitive pressures lead us to match any of our competitors' downward pricing and we are not able to reduce our operating costs, then our margins and results of operations could be materially adversely impacted. Additionally, we could be further affected if we are not able to adjust the size of our car rental fleet in response to changes in demand, whether such changes are due to competition or otherwise. See "Item 1—Business—Worldwide Car Rental—Competition" and "Item 1—Business—Worldwide Equipment Rental—Competition" in this Annual Report.

Our business is highly seasonal and any occurrence that disrupts rental activity during our peak periods could materially adversely affect our liquidity and results of operations.

Certain significant components of our expenses are fixed in the short-run, including minimum concession fees, real estate taxes, rent, insurance, utilities, maintenance and other facility-related expenses, the costs of operating our information technology systems and minimum staffing costs. Seasonal changes in our revenues do not alter those fixed expenses, typically resulting in higher profitability in periods when our revenues are higher. The second and third quarters of the year have historically been our strongest quarters due to their increased levels of leisure travel and construction activity. Any occurrence that disrupts rental activity during the second or third quarters could have a disproportionately material adverse effect on our liquidity and results of operations.

25


Table of Contents

ITEM 1A.    RISK FACTORS (Continued)


A material downsizing of our rental car fleet could require us to make additional cash payments for tax liabilities, which could be material.

The Like-Kind Exchange Program, or "LKE Program," allows tax gains on the disposition of vehicles in our car rental fleet to be deferred and has resulted in deferrals of federal and state income taxes for prior years. If a qualified replacement vehicle is not purchased within a specific time period after vehicle disposal, then taxable gain is recognized. A material and extended reduction in vehicle purchases or a downsizing of our car rental fleet, for any reason, could result in fewer qualified replacement vehicles and therefore could result in reduced tax deferrals in the future, which in turn could require us to make material cash payments for U.S. federal and state income tax liabilities.

If we are unable to purchase adequate supplies of competitively priced cars or equipment and the cost of the cars or equipment we purchase increases, our financial condition and results of operations may be materially adversely affected.

We are not a party to any long-term car supply arrangements with manufacturers. The price and other terms at which we can acquire cars thus varies based on market and other conditions. For example, certain car manufacturers have in the past, and may in the future, utilize strategies to de-emphasize sales to the car rental industry, which can negatively impact our ability to obtain cars on competitive terms and conditions. Consequently, there is no guarantee that we can purchase a sufficient number of vehicles at competitive prices and on competitive terms and conditions. Reduced or limited supplies of equipment together with increased prices are risks that we also face in our equipment rental business. If we are unable to obtain an adequate supply of cars or equipment, or if we obtain less favorable pricing and other terms when we acquire cars or equipment and are unable to pass on any increased costs to our customers, then our financial condition and results of operations may be materially adversely affected.

Declines in the value of the non-program cars in our fleet and declines in the overall number of program cars in our fleet could materially adversely impact our financial condition and results of operations.

Over the last few years the percentage of "program cars" in our car rental fleet (that is, cars that are subject to repurchase by car manufacturers under contractual repurchase or guaranteed depreciation programs) has decreased and for the year ended December 31, 2010 it was 55%. We expect this percentage to continue to decrease in the future.

With respect to program cars, manufacturers agree to repurchase these cars at a specified price or guarantee the depreciation rate on the cars during a specified time period. Therefore, with fewer program cars in our fleet, we have an increased risk that the market value of a car at the time of its disposition will be less than its estimated residual value at such time. Any decrease in residual values with respect to our non-program cars and equipment (prior to disposition) could also materially adversely affect our financial condition and results of operations.

The use of program cars enables us to determine our depreciation expense in advance and this is useful to us because depreciation is a significant cost factor in our operations. Using program cars is also useful in managing our seasonal peak demand for fleet, because in certain cases we can sell certain program cars shortly after having acquired them at a higher value than what we could for a similar non-program car at that time. With fewer program cars in our fleet, these benefits have diminished. Accordingly, we are now bearing increased risk relating to residual value and the related depreciation on our car rental fleet and our flexibility to reduce the size of our fleet by returning cars sooner than originally expected without the risk of loss in the event of an economic downturn or to respond to changes in rental demand has been reduced.

26


Table of Contents

ITEM 1A.    RISK FACTORS (Continued)


The failure of a manufacturer of our program cars to fulfill its obligations under a repurchase or guaranteed depreciation program could expose us to loss on those program cars and materially adversely affect certain of our financing arrangements, which could in turn materially adversely affect our liquidity and results of operations.

If any manufacturer of our program cars does not fulfill its obligations under its repurchase or guaranteed depreciation agreement with us, whether due to default, reorganization, bankruptcy or otherwise, then we would have to dispose of those program cars without receiving the benefits of the associated programs (we could be left with a substantial unpaid claim against the manufacturer with respect to program cars that were sold and returned to the manufacturer but not paid for, or that were sold for less than their agreed repurchase price or guaranteed value) and we would also be exposed to residual risk with respect to these cars.

The failure by a manufacturer to pay such amounts could cause a credit enhancement deficiency with respect to our asset-backed and asset-based financing arrangements, requiring us to either reduce the outstanding principal amount of debt or provide more collateral (in the form of cash, vehicles and/or certain other contractual rights) to the creditors under any such affected arrangement.

If one or more manufacturers were to adversely modify or eliminate repurchase or guaranteed depreciation programs in the future, our access to and the terms of asset-backed and asset-based debt financing could be adversely affected, which could in turn have a material adverse effect on our liquidity and results of operations.

We may not be successful in implementing our strategy of further reducing operating costs and our cost reduction initiatives may have adverse consequences.

We are continuing to implement initiatives to reduce our operating expenses. These initiatives may include headcount reductions, business process outsourcing, business process re-engineering, internal reorganization and other expense controls. We cannot assure you that our cost reduction initiatives will achieve any further success. Whether or not successful, our cost reduction initiatives involve significant expenses and we expect to incur further expenses associated with these initiatives, some of which may be material in the period in which they are incurred.

Even if we achieve further success with our cost reduction initiatives, we face risks associated with our initiatives, including declines in employee morale or the level of customer service we provide, the efficiency of our operations or the effectiveness of our internal controls. Any of these risks could have a material adverse impact on our results of operations, financial condition and cash flows.

An impairment of our goodwill or our indefinite lived intangible assets could have a material non-cash adverse impact on our results of operations.

We review our goodwill and indefinite lived intangible assets for impairment whenever events or changes in circumstances indicate that the carrying amount of these assets may not be recoverable and at least annually. If economic deterioration occurs, then we may be required to record charges for goodwill or indefinite lived intangible asset impairments in the future, which could have a material adverse non-cash impact on our results of operations.

Significant increases in fuel prices or reduced supplies of fuel could harm our business.

Significant increases in fuel prices, reduced fuel supplies or the imposition of mandatory allocations or rationing of fuel could negatively impact our car rental business by discouraging consumers from renting cars, changing the types of cars our customers rent from us or the other services they purchase

27


Table of Contents

ITEM 1A.    RISK FACTORS (Continued)


from us or disrupting air travel, on which a significant portion of our car rental business relies. In addition, significant increases in fuel prices or a reduction in fuel supplies could negatively impact our equipment rental business by increasing the cost of buying new equipment, since fuel is used in the manufacturing process and in delivering equipment to us, and by reducing the mobility of our fleet, due to higher costs of transporting equipment between facilities or regions. Accordingly, significant increases in fuel prices or reduced supplies of fuel could have a material adverse effect on our financial condition and results of operations.

Our foreign operations expose us to risks that may materially adversely affect our results of operations.

A significant portion of our annual revenues are generated outside the United States, and we intend to pursue additional international growth opportunities. Operating in many different countries exposes us to varying risks, which include: (i) multiple, and sometimes conflicting, foreign regulatory requirements and laws that are subject to change and are often much different than the domestic laws in the United States, including laws relating to taxes, automobile-related liability, insurance rates, insurance products, consumer privacy, data security, employment matters, cost and fee recovery, and the protection of our trademarks and other intellectual property; (ii) the effect of foreign currency translation risk, as well as limitations on our ability to repatriate income; (iii) varying tax regimes, including consequences from changes in applicable tax laws; (iv) local ownership or investment requirements, as well as difficulties in obtaining financing in foreign countries for local operations; and (v) political and economic instability, natural calamities, war, and terrorism. The effects of these risks may, individually or in the aggregate, materially adversely affect our results of operations and ability to diversify internationally.

Manufacturer safety recalls could create risks to our business.

Our cars may be subject to safety recalls by their manufacturers. A recall may cause us to retrieve cars from renters and decline to rent recalled cars until we can arrange for the steps described in the recall to be taken. We could also face liability claims if a recall affects cars that we have sold. If a large number of cars are the subject of a recall or if needed replacement parts are not in adequate supply, we may not be able to rent recalled cars for a significant period of time. Those types of disruptions could jeopardize our ability to fulfill existing contractual commitments or satisfy demand for our vehicles, and could also result in the loss of business to our competitors. Depending on the severity of any recall, it could materially adversely affect our revenues, create customer service problems, reduce the residual value of the recalled cars and harm our general reputation.

Our business is heavily reliant upon communications networks and centralized information technology systems and the concentration of our systems creates risks for us.

We rely heavily on communication networks and information technology systems to accept reservations, process rental and sales transactions, manage our fleets of cars and equipment, account for our activities and otherwise conduct our business. Our reliance on these networks and systems exposes us to various risks that could cause a loss of reservations, interfere with our ability to manage our fleet, slow rental and sales processes and otherwise materially adversely affect our ability to manage our business effectively. We have centralized our reservations function for the United States in one facility in Oklahoma City, Oklahoma, and we have concentrated our accounting functions for the United States in two facilities in Oklahoma City. Our reservations and accounting functions for our European operations are similarly centralized in a single facility near Dublin, Ireland. In addition, our major information technology systems are centralized in two facilities in Oklahoma City. Any disruption, termination or substandard provision of these services, whether as the result of localized conditions

28


Table of Contents

ITEM 1A.    RISK FACTORS (Continued)


(such as a fire or explosion) or as the result of events or circumstances of broader geographic impact (such as an earthquake, storm, flood, epidemic, strike, act of war, civil unrest or terrorist act), could materially adversely affect our business by disrupting normal reservations, customer service, accounting and information technology functions.

The misuse or theft of information we possess could harm our brand, reputation or competitive position and give rise to material liabilities.

Because we regularly possess, store and handle non-public information about millions of individuals and businesses, our failure to maintain the security of that data, whether as the result of our own error or the malfeasance or errors of others, could harm our reputation, result in governmental investigations and give rise to a host of civil or criminal liabilities. Any such failure could lead to lower revenues, increased costs and other material adverse effects on our results of operations.

Maintaining favorable brand recognition is essential to our success, and failure to do so could materially adversely affect our results of operations.

While our "Hertz" brand name is one of the most recognized in the world, factors affecting brand recognition are often outside our control, and our efforts to maintain or enhance favorable brand recognition, such as marketing and advertising campaigns, may not have their desired effects. In addition, although our licensing partners are subject to contractual requirements to protect our brands, it may be difficult to monitor or enforce such requirements, particularly in foreign jurisdictions. Any decline in perceived favorable recognition of our brands could materially adversely affect our results of operations.

Our business operations could be significantly disrupted if we were to lose the services of members of our senior management team.

Our senior management team has extensive industry experience, and our success significantly depends upon the continued contributions of that team. If we were to lose the services of any one or more members of our senior management team, whether due to death, disability or termination of employment, our ability to successfully implement our business strategy, financial plans, marketing and other objectives, could be significantly impaired.

We may pursue strategic transactions which could be difficult to implement, disrupt our business or change our business profile significantly.

Any future strategic acquisition or disposition of assets or a business could involve numerous risks, including: (i) potential disruption of our ongoing business and distraction of management; (ii) difficulty integrating the acquired business or segregating assets to be disposed of; (iii) exposure to unknown, contingent or other liabilities, including litigation arising in connection with the acquisition or disposition or against any business we may acquire; (iv) changing our business profile in ways that could have unintended negative consequences; and (v) the failure to achieve anticipated synergies.

If we enter into significant strategic transactions, the related accounting charges may affect our financial condition and results of operations, particularly in the case of an acquisition. The financing of any significant acquisition may result in changes in our capital structure, including the incurrence of additional indebtedness. A material disposition could require the amendment or refinancing of our outstanding indebtedness or a portion thereof.

29


Table of Contents

ITEM 1A.    RISK FACTORS (Continued)


We face risks related to liabilities and insurance.

Our businesses expose us to claims for personal injury, death and property damage resulting from the use of the cars and equipment rented or sold by us, and for employment-related claims by our employees. Currently, we generally self-insure up to $10 million per occurrence in the United States and Europe for vehicle and general liability exposures, and we also maintain insurance with unaffiliated carriers in excess of such levels up to $200 million per occurrence for the current policy year, or in the case of international operations outside of Europe, in such lower amounts as we deem adequate given the risks. We cannot assure you that we will not be exposed to uninsured liability at levels in excess of our historical levels resulting from multiple payouts or otherwise, that liabilities in respect of existing or future claims will not exceed the level of our insurance, that we will have sufficient capital available to pay any uninsured claims or that insurance with unaffiliated carriers will continue to be available to us on economically reasonable terms or at all. See "Item 1—Business—Risk Management" and "Item 3—Legal Proceedings" in this Annual Report.

We could face significant withdrawal liability if we withdraw from participation in one or more multiemployer pension plans in which we participate and at least one multiemployer plan in which we participate is reported to have significant underfunded liabilities.

We participate in various "multiemployer" pension plans. 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 consolidated balance sheet. Our withdrawal liability for any multiemployer plan would depend on the extent of the plan's funding of vested benefits. At least one multiemployer plan in which we participate is reported to have, and other of our multiemployer plans could have, significant underfunded liabilities. Such underfunding may increase in the event other employers become insolvent or withdraw from the applicable plan or upon the inability or failure of withdrawing employers to pay their withdrawal liability. In addition, such underfunding may increase as a result of lower than expected returns on pension fund assets or other funding deficiencies. The occurrence of any of these events could have a material adverse effect on our consolidated financial position, results of operations or cash flows.

Environmental laws and regulations and the costs of complying with them, or any liability or obligation imposed under them, could materially adversely affect our financial position, results of operations or cash flows.

We are subject to federal, state, local and foreign environmental laws and regulations in connection with our operations, including with respect to the ownership and operation of tanks for the storage of petroleum products, such as gasoline, diesel fuel and motor and waste oils. We cannot assure you that our tanks will at all times remain free from leaks or that the use of these tanks will not result in significant spills or leakage. If leakage or a spill occurs, it is possible that the resulting costs of cleanup, investigation and remediation, as well as any resulting fines, could be significant. We cannot assure you that compliance with existing or future environmental laws and regulations will not require material expenditures by us or otherwise have a material adverse effect on our consolidated financial position, results of operations or cash flows. See "Item 1—Business—Governmental Regulation and Environmental Matters" in this Annual Report.

The U.S. Congress and other legislative and regulatory authorities in the United States and internationally have considered, and will likely continue to consider, numerous measures related to climate change and greenhouse gas emissions. Should rules establishing limitations on greenhouse

30


Table of Contents

ITEM 1A.    RISK FACTORS (Continued)


gas emissions or rules imposing fees on entities deemed to be responsible for greenhouse gas emissions become effective, demand for our services could be affected, our fleet and/or other costs could increase, and our business could be adversely affected.

Changes in the U.S. legal and regulatory environment that affect our operations, including laws and regulations relating to taxes, automobile-related liability, insurance rates, insurance products, consumer privacy, data security, employment matters and cost and fee recovery, could disrupt our business, increase our expenses or otherwise have a material adverse effect on our results of operations.

We are subject to a wide variety of U.S. laws and regulations and changes in the level of government regulation of our business have the potential to materially alter our business practices and materially adversely affect our financial position and results of operations, including our profitability. Those changes may come about through new laws and regulations or changes in the interpretation of existing laws and regulations.

Any new, or change in existing, U.S. law and regulation with respect to optional insurance products or policies could increase our costs of compliance or make it uneconomical to offer such products, which would lead to a reduction in revenue and profitability. See "Item 1—Business—Risk Management" in this Annual Report for further discussion regarding how changes in the regulation of insurance intermediaries may affect us. If customers decline to purchase supplemental liability insurance products from us as a result of any changes in these laws or otherwise, our results of operations could be materially adversely affected.

Changes in the U.S. legal and regulatory environment in the areas of customer privacy, data security and cross-border data flow could have a material adverse effect on our business, primarily through the impairment of our marketing and transaction processing activities, and the resulting costs of complying with such legal and regulatory requirements. It is also possible that we could face significant liability for failing to comply with any such requirements.

In most places where we operate, we pass through various expenses, including the recovery of vehicle licensing costs and airport concession fees, to our rental customers as separate charges. We believe that our expense pass-throughs, where imposed, are properly disclosed and are lawful. However, we may in the future be subject to potential legislative, regulatory or administrative changes or actions which could limit, restrict or prohibit our ability to separately state, charge and recover vehicle licensing costs and airport concession fees, which could result in a material adverse effect on our results of operations.

Certain new or proposed laws and regulations with respect to the banking and finance industries, including the Dodd-Frank Wall Street Reform and Consumer Protection Act and amendments to Regulation AB, could restrict our access to certain financing arrangements and increase our financing costs, which could have a material adverse effect on our financial position and results of operations.

Investment funds associated with or designated by the Sponsors will continue to exercise significant control over our board of directors, management, policies and significant transactions, and may have interests that differ from our other stockholders.

Investment funds associated with or designated by the Sponsors currently beneficially own, in the aggregate, a majority of the outstanding shares of our common stock. These funds are party to a stockholders agreement pursuant to which each of the funds has agreed to vote in favor of the other funds' nominees to our board of directors. Therefore, the Sponsors control our board of directors and as

31


Table of Contents

ITEM 1A.    RISK FACTORS (Continued)


a result control our management and policies. Moreover, the Sponsors will continue to have significant influence over matters requiring stockholder approval and our policies and affairs for so long as the investment funds associated with or designated by the Sponsors continue to hold a significant amount of our common stock, even if this amount is less than a majority. There can be no assurance that the interests of the Sponsors will not conflict with those of our other stockholders. The Sponsors currently have the ability to prevent any transaction that requires the approval of stockholders, including many possible change in control transactions, regardless of whether or not our other stockholders believe that such a transaction is in the company's or their own best interests.

Additionally, the Sponsors may from time to time acquire and hold interests in businesses that compete directly with us. One or more of the Sponsors may also pursue acquisition opportunities and other corporate opportunities that may be complementary to our business and as a result, those opportunities may not be available to us.

We are currently a "controlled company" within the meaning of the rules of the New York Stock Exchange ("NYSE") and therefore we are not required to comply with certain corporate governance requirements of the NYSE. If we cease to be a controlled company within the meaning of the NYSE rules, then the stockholders agreement with the Sponsors provides that, if required to comply with the NYSE rules, the number of directors that each of the funds is entitled to nominate may be reduced, or the board may be expanded. However, certain other provisions of the stockholders agreement will remain in effect, and we will continue to be subject to the stockholders agreement.

Risks Related to Our Substantial Indebtedness

Our substantial level of indebtedness could materially adversely affect our results of operations, cash flows and ability to compete in our industry.

As of December 31, 2010, we had debt outstanding of $11,306.4 million. Our substantial indebtedness could materially adversely affect us. For example, it could: (i) make it more difficult for us to satisfy our obligations to the holders of our outstanding debt securities and to the lenders under our various credit facilities, resulting in possible defaults on, and acceleration of, such indebtedness; (ii) limit our ability to refinance our existing indebtedness or borrow additional funds in the future; (iii) require us to dedicate a substantial portion of our cash flows from operations to make payments on our debt, which would reduce our ability to fund working capital, capital expenditures or other general corporate purposes; (iv) increase our vulnerability to general adverse economic and industry conditions, including interest rate fluctuations, because a portion of our borrowings are at floating rates of interest and are not hedged against rising interest rates; (v) place us at a competitive disadvantage to our competitors that have proportionately less debt or comparable debt at more favorable interest rates or on better terms; and (vi) limit our ability to react to competitive pressures, or make it difficult for us to carry out capital spending that is necessary or important to our growth strategy and our efforts to improve operating margins. While the terms of the agreements and instruments governing our outstanding indebtedness contain certain restrictions upon our ability to incur additional indebtedness, they do not fully prohibit us from incurring substantial additional indebtedness and do not prevent us from incurring obligations that do not constitute indebtedness. If new debt or other obligations are added to our current liability levels without a corresponding refinancing or redemption of our existing indebtedness and obligations, these risks would increase. For a description of the amounts we have available under certain of our debt facilities, see "Item 7—Management's Discussion and Analysis of Financial Condition and Results of Operations—Liquidity and Capital Resources—Credit Facilities," in this Annual Report.

32


Table of Contents

ITEM 1A.    RISK FACTORS (Continued)

Our ability to manage these risks depends on financial market conditions as well as our financial and operating performance, which, in turn, is subject to a wide range of risks, including those described under "—Risks Related to Our Business."

If our capital resources (including borrowings under the revolving portion of our various credit facilities and access to other refinancing indebtedness) and operating cash flows are not sufficient to pay our obligations as they mature or to fund our liquidity needs, we may be forced to do, among other things, one or more of the following: (i) sell certain of our assets; (ii) reduce the size of our rental fleet; (iii) reduce the percentage of program cars in our rental fleet; (iv) reduce or delay capital expenditures; (iv) obtain additional equity capital; (v) forgo business opportunities, including acquisitions and joint ventures; or (vi) restructure or refinance all or a portion of our debt on or before maturity.

We cannot assure you that we would be able to accomplish any of these alternatives on a timely basis or on satisfactory terms, if at all. Furthermore, we cannot assure you that we will maintain financing activities and cash flows sufficient to permit us to pay the principal, premium, if any, and interest on our indebtedness. If we cannot refinance or otherwise pay our obligations as they mature and fund our liquidity needs, our business, financial condition, results of operations, cash flows, ability to obtain financing, and ability to compete in our industry could be materially adversely affected.

Our reliance on asset-backed and asset-based financing arrangements to purchase cars subjects us to a number of risks, many of which are beyond our control.

We rely significantly on asset-backed and asset-based financing to purchase cars for our domestic and international car rental fleets. If we are unable to refinance or replace our existing asset-backed and asset-based financing or continue to finance new car acquisitions through asset-backed or asset-based financing on favorable terms, on a timely basis, or at all, then our costs of financing could increase significantly and have a material adverse effect on our liquidity, interest costs, financial condition and results of operations.

Our asset-backed and asset-based financing capacity could be decreased, our financing costs and interest rates could be increased, or our future access to the financial markets could be limited, as a result of risks and contingencies, many of which are beyond our control, including: (i) the acceptance by credit markets of the structures and structural risks associated with our asset-backed and asset-based financing arrangements; (ii) the credit ratings provided by credit rating agencies for our asset-backed indebtedness; (iii) third parties requiring changes in the terms and structure of our asset-backed or asset-based financing arrangements, including increased credit enhancement or required cash collateral and/or other liquid reserves; (iv) the insolvency or deterioration of the financial condition of one or more of our principal car manufacturers; or (v) changes in laws or regulations, including judicial review of issues of first impression, that negatively impact any of our asset-backed or asset-based financing arrangements.

Any reduction in the value of our car rental fleet could effectively increase our car rental fleet costs, adversely impact our profitability and potentially lead to decreased borrowing base availability in our asset-backed vehicle financing facilities due to the credit enhancement requirements for such facilities, which effectively increase as market values for vehicles decrease. In addition, if disposal of vehicles in the used vehicle marketplace were to become severely limited at a time when required collateral levels were rising and as a result we failed to meet the minimum required collateral levels, the principal under our asset-backed financing arrangements may be required to be repaid sooner than anticipated with vehicle disposition proceeds and lease payments we make to our special purpose financing subsidiaries. If that were to occur, the holders of our asset backed debt may have the ability to exercise

33


Table of Contents

ITEM 1A.    RISK FACTORS (Continued)


their right to direct the trustee to foreclose on and sell vehicles to generate proceeds sufficient to repay such debt.

The occurrence of certain events, including those described in the paragraph above, could result in the occurrence of an amortization event pursuant to which the proceeds of sales of cars that collateralize the affected asset-backed financing arrangement would be required to be applied to the payment of principal and interest on the affected facility or series, rather than being reinvested in our car rental fleet. The continuation of an amortization event for 30 days, as well as certain other events, including defaults by us and our affiliates in the performance of covenants set forth in the agreements governing certain fleet debt, could result in the occurrence of a liquidation event pursuant to which the trustee or holders of the affected asset-backed financing arrangement would be permitted to require the sale of the assets collateralizing that series. Any of these consequences could affect our liquidity and our ability to maintain sufficient fleet levels to meet customer demands and could trigger cross-defaults under certain of our other financing arrangements.

Any reduction in the value of the equipment rental fleet of HERC (which could occur due to a reduction in the size of the fleet or the value of the assets within the fleet) could not only effectively increase our equipment rental fleet costs and adversely impact our profitability, but would result in decreased borrowing base availability under certain of our asset-based financing arrangements, which would have a material adverse effect on our financial position, liquidity and results of operations.

Substantially all of our consolidated assets secure certain of our outstanding indebtedness, which could materially adversely affect our debt and equity holders and our business.

Substantially all of our consolidated assets, including our car and equipment rental fleets, are subject to security interests or are otherwise encumbered for the lenders under our asset-backed and asset-based financing arrangements. As a result, the lenders under those facilities would have a prior claim on such assets in the event of our bankruptcy, insolvency, liquidation or reorganization, and we may not have sufficient funds to pay in full, or at all, all of our creditors or make any amount available to holders of our equity. The same is true with respect to structurally senior obligations: in general, all liabilities and other obligations of a subsidiary must be satisfied before the assets of such subsidiary can be made available to the creditors (or equity holders) of the parent entity.

Because substantially all of our assets are encumbered under financing arrangements, our ability to incur additional secured indebtedness or to sell or dispose of assets to raise capital may be impaired, which could have a material adverse effect on our financial flexibility and force us to attempt to incur additional unsecured indebtedness, which may not be available to us.

Restrictive covenants in certain of the agreements and instruments governing our indebtedness may materially adversely affect our financial flexibility or may have other material adverse effects on our business, financial condition and results of operations.

Certain of our credit facilities contain covenants that, among other things, restrict Hertz's and its subsidiaries' ability to: (i) dispose of assets; (ii) incur additional indebtedness; (iii) incur guarantee obligations; (iv) prepay other indebtedness or amend other financing arrangements; (v) pay dividends; (vi) create liens on assets; (vii) enter into sale and leaseback transactions; (viii) make investments, loans, advances or capital expenditures; (ix) make acquisitions; (x) engage in mergers or consolidations; (xi) change the business conducted by us; and (xii) engage in certain transactions with affiliates.

Our Senior Term Facility includes financial covenants that require us to maintain a specified Corporate debt to Corporate EBITDA (as defined below) leverage ratio and a specified Corporate EBITDA to

34


Table of Contents

ITEM 1A.    RISK FACTORS (Continued)


interest expense coverage ratio. Our Senior ABL Facility contains financial covenants that obligate us to maintain a specified debt to Corporate EBITDA leverage ratio and a specified Corporate EBITDA to Corporate fixed charges coverage ratio if we fail to maintain a specified minimum level of borrowing base availability thereunder. Our ability to comply with these covenants will depend on our ongoing financial and operating performance, which in turn are subject to, among other things, the risks identified in "—Risks Related to Our Business."

The agreements governing our financing arrangements contain numerous covenants. The breach of any of these covenants or restrictions could result in a default under the relevant agreement, which can, in turn, cause cross-defaults under our other financing arrangements. In such event, we may be unable to borrow under the Senior ABL Facility and certain of our other financing arrangements and may not be able to repay the amounts due under such arrangements. Therefore, we would need to raise refinancing indebtedness, which may not be available to us on favorable terms, on a timely basis or at all. This could have serious consequences to our financial condition and results of operations and could cause us to become bankrupt or insolvent. Additionally, such defaults could require us to sell assets, if possible, and otherwise curtail our operations in order to pay our creditors. Such alternative measures could have a material adverse effect on our business, financial condition and results of operations.

An increase in interest rates or in our borrowing margin would increase the cost of servicing our debt and could reduce our profitability.

A significant portion of our outstanding debt bears interest at floating rates. As a result, to the extent we have not hedged against rising interest rates, an increase in the applicable benchmark interest rates would increase our cost of servicing our debt and could materially adversely affect our liquidity and results of operations.

In addition, we regularly refinance our indebtedness. If interest rates or our borrowing margins increase between the time an existing financing arrangement was consummated and the time such financing arrangement is refinanced, the cost of servicing our debt would increase and our liquidity and results of operations could be materially adversely affected.

Risks Relating to Our Common Stock

Hertz Holdings is a holding company with no operations of its own and depends on its subsidiaries for cash.

The operations of Hertz Holdings are conducted almost entirely through its subsidiaries and its ability to generate cash to meet its debt service obligations or to pay dividends on its common stock is dependent on the earnings and the receipt of funds from its subsidiaries via dividends or intercompany loans. However, none of the subsidiaries of Hertz Holdings are obligated to make funds available to Hertz Holdings for the payment of dividends or the service of its debt. In addition, certain states' laws and the terms of certain of our debt agreements significantly restrict, or prohibit, the ability of Hertz and its subsidiaries to pay dividends, make loans or otherwise transfer assets to Hertz Holdings, including state laws that require dividends to be paid only from surplus. If Hertz Holdings does not receive cash from its subsidiaries, then Hertz Holdings financial condition could be materially adversely affected.

Our share price may decline if our Sponsors sell a large number of our shares or if we issue a large number of new shares.

A majority of our outstanding shares are held by our Sponsors. We have a significant number of authorized but unissued shares, including shares available for issuance pursuant to our various equity

35


Table of Contents

ITEM 1A.    RISK FACTORS (Continued)


plans. A sale of a substantial number of our shares or other equity-related securities in the public market pursuant to new issuances (by us or upon the conversion of our Convertible Senior Notes (as defined below)) or by significant stockholders (such as by our Sponsors) could depress the market price of our stock and impair our ability to raise capital through the sale of additional equity securities. Any such sale or issuance would dilute the ownership interests of the then-existing stockholders, and could have material adverse effect on the market price of our common stock or the value of the Convertible Senior Notes. The price of our common stock could be materially adversely affected by possible sales of our common stock by investors who view the Convertible Senior Notes as a more attractive means of equity participation in our company and by hedging or arbitrage trading activity. In addition, the price of our common stock could be materially adversely affected if the existence of the Convertible Senior Notes encourages short selling by market participants.


ITEM 1B.    UNRESOLVED STAFF COMMENTS

None.


ITEM 2.    PROPERTIES

We operate car rental locations at or near airports and in central business districts and suburban areas of major cities in the United States, including Puerto Rico and the U.S. Virgin Islands, Canada, France, Germany, Italy, the United Kingdom, Spain, The Netherlands, Switzerland, Belgium, Luxembourg, the Czech Republic, the Slovak Republic, Australia, New Zealand, China and Brazil, as well as retail used car sales locations in the United States, France and Australia. We operate equipment rental locations in the United States, Canada, France, Spain, Italy and China. We also operate headquarters, sales offices and service facilities in the foregoing countries in support of our car rental and equipment rental operations, as well as small car rental sales offices and service facilities in a select number of other countries in Europe and Asia.

We own approximately 7% of the locations from which we operate our car and equipment rental businesses. The remaining locations are leased or operated under concessions from governmental authorities and private entities. Those leases and concession agreements typically require the payment of minimum rents or minimum concession fees and often also require us to pay or reimburse operating expenses; to pay additional rent, or concession fees above guaranteed minimums, based on a percentage of revenues or sales arising at the relevant premises; or to do both. See Note 9 to the Notes to our consolidated financial statements included in this Annual Report under the caption "Item 8—Financial Statements and Supplementary Data."

In addition to the above operational locations, we own three major facilities in the vicinity of Oklahoma City, Oklahoma at which reservations for our car rental operations are processed, global information technology systems are serviced and major domestic and international accounting functions are performed. We also have a long-term lease for a reservation and financial center near Dublin, Ireland, at which we have centralized our European car rental reservation and customer relations and accounting functions. We lease a European regional office in Geneva, Switzerland which we constructed and occupied during 2010. We maintain our executive offices in an owned facility in Park Ridge, New Jersey and lease a European headquarters office in Uxbridge, England.

36


Table of Contents


ITEM 3.    LEGAL PROCEEDINGS

From time to time we are a party to various legal proceedings. Other than with respect to the aggregate claims for public liability and property damage pending against us, management does not believe that any of the matters resolved, or pending against us, during 2010 are material to us and our subsidiaries taken as a whole. While we have accrued a liability with respect to claims for public liability and property damage of $278.7 million at December 31, 2010, management does not believe any of the other pending matters described below are material. We have summarized below, for purposes of providing background, various legal proceedings to which we were and/or are a party during 2010 or the period after December 31, 2010 but before the filing of this Annual Report. In addition to the following, various other legal actions, claims and governmental inquiries and proceedings are pending or may be instituted or asserted in the future against us and our subsidiaries.

    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, filed a complaint against HERC in the United States District Court for the District of New Jersey. In November 2006, the complaint was amended to add another plaintiff, Miguel V. Pro, and more claims. The Davis Landscape matter purports 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," or an Environmental Recovery Fee, or "ERF." The plaintiffs seek a declaratory judgment and injunction prohibiting HERC from engaging in acts with respect to the LDW and ERF charges that violate the New Jersey Consumer Fraud Act and claim that the charges violate the Uniform Commercial Code. The plaintiffs also seek an unspecified amount of compensatory damages with the return of all LDW and ERF charges paid, attorneys' fees and costs as well as other damages. The court has granted class certification, denied our motion for summary judgment and the case is in the discovery stages.

    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, or "Enterprise," was filed in the United States District Court for the District of Nevada. The plaintiffs agreed to not pursue claims against Enterprise for the time being and the case only proceeded against Hertz. The Sobel case purports to be a nationwide class action on behalf of all persons who rented cars from Hertz at airports in Nevada and were separately charged airport concession recovery fees by Hertz as part of their rental charges. The plaintiffs seek an unspecified amount of compensatory damages, restitution of any charges found to be improper and an injunction prohibiting Hertz from quoting or charging those airport fees that are alleged not to be allowed by Nevada law. The complaint also seeks attorneys' fees and costs. Relevant documents were produced, depositions were taken and pre-trial motions were filed. After the court rendered a mixed ruling on the parties' cross-motions for summary judgment and after the Lydia Lee case was refiled against Enterprise, the parties engaged in mediation which resulted in a proposed settlement wherein Hertz and Enterprise, without admitting wrongdoing and in order to avoid further litigation, agreed to provide rental certificates to proposed class members who register for same and to pay attorneys' fees to the plaintiffs' attorneys. In November 2010, the court certified settlement classes for purposes of implementing the proposed settlement and preliminarily approved the proposed settlement. Notification of the proposed settlement was mailed or e-mailed in February of 2011 and a final approval hearing on the settlement is scheduled for May of 2011.

37


Table of Contents

ITEM 3.    LEGAL PROCEEDINGS (Continued)

    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. The case was subsequently transferred to the District Court of Johnson County, Kansas. The Fun Services matter purports 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. The plaintiffs seek an unspecified amount of compensatory damages, attorney's fees and costs. In August 2009, the court issued an order that stayed all activity in this litigation pending a decision by the Kansas Supreme Court in Critchfield Physical Therapy, Inc. v. Taranto Group, Inc., another Telephone Consumer Protection Act case. The Kansas Supreme Court heard oral argument in the Critchfield case in January of 2010 and has not yet rendered a decision in that case.

    4.
    California Tourism Assessments

      We are currently a defendant in a proceeding that purports to be a class action brought by Michael Shames and Gary Gramkow against 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.

      Originally filed in November of 2007, the action is pending in the United States District Court for the Southern District of California, and plaintiffs claim to represent a class of individuals or entities that purchased rental car services from a defendant at airports located in California after January 1, 2007. Plaintiffs allege that the defendants agreed to charge consumers a 2.5% tourism 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, or the "CTTC." Plaintiffs also allege 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 amended complaint seeks treble damages, disgorgement, injunctive relief, interest, attorneys' fees and costs. Plaintiffs dropped their claims against Caroline Beteta. Plaintiffs' claims against the rental car defendants have been dismissed, except for the federal antitrust claim. In June 2010, the United States Court of Appeals for the Ninth Circuit affirmed the dismissal of the plaintiffs' antitrust case against the CTTC as a state agency immune from antitrust complaint because the California Legislature foresaw the alleged price-fixing conspiracy that was the subject of the complaint. The plaintiffs subsequently filed a petition with the Ninth Circuit seeking a rehearing and that petition was granted. In November 2010, the Ninth Circuit withdrew its June opinion and instead held that state action immunity was improperly invoked. The Ninth Circuit reinstated the plaintiffs' antitrust claims and the case has now been remanded to the district court for further proceedings.

      We were also a defendant in a consolidated action captioned "In re Tourism Assessment Fee Litigation" in the United States District Court for the Southern District of California. Originally filed as two separate actions in December of 2007, the consolidated action purported to be a class action brought on behalf of all persons and entities that paid an assessment since the inception of the Passenger Car Rental Industry Tourism Assessment Program in California on

38


Table of Contents

ITEM 3.    LEGAL PROCEEDINGS (Continued)


      January 1, 2007. The other defendants included various of our competitors, including Avis Budget Group, Inc., Vanguard Car Rental USA, Inc., Dollar Thrifty Automotive Group, Inc., Advantage Rent-A-Car, Inc., Avalon Global Group, 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., as well as the California Travel and Tourism Commission, and Dale E. Bonner. The complaint sought injunctive and declaratory relief, that all assessments collected and to be collected be held in trust, unspecified monetary damages, interest, attorneys' fees and costs. In August 2010, the United States Court of Appeals for the Ninth Circuit affirmed the district court's dismissal of plaintiffs' claims against all defendants. The deadline for plaintiffs to seek review of the Ninth Circuit's opinion has passed.

    5.
    Public Liability and Property Damage

      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. The obligation for public liability and property damage on self-insured U.S. and international vehicles and equipment, as stated on our balance sheet, represents an estimate for both reported accident claims not yet paid and claims incurred but not yet reported. The related liabilities are recorded on a non-discounted basis. Reserve requirements are based on actuarial evaluations of historical accident claim experience and trends, as well as future projections of ultimate losses, expenses, premiums and administrative costs. At December 31, 2010 and December 31, 2009 our liability recorded for public liability and property damage matters was $278.7 million and $277.8 million, respectively. We believe that our analysis was based on the most relevant information available, combined with reasonable assumptions, and that we may prudently rely on this information to determine the estimated liability. We note the liability is subject to significant uncertainties. The adequacy of the liability reserve is regularly monitored based on evolving accident claim history and insurance related state legislation changes. If our estimates change or if actual results differ from these assumptions, the amount of the recorded liability is adjusted to reflect these results.

We intend to assert that we have meritorious defenses in the foregoing matters and we intend to defend ourselves vigorously.

We have established reserves for matters where we believe that the losses are probable and reasonably estimated, including for various of the matters set forth above. Other than with respect to the reserve established for claims for public liability and property damage, none of those reserves are material. For matters, including those described above, where we have not established a reserve, the ultimate outcome or resolution cannot be predicted at this time, or the amount of ultimate loss, if any, cannot be reasonably estimated. 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. Accordingly, it is possible that an adverse outcome from such a proceeding could exceed the amount accrued in an amount that could be material to our consolidated financial condition, results of operations or cash flows in any particular reporting period.


ITEM 4.    (REMOVED AND RESERVED)

39


Table of Contents


EXECUTIVE OFFICERS OF THE REGISTRANT

Set forth below are the names, ages, number of years employed by our Company as of February 25, 2011 and positions of our executive officers.

Name
  Age   Number of
Years
Employed
by Us
  Position

Mark P. Frissora

    55     4  

Chief Executive Officer and Chairman of the Board

Elyse Douglas

    54     4  

Executive Vice President and Chief Financial Officer

Scott Sider

    50     28  

Executive Vice President & President, Car Rental and Leasing The Americas

Michel Taride

    54     25  

Executive Vice President and President, Hertz International

LeighAnne G. Baker

    52     3  

Senior Vice President, Chief Human Resources Officer

Lois I. Boyd

    57     3  

Senior Vice President, Advantage Rent A Car

Richard D. Broome

    52     10  

Senior Vice President, Corporate Affairs and Communications

Joseph F. Eckroth, Jr. 

    52     3  

Senior Vice President and Chief Information Officer

Jatindar S. Kapur

    52     22  

Senior Vice President, Finance and Corporate Controller

Michael P. Senackerib

    45     2  

Senior Vice President, Chief Marketing Officer

Robert J. Stuart

    49     3  

Senior Vice President, Global Sales

J. Jeffrey Zimmerman

    51     3  

Senior Vice President, General Counsel & Secretary

R. Scott Massengill

    48     2  

Vice President and Treasurer

Todd Poste

    48      

Vice President, Global Procurement

Mr. Frissora has served as the Chief Executive Officer and Chairman of the Board of the Corporation and Hertz since January 1, 2007, and as Chief Executive Officer and a director of the Corporation and Hertz since July 2006. Additionally, on January 25, 2011, following Mr. Plescia's retirement, Mr. Frissora has temporarily assumed the senior management responsibility for HERC until a successor is named. Mr. Plescia, who was the Executive Vice President and President of HERC, announced his retirement effective on January 25, 2011. Prior to joining the Corporation and Hertz, Mr. Frissora served as Chief Executive Officer of Tenneco Inc. from November 1999 to July 2006 and as President of the automotive operations of Tenneco Inc. from April 1999 to July 2006. He also served as the Chairman of Tenneco from March 2000 to July 2006. From 1996 to April 1999, he held various positions within Tenneco Inc.'s automotive operations, including Senior Vice President and General Manager of the worldwide original equipment business. Previously Mr. Frissora served as a Vice President of Aeroquip Vickers Corporation from 1991 to 1996. In the 15 years prior to joining Aeroquip Vickers, he served for 10 years with General Electric and five years with Philips Lighting Company in management roles focusing on product development and marketing. He is a director of Walgreen Co., where he serves as the Chairman of the finance committee and is a member of the governance committee. Mr. Frissora is also a director of Delphi Automotive LLP, where he is a member of their audit/finance committee and a member of their governance committee.

Ms. Douglas has served as the Executive Vice President and Chief Financial Officer of Hertz Holdings and Hertz since October 2007 and served as the Treasurer of Hertz Holdings and Hertz from July 2006 until July 2008. Ms. Douglas served as Interim Chief Financial Officer of Hertz and Hertz Holdings from

40


Table of Contents

EXECUTIVE OFFICERS OF THE REGISTRANT (Continued)


August 2007 until October 2007. Prior to joining Hertz Holdings and Hertz, Ms. Douglas served as Treasurer of Coty Inc. from December 1999 until July 2006. Previously, Ms. Douglas served as an Assistant Treasurer of Nabisco from June 1995 until December 1999. She also served in various financial services capacities for 12 years at Chase Manhattan Bank (now JPMorgan Chase). Ms. Douglas is a CPA and spent three years early in her career in public accounting.

Mr. Sider has served as the Executive Vice President & President, Car Rental and Leasing The Americas of Hertz and Hertz Holdings since January 2010. Mr. Sider also oversees the fleet planning and re-marketing functions for the Americas since December 2010. Mr. Sider has held several senior management positions in the U.S. car rental business since 1983, including Manhattan Area Manager, Vice President of the New England, West Central and Western Regions and, since 2008, Vice President and President, Off-Airport Operations for North America.

Mr. Taride has served as the Executive Vice President and President, Hertz International since January 2010. Mr. Taride also oversees the fleet planning and re-marketing functions of Hertz International since December 2010. Mr. Taride has served as the Executive Vice President and President, Hertz Europe Limited, of Hertz since January 2004 and as Executive Vice President and President, Hertz Europe Limited, of Hertz Holdings since June 2006 until December 2009. From January 2003 until December 2003, he served as Vice President and President, Hertz Europe Limited. From April 2000 until December 2002, he served as Vice President and General Manager, Rent A Car, Hertz Europe Limited. From July 1998 to March 2000, he was General Manager, Rent A Car France and HERC Europe. Previously, he served in various other operating positions in Europe from 1980 to 1983 and from 1985 to 1998.

Ms. Baker has served as the Senior Vice President, Chief Human Resources Officer of Hertz Holdings and Hertz since April 2007. Prior to joining Hertz Holdings and Hertz, Ms. Baker served as Senior Vice President, Global Human Resources for The Reynolds & Reynolds Company from September 2005 through March 2007. Prior to joining Reynolds & Reynolds, she served as Director of Human Resources, Global Automotive Business, and in various strategic human resources and operational roles for The Timken Company from June 1981 through August 2005.

Ms. Boyd has served as the Senior Vice President, Advantage Rent A Car since March 2010. From November of 2007 until February of 2010, she served as Senior Vice President of Process Improvement and Project Management of Hertz Holdings and Hertz. Prior to joining Hertz Holdings and Hertz, Ms. Boyd served in a variety of senior leadership roles at Tenneco Inc. from April 1997 to November 2007, including Vice President and General Manager of Global Commercial Vehicle Systems and Specialty Markets, and Vice President, Global Program Management.

Mr. Broome has served as the Senior Vice President, Corporate Affairs and Communications of Hertz Holdings and Hertz since March 2008. Previously, Mr. Broome served as Vice President, Corporate Affairs and Communications of Hertz Holdings and Hertz from August 2000 to March 2008. From March 1996 to August 2000, Mr. Broome served as Vice President, Government Affairs and Communications for Selective Insurance Company, Inc. and from January 1987 to March 1996 as Counsel, Legal Affairs, of Aetna Life and Casualty. Prior to that, Mr. Broome served in government affairs roles for The Travelers Insurance Group and the Connecticut Business and Industry Association.

Mr. Eckroth has served as Senior Vice President and Chief Information Officer of Hertz Holdings and Hertz since June 2007 and Global Customer Care since April 2009. Mr. Eckroth also oversees the Global Document Management function and Navigations Solutions business since December 2010 and serves as a member of the Board of Navigation Solutions L.L.C., which is the exclusive provider of the Hertz Neverlost units and related services. Prior to joining Hertz Holdings and Hertz, Mr. Eckroth served as Executive Vice President and Chief Operating Officer of New Century Financial Corporation from

41


Table of Contents

EXECUTIVE OFFICERS OF THE REGISTRANT (Continued)


January 2006 through June 2007. He joined New Century Financial Corporation as Chief Information Officer in August 2005. Previously, Mr. Eckroth served as the Chief Information Officer for Mattel, Inc. and two of General Electric's business units, GE Medical Systems and GE Industrial Systems.

Mr. Kapur has served as the Senior Vice President, Finance and Corporate Controller of Hertz Holdings and Hertz since April 2008. Mr. Kapur has held several senior level Finance, Controller and Business Planning positions during his 20 year career at Hertz Holdings and Hertz and, most recently, he has served as Staff Vice President, Business and Strategic Planning. Mr. Kapur joined Hertz in 1988 and, prior to his most recent position, he served for seven years as Vice President and Chief Financial Officer for Hertz Europe Limited, responsible for both car and equipment rental. He also served two years as Corporate Controller in Europe. Prior to his service in Europe, Mr. Kapur held various financial management positions in the North American vehicle rental business. Prior to joining Hertz, he spent eight years in the financial sector, most recently with Coopers & Lybrand.

Mr. Senackerib has served as Senior Vice President, Chief Marketing Officer of Hertz and Hertz Holdings since July 2008. Prior to joining Hertz, Mr. Senackerib served as Senior Vice President and General Manager, Nabisco Biscuit Division at Kraft Foods from 2004 to July 2008. From 1997 to 2004, Mr. Senackerib held various marketing and general management positions at Kraft/Nabisco including Senior Vice President, Global Snacks and Executive Vice President and General Manager, Salted Snacks Division. Previously, he held various marketing positions at the Campbell Soup Company and Kraft General Foods.

Mr. Stuart has served as the Senior Vice President, Global Sales, of Hertz Holdings and Hertz since December 2007. Prior to joining Hertz Holdings and Hertz, Mr. Stuart held various senior level sales and marketing positions with General Electric Company from July 2000 through December 2007, including General Manager, Consumer Lighting and Electrical Distribution; General Manager of Consumer Marketing for the Lighting business; and General Manager, Business Development, Sales and Marketing for the lighting business.

Mr. Zimmerman has served as the Senior Vice President, General Counsel & Secretary of Hertz Holdings and Hertz since December 2007. Mr. Zimmerman also oversees the Real Estate and Concessions function since December 2010. Prior to joining Hertz Holdings and Hertz, Mr. Zimmerman served Tenneco Inc. in various positions from January 2000 through November 2007, most recently as Vice President, Law. Prior to joining Tenneco, Mr. Zimmerman was engaged in the private practice of law from August 1984 to December 1999, most recently as a partner in the law firm of Jenner & Block.

Mr. Massengill has served as Vice President and Treasurer of Hertz Holdings and Hertz since July 2008. Prior to joining Hertz Holdings and Hertz, Mr. Massengill served as Chief Financial Officer for the $2 billion domestic residential heating and air conditioning business division of Trane Inc. (formerly American Standard Companies Inc.) from 2005 to 2008. Prior to that, he was Vice President and Treasurer at American Standard from 2001 to 2005. Mr. Massengill has also held management-level financial positions at Bristol-Myers Squibb, AlliedSignal and Exxon.

Mr. Poste has served as Vice President Global Procurement of Hertz Holdings and Hertz since March 2010. Prior to joining Hertz Holding and Hertz, Mr. Poste served as Vice President, Integrated Supply Chain for Ingersoll Rand, Inc., Compressor Manufacturing from November 2008 through January 2010 and Vice President of Supply Chain from April 2006 through November 2008. Prior to Ingersoll Rand's acquisition of Trane Inc., Mr. Poste held a number of increasing responsibilities at Trane Inc. from October 2000 through 2006. Mr. Poste has also worked for Honeywell for seven years through 1993 to 2000, Englehard Corp. from 1991 through 1993 and Chrysler Canada Ltd. from 1986 through 2001.

42


Table of Contents


PART II

ITEM 5.    MARKET FOR REGISTRANT'S COMMON EQUITY, RELATED STOCKHOLDER
                 MATTERS AND ISSUER PURCHASES OF EQUITY SECURITIES

MARKET PRICE OF COMMON STOCK

Our common stock began trading on the NYSE on November 16, 2006. On February 22, 2011, there were 1,773 registered holders of our common stock. The following table sets forth, for the periods indicated, the high and low sales price per share of our common stock as reported by the NYSE:

2009
  High   Low  

1 st  Quarter

  $ 6.27   $ 1.97  

2 nd  Quarter

    9.55     3.61  

3 rd  Quarter

    11.99     7.72  

4 th  Quarter

    12.55     8.82  

2010
             

1 st  Quarter

    12.25     9.06  

2 nd  Quarter

    15.60     9.13  

3 rd  Quarter

    12.20     8.36  

4 th  Quarter

    14.93     9.59  

PURCHASES OF EQUITY SECURITIES BY THE ISSUER AND AFFILIATED PURCHASERS

None.

CURRENT DIVIDEND POLICY

We paid no cash dividends on our common stock in 2009 or 2010, and we do not expect to pay dividends on our common stock for the foreseeable future. The agreements governing our indebtedness restrict our ability to pay dividends. See "Item 7—Management's Discussion and Analysis of Financial Condition and Results of Operations—Liquidity and Capital Resources—Financing," in this Annual Report.

USE OF PROCEEDS FROM SALE OF REGISTERED SECURITIES

None.

RECENT SALES OF UNREGISTERED SECURITIES

None.

RECENT PERFORMANCE

The following graph compares the cumulative total stockholder return on Hertz Global Holdings, Inc. common stock with the Russell 1000 Index and the Morningstar Rental & Leasing Services Industry Group (formerly known as Hemscott Industry Group 761—Rental & Leasing Services). The Russell 1000 Index is included because it is comprised of the 1,000 largest publicly traded issuers and has a median total market capitalization of approximately $5.3 billion, which is similar to our total market capitalization. The Morningstar Rental & Leasing Services Industry Group is a published, market capitalization-weighted index representing 41 stocks of companies that rent or lease various durable goods to the commercial and consumer market including cars and trucks, medical and industrial equipment, appliances, tools and other miscellaneous goods, including Hertz Holdings, ABG, Dollar Thrifty, RSC and URI.

43


Table of Contents

ITEM 5.    MARKET FOR REGISTRANT'S COMMON EQUITY, RELATED STOCKHOLDER
                 MATTERS AND ISSUER PURCHASES OF EQUITY SECURITIES (Continued)

The results are based on an assumed $100 invested on November 15, 2006, at the market close, through December 31, 2010. Trading in our common stock began on the NYSE on November 16, 2006.

COMPARISON OF CUMULATIVE TOTAL RETURN AMONG HERTZ GLOBAL HOLDINGS, INC.,
RUSSELL 1000 INDEX AND MORNINGSTAR RENTAL & LEASING SERVICES
INDUSTRY GROUP

ASSUMES DIVIDEND REINVESTMENT

GRAPHIC

Equity Compensation Plan Information

The following table summarizes the securities authorized for issuance pursuant to our equity compensation plans as of December 31, 2010:

Plan Category
  Number of securities to
be issued upon exercise
of outstanding options,
warrants and rights
(a)
  Weighted-average
exercise price of
outstanding options,
warrants and rights
(b)
  Number of securities
remaining available for
future issuance under
equity compensation
plans (excluding
securities reflected in
column (a))
(c)
 

Equity compensation plans approved by security holders

    21,460,493   $ 9.69 *   20,110,660  

Equity compensation plans not approved by security holders

        N/A      
                 

Total

    21,460,493   $ 9.69 *   20,110,660  
                 

*
Applies to stock options only.

44


Table of Contents


ITEM 6.    SELECTED FINANCIAL DATA

The following table presents selected consolidated financial information and other data for our business. The selected consolidated statement of operations data for the years ended December 31, 2010, 2009 and 2008, and the selected consolidated balance sheet data as of December 31, 2010 and 2009 presented below were derived from our consolidated financial statements and the related notes thereto included in this Annual Report under the caption "Item 8—Financial Statements and Supplementary Data."

You should read the following information in conjunction with the section of this Annual Report entitled "Item 7—Management's Discussion and Analysis of Financial Condition and Results of Operations" and our consolidated financial statements and related notes thereto included in this Annual Report under the caption "Item 8—Financial Statements and Supplementary Data."

 
  Years ended December 31,  
(In millions of dollars,
except per share data)
  2010   2009   2008   2007   2006  

Statement of Operations Data

                               

Revenues:

                               
 

Car rental

  $ 6,355.2   $ 5,872.9   $ 6,730.4   $ 6,800.7   $ 6,273.6  
 

Equipment rental

    1,069.8     1,110.2     1,657.3     1,755.3     1,672.1  
 

Other (a)

    137.5     118.4     137.4     129.6     112.7  
                       
   

Total revenues

    7,562.5     7,101.5     8,525.1     8,685.6     8,058.4  
                       

Expenses:

                               
 

Direct operating

    4,282.4     4,084.2     4,930.0     4,644.1     4,476.0  
 

Depreciation of revenue earning equipment and lease charges (b)

    1,868.1     1,931.4     2,194.2     2,003.4     1,757.2  
 

Selling, general and administrative

    664.5     641.1     769.6     775.9     723.9  
 

Interest expense

    773.4     680.3     870.0     916.7     943.3  
 

Interest and other income, net (c)

    (12.3 )   (64.5 )   (24.8 )   (41.3 )   (42.6 )
 

Impairment charges (d)

            1,168.9          
                       
   

Total expenses

    7,576.1     7,272.5     9,907.9     8,298.8     7,857.8  
                       

Income (loss) before income taxes

    (13.6 )   (171.0 )   (1,382.8 )   386.8     200.6  

(Provision) benefit for taxes on income (e)

    (17.0 )   59.7     196.9     (102.6 )   (68.0 )
                       

Net income (loss)

    (30.6 )   (111.3 )   (1,185.9 )   284.2     132.6  

Noncontrolling interest

    (17.4 )   (14.7 )   (20.8 )   (19.7 )   (16.7 )
                       

Net income (loss) attributable to Hertz Global Holdings, Inc. and Subsidiaries' common stockholders

  $ (48.0 ) $ (126.0 ) $ (1,206.7 ) $ 264.5   $ 115.9  
                       

Weighted average shares outstanding (in millions)

                               
 

Basic

    411.9     371.5     322.7     321.2     242.5  
 

Diluted

    411.9     371.5     322.7     325.5     243.4  

Earnings (loss) per share

                               
 

Basic

  $ (0.12 ) $ (0.34 ) $ (3.74 ) $ 0.82   $ 0.48  
 

Diluted

  $ (0.12 ) $ (0.34 ) $ (3.74 ) $ 0.81   $ 0.48  

45


Table of Contents

ITEM 6.    SELECTED FINANCIAL DATA (Continued)


 
  December 31,  
 
  2010   2009   2008   2007   2006  

Balance Sheet Data

                               

Cash and cash equivalents

  $ 2,374.2   $ 985.6   $ 594.3   $ 730.2   $ 674.5  

Total assets (f)

    17,332.2     16,002.4     16,451.4     19,255.7     18,677.4  

Total debt

    11,306.4     10,364.4     10,972.3     11,960.1     12,276.2  

Total equity

    2,131.3     2,097.4     1,488.3     2,934.4     2,549.4  

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

(b)
For the years ended December 31, 2010, 2009, 2008, 2007 and 2006, depreciation of revenue earning equipment increased by $22.7 million, $19.3 million, $32.7 million and $0.6 million and reduced by $13.1 million, respectively, resulting from the net effects of changing depreciation rates to reflect changes in the estimated residual value of revenue earning equipment. For the years ended December 31, 2010, 2009, 2008, 2007 and 2006, depreciation of revenue earning equipment and lease charges includes net losses of $42.9 million, $72.0 million, $74.3 million and $13.3 million and a net gain of $40.1 million, respectively, from the disposal of revenue earning equipment.

(c)
For the year ended December 31, 2009, reflects interest income of $16.0 million and a gain of $48.5 million, net of transaction costs, recorded in connection with the buyback of portions of certain of our Senior Notes and Senior Subordinated Notes. This amount for all other years reflected above primarily consists of interest income.

(d)
For the year ended December 31, 2008, we recorded non-cash impairment charges related to our goodwill, other intangible assets and property and equipment.

(e)
For the year ended December 31, 2010, 2009 and 2008, tax valuation allowances increased by $27.5 million, $39.7 million and $58.5 million, respectively, (excluding the effects of foreign currency translation) relating to the realization of deferred tax assets attributable to net operating losses, credits and other temporary differences in various jurisdictions. Additionally, certain tax reserves were recorded and certain tax reserves were released due to settlement for various uncertain tax positions in Federal, state and foreign jurisdictions. For the year ended December 31, 2007, we reversed a valuation allowance of $9.1 million relating to the realization of deferred tax assets attributable to net operating losses and other temporary differences in certain European countries. Additionally, certain tax reserves were recorded for various uncertain tax positions in Federal, state and foreign jurisdictions. For the year ended December 31, 2006, we established valuation allowances of $9.8 million relating to the realization of deferred tax assets attributable to net operating losses and other temporary differences in certain European countries. Additionally, certain tax reserves were recorded for certain federal and state uncertain tax positions.

(f)
Substantially all of our revenue earning equipment, as well as certain related assets, are owned by special purpose entities, or are subject to liens in favor of our lenders under our various credit facilities, other secured financings and asset-backed securities programs. None of such assets are available to satisfy the claims of our general creditors. For a description of those facilities, see "Item 7—Management's Discussion and Analysis of Financial Condition and Results of Operations—Liquidity and Capital Resources" in this Annual Report.

46


Table of Contents


ITEM 7.    MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
                 RESULTS OF OPERATIONS

The statements in this discussion and analysis regarding industry outlook, our expectations regarding the performance of our business and the other non-historical statements are forward-looking statements. These forward-looking statements are subject to numerous risks and uncertainties, including, but not limited to, the risks and uncertainties described in "Item 1A—Risk Factors." The following discussion and analysis provides information that we believe to be relevant to an understanding of our consolidated financial condition and results of operations. Our actual results may differ materially from those contained in or implied by any forward-looking statements. You should read the following discussion and analysis together with the sections entitled "Cautionary Note Regarding Forward-Looking Statements," "Item 1A—Risk Factors," "Item 6—Selected Financial Data" and our consolidated financial statements and related notes included in this Annual Report under the caption "Item 8—Financial Statements and Supplementary Data."

Overview

We are engaged principally in the business of renting cars and renting equipment.

Our revenues primarily are derived from rental and related charges and consist of:

Our expenses primarily consist of:

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 have a significant effect on our profitability depending on our ability to adjust pricing for these changes. We continue to balance our mix of non-program and program vehicles based on market conditions. Our business requires significant expenditures for cars and equipment, and consequently we require substantial liquidity to finance such expenditures. See

47


Table of Contents

ITEM 7.    MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
                 RESULTS OF OPERATIONS (Continued)


"Liquidity and Capital Resources" below. In the U.S., as of December 31, 2010, the percentage of non-program cars was 72% as compared to 67% as of December 31, 2009. Internationally, as of December 31, 2010, the percentage of non-program cars was 70%, compared to 71% as of December 31, 2009.

In the year ended December 31, 2010, our vehicle depreciation costs decreased as compared to the prior year period due to improved residual values, a continued move towards a greater proportion of non-program vehicles, mix optimization and improved procurement and remarketing efforts.

For the year ended December 31, 2010, we experienced a 8.5% increase in transaction days versus the prior period in the United States while rental rate revenue per transaction day, or "RPD," decreased 0.1%. During the year ended December 31, 2010, in our European operations, we experienced a 4.1% improvement in transaction days and a 1.4% improvement in our car rental RPD compared to the year ended December 31, 2009.

Since January 1, 2008, we increased the number of our off-airport rental locations in the United States by 22% to approximately 1,930 locations. Revenues from our U.S. off-airport operations represented $1,079.5 million, $953.1 million and $975.9 million of our total car rental revenues in the years ended December 31, 2010, 2009 and 2008, respectively. Our strategy includes selected openings of new off-airport locations, the disciplined evaluation of existing locations and the pursuit of same-store sales growth. Our strategy also includes increasing penetration in the off-airport market and growing the online leisure market with our Advantage brand, particularly in the longer length weekly sector, which is characterized by lower vehicle costs and lower transaction costs at a lower RPD. Increasing our 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 rental volumes and pricing worldwide for year ended December 31, 2010 compared to the prior year period as commercial construction markets continued to be suppressed and credit markets for capital expansion remained tight especially in the first half of 2010. Pricing pressures continued as industry fleet levels exceeded demand creating competitive downward movement and irrational actions. Volume and price declines were partly offset by industrial performance and HERC balancing the customer portfolio in this arena.

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

48


Table of Contents

ITEM 7.    MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
                 RESULTS OF OPERATIONS (Continued)


number of part time and seasonal workers. However, certain operating expenses, including 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 have evaluated our workforce and operations and made adjustments, including headcount reductions and business process reengineering resulting in optimized work flow at rental locations and maintenance facilities as well as streamlined our back-office operations and evaluated potential outsourcing opportunities. When we made adjustments to our workforce and operations, we incurred incremental expenses that delay the benefit of a more efficient workforce and operating structure, but we believe that increased operating efficiency and reduced costs associated with the operation of our business are important to our long-term competitiveness.

During 2007 through 2010, we announced several initiatives to improve our competitiveness and industry leadership through targeted job reductions. These initiatives included, but were not limited to, job reductions at our corporate headquarters and back-office operations in the U.S. and Europe. As part of our re-engineering optimization we outsourced selected functions globally. In addition, we streamlined operations and reduced costs by initiating the closure of targeted car rental locations and equipment rental branches throughout the world. The largest of these closures occurred in 2008 which resulted in closures of approximately 250 off-airport locations and 22 branches in our U.S. equipment rental business. These initiatives impacted approximately 12,000 employees.

For the years ended December 31, 2010, 2009 and 2008, our consolidated statement of operations includes restructuring charges relating to various initiatives of $54.7 million, $106.8 million and $216.2 million, respectively.

See Note 12 of the Notes to our consolidated financial statements included in this Annual Report under caption "Item 8—Financial Statements and Supplementary Data."

On April 25, 2010, we entered into a definitive merger agreement, or the "Merger Agreement," under which we agreed to acquire Dollar Thrifty Automotive Group, Inc. or "Dollar Thrifty," subject to certain conditions, including the condition that Dollar Thrifty shareholders vote to adopt the Merger Agreement. The Merger Agreement was subsequently amended on September 10, 2010, to increase the consideration payable by us to Dollar Thrifty stockholders. On September 30, 2010, stockholders of Dollar Thrifty did not vote in favor of the proposal to adopt the Merger Agreement. As a result, on October 1, 2010, we terminated the Merger Agreement. We incurred legal, accounting, financial advisory and other expenses of approximately $21.3 million during the year ended December 31, 2010 in connection with the terminated Dollar Thrifty transaction.

Critical Accounting Policies and Estimates

Our discussion and analysis of financial condition and results of operations are based upon our consolidated financial statements, which have been prepared in accordance with accounting principles generally accepted in the United States of America, or "GAAP." The preparation of these financial statements requires management to make estimates and judgments that affect the reported amounts in our financial statements and accompanying notes.

We believe the following critical accounting policies affect the more significant judgments and estimates used in the preparation of our financial statements and changes in these judgments and estimates may impact our future results of operations and financial condition. For additional discussion of our accounting policies, see Note 2 to the Notes to our consolidated financial statements included in this Annual Report under the caption "Item 8—Financial Statements and Supplementary Data."

49


Table of Contents

ITEM 7.    MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
                 RESULTS OF OPERATIONS (Continued)

Revenue Earning Equipment

Our principal assets are revenue earning equipment, which represented approximately 52% of our total assets as of December 31, 2010. Revenue earning equipment consists of vehicles utilized in our car rental operations and equipment utilized in our equipment rental operations. For the year ended December 31, 2010, 55% of the vehicles purchased for our combined U.S. and international car rental fleets were subject to repurchase by automobile manufacturers under contractual repurchase and guaranteed depreciation programs, subject to certain manufacturers' car condition and mileage requirements, at a specific price during a specified time period. These programs limit our residual risk with respect to vehicles purchased under these programs. For all other vehicles, as well as equipment acquired by our equipment rental business, we use historical experience and monitor market conditions to set depreciation rates. When revenue earning equipment is acquired, we estimate the period that we will hold the asset, primarily based on historical measures of the amount of rental activity (e.g., automobile mileage and equipment usage) and the targeted age of equipment at the time of disposal. We also estimate the residual value of the applicable revenue earning equipment at the expected time of disposal. The residual values for rental vehicles are affected by many factors, including make, model and options, age, physical condition, mileage, sale location, time of the year and channel of disposition (e.g., auction, retail, dealer direct). The residual value for rental equipment is affected by factors which include equipment age and amount of usage. Depreciation is recorded on a straight-line basis over the estimated holding period. Depreciation rates are reviewed on a quarterly basis based on management's ongoing assessment of present and estimated future market conditions, their effect on residual values at the time of disposal and the estimated holding periods. Market conditions for used vehicle and equipment sales can also be affected by external factors such as the economy, natural disasters, fuel prices and incentives offered by manufacturers of new cars. These key factors are considered when estimating future residual values and assessing depreciation rates. As a result of this ongoing assessment, we make periodic adjustments to depreciation rates of revenue earning equipment in response to changing market conditions. Upon disposal of revenue earning equipment, depreciation expense is adjusted for the difference between the net proceeds received and the remaining net book value.

See Note 7 to the Notes to our consolidated financial statements included in this Annual Report under the caption "Item 8—Financial Statements and Supplementary Data."

Public Liability and Property Damage

The obligation for public liability and property damage on self-insured U.S. and international vehicles and equipment represents an estimate for both reported accident claims not yet paid, and claims incurred but not yet reported. The related liabilities are recorded on a non-discounted basis. Reserve requirements are based on actuarial evaluations of historical accident claim experience and trends, as well as future projections of ultimate losses, expenses, premiums and administrative costs. The adequacy of the liability is regularly monitored based on evolving accident claim history and insurance related state legislation changes. If our estimates change or if actual results differ from these assumptions, the amount of the recorded liability is adjusted to reflect these results. Our actual results as compared to our estimates have historically resulted in relatively minor adjustments to our recorded liability.

50


Table of Contents

ITEM 7.    MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
                 RESULTS OF OPERATIONS (Continued)

Pensions

Our employee pension costs and obligations are dependent on our assumptions used by actuaries in calculating such amounts. These assumptions include discount rates, salary growth, long-term return on plan assets, retirement rates, mortality rates and other factors. Actual results that differ from our assumptions are accumulated and amortized over future periods and, therefore, generally affect our recognized expense in such future periods. While we believe that the assumptions used are appropriate, significant differences in actual experience or significant changes in assumptions would affect our pension costs and obligations. The various employee-related actuarial assumptions (e.g., retirement rates, mortality rates, salary growth) used in determining pension costs and plan liabilities are reviewed periodically by management, assisted by the enrolled actuary, and updated as warranted. The discount rate used to value the pension liabilities and related expenses and the expected rate of return on plan assets are the two most significant assumptions impacting pension expense. The discount rate used is a market-based spot rate as of the valuation date. For the expected return on assets assumption, we use a forward-looking rate that is based on the expected return for each asset class (including the value added by active investment management), weighted by the target asset allocation. The past annualized long-term performance of the Plans' assets has generally exceeded the long-term rate of return assumption. See Note 5 to the Notes to our consolidated financial statements included in this Annual Report under the caption "Item 8—Financial Statements and Supplementary Data." For a discussion of the risks associated with our pension plans, see "Item 1A—Risk Factors" in this Annual Report.

Goodwill and Other Intangible Assets

We review goodwill for impairment whenever events or changes in circumstances indicate that the carrying amount of the goodwill may not be recoverable, and also review goodwill annually. Goodwill impairment is deemed to exist if the carrying value of goodwill exceeds its fair value. Goodwill must be tested at least annually using a two-step process. The first step is to identify any potential impairment by comparing the carrying value of the reporting unit to its fair value. We estimate the fair value of our reporting units using a discounted cash flow methodology. The cash flows represent management's most recent planning assumptions. These assumptions are based on a combination of industry outlooks, views on general economic conditions, our expected pricing plans and expected future savings generated by our past restructuring activities. If a potential impairment is identified, the second step is to compare the implied fair value of goodwill with its carrying amount to measure the impairment loss. A significant decline in the projected cash flows or a change in the weighted average cost of capital used to determine fair value could result in a future goodwill impairment charge.

In the fourth quarter 2010, we performed our annual impairment analysis based upon market data as of October 1, 2010 and concluded that there was no impairment related to our goodwill and our other indefinite-lived intangible assets.

We performed the impairment analyses for our reporting units, using our business and long-term strategic plans, revised to reflect the current economic conditions. Our weighted-average cost of capital used in the discounted cash flow model was calculated based upon the fair value of our debt and our stock price with a debt to equity ratio comparable to our industry. The total fair value of our reporting units was then compared to our market capitalization to ensure their reasonableness.

We re-evaluate the estimated useful lives of our intangible assets annually or as circumstances change. Those intangible assets considered to have indefinite useful lives, including our trade name, are evaluated for impairment on an annual basis, by comparing the fair value of the intangible assets to their carrying value. Intangible assets with finite useful lives are amortized over their respective estimated

51


Table of Contents

ITEM 7.    MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
                 RESULTS OF OPERATIONS (Continued)


useful lives. In addition, whenever events or changes in circumstances indicate that the carrying value of intangible assets might not be recoverable, we will perform an impairment review.

The valuation of our indefinite-lived assets utilized the relief from royalty method, which incorporates cash flows and discount rates comparable to those discussed above. We also considered the excess earnings as a percentage of revenues to ensure their reasonableness. Our analysis supported our conclusion that an impairment did not exist.

See Note 3 to the Notes to our consolidated financial statements included in this Annual Report under the caption "Item 8—Financial Statements and Supplementary Data."

Derivatives

We periodically enter into cash flow and other hedging transactions to specifically hedge exposure to various risks related to interest rates, fuel prices and foreign currency rates. Derivative financial instruments are viewed as risk management tools and have not been used for speculative or trading purposes. All derivatives are recorded on the balance sheet as either assets or liabilities measured at their fair value. The effective portion of changes in fair value of derivatives designated as cash flow hedging instruments is recorded as a component of other comprehensive income. The ineffective portion is recognized currently in earnings within the same line item as the hedged item, based upon the nature of the hedged item. For derivative instruments that are not part of a qualified hedging relationship, the changes in their fair value are recognized currently in earnings. The valuation methods used to mark these to market are either market quotes (for fuel swaps and foreign exchange instruments) or a discounted cash flow method (for interest rate swaps and interest rate caps). The key inputs for the discounted cash flow method are the current yield curve and the credit default swap spread. These valuations are subject to change based on movements in items such as the London inter-bank offered rate, or "LIBOR," our credit worthiness and unleaded gasoline and diesel fuel prices.

Income Taxes

Deferred tax assets and liabilities are recognized for the future tax consequences attributable to differences between the financial statement carrying amounts of existing assets and liabilities and their respective tax bases. Deferred tax assets and liabilities are measured using enacted tax rates expected to apply to taxable income in the years in which those temporary differences are expected to be recovered or settled. The effect of a change in tax rates is recognized in the statement of operations in the period that includes the enactment date. Valuation allowances are recorded to reduce deferred tax assets when it is more likely than not that a tax benefit will not be realized. Subsequent changes to enacted tax rates and changes to the global mix of earnings will result in changes to the tax rates used to calculate deferred taxes and any related valuation allowances. Provisions are not made for income taxes on undistributed earnings of international subsidiaries that are intended to be indefinitely reinvested outside the United States or are expected to be remitted free of taxes. Future distributions, if any, from these international subsidiaries to the United States or changes in U.S. tax rules may require a change to reflect tax on these amounts. We have recorded a deferred tax asset for unutilized net operating loss carryforwards in various tax jurisdictions. In the future years when assessing whether a benefit from the utilization of those net operating losses should be allowed, the taxing authorities may examine the positions that led to the generations of those net operating losses. If the utilization of any of those losses are disallowed a deferred tax liability may have to be recorded.

See Note 8 to the Notes to our consolidated financial statements included in this Annual Report under the caption "Item 8—Financial Statements and Supplementary Data."

52


Table of Contents

ITEM 7.    MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
                 RESULTS OF OPERATIONS (Continued)

Stock-Based Compensation

The cost of employee services received in exchange for an award of equity instruments is based on the grant-date fair value of the award. That cost is recognized over the period during which the employee is required to provide service in exchange for the award. We estimated the fair value of options issued at the date of grant using a Black-Scholes option-pricing model, which includes assumptions related to volatility, expected term, dividend yield, risk-free interest rate and forfeiture rate. These factors combined with the stock price on the date of grant result in a fixed expense which is recorded on a straight-line basis over the vesting period. The key factors used in the valuation process, other than the forfeiture rate, remained unchanged from the date of grant. Because the stock of Hertz Holdings became publicly traded in November 2006 and has a short trading history, it is not practicable for us to estimate the expected volatility of our share price, or a peer company share price, because there is not sufficient historical information about past volatility. Therefore, we use the calculated value method to estimate the expected volatility, based on the Dow Jones Specialized Consumer Services sub-sector within the consumer services industry, and we use the U.S. large capitalization component, which includes the top 70% of the index universe (by market value). We use the simplified method for estimating the expected term. We believe it is appropriate to continue to use this simplified method because we do not have sufficient historical exercise data to provide a reasonable basis upon which to estimate the expected term due to the limited period of time our common stock has been publicly traded. The assumed dividend yield is zero. The risk-free interest rate is the implied zero-coupon yield for U.S. Treasury securities having a maturity approximately equal to the expected term of the options, as of the grant dates. The non-cash stock-based compensation expense associated with the Hertz Global Holdings, Inc. Stock Incentive Plan, or the "Stock Incentive Plan," the Hertz Global Holdings, Inc. Director Stock Incentive Plan, or the "Director Plan," and the Hertz Global Holdings, Inc. 2008 Omnibus Incentive Plan, or the "Omnibus Plan," are pushed down from Hertz Holdings and recorded on the books at the Hertz level. See Note 6 to the Notes to our consolidated financial statements included in this Annual Report under the caption "Item 8—Financial Statements and Supplementary Data."

Recent Accounting Pronouncements

For a discussion of recent accounting pronouncements, see Note 2 to the Notes to our consolidated financial statements included in this Annual Report under the caption "Item 8—Financial Statements and Supplementary Data."

Results of Operations

In the following discussion, comparisons are made between the years ended December 31, 2010, 2009 and 2008. The following table sets forth for each of the periods indicated, the percentage of total

53


Table of Contents

ITEM 7.    MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
                 RESULTS OF OPERATIONS (Continued)


revenues represented by the various line items in our consolidated statements of operations (in millions of dollars):

 
   
   
   
  Percentage of Revenues  
 
  Years Ended December 31,   Years Ended December 31,  
 
  2010   2009   2008   2010   2009   2008  

Revenues:

                                     
 

Car rental

  $ 6,355.2   $ 5,872.9   $ 6,730.4     84.0 %   82.7 %   79.0 %
 

Equipment rental

    1,069.8     1,110.2     1,657.3     14.2     15.6     19.4  
 

Other

    137.5     118.4     137.4     1.8     1.7     1.6  
                           
   

Total revenues

    7,562.5     7,101.5     8,525.1     100.0     100.0     100.0  
                           

Expenses:

                                     
 

Direct operating

    4,282.4     4,084.2     4,930.0     56.7     57.5     57.8  
 

Depreciation of revenue earning equipment and lease charges

    1,868.1     1,931.4     2,194.2     24.7     27.2     25.8  
 

Selling, general and administrative

    664.5     641.1     769.6     8.8     9.0     9.0  
 

Interest expense

    773.4     680.3     870.0     10.2     9.6     10.2  
 

Interest and other income, net

    (12.3 )   (64.5 )   (24.8 )   (0.2 )   (0.9 )   (0.3 )
 

Impairment charges

            1,168.9             13.7  
                           
   

Total expenses

    7,576.1     7,272.5     9,907.9     100.2     102.4     116.2  
                           

Loss before income taxes

    (13.6 )   (171.0 )   (1,382.8 )   (0.2 )   (2.4 )   (16.2 )

(Provision) benefit for taxes on income

    (17.0 )   59.7     196.9     (0.2 )   0.8     2.3  
                           

Net loss

    (30.6 )   (111.3 )   (1,185.9 )   (0.4 )   (1.6 )   (13.9 )

Noncontrolling interest

    (17.4 )   (14.7 )   (20.8 )   (0.2 )   (0.2 )   (0.2 )
                           

Net loss attributable to Hertz Global Holdings, Inc. and Subsidiaries' common stockholders

  $ (48.0 ) $ (126.0 ) $ (1,206.7 )   (0.6 )%   (1.8 )%   (14.1 )%
                           

54


Table of Contents

ITEM 7.    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 each of the periods indicated:

 
  Years Ended, or as of December 31,  
 
  2010   2009   2008  

Selected Car Rental Operating Data:

                   
 

Worldwide number of transactions (in thousands)

    25,970     24,549     27,400  
   

Domestic

    19,101     17,791     19,822  
   

International

    6,869     6,758     7,578  
 

Worldwide transaction days (in thousands) (a)

    127,159     118,459     128,693  
   

Domestic

    86,422     79,644     85,701  
   

International

    40,737     38,815     42,992  
 

Worldwide rental rate revenue per transaction day (b)

  $ 43.76   $ 43.68   $ 44.31  
   

Domestic

  $ 42.16   $ 42.20   $ 42.88  
   

International

  $ 47.15   $ 46.71   $ 47.16  
 

Worldwide average number of company-operated cars during the period

    445,200     413,500     457,600  
   

Domestic

    297,900     274,000     302,200  
   

International

    147,300     139,500     155,400  
 

Adjusted pre-tax income (in millions of dollars) (c)

  $ 642.9   $ 465.3   $ 289.1  
 

Worldwide revenue earning equipment, net (in millions of dollars)

  $ 7,235.7   $ 7,019.3   $ 6,501.4  

Selected Worldwide Equipment Rental Operating Data:

                   
 

Rental and rental related revenue (in millions of dollars) (d)

  $ 976.1   $ 1,021.8   $ 1,475.1  
 

Same store revenue growth (decline), including growth initiatives (e)

    (5.4 )%   (29.1 )%   (5.7 )%
 

Average acquisition cost of rental equipment operated during the period (in millions of dollars)

  $ 2,732.6   $ 2,874.7   $ 3,369.2  
 

Adjusted pre-tax income (in millions of dollars) (c)

  $ 78.0   $ 76.4   $ 272.0  
 

Revenue earning equipment, net (in millions of dollars)

  $ 1,703.7   $ 1,832.3   $ 2,190.1  

(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

55


Table of Contents

ITEM 7.    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, 2009 foreign exchange rates) for the years ended December 31, 2010, 2009 and 2008 (in millions of dollars, except as noted):

 
  Years Ended December 31,  
 
  2010   2009   2008  

Car rental segment revenues

  $ 6,486.2   $ 5,979.0   $ 6,858.2  

Non-rental rate revenue

    (1,043.5 )   (905.2 )   (1,080.6 )

Foreign currency adjustment

    121.5     99.9     (75.7 )
               

Rental rate revenue

  $ 5,564.2   $ 5,173.7   $ 5,701.9  
               

Transaction days (in thousands)

    127,159     118,459     128,693  

Rental rate revenue per transaction day (in whole dollars)

  $ 43.76   $ 43.68   $ 44.31  
(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 (loss) before income taxes by segment to adjusted pre-tax income by segment for the years ended December 31, 2010, 2009 and 2008 (in millions of dollars):

 
  Year Ended December 31, 2010  
 
  Car Rental   Equipment
Rental
 

Income (loss) before income taxes

  $ 442.8   $ (14.6 )

Adjustments:

             
 

Purchase accounting (1)

    37.0     50.1  
 

Non-cash debt charges (2)

    133.3     7.5  
 

Restructuring charges

    18.1     34.7  
 

Restructuring related charges (3)

    11.9     0.3  
 

Derivative gains (4)

    (0.2 )    
           

Adjusted pre-tax income

  $ 642.9   $ 78.0  
           

 

 
  Year Ended December 31, 2009  
 
  Car Rental   Equipment
Rental
 

Income (loss) before income taxes

  $ 190.1   $ (20.7 )

Adjustments:

             
 

Purchase accounting (1)

    38.2     49.6  
 

Non-cash debt charges (2)

    131.7     9.0  
 

Restructuring charges

    58.7     38.2  
 

Restructuring related charges (3)

    42.3     0.3  
 

Third-party bankruptcy reserve (5)

    4.3      
           

Adjusted pre-tax income

  $ 465.3   $ 76.4  
           

56


Table of Contents

ITEM 7.    MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
                 RESULTS OF OPERATIONS (Continued)

 

 
  Year Ended December 31, 2008  
 
  Car Rental   Equipment
Rental
 

Loss before income taxes

  $ (385.3 ) $ (629.3 )

Adjustments:

             
 

Purchase accounting (1)

    40.2     58.8  
 

Non-cash debt charges (2)

    71.1     10.3  
 

Restructuring charges

    98.4     103.2  
 

Restructuring related charges (3)

    19.5     3.1  
 

Derivative losses (4)

    2.2      
 

Impairment charges (6)

    443.0     725.9  
           

Adjusted pre-tax income

  $ 289.1   $ 272.0  
           

(1)
Represents the purchase accounting effects of the Acquisition 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. Also represents the purchase accounting effects of subsequent acquisitions on our results of operations relating to increased amortization of intangible assets.

(2)
Represents non-cash debt charges relating to the amortization and write-off of deferred debt financing costs and debt discounts. For the years ended December 31, 2010 and 2009, also includes $68.9 million and $74.6 million, respectively, 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. During the year ended December 31, 2008, also includes $11.8 million associated with the ineffectiveness of our HVF interest rate swaps and $30.0 million related to the write-off of deferred financing costs associated with those countries outside the United States as to which take-out asset-based facilities have not been entered into.

(3)
Represents incremental 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)
In 2010, represents the mark-to-market adjustment on our interest rate cap. In 2008, represents unrealized and realized gains and losses on our interest rate swaptions.

(5)
Represents an allowance for uncollectible program car receivables related to a bankrupt European dealer affiliated with a U.S. car manufacturer.

(6)
Represents non-cash impairment charges related to our goodwill, other intangible assets and property and equipment.
(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, 2009 foreign exchange rates) for the years ended December 31, 2010, 2009 and 2008 (in millions of dollars):

 
  Years ended December 31,  
 
  2010   2009   2008  

Equipment rental segment revenues

  $ 1,070.1   $ 1,110.9   $ 1,658.1  

Equipment sales and other revenue

    (100.1 )   (109.8 )   (177.8 )

Foreign currency adjustment

    6.1     20.7     (5.2 )
               

Rental and rental related revenue

  $ 976.1   $ 1,021.8   $ 1,475.1  
               

57


Table of Contents

ITEM 7.    MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
                 RESULTS OF OPERATIONS (Continued)

(e)
Same store revenue growth or decline is calculated as the year over year change in revenue for locations that are open at the end of the period reported and have been operating under our direction for more than twelve months. 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.

Year Ended December 31, 2010 Compared with Year Ended December 31, 2009

REVENUES

 
  Years Ended December 31,    
   
 
(in millions of dollars)
  2010   2009   $ Change   % Change  

Revenues by Segment:

                         
 

Car rental

  $ 6,486.2   $ 5,979.0   $ 507.2     8.5 %
 

Equipment rental

    1,070.1     1,110.9     (40.8 )   (3.7 )%
 

Other reconciling items

    6.2     11.6     (5.4 )   (46.6 )%
                     
   

Total revenues

  $ 7,562.5   $ 7,101.5   $ 461.0     6.5 %
                     

Car Rental Segment

Revenues from our car rental segment increased 8.5%, primarily as a result of increases in car rental transaction days worldwide of 7.3%, worldwide RPD of 0.2%, airport concession recovery fees of $49.1 million and refueling fees of $43.7 million, partly offset by the effects of foreign currency translation of approximately $18.2 million.

RPD for worldwide car rental for the year ended December 31, 2010 increased 0.2% from 2009, due to an increase in International RPD of 0.9%, partly offset by a decrease in U.S. RPD of 0.1%. The increase in International RPD was primarily driven by an increase in Europe RPD of 1.4%. U.S. off-airport RPD improved by 2.9% and U.S. airport RPD decreased 1.1%. U.S. airport RPD decreased due to the lower RPD that our Advantage brand generates, as well as the competitive pricing environment.

Equipment Rental Segment

Revenues from our equipment rental segment decreased 3.7%, primarily due to a 1.7% decrease in equipment rental volume, a 4.2% decline in pricing and a decrease in equipment sales of $12.3 million, partly offset by the effects of foreign currency translation of approximately $17.3 million. Decreases in equipment rental volume and equipment pricing, were due to continued suppression of commercial construction markets and continued tightening of credit markets for capital expansion, especially in the first half of 2010. Pricing also declined as industry fleet levels exceeded demand.

Other

Revenues from all other sources decreased 46.6%, primarily due to a decrease in revenues from our third-party claim management services.

58


Table of Contents

ITEM 7.    MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
                 RESULTS OF OPERATIONS (Continued)

EXPENSES

 
  Years Ended
December 31,
   
   
 
(in millions of dollars)
  2010   2009   $ Change   % Change  

Expenses:

                         
 

Fleet related expenses

  $ 1,003.2   $ 880.1   $ 123.1     14.0 %
 

Personnel related expenses

    1,411.2     1,321.3     89.9     6.8 %
 

Other direct operating expenses

    1,868.0     1,882.8     (14.8 )   (0.8 )%
                     
   

Direct operating

    4,282.4     4,084.2     198.2     4.9 %
   

Depreciation of revenue earning equipment and lease charges

    1,868.1     1,931.4     (63.3 )   (3.3 )%
   

Selling, general and administrative

    664.5     641.1     23.4     3.6 %
   

Interest expense

    773.4     680.3     93.1     13.7 %
   

Interest and other income, net

    (12.3 )   (64.5 )   52.2     (80.9 )%
                     
     

Total expenses

  $ 7,576.1   $ 7,272.5   $ 303.6     4.2 %
                     

Total expenses increased 4.2%, and total expenses as a percentage of revenues decreased from 102.4% for the year ended December 31, 2009 to 100.2% for the year ended December 31, 2010.

Direct Operating Expenses

Direct operating expenses increased 4.9% as a result of increases in fleet related expenses and personnel related expenses, partly offset by a decrease in other direct operating expenses.

    Fleet related expenses increased 14.0%. The increase was primarily related to a worldwide rental volume demand which resulted in increases in gasoline costs of $41.5 million, self insurance expense of $33.1 million, vehicle license taxes of $16.5 million and vehicle damage costs of $14.8 million. Equipment maintenance costs and freight costs increased by $13.7 million and $9.0 million, respectively, relating to efforts to maximize the use of our existing fleet.

    Personnel related expenses increased 6.8%. The increase was primarily related to increases in incentive compensation costs of $30.8 million, wages and benefits of $29.1 million, outside services, including transporter wages, of $22.5 million and payroll taxes of $4.8 million. These increases primarily related to improved results in our worldwide car rental operations, as well as additional U.S. off-airport locations and Advantage locations opened during 2010.

    Other direct operating expenses decreased 0.8%. The decrease was primarily related to decreases in restructuring and restructuring related charges of $51.3 million, equipment rental cost of goods sold of $10.9 million, field administrative of $9.2 million, field systems of $7.3 million, equipment rental credit and collections expense of $7.3 million, facility expenses of $6.2 million and customer service costs of $5.1 million. The decreases in fleet related expenses primarily related to disciplined cost management and reductions in equipment rental volume. The decreases in other direct operating expenses were partly offset by increases in commissions of $30.1 million, concession fees in our car rental operations of $27.4 million, charge card fees of $14.0 million and reservation costs of $5.1 million primarily related to improved car rental volume demand.

59


Table of Contents

ITEM 7.    MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
                 RESULTS OF OPERATIONS (Continued)

Depreciation of Revenue Earning Equipment and Lease Charges

Car Rental Segment

Depreciation of revenue earning equipment and lease charges for our car rental segment of $1,594.6 million for the year ended December 31, 2010 decreased 1.2% from $1,614.2 million for the year ended December 31, 2009. The decrease was primarily due to an improvement in certain vehicle residual values and a change in mix of vehicles, partly offset by the effects of foreign currency translation of approximately $9.2 million.

Equipment Rental Segment

Depreciation of revenue earning equipment and lease charges in our equipment rental segment of $273.5 million for the year ended December 31, 2010 decreased 13.8% from $317.2 million for the year ended December 31, 2009. The decrease was primarily due to a 4.9% reduction in average acquisition cost of rental equipment operated during the period and higher residual values on the disposal of used equipment.

Selling, General and Administrative Expenses

Selling, general and administrative expenses increased 3.6%, due to increases in advertising, sales promotion expenses and administrative expenses.

    Advertising expenses increased $20.7 million, or 18.3%, primarily due to a new television campaign in the U.S., as well as, a reduction in advertising funding received from third parties.

    Sales promotion expenses increased $1.6 million, or 1.2%, primarily related to the effects of foreign currency translation.

    Administrative expenses increased $1.1 million, or 0.3%, primarily due to increases in legal expenses related to the Dollar Thrifty Automotive Group transaction which has now been terminated, as well as consulting expenses, salaries and related expenses, foreign exchange losses and stock option expense, partly offset by a decrease in restructuring and restructuring related expenses.

Interest Expense

Car Rental Segment

Interest expense for our car rental segment of $401.3 million for the year ended December 31, 2010 increased 27.0% from $316.1 million for the year ended December 31, 2009. The increase was primarily due to an increase in the weighted average debt outstanding as a result of an increased fleet size.

Equipment Rental Segment

Interest expense for our equipment rental segment of $39.4 million for the year ended December 31, 2010 decreased 26.1% from $53.3 million for the year ended December 31, 2009. The decrease was primarily due to a reduction in the weighted average debt outstanding as a result of reduced fleet size.

Other

Other interest expense relating to interest on corporate debt of $332.7 million for the year ended December 31, 2010 increased 7.0% from $310.9 million for the year ended December 31, 2009. The increase was primarily due to interest expense on the Convertible Senior Notes issued in May 2009.

60


Table of Contents

ITEM 7.    MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
                 RESULTS OF OPERATIONS (Continued)

Interest and Other Income, Net

Interest and other income, net decreased $52.2 million primarily due to a gain of $48.5 million, net of transaction costs, recorded in connection with the buyback of portions of certain of our Senior Notes and Senior Subordinated Notes in 2009.

ADJUSTED PRE-TAX INCOME

Car Rental Segment

Adjusted pre-tax income for our car rental segment of $642.9 million increased 38.2% from $465.3 million for the year ended December 31, 2009. The increase was primarily due to stronger volumes, increased pricing and disciplined cost management. Adjustments to our car rental segment income before income taxes on a GAAP basis for the years ended December 31, 2010 and 2009, totaled $200.1 million and $275.2 million, respectively. See footnote c to the table under "Results of Operations" for a summary and description of these adjustments.

Equipment Rental Segment

Adjusted pre-tax income for our equipment rental segment of $78.0 million increased 2.1% from $76.4 million for the year ended December 31, 2009. The increase was primarily due to strong cost management performance and higher residual values on the disposal of used equipment, partly offset by reductions in volume and pricing. Adjustments to our equipment rental segment loss before income taxes on a GAAP basis for the years ended December 31, 2010 and 2009, totaled $92.6 million and $97.1 million, respectively. See footnote c to the table under "Results of Operations" for a summary and description of these adjustments.

(PROVISION) BENEFIT FOR TAXES ON INCOME, NET INCOME ATTRIBUTABLE TO NONCONTROLLING INTERESTS AND NET LOSS ATTRIBUTABLE TO HERTZ GLOBAL HOLDINGS, INC. AND SUBSIDIARIES' COMMON STOCKHOLDERS

 
  Years Ended
December 31,
   
   
 
(in millions of dollars)
  2010   2009   $ Change   % Change  

Loss before income taxes

  $ (13.6 ) $ (171.0 ) $ 157.4     (92.1 )%

(Provision) benefit for taxes on income

    (17.0 )   59.7     (76.7 )   (128.6 )%
                     

Net loss

    (30.6 )   (111.3 )   80.7     (72.5 )%

Less: Net income attributable to noncontrolling interests

    (17.4 )   (14.7 )   (2.7 )   18.4 %
                     

Net loss attributable to Hertz Global Holdings, Inc. and Subsidiaries' common stockholders

  $ (48.0 ) $ (126.0 ) $ 78.0     (61.9 )%
                     

(Provision) Benefit for Taxes on Income

The effective tax rate for the year ended December 31, 2010 was (125.6)% as compared to 34.9% in the year ended December 31, 2009. The negative effective tax rate in 2010 is primarily due to a lower loss before income taxes in 2010, valuation allowances for losses in certain non-U.S. jurisdictions for which tax benefits cannot be realized and differences in foreign tax rates versus the U.S. Federal tax rate. See Note 8 to the Notes to our consolidated financial statements included in this Annual Report under the caption "Item 8—Financial Statements and Supplementary Data."

61


Table of Contents

ITEM 7.    MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
                 RESULTS OF OPERATIONS (Continued)

Net Income Attributable to Noncontrolling Interests

Net income attributable to noncontrolling interests increased 18.4% due to an increase in our majority-owned subsidiary Navigation Solutions, L.L.C.'s net income for the year ended December 31, 2010 as compared to the year ended December 31, 2009.

Net Loss Attributable to Hertz Global Holdings, Inc. and Subsidiaries' Common Stockholders

The net loss attributable to Hertz Global Holdings, Inc. and Subsidiaries' common stockholders decreased 61.9% primarily due to higher rental volume and increased pricing in our worldwide car rental operations, improved residual values on the disposal of used equipment and certain vehicles and disciplined cost management, partly offset by lower rental volume and pricing in our worldwide equipment rental operations. The impact of changes in exchange rates on net loss was mitigated by the fact that not only revenues but also most expenses outside of the United States were incurred in local currencies.

Year Ended December 31, 2009 Compared with Year Ended December 31, 2008

REVENUES

 
  Years Ended
December 31,
   
   
 
(in millions of dollars)
  2009   2008   $ Change   % Change  

Revenues by Segment:

                         
 

Car rental

  $ 5,979.0   $ 6,858.2   $ (879.2 )   (12.8 )%
 

Equipment rental

    1,110.9     1,658.1     (547.2 )   (33.0 )%
 

Other reconciling items

    11.6     8.8     2.8     31.8 %
                     
   

Total revenues

  $ 7,101.5   $ 8,525.1   $ (1,423.6 )   (16.7 )%
                     

Car Rental Segment

Revenues from our car rental segment decreased 12.8%, primarily as a result of lower RPD, an 8.0% decrease in car rental transaction days worldwide and decreases in refueling fees of $124.3 million and airport concession recovery fees of $54.1 million, including the effects of foreign currency translation of approximately $156.9 million.

RPD for worldwide car rental for the year ended December 31, 2009 declined 1.4% from 2008, due to declines in U.S. and International RPD of 1.6% and 1.1%, respectively. U.S. airport RPD decreased 0.2% and U.S. off-airport RPD declined by 2.4%.

Equipment Rental Segment

Revenues from our equipment rental segment decreased 33.0%, primarily due to a 27.2% decrease in equipment rental volume, a 7.4% decline in pricing, a decrease in equipment sales of $65.4 million and the effects of foreign currency translation of approximately $26.9 million.

Other

Revenues from all other sources increased 31.8%, due to increases in revenues from our third-party claim management services.

62


Table of Contents

ITEM 7.    MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
                 RESULTS OF OPERATIONS (Continued)

EXPENSES

 
  Years Ended
December 31,
   
   
 
(in millions of dollars)
  2009   2008   $ Change   % Change  

Expenses:

                         
 

Fleet related expenses

  $ 880.1   $ 1,210.9   $ (330.8 )   (27.3 )%
 

Personnel related expenses

    1,321.3     1,560.1     (238.8 )   (15.3 )%
 

Other direct operating expenses

    1,882.8     2,159.0     (276.2 )   (12.8 )%
                     
   

Direct operating

    4,084.2     4,930.0     (845.8 )   (17.2 )%
   

Depreciation of revenue earning equipment and lease charges

    1,931.4     2,194.2     (262.8 )   (12.0 )%
   

Selling, general and administrative

    641.1     769.6     (128.5 )   (16.7 )%
   

Interest expense

    680.3     870.0     (189.7 )   (21.8 )%
   

Interest and other income, net

    (64.5 )   (24.8 )   (39.7 )   160.1 %
   

Impairment charges

        1,168.9     (1,168.9 )   (100.0 )%
                     
     

Total expenses

  $ 7,272.5   $ 9,907.9   $ (2,635.4 )   (26.6 )%
                     

Total expenses decreased 26.6%, and total expenses as a percentage of revenues decreased from 116.2% for the year ended December 31, 2008 to 102.4% for the year ended December 31, 2009.

Direct Operating Expenses

Direct operating expenses decreased 17.2% as a result of decreases in fleet related expenses, other direct operating expenses and personnel related expenses.

    Fleet related expenses decreased 27.3%. The decrease was primarily related to a reduction in fleet levels as a result of worldwide rental volume demand which resulted in decreases in gasoline costs of $163.0 million, vehicle damage and maintenance costs of $94.4 million, self insurance expense of $37.9 million and equipment rental delivery costs of $26.3 million. All of these decreases include the effects of foreign currency translation of approximately $34.0 million.

    Other direct operating expenses decreased 12.8%. The decrease was primarily related to a reduction in fleet levels as a result of a decrease in worldwide rental volume demand which resulted in decreases in equipment rental cost of goods sold of $51.0 million, concession fees in our car rental operations of $35.7 million, facility expenses of $32.6 million, equipment rental re-rent expense of $17.7 million, charge card fees of $13.9 million, commission fees of $12.5 million and customer service costs of $10.0 million. In addition, restructuring and restructuring related charges decreased by $81.8 million due to actions taken in late 2008. All of these decreases include the effects of foreign currency translation of approximately $61.8 million.

    Personnel related expenses decreased 15.3%. The decrease was primarily related to reductions in wages and benefits as a result of restructuring activities of $220.2 million, reservation costs of $12.1 million and management incentive compensation costs of $6.4 million. All of these decreases include the effects of foreign currency translation of approximately $29.9 million.

63


Table of Contents

ITEM 7.    MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
                 RESULTS OF OPERATIONS (Continued)

Depreciation of Revenue Earning Equipment and Lease Charges

Car Rental Segment

Depreciation of revenue earning equipment and lease charges for our car rental segment of $1,614.2 million for the year ended December 31, 2009 decreased 12.5% from $1,843.8 million for the year ended December 31, 2008. The decrease was primarily due to a reduction 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 $42.8 million, partly offset by a $13.2 million net increase in depreciation in certain of our car rental operations resulting from changes in depreciation rates to reflect the estimated residual value of vehicles.

Equipment Rental Segment

Depreciation of revenue earning equipment and lease charges in our equipment rental segment of $317.2 million for the year ended December 31, 2009 decreased 9.5% from $350.4 million for the year ended December 31, 2008. The decrease was primarily due to a 14.7% reduction in average acquisition cost of rental equipment operated during the period and the effects of foreign currency translation of approximately $6.2 million, partly offset by lower net proceeds received in excess of book value on the disposal of used equipment and a $6.1 million net increase in depreciation in certain of our equipment rental operations resulting from changes in depreciation rates to reflect the estimated residual value of equipment.

Selling, General and Administrative Expenses

Selling, general and administrative expenses decreased 16.7%, due to decreases in advertising, administrative expenses and sales promotion expenses, including the effects of foreign currency translation of approximately $15.8 million.

    Advertising expenses decreased $47.1 million, or 29.4%, primarily due to decreased media advertising and the effects of foreign currency translation of approximately $1.0 million.

    Administrative expenses decreased $44.8 million, or 10.1%, primarily due to reductions in administrative salaries and related costs of $59.5 million and restructuring charges of $3.2 million, including the effects of foreign currency translation of approximately $9.6 million, partly offset by an increase in management incentive compensation costs of $13.6 million.

    Sales promotion expenses decreased $36.6 million, or 22.4%, primarily related to a reduction in sales salaries and commissions of $26.7 million, including the effects of foreign currency translation of approximately $5.2 million.

Interest Expense

Car Rental Segment

Interest expense for our car rental segment of $316.1 million for the year ended December 31, 2009 decreased 30.1% from $452.4 million for the year ended December 31, 2008. The decrease was primarily due to a decrease in weighted average interest rate on our borrowings and a decrease in the weighted average debt outstanding due to a reduction in revenue earning equipment.

64


Table of Contents

ITEM 7.    MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
                 RESULTS OF OPERATIONS (Continued)

Equipment Rental Segment

Interest expense for our equipment rental segment of $53.3 million for the year ended December 31, 2009 decreased 51.9% from $110.8 million for the year ended December 31, 2008. The decrease was primarily due to a decrease in weighted average interest rate on our borrowings and a decrease in the weighted average debt outstanding due to reduced fleet size.

Other

Other interest expense relating to interest on corporate debt of $310.9 million for the year ended December 31, 2009 increased 1.3% from $306.8 million for the year ended December 31, 2008.

Interest and Other Income, Net

Interest and other income, net increased $39.7 million due to a gain of $48.5 million, net of transaction costs recorded in connection with the buyback of portions of certain of our Senior Notes and Senior Subordinated Notes, partly offset by a decrease in interest income of $8.8 million. The decrease in interest income related to lower cash balances and interest rates during the period, partly offset by interest income received in connection with a value added tax reclaim in the United Kingdom.

Impairment Charges

Impairment charges represent non-cash impairment charges incurred during the fourth quarter of 2008 relating to our goodwill, other intangible assets and property and equipment.

ADJUSTED PRE-TAX INCOME

Car Rental Segment

Adjusted pre-tax income for our car rental segment of $465.3 million increased 60.9% from $289.1 million for the year ended December 31, 2008. The increase was primarily due to strong cost management performance, 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 years ended December 31, 2009 and 2008, totaled $275.2 million and $674.4 million, respectively. See footnote c to the table under "Results of Operations" for a summary and description of these adjustments.

Equipment Rental Segment

Adjusted pre-tax income for our equipment rental segment of $76.4 million decreased 71.9% from $272.0 million for the year ended December 31, 2008. The decrease was primarily due to reductions 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 before income taxes on a GAAP basis for the years ended December 31, 2009 and 2008, totaled $97.1 million and $901.3 million, respectively. See footnote c to the table under "Results of Operations" for a summary and description of these adjustments.

Ratio of Adjusted Pre-Tax Income to Revenues

Adjusted pre-tax income for our car rental segment as a percent of its revenues increased from 4.2% in 2008 to 7.8% in 2009. Adjusted pre-tax income for our equipment rental segment as a percent of its revenues decreased from 16.4% in 2008 to 6.9% in 2009.

65


Table of Contents

ITEM 7.    MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
                 RESULTS OF OPERATIONS (Continued)

The ratio of adjusted pre-tax income to revenues for our two reportable segments has historically reflected the different environments in which they operate, although the difference has been eliminated for the year ended December 31, 2009 because of the more rapid decline in revenues in our equipment rental segment. 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. In addition, our revenue earning equipment in our equipment rental segment generates lower depreciation expense due to its longer estimated useful life.

BENEFIT FOR TAXES ON INCOME, NET INCOME ATTRIBUTABLE TO NONCONTROLLING INTERESTS AND NET LOSS ATTRIBUTABLE TO HERTZ GLOBAL HOLDINGS, INC. AND SUBSIDIARIES' COMMON STOCKHOLDERS

 
  Years Ended December 31,    
   
 
(in millions of dollars)
  2009   2008   $ Change   % Change  

Loss before income taxes

  $ (171.0 ) $ (1,382.8 ) $ 1,211.8     (87.6 )%

Benefit for taxes on income

    59.7     196.9     (137.2 )   (69.7 )%
                     

Net loss

    (111.3 )   (1,185.9 )   1,074.6     (90.6 )%

Less: Net income attributable to noncontrolling interests

    (14.7 )   (20.8 )   6.1     (29.4 )%
                     

Net loss attributable to Hertz Global Holdings, Inc. and Subsidiaries' common stockholders

  $ (126.0 ) $ (1,206.7 ) $ 1,080.7     (89.6 )%
                     

Benefit for Taxes on Income

The effective tax rate for the year ended December 31, 2009 was 34.9% as compared to 14.2% in the year ended December 31, 2008. The benefit for taxes on income decreased 69.7%, primarily due to non-recurring 2008 impairment charges. See Note 8 to the Notes to our consolidated financial statements included in this Annual Report under the caption "Item 8—Financial Statements and Supplementary Data."

Net Income Attributable to Noncontrolling Interests

Net income attributable to noncontrolling interests decreased 29.4% due to a decrease in our majority-owned subsidiary Navigation Solutions, L.L.C.'s net income for the year ended December 31, 2009 as compared to the year ended December 31, 2008.

Net Loss Attributable to Hertz Global Holdings, Inc. and Subsidiaries' Common Stockholders

The net loss attributable to Hertz Global Holdings, Inc. and Subsidiaries' common stockholders decreased 89.6% primarily due to the impairment of our goodwill, other intangible assets and property and equipment in 2008 and strong cost management performance, partly offset by 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 revenues but also most expenses outside of the United States were incurred in local currencies.

66


Table of Contents

ITEM 7.    MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
                 RESULTS OF OPERATIONS (Continued)

Liquidity and Capital Resources

Our domestic and international operations are funded by cash provided by operating activities and by extensive financing arrangements maintained by us in the United States and internationally.

Cash Flows

As of December 31, 2010, we had cash and cash equivalents of $2,374.2 million, an increase of $1,388.5 million from December 31, 2009. The following table summarizes the change:

 
  Years Ended December 31,    
   
 
 
  2010 vs.
2009
$ Change
  2009 vs.
2008
$ Change
 
(in millions of dollars)
  2010   2009   2008  

Cash provided by (used in):

                               
 

Operating activities

  $ 2,208.7   $ 1,693.3   $ 2,435.7   $ 515.4   $ (742.4 )
 

Investing activities

    (943.6 )   (1,208.0 )   (1,799.8 )   264.4     591.8  
 

Financing activities

    133.7     (129.1 )   (695.3 )   262.8     566.2  

Effect of exchange rate changes

    (10.3 )   35.2     (76.5 )   (45.5 )   111.7  
                       

Net change in cash and cash equivalents

  $ 1,388.5   $ 391.4   $ (135.9 ) $ 997.1   $ 527.3  
                       

During the year ended December 31, 2010, we generated $515.4 million more cash from operating activities compared with the same period in 2009. The increase was primarily due to a change in accounts payable driven by effective management of vendor terms taken in 2010, a change in accrued liabilities due to cash payments in 2009 relating to the buydown of our rate on our interest rate swaps as well as increased restructuring payments in 2009 and an increase in net income before depreciation, amortization and other non-cash expenses. During the year ended December 31, 2009, we generated $742.4 million less of cash from operating activities compared with the same period in 2008. The decrease was primarily driven by a decrease in net income before depreciation, amortization, non-cash impairment charges and other non-cash expenses as well as a significant change in accounts payable driven by effective management of vendor terms taken in late 2008 and an increase in cash payments relating to the buydown of our rate on our interest rate swaps and restructuring.

Our primary use of cash in investing activities is for the acquisition of revenue earning equipment, which consists of cars and equipment. During the year ended December 31, 2010, we used $264.4 million less cash for investing activities compared with the same period in 2009. The decrease in the use of funds was primarily due to an increase in proceeds from the disposal of revenue earning equipment, partly offset by an increase in revenue earning equipment expenditures, the year-over-year change in restricted cash and cash equivalents and an increase in property and equipment expenditures. The increase in revenue earning equipment expenditures and in proceeds from the disposal of revenue earning equipment was related to higher car rental volumes and a general improvement in the car rental market. As of December 31, 2010 and 2009, we had $207.6 million and $365.2 million, respectively, of restricted cash and cash equivalents to be used for the purchase of revenue earning vehicles and other specified uses under our fleet financing facilities, our Like Kind Exchange Program, or "LKE Program," and to satisfy certain of our self-insurance regulatory reserve requirements. The decrease in restricted cash and cash equivalents of $157.6 million from December 31, 2009, primarily related to the timing of purchases and sales of revenue earning vehicles and also due to the temporary suspension of our U.S. car rental LKE program. The suspension of the U.S. car rental LKE program enabled us to build liquidity in anticipation of future growth initiatives. See "Income Taxes" below. During the year ended December 31, 2009, we used $591.8 million less of cash for investing activities compared with the same

67


Table of Contents

ITEM 7.    MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
                 RESULTS OF OPERATIONS (Continued)


period in 2008. The decrease is primarily due to a reduction in revenue earning equipment expenditures and the year-over-year change in restricted cash and cash equivalents, partly offset by a decrease in proceeds from the disposal of revenue earning equipment.

During the year ended December 31, 2010, we generated $262.8 million more cash from financing activities compared with the same period in 2009. The increase was primarily due to increases in net proceeds under the revolving lines of credit and proceeds from the issuance of long-term debt (includes $700 million Senior Notes issued in September 2010 and $500 million Senior Notes issued in December 2010), partly offset by the payment of long-term debt and short-term borrowings and prior year's proceeds from the sale of common stock and convertible debt offering. During the year ended December 31, 2009, we used $566.2 million less cash for financing activities compared with the same period in 2008. The decrease is primarily due to increases in proceeds from the issuance of long-term debt, sale of common stock and debt offering, partly offset by increases in payments under revolving lines of credit, net and payment of long-term debt.

Capital Expenditures

The tables below set forth the revenue earning equipment and property and equipment capital expenditures and related disposal proceeds, on a cash basis consistent with our consolidated statements of cash flows, by quarter for 2010, 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
 

2010

                                     

First Quarter

  $ 2,214.5   $ (1,606.4 ) $ 608.1   $ 51.3   $ (6.7 ) $ 44.6  

Second Quarter

    3,215.4     (1,836.8 )   1,378.6     40.7     (8.5 )   32.2  

Third Quarter

    1,714.5     (1,702.8 )   11.7     42.3     (10.3 )   32.0  

Fourth Quarter

    1,296.5     (2,372.4 )   (1,075.9 )   44.9     (13.4 )   31.5  
                           
 

Total Year

  $ 8,440.9   $ (7,518.4 ) $ 922.5   $ 179.2   $ (38.9 ) $ 140.3  
                           

2009

                                     

First Quarter

  $ 1,399.6   $ (2,045.1 ) $ (645.5 ) $ 26.7   $ (5.2 ) $ 21.5  

Second Quarter

    2,140.9     (1,195.1 )   945.8     21.6     0.2     21.8  

Third Quarter

    1,654.0     (986.6 )   667.4     20.7     (1.1 )   19.6  

Fourth Quarter

    2,332.8     (1,879.8 )   453.0     31.7     (17.6 )   14.1  
                           
 

Total Year

  $ 7,527.3   $ (6,106.6 ) $ 1,420.7   $ 100.7   $ (23.7 ) $ 77.0  
                           

2008

                                     

First Quarter

  $ 2,451.0   $ (2,057.5 ) $ 393.5   $ 48.2   $ (34.5 ) $ 13.7  

Second Quarter

    3,626.4     (2,190.6 )   1,435.8     47.8     (13.6 )   34.2  

Third Quarter

    2,811.5     (1,846.4 )   965.1     56.8     (14.2 )   42.6  

Fourth Quarter

    1,262.1     (2,525.2 )   (1,263.1 )   41.0     (6.2 )   34.8  
                           
 

Total Year

  $ 10,151.0   $ (8,619.7 ) $ 1,531.3   $ 193.8   $ (68.5 ) $ 125.3  
                           

68


Table of Contents

ITEM 7.    MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
                 RESULTS OF OPERATIONS (Continued)

 

 
  Years Ended December 31,  
 
  2010   2009   2008  

Revenue earning equipment expenditures:

                   
 

Car rental

  $ 8,274.1   $ 7,442.3   $ 9,838.7  
 

Equipment rental

    166.8     85.0     312.3  
               
   

Total

  $ 8,440.9   $ 7,527.3   $ 10,151.0  
               

Revenue earning equipment expenditures in our car rental and equipment rental operations for the year ended December 31, 2010 increased by 11.2% and 96.2%, respectively, compared to the year ended December 31, 2009. The increase in our car rental revenue earning equipment expenditures was primarily due to higher rental volumes during the year ended December 31, 2010 as compared to the year ended December 31, 2009, which required us to increase fleet levels. The increase in our equipment rental operations revenue earning equipment expenditures is primarily due to an improvement in the economic conditions during the second half of the year ended December 31, 2010.

Revenue earning equipment expenditures in our car rental and equipment rental operations for the year ended December 31, 2009 decreased by 24.4% and 72.8%, respectively, compared to the year ended December 31, 2008. The decrease in our car rental revenue earning equipment expenditures was primarily due to lower rental volumes during the year ended December 31, 2009 as compared to the year ended December 31, 2008, which required us to maintain lower fleet levels. The decrease in our equipment rental operations revenue earning equipment expenditures is primarily due to a general reduction in spending due to lower demand for equipment related to the economic downturn during the year ended December 31, 2009 as compared to the year ended December 31, 2008.

 
  Years Ended December 31,  
 
  2010   2009   2008  

Property and equipment expenditures:

                   
 

Car rental

  $ 156.0   $ 90.8   $ 139.8  
 

Equipment rental

    19.3     9.4     44.4  
 

Other

    3.9     0.5     9.6  
               
   

Total

  $ 179.2   $ 100.7   $ 193.8  
               

Property and equipment expenditures in our car rental operations, equipment rental operations and for all other activities for the year ended December 31, 2010 increased by $65.2 million, $9.9 million and $3.4 million, respectively, compared to the year ended December 31, 2009. The car rental increase is a result of increased car rental volumes, an improvement in the economic conditions during the year, as well as, the opening of new off-airport locations. Property and equipment expenditures in our car rental operations, equipment rental operations and for all other activities for the year ended December 31, 2009 decreased by $49.0 million, $35.0 million and $9.1 million, respectively, compared to the year ended December 31, 2008. These decreases are a result of managing our capital expenditures during the economic downturn.

Financing

Our primary liquidity needs include servicing of corporate and fleet related debt, the payment of operating expenses and purchases of rental vehicles and equipment to be used in our operations. Our primary sources of funding are operating revenue, cash received on the disposal of vehicles and

69


Table of Contents

ITEM 7.    MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
                 RESULTS OF OPERATIONS (Continued)


equipment, borrowings under our asset-backed securitizations and our asset-based revolving credit facilities and access to the credit markets generally.

As of December 31, 2010, we had $11,306.4 million of total indebtedness outstanding. Cash paid for interest during the year ended December 31, 2010, was $533.0 million, net of amounts capitalized. Accordingly, we are highly leveraged and a substantial portion of our liquidity needs arise from debt service on our indebtedness and from the funding of our costs of operations and capital expenditures.

Our liquidity as of December 31, 2010 consisted of cash and cash equivalents, unused commitments under our Senior ABL Facility and unused commitments under our fleet debt. For a description of these amounts, see Note 4 to the Notes to our consolidated financial statements included in this Annual Report under caption "Item 8—Financial Statements and Supplementary Data."

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 December 31 (in millions of dollars) are as follows:

2011

  $ 5,067.5   (including $3,277.1 of other short-term borrowings)

2012

  $ 1,813.0    

2013

  $   462.1    

2014

  $ 1,436.1    

2015

  $ 1,182.8    

After 2015

  $ 1,468.1    

Our short-term borrowings as of December 31, 2010 include, among other items, the amounts outstanding under the European Securitization, Australian Securitization, U.S. Fleet Financing Facility, Brazilian Fleet Financing Facility, Canadian Securitization, Capitalized Leases and European Revolving Credit Facility. These amounts are reflected as short-term borrowings, regardless of the facility maturity date, as these facilities are revolving in nature and/or the outstanding borrowings have maturities of three months or less. Short-term borrowings also include the Convertible Senior Notes which became convertible on January 1, 2011.

In January 2011, Hertz redeemed in full its outstanding ($518.5 million principal amount) 10.5% Senior Subordinated Notes due 2016 which resulted in premiums paid of $27.2 million and the write-off of unamortized debt costs of $8.6 million. In January and February 2011, Hertz redeemed $1,105 million principal amount of its outstanding 8.875% Senior Notes due 2014 which resulted in premiums paid of $24.5 million and the write-off of unamortized debt costs of $14.4 million. We used the proceeds from the September 2010 issuance of $700 million aggregate principal amount of 7.50% Senior Notes, the December 2010 issuance of $500 million aggregate principal amount of 7.375% Senior Notes and the February 2011 issuance of $500 million aggregate principal amount of 6.75% Senior Notes for these redemptions. The redeemed 10.5% Senior Subordinated Notes and portion of the 8.875% Senior Notes have been included in the 2011 maturities in the table above.

The agreements governing our indebtedness require us to comply with certain covenants. 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.

70


Table of Contents

ITEM 7.    MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
                 RESULTS OF OPERATIONS (Continued)

As a result of our successful refinancing efforts in 2009 and 2010 and the strategic cost reduction actions taken in the past, we believe that we will remain in compliance with our debt covenants and that cash generated from operations, together with amounts available under various 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.

For further information on our indebtedness, see Note 4 to the Notes to our consolidated financial statements included in this Annual Report under the caption "Item 8—Financial Statements and Supplementary Data."

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 book values derived from this specified price or guaranteed depreciation rate to calculate financing capacity under certain asset-backed and asset-based financing arrangements.

In the event of a bankruptcy of a car manufacturer, our liquidity would be impacted by several factors including reductions in fleet residual values 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 credit enhancement associated with these program vehicles. For a discussion of the risks associated with a manufacturer's bankruptcy or our reliance on asset-backed and asset-based financing, see "Item 1A—Risk Factors" included in this Annual Report.

We rely significantly on asset-backed and asset-based financing arrangements 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, including recently adopted legislation, proposed SEC rules and regulations and other legislative and administrative developments. In this regard, there has been uncertainty regarding the potential impact of recently proposed SEC rules and regulations governing the issuance of asset-backed securities and additional requirements contained in the Dodd-Frank Wall Street Reform and Consumer Protection Act. While we will continue to monitor these developments and their impact on our ABS program, the SEC rules and regulations, once adopted and implemented, may impact our ability and/or desire to engage in asset-backed financings in the future. For further information concerning our asset-backed financing programs and our indebtedness, see Note 4 to the Notes to our consolidated financial statements included in this Annual Report under the caption "Item 8—Financial Statements and Supplementary Data." For a discussion of the risks associated with our reliance on asset-backed and asset-based financing and the significant amount of indebtedness, see "Item 1A—Risk Factors" in this Annual 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 certain indebtedness, make certain restricted payments (including paying dividends, redeeming stock or making other distributions), create liens, make investments, make acquisitions, engage in mergers, fundamentally changing the nature of their business, make capital expenditures, or engage in certain transactions with certain affiliates. Some

71


Table of Contents

ITEM 7.    MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
                 RESULTS OF OPERATIONS (Continued)


of these agreements also require the maintenance of certain financial covenants. As of December 31, 2010, we were in compliance with all of these financial covenants.

Under the Senior Term Facility, the Hertz credit group is subject to financial covenants, including a requirement to maintain a specified leverage ratio and a specified Corporate EBITDA to interest coverage ratio for specified periods. Under the Senior ABL Facility, if the borrowers fail to maintain a specified minimum level of borrowing base availability, the Hertz credit group will then be subject to financial covenants under such facility, including a specified debt to Corporate EBITDA leverage ratio and a specified fixed charge coverage ratio. The "Hertz credit group" refers to Hertz and its subsidiaries. As of December 31, 2010, Hertz was required under the Senior Term Facility to have a leverage ratio of not more than 4.75:1 and an interest coverage ratio of not less than 2.25:1. In addition, under our Senior ABL Facility, if there was less than $200.0 million of available borrowing capacity under that facility as of December 31, 2010, Hertz was required to have a leverage ratio of not more than 4.75:1 and a fixed charge coverage ratio of not less than 1:1 for the four quarters most recently ended. Under the Senior Term Facility, as of December 31, 2010, we had a leverage ratio of 4.42:1 and an interest coverage ratio of 3.50:1. Our leverage ratio as of December 31, 2010 has increased over the prior year as a result of the timing of corporate debt issuances in late 2010 which were used to redeem other corporate debt in early 2011. Since we had maintained sufficient borrowing capacity under our Senior ABL Facility as of December 31, 2010, and expect to maintain such capacity in the future, the fixed charge coverage ratio was not deemed relevant for presentation. "EBITDA" means consolidated net income before net interest expense, consolidated income taxes and consolidated depreciation and amortization and "Corporate EBITDA" means "EBITDA" as that term is defined under Hertz's Senior Credit Facilities, which is generally consolidated net income before net interest expense (other than interest expense relating to certain fleet debt), consolidated income taxes, consolidated depreciation (other than depreciation related to the car rental fleet) and amortization and before certain other items, in each case as more fully described in the agreements governing Hertz's Senior Credit Facilities. In addition to the borrowings under our Senior Credit Facilities, we have a significant amount of additional debt outstanding. For further information on the terms of our Senior Credit Facilities as well as our significant amount of debt outstanding, see Note 4 to the Notes to our consolidated financial statements included in this Annual Report under caption "Item 8—Financial Statements and Supplementary Data." For a discussion of the risks associated with our significant indebtedness, see "Item 1A—Risk Factors" in this Annual Report.

72


Table of Contents

ITEM 7.    MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
                 RESULTS OF OPERATIONS (Continued)

Borrowing Capacity and Availability

As of December 31, 2010, the following facilities were available for our use (in millions of dollars):

 
  Remaining
Capacity
  Availability
Under
Borrowing
Base
Limitation
 

Corporate Debt

             

Senior ABL Facility

  $ 1,467.2   $ 795.8  
           
 

Total Corporate Debt

    1,467.2     795.8  
           

Fleet Debt

             

U.S. Fleet Variable Funding Notes

    615.1     88.1  

U.S. Fleet Financing Facility

    2.0     2.0  

European Revolving Credit Facility

    121.5     121.5  

European Securitization

    253.4     71.3  

Canadian Securitization

    144.4     11.2  

Australian Securitization

    71.2     10.0  

Brazilian Fleet Financing Facility

    0.9      

Capitalized Leases

    82.9      
           
 

Total Fleet Debt

    1,291.4     304.1  
           

Total

  $ 2,758.6   $ 1,099.9  
           

Our borrowing capacity and availability primarily comes from our "revolving credit facilities," which are a combination of asset-backed securitization facilities and asset-based revolving credit facilities. Creditors under each of our revolving credit facilities have a claim on a specific pool of assets as collateral. Our ability to borrow under each revolving credit facility is a function of, among other things, the value of the assets in the relevant collateral pool. We refer to the amount of debt we can borrow given a certain pool of assets as the "borrowing base."

We refer to "Remaining Capacity" as the maximum principal amount of debt permitted to be outstanding under the respective facility (i.e., the amount of debt we could borrow assuming we possessed sufficient assets as collateral) less the principal amount of debt then-outstanding under such facility.

We refer to "Availability Under Borrowing Base Limitation" and "borrowing base availability" as the lower of Remaining Capacity or the borrowing base less the principal amount of debt then-outstanding under such facility (i.e., the amount of debt we could borrow given the collateral we possess at such time).

As of December 31, 2010, the Senior Term Facility had approximately $54.5 million available under the letter of credit facility and the Senior ABL Facility had $282.2 million available under the letter of credit facility sublimit.

Substantially all of our revenue earning equipment and certain related assets are owned by special purpose entities, or are encumbered in favor of our lenders under our various credit facilities.

Some of these special purpose entities are consolidated variable interest entities, of which Hertz is the primary beneficiary, whose sole purpose is to provide commitments to lend in various currencies subject to borrowing bases comprised of rental vehicles and related assets of certain of Hertz

73


Table of Contents

ITEM 7.    MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
                 RESULTS OF OPERATIONS (Continued)


International, Ltd.'s subsidiaries. As of December 31, 2010 and 2009, our International Fleet Financing No. 1 B.V., International Fleet Financing No. 2 B.V. and HA Funding Pty, Ltd. variable interest entities had total assets primarily comprised of loans receivable and revenue earning equipment of $652.1 million and $819.0 million, respectively, and total liabilities primarily comprised of debt of $651.6 million and $818.8 million, respectively.

Contractual Obligations

The following table details the contractual cash obligations for debt and related interest payable, operating leases and concession agreements, liability for uncertain tax positions and related interest and other purchase obligations as of December 31, 2010 (in millions of dollars):

 
   
  Payments Due by Period    
 
 
  Total   2011   2012 to
2013
  2014 to
2015
  After 2015   All Other  

Debt (1)

  $ 11,429.6   $ 5,067.5   $ 2,275.1   $ 2,618.9   $ 1,468.1   $  

Interest on debt (2)

    2,016.7     480.3     819.0     350.0     367.4      

Operating leases and concession agreements (3)

    1,997.7     447.4     665.4     359.4     525.5      

Uncertain tax positions liability and interest (4)

    26.8                     26.8  

Purchase obligations (5)

    4,492.7     4,463.9     20.7     5.6     2.5      
                           

Total

  $ 19,963.5   $ 10,459.1   $ 3,780.2   $ 3,333.9   $ 2,363.5   $ 26.8  
                           

(1)
Amounts represent aggregate debt obligations included in "Debt" in our consolidated balance sheet and include $3,277.1 million of other short-term borrowings. See Note 4 to the Notes to our consolidated financial statements included in this Annual Report under the caption "Item 8—Financial Statements and Supplementary Data."

Our short-term borrowings as of December 31, 2010 include, among other items, the amounts outstanding under the European Securitization, Australian Securitization, U.S. Fleet Financing Facility, Brazilian Fleet Financing Facility, Canadian Securitization, Capitalized Leases and European Revolving Credit Facility. These amounts are reflected as short-term borrowings, regardless of the facility maturity date, as these facilities are revolving in nature and/or the outstanding borrowings have maturities of three months or less. Short-term borrowings also include the Convertible Senior Notes which became convertible on January 1, 2011.

In January 2011, Hertz redeemed in full its outstanding ($518.5 million principal amount) 10.5% Senior Subordinated Notes due 2016 which resulted in premiums paid of $27.2 million and the write-off of unamortized debt costs of $8.6 million. In January and February 2011, Hertz redeemed $1,105 million principal amount of its outstanding 8.875% Senior Notes due 2014 which resulted in premiums paid of $24.5 million and the write-off of unamortized debt costs of $14.4 million. The redeemed 10.5% Senior Subordinated Notes and portion of the 8.875% Senior Notes have been included in the 2011 maturities in the table above.

(2)
Amounts represent the estimated interest payments based on the principal amounts, minimum non-cancelable maturity dates and applicable interest rates on the debt at December 31, 2010. The minimum non-cancelable obligations under the U.S. Fleet Variable Funding Notes, Senior ABL Facility, U.S. Fleet Financing Facility, European Revolving Credit Facility, European Securitization, Canadian Securitization, Australian Securitization and Brazilian Fleet Financing Facility mature between February 2011 and June 2013.

(3)
Includes obligations under various concession agreements, which provide for payment of rents and a percentage of revenue with a guaranteed minimum, and lease agreements for real estate, revenue earning equipment and office and computer equipment. Such obligations are reflected to the extent of their minimum non-cancelable terms. See Note 9 to the Notes to our consolidated financial statements included in this Annual Report under the caption "Item 8—Financial Statements and Supplementary Data."

(4)
As of December 31, 2010, represents our liability for uncertain tax positions and related net accrued interest and penalties of $25.0 million and $1.8 million, respectively. We are unable to reasonably estimate the timing of our uncertain tax positions liability and interest and penalty payments in individual years beyond twelve months due to uncertainties in the timing of the effective settlement of tax positions. See Note 8 to the Notes to our consolidated financial statements included in this Annual Report under the caption "Item 8—Financial Statements and Supplementary Data."

74


Table of Contents

ITEM 7.    MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
                 RESULTS OF OPERATIONS (Continued)

(5)
Purchase obligations represent agreements to purchase goods or services that are legally binding on us and that specify all significant terms, including fixed or minimum quantities; fixed, minimum or variable price provisions; and the approximate timing of the transaction. Only the minimum non-cancelable portion of purchase agreements and related cancellation penalties are included as obligations. In the case of contracts, which state minimum quantities of goods or services, amounts reflect only the stipulated minimums; all other contracts reflect estimated amounts. Of the total purchase obligations as of December 31, 2010, $4,373.5 million represent fleet purchases where contracts have been signed or are pending with committed orders under the terms of such arrangements. We do not regard our employment relationships with our employees as "agreements to purchase services" for these purposes.

The table excludes our pension and other postretirement benefit obligations. We contributed $54.2 million to our U.S. pension plan during 2010 and expect to contribute between $45 million and $90 million to our U.S. pension plan during 2011. The level of 2011 and future contributions will vary, and is dependent on a number of factors including investment returns, interest rate fluctuations, plan demographics, funding regulations and the results of the final actuarial valuation. See Note 5 of the Notes to our consolidated financial statements included in this Annual Report under the caption "Item 8—Financial Statements and Supplementary Data."

Off-Balance Sheet Commitments and Arrangements

As of December 31, 2010 and December 31, 2009, the following guarantees (including indemnification commitments) were issued and outstanding:

Indemnification Obligations

In the ordinary course of business, we execute contracts involving indemnification obligations customary in the relevant industry and indemnifications specific to a transaction such as the sale of a business. These indemnification obligations 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 indemnification obligations 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 indemnification obligations and have accrued for expected losses that are probable and estimable. The types of indemnification obligations for which payments are possible include the following:

Sponsors; Directors

Hertz has entered into customary indemnification agreements with Hertz Holdings, 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

75


Table of Contents

ITEM 7.    MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
                 RESULTS OF OPERATIONS (Continued)


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 consolidated financial statements. As of December 31, 2010 and 2009, the aggregate amounts accrued for environmental liabilities, including liability for environmental indemnities, reflected in our consolidated balance sheets in "Other accrued liabilities" were $1.6 million and $2.0 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).

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 this Annual Report.

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 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 consolidated financial statements included in this Annual Report 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 and/or interest rate cap agreements to manage interest rate risk. See Notes 4 and 13 to the Notes to our audited annual consolidated financial statements included in this Annual Report under the caption "Item 8—Financial Statements and Supplementary Data."

We have a significant amount of debt with variable rates of interest based generally on LIBOR, Euro inter-bank offered rate, or "EURIBOR," or their equivalents for local currencies or bank conduit commercial paper rates 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. See Note 4 to the Notes to our audited annual consolidated financial statements included in this Annual Report under the caption "Item 8—Financial Statements and Supplementary Data."

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

76


Table of Contents

ITEM 7.    MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
                 RESULTS OF OPERATIONS (Continued)


point in interest rates on our debt portfolio as of December 31, 2010, our net loss would increase by an estimated $10.8 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 various debt facilities to provide protection in respect of such exposure.

Foreign Currency Risk

We have foreign currency exposure to exchange rate fluctuations worldwide and primarily with respect to the Euro, Canadian dollar, Australian dollar and British pound.

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.

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.

On October 1, 2006, we designated our 7.875% Senior Notes due 2014 as an effective net investment hedge of our Euro-denominated net investment in our international operations.

For the year ended December 31, 2010, our consolidated statement of operations contained realized and unrealized losses relating to the effects of foreign currency of $6.2 million.

See Note 13 to the Notes to our consolidated financial statements included in this Annual Report under the caption "Item 8—Financial Statements and Supplementary Data."

Other Risks

We purchase unleaded gasoline and diesel fuel at prevailing market rates. In January 2009, we began a program to manage our exposure to changes in fuel prices through the use of derivative commodity instruments. For the year ended December 31, 2010, we recognized a gain of $2.8 million in "Direct operating" on our consolidated statement of operations relating to our gasoline swaps. See Note 13 to the Notes to our consolidated financial statements included in this Annual Report under the caption "Item 8—Financial Statements and Supplementary Data."

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.

77


Table of Contents

ITEM 7.    MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
                 RESULTS OF OPERATIONS (Continued)

Income Taxes

In January 2006, we implemented a LKE 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 years 2007, 2008 and 2009 and part of 2010. A LKE Program for HERC has also 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. Over the last few years, for strategic purposes, such as cash management and fleet reduction, we have recognized some taxable gains in the program. In 2009, the bankruptcy filing of an original equipment manufacturer, or "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 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 the fleet. In the event of an extended fleet reduction, we believe the likelihood of making material cash tax payments in the near future is low because of our significant net operating losses. In August 2010, we elected to temporarily suspend the U.S. car rental LKE Program allowing cash proceeds from sales of vehicles to be utilized for various business purposes, one being building liquidity in anticipation of future growth initiatives. In addition, new tax legislation effective September 2010 through December 2011 enables us to temporarily suspend the LKE Program with an expected neutral effect on our federal net operating loss position for U.S. tax purposes.

For a discussion of risks related to our reliance on asset-backed financing to purchase cars, see "Item 1A—Risk Factors" included in this Annual Report.

On January 1, 2009, Bank of America acquired Merrill Lynch & Co., Inc., the parent company of BAMLCP. Accordingly, Bank of America is now an indirect beneficial owner of our common stock held by BAMLCP 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.

Employee Retirement Benefits

Pension

We sponsor defined benefit pension plans worldwide. Pension obligations give rise to significant expenses that are dependent on assumptions discussed in Note 5 of the Notes to our consolidated financial statements included in this Annual Report under the caption "Item 8—Financial Statements and Supplementary Data." Our 2010 worldwide pre-tax pension expense was approximately $32.2 million, which is a decrease of $3.7 million from 2009. The decrease in expense compared to 2009 is primarily due to higher expected return on assets based on higher asset values.

The funded status (i.e., the dollar amount by which the projected benefit obligations exceeded the market value of pension plan assets) of our U.S. qualified plan, in which most domestic employees

78


Table of Contents

ITEM 7.    MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
                 RESULTS OF OPERATIONS (Continued)


participate, improved as of December 31, 2010, compared with December 31, 2009 because asset values increased due to gains in the securities markets. We contributed $54.2 million to our U.S. pension plan during 2010 and expect to contribute between $45 million and $90 million to our U.S. pension plan during 2011. These contributions are necessary primarily because of the plans under funded status.

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 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. For a discussion of the risks associated with our pension plans, see "Item 1A—Risk Factors" in this Annual Report.


ITEM 7A.    QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK

See "Item 7—Management's Discussion and Analysis of Financial Condition and Results of Operations—Market Risks" included elsewhere in this Annual Report.

79


Table of Contents


ITEM 8.    FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA

REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

To the Board of Directors and Shareholders
of Hertz Global Holdings, Inc.:

In our opinion, the consolidated financial statements listed in the index appearing under Item 15(a)(1) present fairly, in all material respects, the financial position of Hertz Global Holdings, Inc. and its subsidiaries at December 31, 2010 and December 31, 2009, and the results of their operations and their cash flows for each of the three years in the period ended December 31, 2010 in conformity with accounting principles generally accepted in the United States of America. In addition, in our opinion, the financial statement schedules listed in the index appearing under Item 15(a)(2) present fairly, in all material respects, the information set forth therein when read in conjunction with the related consolidated financial statements. Also in our opinion, the Company maintained, in all material respects, effective internal control over financial reporting as of December 31, 2010, based on criteria established in Internal Control—Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission (COSO). The Company's management is responsible for these financial statements and financial statement schedules, for maintaining effective internal control over financial reporting and for its assessment of the effectiveness of internal control over financial reporting, included in Management's Report on Internal Control Over Financial Reporting under Item 9A. Our responsibility is to express opinions on these financial statements, on the financial statement schedules, and on the Company's internal control over financial reporting based on our integrated audits. We conducted our audits in accordance with the standards of the Public Company Accounting Oversight Board (United States). Those standards require that we plan and perform the audits to obtain reasonable assurance about whether the financial statements are free of material misstatement and whether effective internal control over financial reporting was maintained in all material respects. Our audits of the financial statements included examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements, assessing the accounting principles used and significant estimates made by management, and evaluating the overall financial statement presentation. Our audit of internal control over financial reporting included obtaining an understanding of internal control over financial reporting, assessing the risk that a material weakness exists, and testing and evaluating the design and operating effectiveness of internal control based on the assessed risk. Our audits also included performing such other procedures as we considered necessary in the circumstances. We believe that our audits provide a reasonable basis for our opinions.

A company's internal control over financial reporting is a process designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles. A company's internal control over financial reporting includes those policies and procedures that (i) pertain to the maintenance of records that, in reasonable detail, accurately and fairly reflect the transactions and dispositions of the assets of the company; (ii) provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with generally accepted accounting principles, and that receipts and expenditures of the company are being made only in accordance with authorizations of management and directors of the company; and (iii) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use, or disposition of the company's assets that could have a material effect on the financial statements.

Because of its inherent limitations, internal control over financial reporting may not prevent or detect misstatements. Also, projections of any evaluation of effectiveness to future periods are subject to the risk that controls may become inadequate because of changes in conditions, or that the degree of compliance with the policies or procedures may deteriorate.

/s/ PricewaterhouseCoopers LLP
Florham Park, New Jersey
February 25, 2011

80


Table of Contents


HERTZ GLOBAL HOLDINGS, INC. AND SUBSIDIARIES

CONSOLIDATED BALANCE SHEETS

(In Thousands of Dollars)

 
  December 31,  
 
  2010   2009  
         

ASSETS

             

Cash and cash equivalents

  $ 2,374,170   $ 985,642  

Restricted cash and cash equivalents

    207,576     365,159  

Receivables, less allowance for doubtful accounts of $19,708 and $21,268

    1,356,553     1,325,332  

Inventories, at lower of cost or market

    87,429     93,415  

Prepaid expenses and other assets

    352,782     300,125  

Revenue earning equipment, at cost:

             
 

Cars

    8,435,077     8,205,579  
   

Less accumulated depreciation

    (1,199,355 )   (1,186,299 )
 

Other equipment

    2,756,101     2,582,029  
   

Less accumulated depreciation

    (1,052,414 )   (749,724 )
           
     

Total revenue earning equipment

    8,939,409     8,851,585  
           

Property and equipment, at cost:

             
 

Land, buildings and leasehold improvements

    1,071,987     1,023,891  
 

Service equipment and other

    900,271     838,906  
           

    1,972,258     1,862,797  
   

Less accumulated depreciation

    (808,689 )   (674,668 )
           
     

Total property and equipment

    1,163,569     1,188,129  
           

Other intangible assets, net

    2,550,559     2,597,682  

Goodwill

    300,174     295,350  
           
     

Total assets

  $ 17,332,221   $ 16,002,419  
           
       

LIABILITIES AND EQUITY

             

Accounts payable

  $ 944,973   $ 658,671  

Accrued salaries and other compensation

    439,217     465,281  

Other accrued liabilities

    630,865     559,541  

Accrued taxes

    108,940     108,356  

Debt

    11,306,429     10,364,367  

Public liability and property damage

    278,685     277,828  

Deferred taxes on income

    1,491,789     1,470,934  
           
     

Total liabilities

    15,200,898     13,904,978  
           

Commitments and contingencies

             

Equity:

             

Hertz Global Holdings Inc. and Subsidiaries stockholders' equity

             
 

Preferred Stock, $0.01 par value, 200,000,000 shares authorized, no shares issued and outstanding

         
 

Common Stock, $0.01 par value, 2,000,000,000 shares authorized, 413,462,889 and 410,245,225 shares issued and outstanding

    4,135     4,102  
 

Additional paid-in capital

    3,183,225     3,141,695  
 

Accumulated deficit

    (1,110,362 )   (1,062,318 )
 

Accumulated other comprehensive income (loss)

    37,823     (3,331 )
           
     

Total Hertz Global Holdings, Inc. and Subsidiaries stockholders' equity

    2,114,821     2,080,148  

Noncontrolling interest

    16,502     17,293  
           
     

Total equity

    2,131,323     2,097,441  
           
     

Total liabilities and equity

  $ 17,332,221   $ 16,002,419  
           

The accompanying notes are an integral part of these financial statements.

81


Table of Contents


HERTZ GLOBAL HOLDINGS, INC. AND SUBSIDIARIES

CONSOLIDATED STATEMENTS OF OPERATIONS

(In Thousands of Dollars, except share and per share data)

 
  Years ended December 31,  
 
  2010   2009   2008  

Revenues:

                   
 

Car rental

  $ 6,355,205   $ 5,872,905   $ 6,730,349  
 

Equipment rental

    1,069,820     1,110,243     1,657,277  
 

Other

    137,509     118,359     137,429  
               
   

Total revenues

    7,562,534     7,101,507     8,525,055  
               

Expenses:

                   
 

Direct operating

    4,282,351     4,084,176     4,930,018  
 

Depreciation of revenue earning equipment and lease charges

    1,868,147     1,931,358     2,194,164  
 

Selling, general and administrative

    664,512     641,148     769,632  
 

Interest expense

    773,427     680,273     869,950  
 

Interest and other income, net

    (12,310 )   (64,439 )   (24,802 )
 

Impairment charges

            1,168,900  
               
   

Total expenses

    7,576,127     7,272,516     9,907,862  
               

Loss before income taxes

    (13,593 )   (171,009 )   (1,382,807 )

(Provision) benefit for taxes on income

    (17,068 )   59,666     196,847  
               

Net loss

    (30,661 )   (111,343 )   (1,185,960 )

Less: Net income attributable to noncontrolling interest

    (17,383 )   (14,679 )   (20,786 )
               

Net loss attributable to Hertz Global Holdings, Inc. and Subsidiaries' common stockholders

  $ (48,044 ) $ (126,022 ) $ (1,206,746 )
               

Weighted average shares outstanding (in thousands)

                   
 

Basic

    411,941     371,456     322,701  
 

Diluted

    411,941     371,456     322,701  

Loss per share attributable to Hertz Global Holdings, Inc. and Subsidiaries' common stockholders:

                   
 

Basic

  $ (0.12 ) $ (0.34 ) $ (3.74 )
 

Diluted

  $ (0.12 ) $ (0.34 ) $ (3.74 )

The accompanying notes are an integral part of these financial statements.

82


Table of Contents


HERTZ GLOBAL HOLDINGS, INC. AND SUBSIDIARIES

CONSOLIDATED STATEMENTS OF CHANGES IN EQUITY

(In Thousands of Dollars, except share data)

 
   
  Common Stock    
  Retained
Earnings
(Accumulated
Deficit)
  Accumulated
Other
Comprehensive
Income (Loss)
   
   
 
 
  Preferred
Stock
  Additional
Paid-In
Capital
  Non-
controlling
Interest
  Total
Equity
 
 
  Shares   Amount  

Balance at:

                                                 

December 31, 2007

  $     321,862,083   $ 3,219   $ 2,469,213   $ 270,450   $ 170,507   $ 21,028   $ 2,934,417  
 

Net loss attributable to Hertz Global Holdings, Inc. and Subsidiaries' common stockholders

                            (1,206,746 )               (1,206,746 )
 

Change in fair value of derivatives qualifying as cash flow hedges, net of tax of $(28,429)

                                  (44,012 )         (44,012 )
 

Translation adjustment changes, net of tax of $(7,606)

                                  (163,359 )         (163,359 )
 

Unrealized holding gains on securities, net of tax of $6

                                  120           120  
 

Unrealized gain on Euro-denominated debt, net of tax of $5,665

                                  12,116           12,116  
 

Defined benefit pension plans:

                                                 
   

Amortization or settlement recognition of net gain

                                  505           505  
   

Net loss arising during the period

                                  (114,279 )         (114,279 )
   

Income tax related to defined pension plans

                                  38,267           38,267  
                                               
 

Defined benefit pension plans, net

                                  (75,507 )         (75,507 )
                                               
 

Total Comprehensive Loss

                                              (1,477,388 )
                                                 
 

Dividend payment to noncontrolling interest

                                        (24,150 )   (24,150 )
 

Net income relating to noncontrolling interest

                                        20,786     20,786  
 

Stock-based employee compensation charges, net of tax of $643

                      27,380                       27,380  
 

Exercise of stock options

          1,086,360     11     6,743                       6,754  
 

Common shares issued to Directors

          38,856           243                       243  
 

Phantom shares issued to Directors

                      150                       150  
 

Proceeds from disgorgement of stockholder short-swing profits, net of tax of $48

                      90                       90  
                                   

December 31, 2008

        322,987,299     3,230     2,503,819     (936,296 )   (100,135 )   17,664     1,488,282  
 

Net loss attributable to Hertz Global Holdings, Inc. and Subsidiaries' common stockholders

                            (126,022 )               (126,022 )
 

Change in fair value of derivatives qualifying as cash flow hedges, net of tax of $(25,555)

                                  39,852           39,852  
 

Translation adjustment changes, net of tax of $3,100

                                  77,528           77,528  
 

Unrealized holding losses on securities, net of tax of $0

                                  (20 )         (20 )
 

Unrealized loss on Euro-denominated debt, net of tax of $5,182

                                  (3,509 )         (3,509 )
 

Defined benefit pension plans:

                                                 
   

Amortization or settlement recognition of net gain

                                  1,132           1,132  
   

Net loss arising during the period

                                  (31,864 )         (31,864 )
   

Income tax related to defined pension plans

                                  13,685           13,685  
                                               
 

Defined benefit pension plans, net

                                  (17,047 )         (17,047 )
                                               
 

Total Comprehensive Loss

                                              (29,218 )
                                                 
 

Dividend payment to noncontrolling interest

                                        (15,050 )   (15,050 )
 

Net income relating to noncontrolling interest

                                        14,679     14,679  
 

Proceeds from sale of common stock

          85,001,182     850     527,908                       528,758  
 

Proceeds from sale of Convertible Senior Notes, net of tax of $46,204

                      68,140                       68,140  
 

Employee stock purchase plan

          513,638     5     2,818                       2,823  
 

Net settlement on vesting of restricted stock

          402,593     4     (2,223 )                     (2,219 )
 

Stock-based employee compensation charges, net of tax of $0

                      35,464                       35,464  
 

Exercise of stock options

          1,158,892     12     5,330                       5,342  
 

Common shares issued to Directors

          181,621     1     245                       246  
 

Phantom shares issued to Directors

                      182                       182  
 

Proceeds from disgorgement of stockholder short-swing profits, net of tax of $7

                      12                       12  
                                   

December 31, 2009

  $     410,245,225   $ 4,102   $ 3,141,695   $ (1,062,318 ) $ (3,331 ) $ 17,293   $ 2,097,441  
                                   

The accompanying notes are an integral part of these financial statements.

83


Table of Contents


HERTZ GLOBAL HOLDINGS, INC. AND SUBSIDIARIES

CONSOLIDATED STATEMENTS OF CHANGES IN EQUITY (Continued)

(In Thousands of Dollars, except share data)

 
   
  Common Stock    
   
  Accumulated
Other
Comprehensive
Income (Loss)
   
   
 
 
  Preferred
Stock
  Additional
Paid-In
Capital
  Accumulated
Deficit
  Non-
controlling
Interest
  Total
Equity
 
 
  Shares   Amount  

December 31, 2009

  $     410,245,225   $ 4,102   $ 3,141,695   $ (1,062,318 ) $ (3,331 ) $ 17,293   $ 2,097,441  
 

Net loss attributable to Hertz Global Holdings, Inc. and Subsidiaries' common stockholders

                            (48,044 )               (48,044 )
 

Unrealized loss on investment, net of tax of $0

                                  (19 )         (19 )
 

Change in fair value of derivatives qualifying as cash flow hedges, net of tax of $31,885

                                  49,759           49,759  
 

Translation adjustment changes, net of tax of $6,938

                                  (17,213 )         (17,213 )
 

Unrealized holding gains on securities, net of tax of $0

                                  31           31  
 

Unrealized gain on Euro-denominated debt, net of tax of $12,656

                                  12,358           12,358  
 

Defined benefit pension plans:

                                                 
   

Amortization or settlement recognition of net gain

                                  4,073           4,073  
   

Net loss arising during the period

                                  (8,629 )         (8,629 )
   

Income tax related to defined pension plans

                                  794           794  
                                               
 

Defined benefit pension plans, net

                                  (3,762 )         (3,762 )
                                               
 

Total Comprehensive Loss

                                              (6,890 )
                                                 
 

Dividend payment to noncontrolling interest

                                        (18,200 )   (18,200 )
 

Net income relating to noncontrolling interest

                                        17,409     17,409  
 

Employee stock purchase plan

          344,542     4     3,770                       3,774  
 

Net settlement on vesting of restricted stock

          1,421,705     14     (7,850 )                     (7,836 )
 

Stock-based employee compensation charges, net of tax of $0

                      36,560                       36,560  
 

Exercise of stock options, net of tax of $(258)

          1,343,659     14     7,621                       7,635  
 

Common shares issued to Directors

          107,758     1     1,187                       1,188  
 

Phantom shares issued to Directors

                      238                       238  
 

Proceeds from disgorgement of stockholder short-swing profits, net of tax of $3

                      4                       4  
                                   

December 31, 2010

  $     413,462,889   $ 4,135   $ 3,183,225   $ (1,110,362 ) $ 37,823   $ 16,502   $ 2,131,323  
                                   

The accompanying notes are an integral part of these financial statements.

84


Table of Contents


HERTZ GLOBAL HOLDINGS, INC. AND SUBSIDIARIES

CONSOLIDATED STATEMENTS OF CASH FLOWS

(In Thousands of Dollars)

 
  Years ended December 31,  
 
  2010   2009   2008  

Cash flows from operating activities:

                   
 

Net loss

  $ (30,661 ) $ (111,343 ) $ (1,185,960 )
 

Adjustments to reconcile net loss to net cash provided by operating activities:

                   
   

Depreciation of revenue earning equipment

    1,789,903     1,849,674     2,085,665  
   

Depreciation of property and equipment

    154,031     159,693     172,848  
   

Amortization of other intangible assets

    64,713     66,059     66,282  
   

Amortization and write-off of deferred financing costs

    73,120     58,849     70,193  
   

Amortization of debt discount

    40,701     38,458     17,908  
   

Gain on debt buyback

        (48,472 )    
   

Stock-based compensation charges

    36,560     35,464     28,023  
   

(Gain) loss on derivatives

    10,810     (1,552 )   22,938  
   

Amortization and ineffectiveness of cash flow hedges

    68,815     74,597     11,807  
   

Provision for losses on doubtful accounts

    19,667     27,951     31,068  
   

Asset writedowns

    20,448     36,063     93,211  
   

Deferred taxes on income

    (26,123 )   111,233     (234,810 )
   

Gain on sale of property and equipment

    (5,740 )   (1,072 )   (9,602 )
   

Impairment charges

            1,168,900  
 

Changes in assets and liabilities, net of effects of acquisition:

                   
   

Receivables

    (7,459 )   38,634     47,063  
   

Inventories, prepaid expenses and other assets

    (61,886 )   7,538     17,956  
   

Accounts payable

    118,011     (227,479 )   108,530  
   

Accrued liabilities

    (53,445 )   (179,416 )   (54,462 )
   

Accrued taxes

    272     (207,029 )   (1,801 )
   

Public liability and property damage

    (3,058 )   (34,536 )   (20,068 )
               
     

Net cash provided by operating activities

    2,208,679     1,693,314     2,435,689  
               

Cash flows from investing activities:

                   
 

Net change in restricted cash and cash equivalents

    160,516     368,721     (71,836 )
 

Revenue earning equipment expenditures

    (8,440,872 )   (7,527,317 )   (10,150,982 )
 

Proceeds from disposal of revenue earning equipment

    7,518,446     6,106,624     8,619,715  
 

Property and equipment expenditures

    (179,209 )   (100,701 )   (193,766 )
 

Proceeds from disposal of property and equipment

    38,905     23,697     68,515  
 

Acquisitions, net of cash acquired

    (47,571 )   (76,419 )   (70,920 )
 

(Purchase) sale of short-term investments, net

    3,491     (3,492 )    
 

Other investing activities

    2,726     828     (488 )
               
     

Net cash used in investing activities

    (943,568 )   (1,208,059 )   (1,799,762 )
               

Cash flows from financing activities:

                   
 

Proceeds from issuance of long-term debt

    2,635,713     1,200,896     22,565  
 

Proceeds from sale of Convertible Senior Notes

        459,483      
 

Payment of long-term debt

    (2,954,233 )   (1,149,876 )   (860,515 )
 

Short-term borrowings:

                   
   

Proceeds

    490,490     364,065     396,679  
   

Payments

    (970,949 )   (351,773 )   (374,333 )
   

Proceeds (payments) under the revolving lines of credit, net

    1,026,070     (1,126,099 )   198,761  
 

Distributions to noncontrolling interest

    (18,200 )   (15,050 )   (24,150 )
 

Proceeds from sale of common stock

        528,758      
 

Proceeds from employee stock purchase plan

    3,208     2,400      
 

Net settlement on vesting of restricted stock

    (7,836 )   (2,219 )    
 

Proceeds from exercise of stock options

    7,635     5,342     6,754  
 

Proceeds from disgorgement of stockholder short-swing profits

    7     19     138  
 

Payment of financing costs

    (78,151 )   (45,017 )   (61,223 )
               
     

Net cash provided by (used in) financing activities

    133,754     (129,071 )   (695,324 )
               

Effect of foreign exchange rate changes on cash and cash equivalents

    (10,337 )   35,192     (76,540 )
               

Net change in cash and cash equivalents during the period

    1,388,528     391,376     (135,937 )

Cash and cash equivalents at beginning of period

    985,642     594,266     730,203  
               

Cash and cash equivalents at end of period

  $ 2,374,170   $ 985,642   $ 594,266  
               

Supplemental disclosures of cash flow information:

                   

Cash paid during the period for:

                   
 

Interest (net of amounts capitalized)

  $ 533,044   $ 635,153   $ 763,953  
 

Income taxes

    50,688     31,321     33,408  

Supplemental disclosures of non-cash flow information:

                   
 

Purchases of revenue earning equipment included in accounts payable and other accrued liabilities

  $ 266,354   $ 141,039   $ 347,581  
 

Sales of revenue earning equipment included in receivables

    504,217     537,862     1,025,832  
 

Purchases of property and equipment included in accounts payable

    37,379     38,210     19,490  
 

Sales of property and equipment included in receivables

    11,071     5,229     2,452  

The accompanying notes are an integral part of these financial statements.

85


Table of Contents


HERTZ GLOBAL HOLDINGS, INC. AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

Note 1—Background

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.

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 was incorporated in Delaware in 1967. Ford Motor Company, or "Ford," acquired an ownership interest in Hertz in 1987. Prior to this, Hertz was a subsidiary of UAL Corporation (formerly Allegis Corporation), which acquired Hertz's outstanding capital stock from RCA Corporation in 1985. 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

    BAML Capital Partners, or "BAMLCP" (formerly known as Merrill Lynch Global Private Equity),

or collectively the "Sponsors," acquired all of Hertz's common stock from Ford Holdings LLC. We refer to the acquisition of all of Hertz's common stock by the Sponsors as the "Acquisition." Following our initial public offering in November 2006 and subsequent offerings in June 2007, May 2009 and June 2009, the Sponsors currently own approximately 51% of the common stock of Hertz Holdings.

In January 2009, Bank of America Corporation, or "Bank of America," acquired Merrill Lynch & Co., Inc., the parent company of BAMLCP. Accordingly, Bank of America is now an indirect beneficial owner of our common stock held by BAMLCP and certain of its affiliates.

Note 2—Summary of Significant Accounting Policies

Principles of Consolidation

The consolidated financial statements include the accounts of Hertz Holdings and our wholly-owned and majority-owned domestic and international subsidiaries. All significant intercompany transactions have been eliminated.

Use of Estimates and Assumptions

The preparation of financial statements in conformity with accounting principles generally accepted in the United States of America, or "GAAP," requires management to make estimates and assumptions that affect the amounts reported in the financial statements and footnotes. Actual results could differ materially from those estimates.

Significant estimates inherent in the preparation of the consolidated financial statements include depreciation of revenue earning equipment, reserves for litigation and other contingencies, accounting for income taxes and related uncertain tax positions, pension costs valuation, useful lives and impairment of long-lived tangible and intangible assets, valuation of stock-based compensation, public

86


Table of Contents


HERTZ GLOBAL HOLDINGS, INC. AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)


liability and property damage reserves, reserves for restructuring, allowance for doubtful accounts and fair value of derivatives.

Reclassifications

Certain prior period amounts have been reclassified to conform with current reporting. For the years ended December 31, 2009 and 2008, we have revised net cash provided by operating activities and net cash used in investing activities within our consolidated statements of cash flows due to a gross up of cash lease payments relating to our revenue earning equipment in the non-cash add back previously included in depreciation of revenue earning equipment and proceeds from disposal of revenue earning equipment.

Revenue Recognition

Rental and rental related revenue (including cost reimbursements from customers where we consider ourselves to be the principal versus an agent) are recognized over the period the revenue earning equipment is rented based on the terms of the rental or leasing contract. Revenue related to new equipment sales and consumables is recognized at the time of delivery to, or pick-up by, the customer and when collectability is reasonably assured. Fees from our licensees are recognized over the period the underlying licensees' revenue is earned (over the period the licensees' revenue earning equipment is rented).

Sales tax amounts collected from customers have been recorded on a net basis.

Cash and Cash Equivalents and Other

We consider all highly liquid debt instruments purchased with an original maturity of three months or less to be cash equivalents.

In our Consolidated Statements of Cash Flows, we net cash flows from revolving borrowings in the line item "Proceeds (payments) under the revolving lines of credit, net." The contractual maturities of such borrowings may exceed 90 days in certain cases.

Restricted Cash and Cash Equivalents

Restricted cash and cash equivalents 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 Program, or "LKE Program," and to satisfy certain of our self-insurance regulatory reserve requirements. As of December 31, 2010 and 2009, the portion of total restricted cash and cash equivalents that was associated with our Fleet Debt facilities was $115.6 million and $295.0 million, respectively. The decrease in restricted cash and cash equivalents associated with our fleet debt of $179.4 million from December 31, 2009 to December 31, 2010, primarily related to payments to reduce fleet debt and the timing of purchases and sales of revenue earning vehicles and the temporary suspension of our U.S. car rental LKE Program. The suspension of the U.S. car rental LKE program enabled us to build liquidity in anticipation of future growth initiatives.

Receivables

Receivables are stated net of allowances for doubtful accounts, and represent credit extended to manufacturers and customers that satisfy defined credit criteria. The estimate of the allowance for

87


Table of Contents


HERTZ GLOBAL HOLDINGS, INC. AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)


doubtful accounts is based on our historical experience and our judgment as to the likelihood of ultimate payment. Actual receivables are written-off against the allowance for doubtful accounts when we determine the balance will not be collected. Bad debt expense is reflected as a component of Selling, general and administrative in our consolidated statements of operations.

Depreciable Assets

The provisions for depreciation and amortization are computed on a straight-line basis over the estimated useful lives of the respective assets, or in the case of revenue earning equipment over the estimated holding period, as follows:

Revenue Earning Equipment:

   
 

Cars

  4 to 26 months
 

Other equipment

  24 to 108 months

Buildings

  4 to 50 years

Furniture and fixtures

  1 to 15 years

Capitalized internal use software

  1 to 15 years

Service cars and service equipment

  1 to 13 years

Other intangible assets

  3 to 15 years

Leasehold improvements

  The shorter of their economic lives or the lease term.

We follow the practice of charging maintenance and repairs, including the cost of minor replacements, to maintenance expense accounts. Costs of major replacements of units of property are capitalized to property and equipment accounts and depreciated on the basis indicated above. Gains and losses on dispositions of property and equipment are included in income as realized. When revenue earning equipment is acquired, we estimate the period that we will hold the asset, primarily based on historical measures of the amount of rental activity (e.g., automobile mileage and equipment usage) and the targeted age of equipment at the time of disposal. We also estimate the residual value of the applicable revenue earning equipment at the expected time of disposal. The residual values for rental vehicles are affected by many factors, including make, model and options, age, physical condition, mileage, sale location, time of the year and channel of disposition (e.g., auction, retail, dealer direct). The residual value for rental equipment is affected by factors which include equipment age and amount of usage. Depreciation is recorded on a straight-line basis over the estimated holding period. Depreciation rates are reviewed on a quarterly basis based on management's ongoing assessment of present and estimated future market conditions, their effect on residual values at the time of disposal and the estimated holding periods. Market conditions for used vehicle and equipment sales can also be affected by external factors such as the economy, natural disasters, fuel prices and incentives offered by manufacturers of new cars. These key factors are considered when estimating future residual values and assessing depreciation rates. As a result of this ongoing assessment, we make periodic adjustments to depreciation rates of revenue earning equipment in response to changed market conditions. Upon disposal of revenue earning equipment, depreciation expense is adjusted for the difference between the net proceeds received and the remaining net book value.

Environmental Liabilities

The use of automobiles and other vehicles is subject to various governmental controls designed to limit environmental damage, including that caused by emissions and noise. Generally, these controls are met by the manufacturer, except in the case of occasional equipment failure requiring repair by us. To comply with environmental regulations, measures are taken at certain locations to reduce the loss of vapor

88


Table of Contents


HERTZ GLOBAL HOLDINGS, INC. AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)


during the fueling process and to maintain, upgrade and replace underground fuel storage tanks. We also incur and provide for expenses for the cleanup of petroleum discharges and other alleged violations of environmental laws arising from the disposition of waste products. We do not believe that we will be required to make any material capital expenditures for environmental control facilities or to make any other material expenditures to meet the requirements of governmental authorities in this area. Liabilities for these expenditures are recorded at undiscounted amounts when it is probable that obligations have been incurred and the amounts can be reasonably estimated.

Public Liability and Property Damage

The obligation for public liability and property damage on self-insured U.S. and international vehicles and equipment represents an estimate for both reported accident claims not yet paid, and claims incurred but not yet reported. The related liabilities are recorded on a non-discounted basis. Reserve requirements are based on actuarial evaluations of historical accident claim experience and trends, as well as future projections of ultimate losses, expenses, premiums and administrative costs. The adequacy of the liability is regularly monitored based on evolving accident claim history and insurance related state legislation changes. If our estimates change or if actual results differ from these assumptions, the amount of the recorded liability is adjusted to reflect these results.

Pensions

Our employee pension costs and obligations are dependent on our assumptions used by actuaries in calculating such amounts. These assumptions include discount rates, salary growth, long-term return on plan assets, retirement rates, mortality rates and other factors. Actual results that differ from our assumptions are accumulated and amortized over future periods and, therefore, generally affect our recognized expense in such future periods. While we believe that the assumptions used are appropriate, significant differences in actual experience or significant changes in assumptions would affect our pension costs and obligations.

Foreign Currency Translation and Transactions

Assets and liabilities of international subsidiaries are translated at the rate of exchange in effect on the balance sheet date; income and expenses are translated at the average rate of exchange prevailing during the year. The related translation adjustments are reflected in "Accumulated other comprehensive income (loss)" in the equity section of our consolidated balance sheet. As of December 31, 2010 and 2009, the accumulated foreign currency translation gain was $114.9 million and $132.1 million, respectively. Foreign currency gains and losses resulting from transactions are included in earnings.

Derivative Instruments

We are exposed to a variety of market risks, including the effects of changes in interest rates, gasoline and diesel fuel prices and foreign currency exchange rates. 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 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. We account for all derivatives in accordance with GAAP, which requires that all derivatives be recorded on the balance sheet as either assets or liabilities measured at their fair value. The effective portion of changes in fair value of derivatives designated as cash flow hedging instruments is recorded as a component of other comprehensive

89


Table of Contents


HERTZ GLOBAL HOLDINGS, INC. AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)


income. The ineffective portion is recognized currently in earnings within the same line item as the hedged item, based upon the nature of the hedged item. For derivative instruments that are not part of a qualified hedging relationship, the changes in their fair value are recognized currently in earnings. See Note 13—Financial Instruments.

Income Taxes

Deferred tax assets and liabilities are recognized for the future tax consequences attributable to differences between the financial statement carrying amounts of existing assets and liabilities and their respective tax bases. Deferred tax assets and liabilities are measured using enacted tax rates expected to apply to taxable income in the years in which those temporary differences are expected to be recovered or settled. The effect of a change in tax rates is recognized in the statement of operations in the period that includes the enactment date. Valuation allowances are recorded to reduce deferred tax assets when it is more likely than not that a tax benefit will not be realized. Subsequent changes to enacted tax rates and changes to the global mix of earnings will result in changes to the tax rates used to calculate deferred taxes and any related valuation allowances. Provisions are not made for income taxes on undistributed earnings of international subsidiaries that are intended to be indefinitely reinvested outside the United States or are expected to be remitted free of taxes. Future distributions, if any, from these international subsidiaries to the United States or changes in U.S. tax rules may require a change to reflect tax on these amounts. See Note 8—Taxes on Income.

Advertising

Advertising and sales promotion costs are expensed as incurred. Advertising costs are reflected as a component of "Selling, general and administrative" in our consolidated statements of operations and for the years ended December 31, 2010, 2009 and 2008 were $133.8 million, $113.1 million and $160.2 million, respectively.

Impairment of Long-Lived Assets and Intangibles

We review goodwill and indefinite-lived intangible assets for impairment whenever events or changes in circumstances indicate that the carrying amount of the goodwill may not be recoverable, and also review goodwill annually, using a two-step process. The first step is to identify any potential impairment by comparing the carrying value of the reporting unit to its fair value. We estimate the fair value of our reporting units using a discounted cash flow methodology. The cash flows represent management's most recent planning assumptions. These assumptions are based on a combination of industry outlooks, views on general economic conditions, our expected pricing plans and expected future savings generated by our ongoing restructuring activities. If a potential impairment is identified, the second step is to compare the implied fair value of goodwill with its carrying amount to measure the impairment loss. The fair values of the assets are based upon our estimates of the discounted cash flows. An impairment charge is recognized for the amount, if any, by which the carrying value of an asset exceeds its implied fair value.

Long-lived assets, other than goodwill and indefinite-lived intangible assets, are tested for impairment whenever events or changes in circumstances indicate that the carrying amounts of long-lived assets may not be recoverable. The recoverability of these assets are based upon our estimates of the undiscounted cash flows that are expected to result from the use and eventual disposition of the assets. An impairment charge is recognized for the amount, if any, by which the carrying value of an asset exceeds its fair value.

90


Table of Contents


HERTZ GLOBAL HOLDINGS, INC. AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)

Those intangible assets considered to have indefinite useful lives, including our trade name, are evaluated for impairment on an annual basis, by comparing the fair value of the intangible assets to their carrying value. In addition, whenever events or changes in circumstances indicate that the carrying value of intangible assets might not be recoverable, we will perform an impairment review. We estimate the fair value of our indefinite lived intangible assets using the relief from royalty method. Intangible assets with finite useful lives are amortized over their respective estimated useful lives and reviewed for impairment in accordance with GAAP. We conducted the impairment review during the fourth quarter of 2010 and concluded that there was no impairment related to our goodwill and our other intangible assets. See Note 3—Goodwill and Other Intangible Assets.

Stock-Based Compensation

We measure the cost of employee services received in exchange for an award of equity instruments based on the grant-date fair value of the award. That cost is to be recognized over the period during which the employee is required to provide service in exchange for the award. We have estimated the fair value of options issued at the date of grant using a Black-Scholes option-pricing model, which includes assumptions related to volatility, expected life, dividend yield and risk-free interest rate. See Note 6—Stock-Based Compensation.

We are using equity accounting for restricted stock unit and performance stock unit awards. For restricted stock units the expense is based on the grant-date fair value of the stock and the number of shares that vest, recognized over the service period. For performance stock units the expense is based on the grant-date fair value of the stock, recognized over a two or three year service period depending upon a performance condition. For performance stock units, we re-assess the probability of achievement at each reporting period and adjust the recognition of expense accordingly. The performance condition is not considered in determining the grant date fair value.

Other

In February 2010, Hertz Equipment Rental Corporation, or "HERC," entered into a joint venture with Saudi Arabia based Dayim Holdings Company Ltd. to set up equipment operations in the Kingdom of Saudi Arabia. During 2010, HERC invested $0.7 million under this agreement, which represents a 51% ownership interest. The investment (included in "Prepaid expense and other assets" in the consolidated balance sheet) is accounted for using the equity method of accounting.

Recent Accounting Pronouncements

In June 2009, the Financial Accounting Standards Board, or "FASB," issued guidance, which contains amendments to Accounting Standards Codification 810, "Consolidation," relating to 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 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. These provisions became effective for us on January 1, 2010, but did not have a material impact on our financial position or results of operations.

91


Table of Contents


HERTZ GLOBAL HOLDINGS, INC. AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)

Note 3—Goodwill and Other Intangible Assets

The following summarizes the changes in our goodwill, by segment, for the periods presented (in millions of dollars):

 
  Car Rental   Equipment
Rental
  Total  

Balance as of January 1, 2010

                   
 

Goodwill

  $ 335.8   $ 654.5   $ 990.3  
 

Accumulated impairment losses

    (43.0 )   (651.9 )   (694.9 )
               

    292.8     2.6     295.4  
               
 

Goodwill acquired during the year

   
2.7
   
4.3
   
7.0
 
 

Other changes during the year (1)

    (2.1 )   (0.1 )   (2.2 )
               

Balance as of December 31, 2010

                   
 

Goodwill

    336.4     658.7     995.1  
 

Accumulated impairment losses

    (43.0 )   (651.9 )   (694.9 )
               

  $ 293.4   $ 6.8   $ 300.2  
               

 

 
  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

   
24.0
   
2.4
   
26.4
 
 

Other changes during the year (1)

    4.7     0.2     4.9  
               

Balance as of December 31, 2009

                   
 

Goodwill

    335.8     654.5     990.3  
 

Accumulated impairment losses

    (43.0 )   (651.9 )   (694.9 )
               

  $ 292.8   $ 2.6   $ 295.4  
               

(1)
Primarily consists of changes resulting from the translation of foreign currencies at different exchange rates from the beginning of the period to the end of the period.

92


Table of Contents


HERTZ GLOBAL HOLDINGS, INC. AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)

Other intangible assets, net, consisted of the following major classes (in millions of dollars):

 
  December 31, 2010  
 
  Gross
Carrying
Amount
  Accumulated
Amortization
  Net
Carrying
Value
 

Amortizable intangible assets:

                   
 

Customer-related

  $ 606.5   $ (304.6 ) $ 301.9  
 

Other (1)

    59.1     (18.6 )   40.5  
               
   

Total

    665.6     (323.2 )   342.4  
               

Indefinite-lived intangible assets:

                   
 

Trade name

    2,190.0         2,190.0  
 

Other (2)

    18.2         18.2  
               
   

Total

    2,208.2         2,208.2  
               
     

Total other intangible assets, net

  $ 2,873.8   $ (323.2 ) $ 2,550.6  
               

 

 
  December 31, 2009  
 
  Gross
Carrying
Amount
  Accumulated
Amortization
  Net
Carrying
Value
 

Amortizable intangible assets:

                   
 

Customer-related

  $ 600.6   $ (246.5 ) $ 354.1  
 

Other (1)

    50.0     (12.0 )   38.0  
               
   

Total

    650.6     (258.5 )   392.1  
               

Indefinite-lived intangible assets:

                   
 

Trade name

    2,190.0         2,190.0  
 

Other (2)

    15.6         15.6  
               
   

Total

    2,205.6         2,205.6  
               
     

Total other intangible assets, net

  $ 2,856.2   $ (258.5 ) $ 2,597.7  
               

(1)
Other amortizable intangible assets primarily consist of our Advantage trade name, concession rights, reacquired franchise rights, non-compete agreements and technology-related intangibles.

(2)
Other indefinite-lived intangible assets primarily consist of reacquired franchise rights.

In 2008, we recorded non-cash impairment charges of $694.9 million related to our goodwill and $451.0 related to other intangible assets. The car rental and equipment rental segments recorded non-cash impairment charges related to their goodwill of $43.0 million and $651.9 million, respectively, and to their other intangible assets of $377.0 million and $74.0 million, respectively. These impairment charges were a result of a decline in the economy and fourth quarter 2008 operating results, and a significant decline in both the fair value of debt and our stock price.

93


Table of Contents


HERTZ GLOBAL HOLDINGS, INC. AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)

Amortization of other intangible assets for the years ended December 31, 2010, 2009 and 2008, was $64.7 million, $66.1 million and $66.3 million, respectively. Based on our amortizable intangible assets as of December 31, 2010, we expect amortization expense to range from $59.4 million to $66.0 million for each of the next five fiscal years.

During the year ended December 31, 2010, we added ten locations in our domestic and international car rental operations by acquiring former franchisees and from external acquisitions. Additionally, we added seven locations related to external acquisitions done within our equipment rental operations. Total intangible assets acquired during the year ended December 31, 2010 was $18.0 million, of which $15.4 million and $2.6 million was allocated to amortizable intangible assets and indefinite-lived intangible assets, respectively. During the year ended December 31, 2009, we added 32 car rental 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 one location related to an external acquisition done within our equipment rental operations. Total intangible assets acquired during the year ended December 31, 2009 was $44.7 million, of which $39.1 million and $5.6 million was allocated to amortizable intangible assets and indefinite-lived intangible assets, respectively. Each of these transactions has been accounted for using the acquisition method of accounting in accordance with GAAP and operating results of the acquired locations from the dates of acquisition are included in our consolidated statements of operations. For certain 2010 acquisitions, 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 years ended December 31, 2010 and 2009.

94


Table of Contents


HERTZ GLOBAL HOLDINGS, INC. AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)

Note 4—Debt

Our debt consists of the following (in millions of dollars):

 
  Average
Interest
Rate at
December 31,
2010 (1)
   
   
   
   
 
 
  Fixed or
Floating
Interest
Rate
   
  December 31,  
Facility
  Maturity   2010   2009  

Corporate Debt

                           
 

Senior Term Facility

  2.02%   Floating     12/2012   $ 1,345.0   $ 1,358.6  
 

Senior ABL Facility

  N/A   Floating     2/2012          
 

Senior Notes

  8.26%   Fixed     1/2014 – 1/2021     3,229.6     2,054.7  
 

Senior Subordinated Notes

  10.50%   Fixed     1/2016     518.5     518.5  
 

Promissory Notes

  7.45%   Fixed     3/2011 – 1/2028     345.6     394.7  
 

Convertible Senior Notes

  5.25%   Fixed     6/2014     474.8     474.8  
 

Other Corporate Debt

  4.74%   Floating     Various     22.0     22.3  
 

Unamortized Discount (Corporate) (2)

                  (104.8 )   (134.2 )
                         

Total Corporate Debt

                  5,830.7     4,689.4  
                         

Fleet Debt

                           

U.S. ABS Program

                           
 

U.S. Fleet Variable Funding Notes:

                           
   

Series 2009-1 (3)

  1.20%   Floating     3/2013     1,488.0      
   

Series 2010-2 (3)

  1.26%   Floating     3/2013     35.0      
 

U.S. Fleet Medium Term Notes

                           
   

Series 2005 Notes (4)

    Fixed     12/2010         2,875.0  
   

Series 2009-2 Notes (3)

  4.95%   Fixed     3/2013 – 3/2015     1,384.3     1,200.0  
   

Series 2010-1 Notes (3)

  3.77%   Fixed     2/2014 – 2/2018     749.8      

Other Fleet Debt

                           
 

U.S. Fleet Financing Facility

  1.51%   Floating     12/2011     163.0     148.0  
 

European Revolving Credit Facility

  4.47%   Floating     6/2013     168.6      
 

European Fleet Notes

  8.50%   Fixed     7/2015     529.0      
 

European Securitization (3)

  4.08%   Floating     7/2012     236.9      
 

Canadian Securitization (3)

  1.13%   Floating     5/2011     80.4     55.6  
 

Australian Securitization (3)

  6.24%   Floating     12/2012     183.2      
 

Brazilian Fleet Financing Facility

  15.56%   Floating     2/2011     77.8     69.3  
 

Belgian Fleet Financing Facility (4)

    Floating     12/2010         33.7  
 

International ABS Fleet Financing Facility (4)

    Floating     12/2010         388.9  
 

International Fleet Debt (4)

    Floating     12/2010         714.0  
 

Capitalized Leases

  5.10%   Floating     1/2011 – 2/2013     398.1     222.4  
 

Unamortized Discount (Fleet)

                  (18.4 )   (31.9 )
                         

Total Fleet Debt

                  5,475.7     5,675.0  
                         

Total Debt

                $ 11,306.4   $ 10,364.4  
                         

(1)
As applicable, reference is to the December 31, 2010 weighted average interest rate (weighted by principal balance).

(2)
As of December 31, 2010 and 2009, $87.7 million and $107.4 million, respectively, of the unamortized corporate discount relates to the 5.25% Convertible Senior Notes.

(3)
Maturity reference is to the "expected final maturity date" as opposed to the subsequent "legal maturity date." The expected final maturity date is the date by which Hertz and investors in the relevant indebtedness expect the relevant indebtedness to be repaid. The legal final maturity date is the date on which the relevant indebtedness is legally due and payable.

(4)
Matured, refinanced and/or terminated in 2010.

95


Table of Contents


HERTZ GLOBAL HOLDINGS, INC. AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)

Maturities

The aggregate amounts of maturities of debt for each of the twelve-month periods ending December 31 (in millions of dollars) are as follows:

2011

  $ 5,067.5   (including $3,277.1 of other short-term borrowings)

2012

  $ 1,813.0    

2013

  $ 462.1    

2014

  $ 1,436.1    

2015

  $ 1,182.8    

After 2015

  $ 1,468.1    

We are highly leveraged and a substantial portion of our liquidity needs arise from debt service on our indebtedness and from the funding of our costs of operations and capital expenditures. We believe that cash generated from operations, together with amounts available under various liquidity facilities will be adequate to permit us to meet our debt maturities over the next twelve months.

Our short-term borrowings as of December 31, 2010 include, among other items, the amounts outstanding under the European Securitization, Australian Securitization, U.S. Fleet Financing Facility, Brazilian Fleet Financing Facility, Canadian Securitization, Capitalized Leases and European Revolving Credit Facility. These amounts are reflected as short-term borrowings, regardless of the facility maturity date, as these facilities are revolving in nature and/or the outstanding borrowings have maturities of three months or less. Short-term borrowings also include the Convertible Senior Notes which became convertible on January 1, 2011. As of December 31, 2010, short-term borrowings had a weighted average interest rate of 3.10%.

In January 2011, Hertz redeemed in full its outstanding ($518.5 million principal amount) 10.5% Senior Subordinated Notes due 2016. In January and February 2011, Hertz redeemed $1,105 million principal amount of its outstanding 8.875% Senior Notes due 2014. The redeemed 10.5% Senior Subordinated Notes and portion of the 8.875% Senior Notes have been included in the 2011 maturities in the table above. See Note 17—Subsequent Events.

Letters of Credit

As of December 31, 2010, there were outstanding standby letters of credit totaling $560.5 million. Of this amount, $513.4 million was issued under the Senior Credit Facilities ($277.6 million of which was issued for the benefit of the ABS Program) and the remainder is primarily to support self-insurance programs (including insurance policies with respect to which we have agreed to indemnify the policy issuers for any losses) as well as airport concession obligations in the United States, Canada and Europe. As of December 31, 2010, none of these letters of credit have been drawn upon.

CORPORATE DEBT

Senior Credit Facilities

Senior Term Facility:     In December 2005, Hertz entered into a credit agreement that provides a $1,400.0 million secured term loan facility (as amended, the "Senior Term Facility"), $1,345.0 million of which was outstanding as of December 31, 2010. In addition, the Senior Term Facility includes a pre-funded synthetic letter of credit facility in an aggregate principal amount of $250.0 million.

96


Table of Contents


HERTZ GLOBAL HOLDINGS, INC. AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)

Senior ABL Facility:     In December 2005, Hertz, HERC and certain other of our subsidiaries entered into a credit agreement that provides for aggregate maximum borrowings of $1,800.0 million (subject to borrowing base availability) on a revolving basis under an asset-based revolving credit facility (as amended, the "Senior ABL Facility"). Up to $600.0 million of the Senior ABL Facility is available for the issuance of letters of credit.

We refer to the Senior Term Facility and the Senior ABL Facility together as the "Senior Credit Facilities." Hertz's obligations under the Senior Credit Facilities are guaranteed by its immediate parent (Hertz Investors, Inc.) and most of its direct and indirect domestic subsidiaries (subject to certain exceptions, including Hertz International Limited, which ultimately owns entities carrying on most of our international operations, and subsidiaries involved in the U.S. ABS Program). In addition, the obligations of the "Canadian borrowers" under the Senior ABL Facility are guaranteed by their respective subsidiaries, if any, subject to limited exceptions.

The lenders under the Senior Credit Facilities have been granted a security interest in substantially all of the tangible and intangible assets of the borrowers and guarantors under those facilities, including pledges of the stock of certain of their respective subsidiaries (subject, in each case, to certain exceptions, including certain vehicles).

The Senior Credit Facilities contain a number of covenants that, among other things, limit or restrict the ability of Hertz and its subsidiaries (which we refer to as the "Hertz credit group") to dispose of assets, incur additional indebtedness, incur guarantee obligations, prepay other indebtedness, make dividends and other restricted payments (including to the parent entities of Hertz and other persons), create liens, make investments, make acquisitions, engage in mergers, fundamentally change the nature of their business, make capital expenditures, or engage in certain transactions with affiliates that are not within the Hertz credit group.

Under the Senior Term Facility, the Hertz credit group is subject to financial covenants, including a requirement to maintain a specified leverage ratio and a specified interest coverage ratio for specified periods.

Under the Senior ABL Facility, if the borrowers fail to maintain a specified minimum level of borrowing availability, the Hertz credit group will then be subject to financial covenants under such facility, including a specified leverage ratio and a specified fixed charge coverage ratio.

Covenants in the Senior Term Facility restrict payment of cash dividends to any parent of Hertz, including Hertz Holdings, except ( i ) in an aggregate amount not to exceed the greater of a specified minimum amount and 1.0% of tangible assets less certain investments (which payments are deducted in determining the amount available as described in the next clause (ii)), ( ii ) in additional amounts up to a specified available amount determined by reference to, among other things, 50% of net income from October 1, 2005 to the end of the most recent fiscal quarter for which financial statements of Hertz are available (less certain investments) and ( iii ) in additional amounts, up to a specified amount of certain equity contributions made to Hertz (less certain investments).

Covenants in the Senior ABL Facility restrict payment of cash dividends to any parent of Hertz, including Hertz Holdings, except in an aggregate amount, taken together with certain other investments, acquisitions and optional prepayments, not to exceed $100 million. Hertz may also pay additional cash dividends under the Senior ABL Facility in any amount, so long as ( a ) there is at least $250 million of borrowing base availability under the Senior ABL Facility after giving effect to the proposed dividend, ( b ) if certain other payments when taken together with the proposed dividend would exceed $50 million in a 30-day period, Hertz can demonstrate projected average borrowing base availability in the following six

97


Table of Contents


HERTZ GLOBAL HOLDINGS, INC. AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)


month period of $250 million or more, ( c ) ( i ) Hertz is in pro forma compliance with the specified leverage ratio and the specified fixed charge coverage ratio set forth in the Senior ABL Facility or ( ii ) the amount of the proposed dividend does not exceed the sum of ( x ) 1.0% of tangible assets plus ( y ) a specified available amount determined by reference to, among other things, 50% of net income from October 1, 2005 to the end of the most recent fiscal quarter for which financial statements of Hertz are available (which amount is net of amounts paid under the foregoing clause (x)) plus ( z ) a specified amount of certain equity contributions made to Hertz and ( d ) no default exists or would result from such dividends.

We are in the process of refinancing the Senior Credit Facilities. We expect to complete this process in the first half of 2011.

Senior Notes and Senior Subordinated Notes

References to our "Senior Notes" include the series of Hertz's unsecured senior notes set forth in the table below. As of December 31, 2010, the outstanding principal amount for each such series of the Senior Notes is also specified below.

Senior Notes
 
Outstanding Principal
8.875% Senior Notes due January 2014   $1,747.3 million
7.875% Senior Notes due January 2014   $282.3 million (€213.5 million)
7.50% Senior Notes due October 2018 (issued September 2010)   $700 million
7.375% Senior Notes due January 2021 (issued December 2010)   $500 million

References to the "Senior Subordinated Notes" are to Hertz's 10.5% Senior Subordinated Notes due January 2016.

In January 2011, we redeemed the Senior Subordinated Notes in full and, in January and February 2011, we redeemed $1,105 million principal amount of the outstanding 8.875% Senior Notes. See Note 17—Subsequent Events.

Hertz's obligations under the indentures for the Senior Notes are guaranteed by each of its direct and indirect domestic subsidiaries that is a guarantor under the Senior Term Facility. The guarantees of all of the subsidiary guarantors may be released to the extent such subsidiaries no longer guarantee our Senior Credit Facilities in the United States. HERC may also be released from its guarantee under certain of the Senior Notes at any time at which no event of default under the indenture has occurred and is continuing, notwithstanding that HERC may remain a subsidiary of Hertz.

The indentures for the Senior Notes contain covenants that, among other things, limit or restrict the ability of the Hertz credit group to incur additional indebtedness, incur guarantee obligations, prepay certain indebtedness, make certain restricted payments (including paying dividends, redeeming stock or making other distributions to parent entities of Hertz and other persons outside of the Hertz credit group), make investments, create liens, transfer or sell assets, merge or consolidate, and enter into certain transactions with Hertz's affiliates that are not members of the Hertz credit group.

The covenants in the indentures for the Senior Notes also restrict Hertz and other members of the Hertz credit group from redeeming stock or making loans, advances, dividends, distributions or other restricted payments to any entity that is not a member of the Hertz credit group, including Hertz Holdings, subject to certain exceptions.

98


Table of Contents


HERTZ GLOBAL HOLDINGS, INC. AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)

Pursuant to the terms of exchange and registration rights agreements entered into in connection with the separate issuances of the 7.5% Senior Notes due 2018 and the 7.375% Senior Notes due 2021, Hertz has agreed to file a registration statement under the Securities Act of 1933, as amended, to permit either the exchange of such notes for registered notes or, in the alternative, the registered resale of such notes. Hertz's failure to meet its obligations under the exchange and registration rights agreements, including by failing to have the respective registration statement become effective by a specified date or failing to complete the respective exchange offer by a specified date, will result in Hertz incurring special interest on such notes at a per annum rate of 0.25% for the first 90 days of any period where a default has occurred and is continuing, which rate will be increased by an additional 0.25% during each subsequent 90 day period, up to a maximum of 0.50%. We do not believe the special interest obligation is probable, and as such, we have not recorded any amounts with respect to this registration payment arrangement.

Promissory Notes

References to our "Promissory Notes" relate to our pre-2005 Acquisition promissory notes issued under three separate indentures.

Convertible Senior Notes

References to our "Convertible Senior Notes" are to Hertz Holdings' 5.25% Convertible Senior Notes due June 2014. Our Convertible Senior Notes may be convertible by holders into shares of Hertz Holdings' 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.

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 offering of the Convertible Senior Notes 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, at issuance the debt was recorded at a discount of $117.9 million reflecting that its coupon was below the market yield for a similar security without the conversion feature at issuance. The debt is subsequently accreted to its par value over its expected life, with the market rate of interest at issuance being reflected in the statements of operations. The effective interest rate on the Convertible Senior Notes on the issuance date was 12%.

On January 1, 2011, our Convertible Senior Notes became convertible. This conversion right was triggered because our closing common stock price per share exceeded $10.77 for at least 20 trading days during the 30 consecutive trading day period ending on December 31, 2010. The Convertible Senior Notes will continue to be convertible until March 31, 2011, and may be convertible thereafter, if one or more of the conversion conditions specified in the indenture is satisfied during future measurement periods.

FLEET DEBT

The governing documents of certain of the fleet debt financing arrangements specified below contain covenants that, among other things, significantly limit or restrict (or upon certain circumstances may significantly limit or restrict) the ability of the borrowers, and the guarantors if applicable, to make certain

99


Table of Contents


HERTZ GLOBAL HOLDINGS, INC. AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)


restricted payments (including paying dividends, redeeming stock, making other distributions, loans or advances) to Hertz Holdings and Hertz, whether directly or indirectly.

U.S. ABS Program

Hertz Vehicle Financing LLC, an insolvency remote, direct, wholly-owned, special purpose subsidiary of Hertz, or "HVF," is the issuer under the U.S. ABS Program. HVF has entered into a base indenture that permits it to issue term and revolving rental car asset-backed securities, the collateral for which consists primarily of a substantial portion of the rental car fleet used in Hertz's domestic car rental operations and contractual rights related to such vehicles.

References to the "U.S. ABS Program" include HVF's U.S. Fleet Variable Funding Notes together with HVF's U.S. Fleet Medium Term Notes.

U.S. Fleet Variable Funding Notes

References to the "U.S. Fleet Variable Funding Notes" include HVF's Series 2009-1 Variable Funding Rental Car Asset Backed Notes (as amended, the "Series 2009-1 Notes") and Series 2010-2 Variable Funding Rental Car Asset Backed Notes (the "Series 2010-2 Notes"), collectively. The U.S. Fleet Variable Funding Notes provide for aggregate maximum borrowings of $2,138.0 million (subject to borrowing base availability) on a revolving basis under two separate asset-backed variable funding note facilities. Although the terms of the Series 2010-2 Notes are similar to the terms of the Series 2009-1 Notes, the Series 2010-2 Notes are secured by a pool of collateral segregated from the collateral securing HVF's other outstanding notes, including the Series 2009-1 Notes.

In December 2010, HVF purchased interest rate caps relating to both the Series 2009-1 Notes and the Series 2010-2 Notes. Concurrently, Hertz sold offsetting interest rate caps relating to both the Series 2009-1 Notes and the Series 2010-2 Notes, thereby neutralizing the hedge on a consolidated basis and reducing the net cost of the hedge. See Note 13—Financial Instruments.

U.S. Fleet Medium Term Notes

References to the "U.S. Fleet Medium Term Notes" include HVF's Series 2009-2 Notes and Series 2010-1 Notes, collectively.

Series 2009-2 Notes.     In October 2009, HVF issued the Series 2009-2 Rental Car Asset Back Notes, Class A (the "Series 2009-2 Class A Notes") in an aggregate original principal amount of $1.2 billion. In June 2010, HVF issued the Subordinated Series 2009-2 Rental Car Asset Backed Notes, Class B (the "Series 2009-2 Class B Notes" and together with the Series 2009-2 Class A Notes, the "Series 2009-2 Notes") in an aggregate original principal amount of $184.3 million.

Series 2010-1 Notes.     In July 2010, HVF issued the Series 2010-1 Rental Car Asset Backed Notes (the "Series 2010-1 Notes") in an aggregate original principal amount of $750 million.

Fleet Debt—Other

U.S. Fleet Financing Facility

In September 2006, Hertz and Puerto Ricancars, Inc., a Puerto Rican corporation and wholly-owned indirect subsidiary of Hertz, or "PR Cars," entered into a credit agreement that provides for aggregate maximum borrowings of $165.0 million (subject to borrowing base availability) on a revolving basis under an asset-based revolving credit facility (as amended, the "U.S. Fleet Financing Facility"). The U.S.

100


Table of Contents


HERTZ GLOBAL HOLDINGS, INC. AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)


Fleet Financing Facility is the primary fleet financing for our rental car operations in Hawaii, Kansas, Puerto Rico and St. Thomas, the U.S. Virgin Islands ("St. Thomas").

The obligations of each of Hertz and PR Cars under the U.S. Fleet Financing Facility are guaranteed by certain of Hertz's direct and indirect domestic subsidiaries. In addition, the obligations of PR Cars under the U.S. Fleet Financing Facility are guaranteed by Hertz. The lenders under the U.S. Fleet Financing Facility have been granted a security interest primarily in the owned rental car fleet used in our car rental operations in Hawaii, Puerto Rico and St. Thomas and certain contractual rights related to such vehicles in Kansas, Hawaii, Puerto Rico and St. Thomas.

European Revolving Credit Facility and European Fleet Notes

In June 2010, Hertz Holdings Netherlands B.V., an indirect wholly-owned subsidiary of Hertz organized under the laws of The Netherlands ("HHN BV"), entered into a credit agreement that provides for aggregate maximum borrowings of €220 million (the equivalent of $291.0 million as of December 31, 2010) (subject to borrowing base availability) on a revolving basis under an asset-based revolving credit facility (the "European Revolving Credit Facility"), and issued the 8.50% Senior Secured Notes due July 2015 (the "European Fleet Notes") in an aggregate original principal amount of €400 million (the equivalent of $529.0 million as of December 31, 2010). References to the "European Fleet Debt" include HHN BV's European Revolving Credit Facility and the European Fleet Notes, collectively.

The European Fleet Debt is the primary fleet financing for our rental car operations in Germany, Italy, Spain, Belgium, Luxembourg and Switzerland, and can be expanded to provide fleet financing in Australia, Canada, France, The Netherlands, New Zealand, and the United Kingdom.

The obligations of HHN BV under the European Fleet Debt are guaranteed by Hertz and certain of Hertz's domestic and foreign subsidiaries.

The agreements governing the European Revolving Credit Facility and the indenture governing the European Fleet Notes contain covenants that apply to the Hertz credit group similar to those for the Senior Notes. In addition, the agreements and indenture contain a combination of security arrangements, springing covenants and "no liens" covenants intended to give the lenders under the European Fleet Debt enhanced recourse to certain assets of HHN BV and certain foreign subsidiaries of Hertz. The terms of the European Fleet Debt permit HHN BV to incur additional indebtedness that would be pari passu with either the European Revolving Credit Facility or the European Fleet Notes.

European Securitization

In July 2010, certain foreign subsidiaries entered into a credit agreement that provides for aggregate maximum borrowings of €400 million (the equivalent of $529.0 million as of December 31, 2010) (subject to borrowing base availability) on a revolving basis under an asset-backed securitization facility, or the "European Securitization." The European Securitization is the primary fleet financing for our rental car operations in France and The Netherlands. The lenders under the European Securitization have been granted a security interest primarily in the owned rental car fleet used in our car rental operations in France and The Netherlands and certain contractual rights related to such vehicles.

101


Table of Contents


HERTZ GLOBAL HOLDINGS, INC. AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)

Canadian Securitization

In May 2007, certain foreign subsidiaries entered into a credit agreement that provides for aggregate maximum borrowings of CAD$225 million (the equivalent of $224.8 million as of December 31, 2010) (subject to borrowing base availability) on a revolving basis under an asset-backed securitization facility (as amended, the "Canadian Securitization"). The Canadian Securitization is the primary fleet financing for our rental car operations in Canada. The lenders under the Canadian Securitization have been granted a security interest primarily in the owned rental car fleet used in our car rental operations in Canada and certain contractual rights related to such vehicles.

Australian Securitization

In November 2010, certain foreign subsidiaries entered into a credit agreement that provides for aggregate maximum borrowings of A$250 million (the equivalent of $254.5 million as of December 31, 2010) (subject to borrowing base availability) on a revolving basis under an asset-backed securitization facility (the "Australian Securitization"). The Australian Securitization is the primary fleet financing for our rental car operations in Australia. The lenders under the Australian Securitization have been granted a security interest primarily in the owned rental car fleet used in our car rental operations in Australia and certain contractual rights related to such vehicles. In connection with the issuance of the Australian Securitization, an interest rate cap was purchased by the foreign subsidiaries. Concurrently, Hertz sold an offsetting interest rate cap, thereby neutralizing the hedge on a consolidated basis and reducing the net cost of the hedge. See Note 13—Financial Instruments.

Brazilian Fleet Financing Facility

In December 2010, a foreign subsidiary amended its asset-based credit facility (as amended, the "Brazilian Fleet Financing Facility") which was the primary fleet financing for our rental car operations in Brazil. In February 2011, we paid off the maturing amount of the Brazilian Fleet Financing Facility and the collateral thereunder was released and the guaranty thereunder was terminated.

Capitalized Leases

References to the "Capitalized Leases" include the capitalized lease financings outstanding in the United Kingdom (the "U.K. Leveraged Financing"), Australia, The Netherlands and the United States. The amount available under the U.K. Leveraged Financing, which is the largest portion of the Capitalized Leases, increases over the term of the facility to £195.0 million (the equivalent of $302.3 million as of December 31, 2010).

Restricted Net Assets

As a result of the contractual restrictions on Hertz's or its subsidiaries' ability to pay dividends to us (directly or indirectly) under various terms of our debt, as of December 31, 2010, the restricted net assets of our subsidiaries exceeded 25% of our total consolidated net assets.

Financial Covenant Compliance

As of December 31, 2010, we were in compliance with all financial covenants in our various debt instruments. Based on our current projections, we believe that we will remain in compliance with our corporate debt covenants over the next twelve months.

102


Table of Contents


HERTZ GLOBAL HOLDINGS, INC. AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)

Borrowing Capacity and Availability

As of December 31, 2010, the following facilities were available for our use (in millions of dollars):

 
  Remaining
Capacity
  Availability
Under
Borrowing
Base
Limitation
 

Corporate Debt

             

Senior ABL Facility

  $ 1,467.2   $ 795.8  
           
 

Total Corporate Debt

    1,467.2     795.8  
           

Fleet Debt

             

U.S. Fleet Variable Funding Notes

    615.1     88.1  

U.S. Fleet Financing Facility

    2.0     2.0  

European Revolving Credit Facility

    121.5     121.5  

European Securitization

    253.4     71.3  

Canadian Securitization

    144.4     11.2  

Australian Securitization

    71.2     10.0  

Brazilian Fleet Financing Facility

    0.9      

Capitalized Leases

    82.9      
           
 

Total Fleet Debt

    1,291.4     304.1  
           

Total

  $ 2,758.6   $ 1,099.9  
           

Our borrowing capacity and availability primarily comes from our "revolving credit facilities," which are a combination of asset-backed securitization facilities and asset-based revolving credit facilities. Creditors under each of our revolving credit facilities have a claim on a specific pool of assets as collateral. Our ability to borrow under each revolving credit facility is a function of, among other things, the value of the assets in the relevant collateral pool. We refer to the amount of debt we can borrow given a certain pool of assets as the "borrowing base."

We refer to "Remaining Capacity" as the maximum principal amount of debt permitted to be outstanding under the respective facility (i.e., the amount of debt we could borrow assuming we possessed sufficient assets as collateral) less the principal amount of debt then-outstanding under such facility.

We refer to "Availability Under Borrowing Base Limitation" and "borrowing base availability" as the lower of Remaining Capacity or the borrowing base less the principal amount of debt then-outstanding under such facility (i.e., the amount of debt we could borrow given the collateral we possess at such time).

As of December 31, 2010, the Senior Term Facility had approximately $54.5 million available under the letter of credit facility and the Senior ABL Facility had $282.2 million available under the letter of credit facility sublimit.

Substantially all of our revenue earning equipment and certain related assets are owned by special purpose entities, or are encumbered in favor of our lenders under our various credit facilities.

Some of these special purpose entities are consolidated variable interest entities, of which Hertz is the primary beneficiary, whose sole purpose is to provide commitments to lend in various currencies subject to borrowing bases comprised of rental vehicles and related assets of certain of Hertz

103


Table of Contents


HERTZ GLOBAL HOLDINGS, INC. AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)


International, Ltd.'s subsidiaries. As of December 31, 2010 and 2009, our International Fleet Financing No. 1 B.V., International Fleet Financing No. 2 B.V. and HA Funding Pty, Ltd. variable interest entities had total assets primarily comprised of loans receivable and revenue earning equipment of $652.1 million and $819.0 million, respectively, and total liabilities primarily comprised of debt of $651.6 million and $818.8 million, respectively.

Accrued Interest

As of December 31, 2010 and 2009, accrued interest was $166.4 million and $120.9 million, respectively, which is reflected in our consolidated balance sheet in "Other accrued liabilities."

Note 5—Employee Retirement Benefits

Qualified U.S. employees, after completion of specified periods of service, are eligible to participate in The Hertz Corporation Account Balance Defined Benefit Pension Plan, or the "Hertz Retirement Plan," a cash balance plan. Under this qualified Hertz Retirement Plan, we pay the entire cost and employees are not required to contribute.

Most of our international subsidiaries have defined benefit retirement plans or participate in various insured or multiemployer plans. In certain countries, when the subsidiaries make the required funding payments, they have no further obligations under such plans. 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. Contributions to U.S. multiemployer plans were $7.7 million, $6.3 million and $7.3 million for years ended December 31, 2010, 2009 and 2008, respectively.

Company plans are generally funded, except for certain nonqualified U.S. defined benefit plans and in Germany, where unfunded liabilities are recorded.

We sponsor defined contribution plans for certain eligible U.S. and non-U.S. employees. We match contributions of participating employees on the basis specified in the plans.

We also sponsor postretirement health care and life insurance benefits for a limited number of employees with hire dates prior to January 1, 1990. The postretirement health care plan is contributory with participants' contributions adjusted annually. An unfunded liability is recorded. We also have a key officer postretirement car benefit plan that provides the use of a vehicle for retired Senior Vice Presidents and above who have a minimum of 20 years of service and who retired at age 58 or above.

We use a December 31 measurement date for all our plans.

The following tables set forth the funded status and the net periodic pension cost of the Hertz Retirement Plan, other postretirement benefit plans (including health care and life insurance plans covering domestic ("U.S.") employees and the retirement plans for international operations ("Non-U.S."),

104


Table of Contents


HERTZ GLOBAL HOLDINGS, INC. AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)


together with amounts included in our consolidated balance sheets and statements of operations (in millions of dollars):

 
  Pension Benefits    
   
 
 
  Postretirement
Benefits (U.S.)
 
 
  U.S.   Non-U.S.  
 
  2010   2009   2010   2009   2010   2009  

Change in Benefit Obligation

                                     
 

Benefit obligation at January 1

  $ 504.7   $ 438.8   $ 191.0   $ 163.5   $ 13.7   $ 12.9  
 

Service cost

    24.0     22.0     5.2     5.6     0.3     0.1  
 

Interest cost

    26.1     27.9     9.7     9.5     0.9     0.8  
 

Employee contributions

            1.1     1.1     0.9     0.5  
 

Plan amendments

            (13.6 )            
 

Plan curtailments

            (0.2 )   (0.3 )        
 

Plan settlements

    (3.4 )   (11.0 )   (0.3 )   (1.6 )        
 

Benefits paid

    (18.4 )   (36.4 )   (3.9 )   (4.7 )   (2.3 )   (1.3 )
 

Foreign exchange translation

            (9.4 )   15.5          
 

Actuarial loss

    16.7     63.4     22.7     2.7     5.5     0.7  
 

Other

            (0.8 )   (0.3 )        
                           
 

Benefit obligation at December 31

  $ 549.7   $ 504.7   $ 201.5   $ 191.0   $ 19.0   $ 13.7  
                           

Change in Plan Assets

                                     
 

Fair value of plan assets at January 1

  $ 284.2   $ 237.0   $ 139.2   $ 103.3   $   $  
 

Actual return on plan assets

    43.5     39.3     17.6     23.1          
 

Company contributions

    60.0     55.3     6.1     6.7     1.4     0.7  
 

Employee contributions

            1.1     1.1     0.9     0.5  
 

Plan settlements

    (3.4 )   (11.0 )   (0.3 )   (1.6 )        
 

Benefits paid

    (18.4 )   (36.4 )   (3.9 )   (4.7 )   (2.3 )   (1.2 )
 

Foreign exchange translation

            (6.1 )   11.6          
 

Other

            (0.9 )   (0.3 )        
                           
 

Fair value of plan assets at December 31

  $ 365.9   $ 284.2   $ 152.8   $ 139.2   $   $  
                           

Funded Status of the Plan

                                     
 

Plan assets less than benefit obligation

  $ (183.8 ) $ (220.5 ) $ (48.7 ) $ (51.8 ) $ (19.0 ) $ (13.7 )
                           

105


Table of Contents


HERTZ GLOBAL HOLDINGS, INC. AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)


 
  Pension Benefits    
   
 
 
  Postretirement
Benefits (U.S.)
 
 
  U.S.   Non-U.S.  
 
  2010   2009   2010   2009   2010   2009  

Amounts recognized in balance sheet:

                                     
 

Liabilities

  $ (183.8 ) $ (220.5 ) $ (48.7 ) $ (51.8 ) $ (19.0 ) $ (13.7 )
                           
 

Net obligation recognized in the balance sheet

  $ (183.8 ) $ (220.5 ) $ (48.7 ) $ (51.8 ) $ (19.0 ) $ (13.7 )
                           
 

Prior service cost

  $ (0.1 ) $ (0.1 ) $ 12.9   $   $   $  
 

Net gain (loss)

    (115.6 )   (120.7 )   (11.4 )   4.6     (1.9 )   3.6  
                           
 

Accumulated other comprehensive income (loss)

    (115.7 )   (120.8 )   1.5     4.6     (1.9 )   3.6  
 

Unfunded accrued pension or postretirement benefit

    (68.1 )   (99.7 )   (50.2 )   (56.4 )   (17.1 )   (17.3 )
                           
 

Net obligation recognized in the balance sheet

  $ (183.8 ) $ (220.5 ) $ (48.7 ) $ (51.8 ) $ (19.0 ) $ (13.7 )
                           
 

Total recognized in other comprehensive (income) loss

  $ (5.1 ) $ 45.0   $ 3.1   $ (11.9 ) $ 5.5   $ 1.0  
                           
 

Total recognized in net periodic benefit cost and other comprehensive (income) loss

  $ 23.4   $ 74.0   $ 6.8   $ (5.0 ) $ 6.8   $ 1.5  
                           

Estimated amounts that will be amortized from accumulated other comprehensive (income) loss over the next fiscal year:

                                     
 

Net gain (loss)

  $ (7.6 ) $ (5.6 ) $ 1.1   $ 0.4   $ (0.1 ) $ 0.3  
                           

Accumulated Benefit Obligation at December 31

  $ 489.7   $ 449.4   $ 192.8   $ 183.7     N/A     N/A  
                           

Weighted-average assumptions as of December 31

                                     
 

Discount rate

    5.12 %   5.42 %   5.36 %   5.78 %   4.95 %   5.40 %
 

Expected return on assets

    8.40 %   8.50 %   7.46 %   7.45 %   N/A     N/A  
 

Average rate of increase in compensation

    4.4 %   4.4 %   3.7 %   3.7 %   N/A     N/A  
 

Initial health care cost trend rate

                    8.36 %   8.65 %
 

Ultimate health care cost trend rate

                    4.5 %   4.5 %
 

Number of years to ultimate trend rate

                    19     20  

The discount rate used to determine the December 31, 2010 benefit obligations for U.S. pension plans is based on the rate from the Citigroup Pension Discount Curve that is appropriate for the duration of our plan liabilities. For our plans outside the U.S., the discount rate reflects the market rates for high-quality corporate bonds currently available. The discount rate in a country was determined based on a yield curve constructed from high quality corporate bonds in that country. The rate selected from the yield curve has a duration that matches our plan.

106


Table of Contents


HERTZ GLOBAL HOLDINGS, INC. AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)

The expected return on plan assets for each funded plan is based on expected future investment returns considering the target investment mix of plan assets.

 
  Pension Benefits  
 
  U.S.   Non-U.S.  
 
  Years
ended December 31,
  Years
ended December 31,
 
 
  2010   2009   2008   2010   2009   2008  

Components of Net Periodic Benefit Cost:

                                     
 

Service cost

  $ 24.0   $ 22.0   $ 23.1   $ 5.2   $ 5.6   $ 8.1  
 

Interest cost

    26.1     27.9     27.4     9.7     9.5     10.2  
 

Expected return on plan assets

    (26.6 )   (22.7 )   (23.5 )   (10.0 )   (7.6 )   (11.4 )
 

Amortization:

                                     
   

Losses and other

    4.6     0.4     0.4     (1.0 )   (0.4 )   (0.7 )
 

Curtailment gain

                (0.2 )   (0.3 )   (0.7 )
 

Settlement loss

    0.4     1.4     3.7         0.1     0.1  
 

Special termination cost

            2.1              
                           
 

Net pension expense

  $ 28.5   $ 29.0   $ 33.2   $ 3.7   $ 6.9   $ 5.6  
                           

Weighted-average discount rate for expense (January 1)

    5.42 %   6.39 %   6.30 %   5.71 %   5.59 %   5.51 %

Weighted-average assumed long-term rate of return on assets (January 1)

    8.50 %   8.25 %   8.50 %   7.46 %   6.79 %   7.22 %

The balance in "Accumulated other comprehensive income (loss)" at December 31, 2010 and 2009 relating to pension benefits was $70.2 million and $66.5 million, respectively.

 
  Postretirement Benefits
(U.S.)
 
 
  Years
ended December 31,
 
 
  2010   2009   2008  

Components of Net Periodic Benefit Cost:

                   
 

Service cost

  $ 0.3   $ 0.1   $ 0.1  
 

Interest cost

    0.9     0.7     0.7  
 

Amortization:

                   
   

Losses and other

        (0.3 )   (2.9 )
   

Special termination benefit cost

             
               
 

Net postretirement expense

  $ 1.2   $ 0.5   $ (2.1 )
               
 

Weighted-average discount rate for expense

    5.4 %   6.2 %   6.3 %
 

Initial health care cost trend rate

    8.7 %   9.0 %   9.5 %
 

Ultimate health care cost trend rate

    4.5 %   5.0 %   5.0 %
 

Number of years to ultimate trend rate

    19     9     8  

107


Table of Contents


HERTZ GLOBAL HOLDINGS, INC. AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)

Changing the assumed health care cost trend rates by one percentage point is estimated to have the following effects (in millions of dollars):

 
  One Percentage Point  
 
  Increase   Decrease  

Effect on total of service and interest cost components

  $ 0.1   $ (0.1 )

Effect on postretirement benefit obligation

  $ 0.6   $ (0.6 )

The provisions charged to income for the years ended December 31, 2010, 2009 and 2008 for all other pension plans were approximately (in millions of dollars) $8.8, $7.3 and $8.0, respectively.

The provisions charged to income for the years ended December 31, 2010, 2009 and 2008 for the defined contribution plans were approximately (in millions of dollars) $14.8, $6.9 and $16.3, respectively.

Plan Assets

We have a long-term investment outlook for the assets held in our Company sponsored plans, which is consistent with the long-term nature of each plan's respective liabilities. We have two major plans which reside in the U.S. and the U.K.

The U.S. Plan, or the "Plan," currently has a target asset allocation of 70% equity and 30% fixed income. The equity portion of the Plan is invested in one passively managed S&P 500 index fund, one passively managed U.S. small/midcap fund and one actively managed international portfolio. The fixed income portion of the Plan is actively managed by a professional investment manager and is benchmarked to the Barclays Long Govt/Credit Index. The Plan assumes an 8.4% rate of return on assets, which represents the expected long-term annual weighted-average return for the Plan in total.

The U.K. Plan currently invests in a professionally managed Balanced Consensus Index Fund, which has the investment objective of achieving a total return relatively equal to its benchmark. The benchmark is based upon the average asset weightings of a broad universe of U.K. pension funds invested in pooled investment vehicles and each of their relevant indices. The asset allocation as of December 31, 2010, was 87% equity, 6% fixed income and 7% cash. The U.K. Plan currently assumes a rate of return on assets of 7.5%, which represents the expected long-term annual weighted-average return.

108


Table of Contents


HERTZ GLOBAL HOLDINGS, INC. AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)

The fair value measurements of our U.S. pension plan assets are based upon significant observable inputs (Level 2) and relate to common collective trusts and other pooled investment vehicles consisting of the following asset categories (in millions of dollars):

 
  December 31,  
Asset Category
  2010   2009  

Cash and cash equivalents

  $ 4.0   $ 4.6  

Equity Securities:

             
 

U.S. Large Cap

    106.3     80.2  
 

U.S. Mid Cap

    29.5     23.8  
 

U.S. Small Cap

    23.5     18.4  
 

International Large Cap

    80.8     63.4  

Fixed Income Securities:

             
 

U.S. Treasuries

    49.8     44.6  
 

Corporate Bonds

    61.9     45.4  
 

Government Bonds

    1.3      
 

Municipal Bonds

    4.7     1.1  

Real Estate (REITs)

    4.1     2.7  
           
   

Total fair value of pension plan assets

  $ 365.9   $ 284.2  
           

The fair value measurements of our U.K. pension plan assets are based upon significant observable inputs (Level 2) and relate to common collective trusts and other pooled investment vehicles consisting of the following asset categories (in millions of dollars):

 
  December 31,  
Asset Category
  2010   2009  

Cash and cash equivalents

  $ 10.7   $ 8.4  

U.K. Equities

    54.1     48.7  

Overseas Equities

    72.3     60.6  

U.K. Conventional Gilts

    4.1     5.4  

Overseas Bonds

        4.9  

Corporate Bonds

    3.7     3.5  

Index-Linked Gilts-Stocks

    0.7     0.8  
           
 

Total fair value of pension plan assets

  $ 145.6   $ 132.3  
           

Contributions

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. In 2010, we made discretionary cash contributions to our U.S. qualified pension plan of $54.2 million. In 2009, we made discretionary cash contributions to our U.S. qualified pension plan of $42.6 million. Based upon the significant decline in asset values in 2008, which were in line with the overall market declines, it is likely we will continue to make cash contributions in 2011 and possibly in future years. We expect to contribute between $45 million and $90 million to our U.S. plan during 2011. The level of 2011 and future contributions will vary, and is dependent on a number of factors including investment returns, interest rate fluctuations, plan demographics, funding regulations and the results of the final actuarial valuation.

109


Table of Contents


HERTZ GLOBAL HOLDINGS, INC. AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)

Estimated Future Benefit Payments

The following table presents estimated future benefit payments (in millions of dollars):

 
  Pension Benefits   Postretirement
Benefits (U.S.)
 

2011

  $ 24.2   $ 1.5  

2012

    28.5     1.4  

2013

    31.9     1.4  

2014

    34.5     1.5  

2015

    37.5     1.5  

2016-2020

    242.8     7.2  
           

  $ 399.4   $ 14.5  
           

Note 6—Stock-Based Compensation

Plans

On February 28, 2008, our Board of Directors adopted the Hertz Global Holdings, Inc. 2008 Omnibus Incentive Plan, or the "Omnibus Plan," which was approved by our stockholders at the annual meeting of stockholders held on May 15, 2008 and amended and restated on May 27, 2010. A maximum of 32.7 million shares are reserved for issuance under the Omnibus Plan. The Omnibus Plan provides for grants of both equity and cash awards, including non-qualified stock options, incentive stock options, stock appreciation rights, performance awards (shares and units), restricted stock, restricted stock units and deferred stock units to key executives, employees and non-management directors. We also granted awards under the Hertz Global Holdings, Inc. Stock Incentive Plan, or the "Stock Incentive Plan," and the Hertz Global Holdings, Inc. Director Stock Incentive Plan, or the "Director Plan", or collectively the "Prior Plans."

The Omnibus Plan provides that no further awards will be granted pursuant to the Prior Plans. However, awards that had been previously granted pursuant to the Prior Plans will continue to be subject to and governed by the terms of the Prior Plans. As of December 31, 2010, there were 11.2 million shares of our common stock underlying awards outstanding under the Prior Plans. In addition, as of December 31, 2010, there were 10.3 million shares of our common stock underlying awards outstanding under the Omnibus Plan.

In addition to the 21.5 million shares underlying outstanding awards as of December 31, 2010, we had 20.1 million shares of our common stock available for issuance under the Omnibus Plan. The shares of common stock to be delivered under the Omnibus Plan may consist, in whole or in part, of common stock held in treasury or authorized but unissued shares of common stock, not reserved for any other purpose.

Shares subject to any award granted under the Omnibus Plan that for any reason are canceled, terminated, forfeited, settled in cash or otherwise settled without the issuance of common stock after the effective date of the Omnibus Plan will generally be available for future grants under the Omnibus Plan.

110


Table of Contents


HERTZ GLOBAL HOLDINGS, INC. AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)

Impact on Results

A summary of the total compensation expense and associated income tax benefits recognized under our Prior Plans and the Omnibus Plan, including the cost of stock options, restricted stock units, or "RSUs," and performance stock units, or "PSUs," is as follows (in millions of dollars):

 
  Years ended December 31,  
 
  2010   2009   2008  

Compensation Expense

  $ 36.6   $ 34.5   $ 27.8  

Income Tax Benefit

    (14.2 )   (13.4 )   (10.7 )
               
 

Total

  $ 22.4   $ 21.1   $ 17.1  
               

As of December 31, 2010, there was approximately $39.8 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. The total unrecognized compensation cost is 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.

Stock Options and Stock Appreciation Rights

All stock options and stock appreciation rights granted under the Omnibus Plan will have a per-share exercise price of not less than the fair market value of one share of Hertz Holdings common stock on the grant date. Stock options and stock appreciation rights will vest based on a minimum period of service or the occurrence of events (such as a change in control, as defined in the Omnibus Plan) specified by the compensation committee of our Board of Directors. No stock options or stock appreciation rights will be exercisable after ten years from the grant date.

We have accounted for our employee stock-based compensation awards in accordance with ASC 718, "Compensation—Stock Compensation." The options are being accounted for as equity-classified awards. We will recognize compensation cost on a straight-line basis over the vesting period. The value of each option award is estimated on the grant date using a Black-Scholes option valuation model that incorporates the assumptions noted in the following table. Because the stock of Hertz Holdings became publicly traded in November 2006 and has a short trading history, it is not practicable for us to estimate the expected volatility of our share price, or a peer company share price, because there is not sufficient historical information about past volatility. Therefore, we have used the calculated value method, substituting the historical volatility of an appropriate industry sector index for the expected volatility of Hertz Holdings' common stock price as an assumption in the valuation model. We selected the Dow Jones Specialized Consumer Services sub-sector within the consumer services industry, and we used the U.S. large capitalization component, which includes the top 70% of the index universe (by market value).

The calculation of the historical volatility of the index was made using the daily historical closing values of the index for the preceding 6.25 years, because that is the expected term of the options using the simplified approach.

111


Table of Contents


HERTZ GLOBAL HOLDINGS, INC. AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)

The risk-free interest rate is the implied zero-coupon yield for U.S. Treasury securities having a maturity approximately equal to the expected term, as of the grant dates. The assumed dividend yield is zero.

Assumption
  2010 Grants   2009 Grants   2008 Grants  

Expected volatility

    36.1 %   34.9 %   30.8 %

Expected dividend yield

    0.0 %   0.0 %   0.0 %

Expected term (years)

    6.25     6.25     5.0 – 6.25  

Risk-free interest rate

    1.62% – 2.96 %   2.90 %   2.56 – 3.75 %

Weighted-average grant date fair value

    $4.00   $ 1.29     $4.42  

A summary of option activity under the Stock Incentive Plan and the Omnibus Plan as of December 31, 2010 is presented below.

Options
  Shares   Weighted-
Average
Exercise
Price
  Weighted-
Average
Remaining
Contractual
Term (years)
  Aggregate Intrinsic
Value (In thousands
of dollars)
 

Outstanding at January 1, 2010

    14,110,304   $ 9.38     7.0   $ 56,221  

Granted

    3,291,918   $ 9.77              

Exercised

    (1,343,659 ) $ 5.84              

Forfeited or Expired

    (642,659 ) $ 11.35              
                         

Outstanding at December 31, 2010

    15,415,904   $ 9.69     6.7   $ 84,534  
                   

Exercisable at December 31, 2010

    9,068,178   $ 9.75     6.0   $ 52,529  
                   

A summary of non-vested options as of December 31, 2010, and changes during the year, is presented below.

 
  Non-vested
Shares
  Weighted-
Average
Exercise Price
  Weighted-
Average Grant-
Date Fair
Value
 

Non-vested as of January 1, 2010

    6,679,380   $ 9.62   $ 6.16  

Granted

    3,291,918   $ 9.77   $ 4.00  

Vested

    (3,196,500 ) $ 10.07   $ 6.75  

Forfeited

    (427,072 ) $ 9.19   $ 4.98  
                   

Non-vested as of December 31, 2010

    6,347,726   $ 9.61   $ 4.91  
                   

Additional information pertaining to option activity under the plans is as follows (in millions of dollars):

 
  Years ended December 31,  
 
  2010   2009   2008  

Aggregate intrinsic value of stock options exercised

  $ 8.1   $ 4.2   $ 6.8  

Cash received from the exercise of stock options

    7.9     5.3     6.7  

Fair value of options that vested

    21.6     23.1     22.8  

Tax benefit realized on exercise of stock options

    0.3          

112


Table of Contents


HERTZ GLOBAL HOLDINGS, INC. AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)

Performance Stock, Performance Stock Units, Restricted Stock and Restricted Stock Units

Performance stock, PSUs and performance units granted under the Omnibus Plan will vest based on the achievement of pre-determined performance goals over performance periods determined by the compensation committee. Each of the units granted under the Omnibus Plan represent the right to receive one share of Hertz Holdings' common stock on a specified future date. In the event of an employee's death or disability, a pro rata portion of the employee's performance stock, performance stock units and performance units will vest to the extent performance goals are achieved at the end of the performance period. Restricted stock and RSUs granted under the Omnibus Plan will vest based on a minimum period of service or the occurrence of events (such as a change in control, as defined in the Omnibus Plan) specified by the compensation committee.

A summary of RSU and PSU activity under the Omnibus Plan as of December 31, 2010 is presented below.

 
  Shares   Weighted-
Average
Fair Value
  Aggregate Intrinsic
Value (In thousands
of dollars)
 

Outstanding at January 1, 2010

    6,977,239   $ 3.53   $ 83,169  

Granted

    1,573,050     10.10        

Vested

    (2,173,179 )   3.79        

Forfeited or Expired

    (332,521 )   4.73        
                   

Outstanding at December 31, 2010

    6,044,589   $ 5.08   $ 87,586  
               

Additional information pertaining to RSU and PSU activity is as follows:

 
  Years ended December 31,  
 
  2010   2009   2008  

Total fair value of awards that vested ($ millions)

  $ 8.2   $ 6.2   $  

Weighted average grant date fair value of awards

  $ 10.10   $ 3.42   $ 4.98  

Compensation expense for RSUs and PSUs is based on the grant date fair value, and is recognized ratably over the vesting period. For grants in 2008, the vesting period is two years (50% in the first year and 50% in the second year). For grants in 2009 and 2010, the vesting period is three years (25% in the first year, 25% in the second year and 50% in the third year). In addition to the service vesting condition, the PSUs granted in March, 2010 had an additional vesting condition which called for the number of units that will be awarded being based on achievement of a certain level of 2010 Corporate EBITDA.

Employee Stock Purchase Plan

On February 28, 2008, upon recommendation of the compensation committee of our Board of Directors, or "Committee," our Board of Directors adopted the Hertz Global Holdings, Inc. Employee Stock Purchase Plan, or the "ESPP," and the plan was approved by our stockholders on May 15, 2008. The ESPP is intended to be an "employee stock purchase plan" within the meaning of Section 423 of the Internal Revenue Code.

The maximum number of shares that may be purchased under the ESPP is 3,000,000 shares of our common stock, subject to adjustment in the case of any change in our shares, including by reason of a stock dividend, stock split, share combination, recapitalization, reorganization, merger, consolidation or change in corporate structure. An eligible employee may elect to participate in the ESPP each quarter (or

113


Table of Contents


HERTZ GLOBAL HOLDINGS, INC. AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)


other period established by the Committee) through a payroll deduction. The maximum and minimum contributions that an eligible employee may make under all of our qualified employee stock purchase plans will be determined by the Committee, provided that no employee may be permitted to purchase stock with an aggregate fair market value greater than $25,000 per year. At the end of the offering period, the total amount of each employee's payroll deduction will be used to purchase shares of our common stock. The purchase price per share will be not less than 85% of the market price of our common stock on the date of purchase; the exact percentage for each offering period will be set in advance by the Committee.

For the years ended December 31, 2010, 2009 and 2008, we recognized compensation cost of approximately $0.6 million ($0.3 million, net of tax), $0.5 million ($0.3 million, net of tax) and $0.1 million ($0.1 million, net of tax), respectively, for the amount of the discount on the stock purchased by our employees under the ESPP. Approximately 1,500 employees participated in the ESPP as of December 31, 2010.

Note 7—Depreciation of Revenue Earning Equipment and Lease Charges

Depreciation of revenue earning equipment and lease charges includes the following (in millions of dollars):

 
  Years ended December 31,  
 
  2010   2009   2008  

Depreciation of revenue earning equipment

  $ 1,747.0   $ 1,777.7   $ 2,011.4  

Adjustment of depreciation upon disposal of the equipment

    42.9     72.0     74.3  

Rents paid for vehicles leased

    78.2     81.7     108.5  
               
 

Total

  $ 1,868.1   $ 1,931.4   $ 2,194.2  
               

The adjustment of depreciation upon disposal of revenue earning equipment for the years ended December 31, 2010, 2009 and 2008 included (in millions of dollars) net losses of $10.0, $40.7 and $30.2, respectively, on the disposal of industrial and construction equipment used in our equipment rental operations, and net losses of $32.9, $31.3 and $44.1, respectively, on the disposal of vehicles used in our car rental operations.

Depreciation rates are reviewed on a quarterly 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 2010, 2009 and 2008, 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 $19.1 million, $13.2 million and $36.6 million in depreciation expense for the years ended December 31, 2010, 2009 and 2008, respectively. Depreciation rate changes in certain of our equipment rental operations resulted in increases of $3.6 million and $6.1 million and a net decrease of $3.9 million in depreciation expense for the years ended December 31, 2010, 2009 and 2008, respectively.

For the years ended December 31, 2010, 2009 and 2008, our worldwide car rental operations sold approximately 158,500, 154,300, 189,300 non-program cars, respectively, a 2.7% increase in 2010 versus 2009 primarily due to a higher average fleet size.

114


Table of Contents


HERTZ GLOBAL HOLDINGS, INC. AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)

Note 8—Taxes on Income

The components of loss before income taxes for the periods were as follows (in millions of dollars):

 
  Years ended December 31,  
 
  2010   2009   2008  

Domestic

  $ (127.1 ) $ (149.3 ) $ (1,166.7 )

Foreign

    113.5     (21.7 )   (216.1 )
               
 

Total

  $ (13.6 ) $ (171.0 ) $ (1,382.8 )
               

The total provision (benefit) for taxes on income consists of the following (in millions of dollars):

 
  Years ended December 31,  
 
  2010   2009   2008  

Current:

                   
 

Federal

  $ 0.1   $ 0.4   $ (1.5 )
 

Foreign

    41.5     15.8     36.5  
 

State and local

    1.5     (1.2 )   3.0  
               
   

Total current

    43.1     15.0     38.0  
               

Deferred:

                   
 

Federal

    (24.7 )   (34.1 )   (192.9 )
 

Foreign

    1.3     (23.0 )   (12.7 )
 

State and local

    (2.7 )   (17.6 )   (29.3 )
               
   

Total deferred

    (26.1 )   (74.7 )   (234.9 )
               
     

Total provision (benefit)

  $ 17.0   $ (59.7 ) $ (196.9 )
               

The principal items of the U.S. and foreign net deferred tax assets and liabilities at December 31, 2010 and 2009 are as follows (in millions of dollars):

 
  2010   2009  

Deferred Tax Assets:

             
 

Employee benefit plans

  $ 83.3   $ 88.0  
 

Net operating loss carryforwards

    1,407.4     1,135.2  
 

Foreign tax credit carryforwards

    20.8     20.8  
 

Federal, state and foreign local tax credit carryforwards

    4.8     8.2  
 

Accrued and prepaid expenses

    224.3     206.1  
           
 

Total Deferred Tax Assets

    1,740.6     1,458.3  
 

Less: Valuation Allowance

    (185.8 )   (167.8 )
           
 

Total Net Deferred Tax Assets

    1,554.8     1,290.5  
           

Deferred Tax Liabilities:

             
 

Depreciation on tangible assets

    (2,004.1 )   (1,694.4 )
 

Intangible assets

    (1,042.5 )   (1,067.0 )
           
 

Total Deferred Tax Liabilities

    (3,046.6 )   (2,761.4 )
           
   

Net Deferred Tax Liability

  $ (1,491.8 ) $ (1,470.9 )
           

115


Table of Contents


HERTZ GLOBAL HOLDINGS, INC. AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)

As of December 31, 2010, deferred tax assets of $1,111.5 million were recorded for unutilized U.S. Federal Net Operating Losses, or "NOL," carry forwards of $3,175.7 million. The total Federal NOL carry forwards are $3,199.7 million of which $24.0 million relate to excess tax deductions associated with stock option plans which have yet to reduce taxes payable. Upon the utilization of these carry forwards, the associated tax benefits of approximately $8.4 million will be recorded to Additional Paid-in Capital. The Federal NOLs begin to expire in 2025. State NOLs exclusive of the effects of the excess tax deductions, have generated a deferred tax asset of $101.4 million. The state NOLs expire over various years beginning in 2011 depending upon particular jurisdiction.

On January 1, 2009, Bank of America acquired Merrill Lynch & Co. 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. We have calculated the expected annual base limitation as well as additional limitation resulting from a net unrealized built in gain as of the acquisition date and other adjustments. Based on the calculations, the limitation is not expected to result in a loss of net operating losses or have a material adverse impact on taxes.

As of December 31, 2010, deferred tax assets of $196.3 million were recorded for foreign NOL carry forwards of $828.6 million. A valuation allowance of $146.6 million at December 31, 2010 was recorded against these deferred tax assets because those assets relate to jurisdictions that have historical losses and the likelihood exists that a portion of the NOL carry forwards may not be utilized in the future.

The foreign NOL carry forwards of $828.6 million include $692.8 million which have an indefinite carry forward period and associated deferred tax assets $156.1 million. The remaining foreign NOLs of $135.8 million are subject to expiration beginning in 2015 and have associated deferred tax assets of $40.2 million.

As of December 31, 2010, deferred tax assets for U.S. Foreign Tax Credit carry forwards were $20.8 million which relate to credits generated as of December 31, 2007. The carry forwards will begin to expire in 2015. A valuation allowance of $13.5 million at December 31, 2010 was recorded against a portion of the U.S. foreign tax credit deferred tax assets in the likelihood that they may not be utilized in the future. A deferred tax asset was also recorded for various state tax credit carry forwards of $3.0 million, which will begin to expire in 2027.

In determining the valuation allowance, an assessment of positive and negative evidence was performed regarding realization of the net deferred tax assets in accordance with ASC 740-10, "Accounting for Income Taxes," or "ASC 740-10." This assessment included the evaluation of scheduled reversals of deferred tax liabilities, the availability of carry forwards and estimates of projected future taxable income. Based on the assessment, as of December 31, 2010, total valuation allowances of $185.8 million were recorded against deferred tax assets. Although realization is not assured, we have concluded that it is more likely than not the remaining deferred tax assets of $1,554.8 million will be realized and as such no valuation allowance has been provided on these assets.

116


Table of Contents


HERTZ GLOBAL HOLDINGS, INC. AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)

The significant items in the reconciliation of the statutory and effective income tax rates consisted of the following:

 
  Years ended December 31,  
 
  2010   2009   2008  

Statutory Federal Tax Rate

    35.0 %   35.0 %   35.0 %

Foreign tax differential

    116.7     21.1     (0.5 )

State and local income taxes, net of federal income tax benefit

    14.1     6.0     0.7  

Change in state statutory rates, net of federal income tax benefit

    (12.1 )   3.5     0.1  

Effect of impairment charges

            (16.6 )

Federal permanent differences

    6.3     2.0     0.1  

Withholding taxes

    (62.5 )   (4.8 )   (0.5 )

Uncertain tax positions

    (26.7 )   (2.8 )   (0.4 )

Change in valuation allowance

    (202.2 )   (26.2 )   (3.8 )

All other items, net

    5.8     1.1     0.1  
               
 

Effective Tax Rate

    (125.6 )%   34.9 %   14.2 %
               

The effective tax rate for the year ended December 31, 2010 was (125.6)% as compared to 34.9% in the year ended December 31, 2009. The negative effective tax rate in 2010 is primarily due to a lower loss before income taxes in 2010, valuation allowances for losses in certain non-U.S. jurisdictions for which tax benefits cannot be realized and differences in foreign tax rates versus the U.S. Federal tax rate. The foreign rate differential includes the effects of changes in foreign statutory tax rates, foreign permanent differences and the impact of the newly enacted tax law in France which became effective for 2010. The increase in the 2009 effective tax rate versus 2008 is primarily due to nonrecurring impairment losses in 2008.

As of December 31, 2010, our foreign subsidiaries have an immaterial amount of net undistributed earnings. Deferred tax liabilities have not been recorded for such earnings because it is management's current intention to permanently reinvest undistributed earnings offshore. It is not practicable to estimate the amount of such deferred tax liabilities. If, in the future, undistributed earnings are repatriated to the United States, or it is determined such earnings will be repatriated in the foreseeable future, deferred tax liabilities will be recorded.

As of December 31, 2010, total unrecognized tax benefits were $27.2 million, all of which, if recognized, would favorably impact the effective tax rate in future periods. A reconciliation of the beginning and ending amount of unrecognized tax benefits is as follows (in millions of dollars):

 
  2010   2009   2008  

Balance at January 1

  $ 25.6   $ 21.7   $ 35.5  

Increase (decrease) attributable to tax positions taken during prior periods

    0.3     1.1     (5.7 )

Increase attributable to tax positions taken during the current year

    1.3     3.1     5.2  

Decrease attributable to settlements with taxing authorities

        (0.3 )   (13.3 )
               

Balance at December 31

  $ 27.2   $ 25.6   $ 21.7  
               

We conduct business globally and, as a result, file one or more income tax returns in the U.S. and non-U.S. jurisdictions. In the normal course of business we are subject to examination by taxing authorities throughout the world. The open tax years for these jurisdictions span from 1998 to 2010. We

117


Table of Contents


HERTZ GLOBAL HOLDINGS, INC. AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)


are currently under audit by the Internal Revenue Service for tax years 2006 to 2008. Several U.S. state and non-U.S. jurisdictions are under audit.

In many cases the uncertain tax positions are related to tax years that remain subject to examination by the relevant taxing authorities. It is reasonable that approximately $8.5 million of unrecognized tax benefits may reverse within the next twelve months due to settlement with the relevant taxing authorities and/or the filing of amended income tax returns.

Net, after-tax interest and penalties related to the liabilities for unrecognized tax benefits are classified as a component of "(Provision) benefit for taxes on income" in the consolidated statement of operations. During the years ended December 31, 2010, 2009 and 2008, approximately $0.2 million, $(0.2) million and $0.6 million, respectively, in net, after-tax interest and penalties were recognized. As of December 31, 2010 and 2009, approximately $1.8 million and $5.8 million, respectively, of net, after-tax interest and penalties was accrued in our consolidated balance sheet.

Note 9—Lease and Concession Agreements

We have various concession agreements, which provide for payment of rents and a percentage of revenue with a guaranteed minimum, and real estate leases under which the following amounts were expensed (in millions of dollars):

 
  Years ended December 31,  
 
  2010   2009   2008  

Rents

  $ 133.9   $ 133.2   $ 144.2  

Concession fees:

                   
 

Minimum fixed obligations

    252.0     260.1     251.0  
 

Additional amounts, based on revenues

    278.7     231.5     268.8  
               
   

Total

  $ 664.6   $ 624.8   $ 664.0  
               

For the years ended December 31, 2010, 2009 and 2008, sublease income reduced rent expense included in the above table by $4.5 million, $5.0 million and $5.4 million, respectively.

As of December 31, 2010, minimum obligations under existing agreements referred to above are approximately as follows (in millions of dollars):

 
  Rents   Concessions  

2011

  $ 119.4   $ 312.0  

2012

    97.9     267.1  

2013

    78.7     218.1  

2014

    61.5     148.9  

2015

    45.6     103.3  

Years after 2015

    161.0     364.5  

The future minimum rent payments in the above table have been reduced by minimum future sublease rental inflows in aggregate of $17.8 million.

Many of our concession agreements and real estate leases require us to pay or reimburse operating expenses, such as common area charges and real estate taxes, to pay concession fees above guaranteed minimums or additional rent based on a percentage of revenues or sales (as defined in those agreements) arising at the relevant premises, or both. Such obligations are not reflected in the

118


Table of Contents


HERTZ GLOBAL HOLDINGS, INC. AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)


table of minimum future obligations appearing immediately above. We operate from various leased premises under operating leases with terms up to 25 years. A number of our operating leases contain renewal options. These renewal options vary, but the majority include clauses for renewal for various term lengths at various rates, both fixed and market.

In addition to the above, we have various leases on revenue earning equipment and office and computer equipment under which the following amounts were expensed (in millions of dollars):

 
  Years ended December 31,  
 
  2010   2009   2008  

Revenue earning equipment

  $ 78.2   $ 81.7   $ 108.5  

Office and computer equipment

    10.4     8.9     10.2  
               
 

Total

  $ 88.6   $ 90.6   $ 118.7  
               

As of December 31, 2010, minimum obligations under existing agreements referred to above that have a maturity of more than one year are as follows (in millions of dollars):

2011

  $ 15.9  

2012

  $ 2.9  

2013

  $ 0.8  

2014

  $  

2015

  $  

After 2015

  $  

Commitments under capital leases within our vehicle rental programs have been reflected in Note 4—Debt.

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, crossovers and light trucks, or "car rental," and rental of industrial, construction and material handling equipment, or "equipment rental." Other reconciling items includes general corporate assets and expenses, certain interest expense (including net interest on corporate debt), as well as other business activities, such as our third party claim management services.

Adjusted pre-tax income (loss) 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 (loss) 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 for the years ended December 31, 2010, 2009 and 2008 is summarized below (in millions of dollars).

119


Table of Contents


HERTZ GLOBAL HOLDINGS, INC. AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)

 
  Years ended December 31,  
 
  2010   2009   2008  

Revenues

                   
 

Car rental

  $ 6,486.2   $ 5,979.0   $ 6,858.2  
 

Equipment rental

    1,070.1     1,110.9     1,658.1  
 

Other reconciling items

    6.2     11.6     8.8  
               
   

Total

  $ 7,562.5   $ 7,101.5   $ 8,525.1  
               

Adjusted pre-tax income (a)

                   
 

Car rental

  $ 642.9   $ 465.3   $ 289.1  
 

Equipment rental

  $ 78.0   $ 76.4   $ 272.0  

Depreciation of revenue earning equipment and lease charges

                   
 

Car rental

  $ 1,594.6   $ 1,614.2   $ 1,843.8  
 

Equipment rental

    273.5     317.2     350.4  
               
   

Total

  $ 1,868.1   $ 1,931.4   $ 2,194.2  
               

Depreciation of property and equipment

                   
 

Car rental

  $ 112.3   $ 115.9   $ 126.0  
 

Equipment rental

    34.3     37.6     40.8  
 

Other reconciling items

    7.4     6.1     6.0  
               
   

Total

  $ 154.0   $ 159.6   $ 172.8  
               

Amortization of other intangible assets

                   
 

Car rental

  $ 30.2   $ 32.5   $ 33.9  
 

Equipment rental

    33.4     32.8     32.4  
 

Other reconciling items

    1.1     0.7      
               
   

Total

  $ 64.7   $ 66.0   $ 66.3  
               

Interest expense

                   
 

Car rental

  $ 401.3   $ 316.1   $ 452.4  
 

Equipment rental

    39.4     53.3     110.8  
 

Other reconciling items

    332.7     310.9     306.8  
               
   

Total

  $ 773.4   $ 680.3   $ 870.0  
               

Revenue earning equipment and property and equipment

                   
 

Car rental

                   
   

Expenditures

  $ 8,430.1   $ 7,533.1   $ 9,978.5  
   

Proceeds from disposals

    (7,432.7 )   (5,940.0 )   (8,395.1 )
               
     

Net expenditures

  $ 997.4   $ 1,593.1   $ 1,583.4  
               
 

Equipment rental

                   
   

Expenditures

  $ 186.1   $ 94.4   $ 356.7  
   

Proceeds from disposals

    (124.3 )   (190.3 )   (293.1 )
               
     

Net expenditures (proceeds)

  $ 61.8   $ (95.9 ) $ 63.6  
               
 

Other reconciling items

                   
   

Expenditures

  $ 3.9   $ 0.5   $ 9.6  
   

Proceeds from disposals

    (0.3 )        
               
     

Net expenditures

  $ 3.6   $ 0.5   $ 9.6  
               

120


Table of Contents


HERTZ GLOBAL HOLDINGS, INC. AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)

 
  As of December 31,  
 
  2010   2009  

Total assets at end of year

             
 

Car rental

  $ 11,742.7   $ 12,356.5  
 

Equipment rental

    2,997.6     2,939.0  
 

Other reconciling items

    2,591.9     706.9  
           
   

Total

  $ 17,332.2   $ 16,002.4  
           

Revenue earning equipment, net, at end of year

             
 

Car rental

  $ 7,235.7   $ 7,019.3  
 

Equipment rental

    1,703.7     1,832.3  
           
   

Total

  $ 8,939.4   $ 8,851.6  
           

Property and equipment, net, at end of year

             
 

Car rental

  $ 875.9   $ 877.9  
 

Equipment rental

    222.8     243.6  
 

Other reconciling items

    64.9     66.6  
           
   

Total

  $ 1,163.6   $ 1,188.1  
           

We operate in the United States and in international countries. International operations are substantially in Europe. The operations within major geographic areas are summarized below (in millions of dollars):

 
  Years ended December 31,  
 
  2010   2009   2008  

Revenues

                   
 

United States

  $ 4,993.7   $ 4,675.9   $ 5,506.1  
 

International

    2,568.8     2,425.6     3,019.0  
               
   

Total

  $ 7,562.5   $ 7,101.5   $ 8,525.1  
               

 

 
  As of December 31,  
 
  2010   2009  

Total assets at end of year

             
 

United States

  $ 12,085.9   $ 10,669.7  
 

International

    5,246.3     5,332.7  
           
   

Total

  $ 17,332.2   $ 16,002.4  
           

121


Table of Contents


HERTZ GLOBAL HOLDINGS, INC. AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)

 
  As of December 31,  
 
  2010   2009  

Revenue earning equipment, net, at end of year

             
 

United States

  $ 6,404.1   $ 6,432.3  
 

International

    2,535.3     2,419.3  
           
   

Total

  $ 8,939.4   $ 8,851.6  
           

Property and equipment, net, at end of year

             
 

United States

  $ 947.1   $ 953.7  
 

International

    216.5     234.4  
           
   

Total

  $ 1,163.6   $ 1,188.1  
           

(a)
The following table reconciles adjusted pre-tax income to loss before income taxes for the years ended December 31, 2010, 2009 and 2008 (in millions of dollars):

 
  Years ended December 31,  
 
  2010   2009   2008  

Adjusted pre-tax income

                   
 

Car rental

  $ 642.9   $ 465.3   $ 289.1  
 

Equipment rental

    78.0     76.4     272.0  
               
   

Total reportable segments

    720.9     541.7     561.1  

Adjustments:

                   
 

Other reconciling items (1)

    (372.8 )   (342.8 )   (323.9 )
 

Purchase accounting (2)

    (90.3 )   (90.3 )   (101.0 )
 

Non-cash debt charges (3)

    (182.6 )   (171.9 )   (100.2 )
 

Restructuring charges

    (54.7 )   (106.8 )   (216.2 )
 

Restructuring related charges (4)

    (13.2 )   (46.5 )   (26.3 )
 

Impairment charges (5)

            (1,168.9 )
 

Management transition costs

        (1.0 )   (5.2 )
 

Derivative gains (losses) (6)

    (3.2 )   2.4     (2.2 )
 

Gain on debt buyback (7)

        48.5      
 

Third-party bankruptcy accrual (8)

        (4.3 )    
 

Acquisition related costs (9)

    (17.7 )        
               

Loss before income taxes

  $ (13.6 ) $ (171.0 ) $ (1,382.8 )
               

(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 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. Also represents the purchase accounting effects of subsequent acquisitions on our results of operations relating to increased amortization of intangible assets.

(3)
Represents non-cash debt charges relating to the amortization and write-off of deferred debt financing costs and debt discounts. For the years ended December 31, 2010 and 2009, also includes $68.9 million and $74.6 million, respectively, associated with the amortization of amounts pertaining to the de-designation of the HVF interest rate swaps as effective hedging instruments. During the year ended December 31, 2008, also includes $11.8 million associated with the ineffectiveness of our HVF interest rate swaps and $30.0 million related to the write-off of deferred financing costs associated with those countries outside the United States as to which take-out asset-based facilities have not been entered into.

(4)
Represents incremental 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.

122


Table of Contents


HERTZ GLOBAL HOLDINGS, INC. AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)

(5)
Represents non-cash impairment charges related to our goodwill, other intangible assets and property and equipment.

(6)
In 2010, represents the mark-to-market adjustment on our interest rate cap. In 2009, represents the mark-to-market adjustments on our interest rate cap and gasoline swap. In 2008, represents an unrealized loss on our HIL interest rate swaptions which were terminated in October 2008.

(7)
Represents a gain (net of transaction costs) recorded in connection with the buyback of portions of certain 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.

(9)
Represents costs incurred in connection with the Dollar Thrifty Automotive Group, Inc. transaction which has now been terminated.

Note 11—Contingencies and Off-Balance Sheet Commitments

Legal Proceedings

From time to time we are a party to various legal proceedings. Other than with respect to the aggregate claims for public liability and property damage pending against us, management does not believe that any of the matters resolved, or pending against us, during 2010 are material to us and our subsidiaries taken as a whole. While we have accrued a liability with respect to claims for public liability and property damage of $278.7 million at December 31, 2010, management does not believe any of the other pending matters described below are material. We have summarized below, for purposes of providing background, various legal proceedings to which we were and/or are a party during 2010 or the period after December 31, 2010 but before the filing of this Annual Report. In addition to the following, various other legal actions, claims and governmental inquiries and proceedings are pending or may be instituted or asserted in the future against us and our subsidiaries.

123


Table of Contents


HERTZ GLOBAL HOLDINGS, INC. AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)

124


Table of Contents


HERTZ GLOBAL HOLDINGS, INC. AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)

We intend to assert that we have meritorious defenses in the foregoing matters and we intend to defend ourselves vigorously.

125


Table of Contents


HERTZ GLOBAL HOLDINGS, INC. AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)

We have established reserves for matters where we believe that the losses are probable and reasonably estimated, including for various of the matters set forth above. Other than with respect to the reserve established for claims for public liability and property damage, none of those reserves are material. For matters, including those described above, where we have not established a reserve, the ultimate outcome or resolution cannot be predicted at this time, or the amount of ultimate loss, if any, cannot be reasonably estimated. 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. Accordingly, it is possible that an adverse outcome from such a proceeding could exceed the amount accrued in an amount that could be material to our consolidated financial condition, results of operations or cash flows in any particular reporting period.

Off-Balance Sheet Commitments

At December 31, 2010 and 2009, the following guarantees (including indemnification commitments) were issued and outstanding.

Indemnification Obligations

In the ordinary course of business, we execute contracts involving indemnification obligations customary in the relevant industry and indemnifications specific to a transaction such as the sale of a business. These indemnification obligations 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 indemnification obligations 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 indemnification obligations and have accrued for expected losses that are probable and estimable. The types of indemnification obligations for which payments are possible include the following:

Sponsors; Directors

Hertz has entered into customary indemnification agreements with Hertz Holdings, 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 consolidated financial statements. As of December 31, 2010 and 2009, the aggregate amounts accrued for environmental liabilities

126


Table of Contents


HERTZ GLOBAL HOLDINGS, INC. AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)


including liability for environmental indemnities, reflected in our consolidated balance sheets in "Other accrued liabilities" were $1.6 million and $2.0 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).

Note 12—Restructuring

As part of our ongoing effort to implement our strategy of reducing operating costs, we have evaluated our workforce and operations and made adjustments, including headcount reductions and business process reengineering resulting in optimized work flow at rental locations and maintenance facilities as well as streamlined our back-office operations and evaluated potential outsourcing opportunities. When we made adjustments to our workforce and operations, we incurred incremental expenses that delay the benefit of a more efficient workforce and operating structure, but we believe that increased operating efficiency and reduced costs associated with the operation of our business are important to our long-term competitiveness.

During 2007 through 2010, we announced several initiatives to improve our competitiveness and industry leadership through targeted job reductions. These initiatives included, but were not limited to, job reductions at our corporate headquarters and back-office operations in the U.S. and Europe. As part of our re-engineering optimization we outsourced selected functions globally. In addition, we streamlined operations and reduced costs by initiating the closure of targeted car rental locations and equipment rental branches throughout the world. The largest of these closures occurred in 2008 which resulted in closures of approximately 250 off-airport locations and 22 branches in our U.S. equipment rental business. These initiatives impacted approximately 12,000 employees. From January 1, 2007 through December 31, 2010, we incurred $474.1 million ($239.7 million for our car rental segment, $181.0 million for our equipment rental segment and $53.4 of other) of restructuring charges.

Additional efficiency and cost saving initiatives are being developed in 2011. However, we presently do not have firm plans or estimates of any related expenses.

127


Table of Contents


HERTZ GLOBAL HOLDINGS, INC. AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)

Restructuring charges in our consolidated statement of operations can be summarized as follows (in millions of dollars):

 
  Years ended December 31,  
By Type:
  2010   2009   2008  
 

Involuntary termination benefits

  $ 12.2   $ 44.1   $ 83.8  
 

Pension and post retirement expense

    0.4     0.7     5.6  
 

Consultant costs

    1.1     7.6     10.0  
 

Asset writedowns

    20.4     36.1     93.2  
 

Facility closure and lease obligation costs

    14.3     9.3     14.1  
 

Relocation costs

    5.0     4.1      
 

Contract termination costs

        1.7      
 

Other

    1.3     3.2     9.5  
               
   

Total

  $ 54.7   $ 106.8   $ 216.2  
               

 

 
  Years ended December 31  
By Caption:
  2010   2009   2008  
 

Direct operating

  $ 43.5   $ 65.4   $ 171.6  
 

Selling, general and administrative

    11.2     41.4     44.6  
               
   

Total

  $ 54.7   $ 106.8   $ 216.2  
               

 

 
  Years ended December 31,  
By Segment:
  2010   2009   2008  
 

Car rental

  $ 18.1   $ 58.7   $ 98.4  
 

Equipment rental

    34.7     38.2     103.2  
 

Other reconciling items

    1.9     9.9     14.6  
               
   

Total

  $ 54.7   $ 106.8   $ 216.2  
               

During the years ended December 31, 2010, 2009 and 2008, the after-tax effect of the restructuring charges increased the loss per share by $0.09, $0.23 and $0.48, respectively.

The following table sets forth the activity affecting the accrual during the years ended December 31, 2010 and 2009 (in millions of dollars). We expect to pay the remaining restructuring obligations relating to involuntary termination benefits over the next twelve months. The remainder of the restructuring accrual relates to future lease obligations which will be paid over the remaining term of the applicable leases.

128


Table of Contents


HERTZ GLOBAL HOLDINGS, INC. AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)

 
  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

    44.1     0.7     7.6     54.4     106.8  
 

Cash payments

    (67.3 )       (6.9 )   (25.1 )   (99.3 )
 

Other (1)

    (0.6 )   (1.2 )   (0.3 )   (36.0 )   (38.1 )
                       

Balance as of
December 31, 2009

    19.6         0.4     9.7     29.7  
 

Charges incurred

    12.2     0.4     1.1     41.0     54.7  
 

Cash payments

    (23.5 )       (1.5 )   (12.4 )   (37.4 )
 

Other (2)

    (2.0 )   (0.2 )   0.1     (27.4 )   (29.5 )
                       

Balance as of
December 31, 2010

  $ 6.3   $ 0.2   $ 0.1   $ 10.9   $ 17.5  
                       

(1)
Primarily consists of a decrease of $36.1 million for asset writedowns, $1.6 million for executive pension liability settlements and $0.8 million for contract termination costs, partly offset by a $0.2 million gain in foreign currency translation.

(2)
Consists of decreases of $20.4 million for asset writedowns, $6.5 million for facility closures, $1.6 million loss in foreign currency translation, $0.9 million in involuntary benefits and $0.2 million for executive pension liability settlements, partly offset by an increase in consultant costs of $0.1 million.

Note 13—Financial Instruments

Financial instruments, which potentially subject us to concentrations of credit risk, consist principally of cash equivalents, short-term investments and trade receivables. We place our cash equivalents and short-term investments with a number of financial institutions and investment funds to limit the amount of credit exposure to any one financial institution. Concentrations of credit risk with respect to trade receivables are limited due to the large number of customers comprising our customer base, and their dispersion across different businesses and geographic areas. As of December 31, 2010, we had no significant concentration of credit risk.

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) 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 and Cash Equivalents

Fair value approximates the amount indicated on the balance sheet at December 31, 2010 and December 31, 2009 because of the short-term maturity of these instruments. Money market accounts, whose fair value at December 31, 2010, is measured using Level 1 inputs, totaling $1,747.9 million and $24.1 million are included in "Cash and cash equivalents" and "Restricted cash and cash equivalents," respectively. Money market accounts, whose fair value at December 31, 2009, is measured using Level 1 inputs, totaling $106.8 million and $294.4 million are included in "Cash and cash equivalents" and "Restricted cash and cash equivalents," respectively.

129


Table of Contents


HERTZ GLOBAL HOLDINGS, INC. AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)

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 (Level 2 inputs). The aggregate fair value of all debt at December 31, 2010 was $12,063.5 million, compared to its aggregate carrying value of $11,429.6 million. The aggregate fair value of all debt at December 31, 2009 was $10,795.7 million, compared to its aggregate carrying value of $10,530.4 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 December 31, 2010 and 2009 (in millions of dollars):

 
  Fair Value of Derivative Instruments (1)  
 
  Asset Derivatives (2)    
  Liability Derivatives (2)  
 
  December 31,
2010
  December 31,
2009
   
  December 31,
2010
  December 31,
2009
 

Derivatives designated as hedging instruments under ASC 815:

                             
 

HVF interest rate swaps

  $   $       $   $ 12.8  
                       

Derivatives not designated as hedging instruments under ASC 815:

                             
 

Gasoline swaps

    3.1     2.2              
 

Interest rate caps

    7.2     8.2         7.2     5.6  
 

Foreign exchange forward contracts

    2.6     7.6         11.1     5.7  
 

Foreign exchange options

    0.1                  
                       
   

Total derivatives not designated as hedging instruments under ASC 815

    13.0     18.0         18.3     11.3  
                       

Total derivatives

  $ 13.0   $ 18.0       $ 18.3   $ 24.1  
                       

(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 "Other accrued liabilities" on our consolidated balance sheets.

 
  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)
 
 
  Years ended December 31,  
 
  2010   2009   2010   2009   2010   2009  

Derivatives in ASC 815 Cash Flow Hedging Relationship:

                                     
 

HVF interest rate swaps

  $ 12.8   $ (12.8 ) $ (85.1 ) $ (74.6) (1) $   $  

Note:
The location of both the effective portion reclassified from "Accumulated other comprehensive income (loss)" into income and the ineffective portion recognized in income is in "Interest expense" on our consolidated statement of operations.

130


Table of Contents


HERTZ GLOBAL HOLDINGS, INC. AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)

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

 
  Location of Gain or (Loss)
Recognized on Derivative
  Amount of Gain or (Loss)
Recognized in Income on Derivative
 
 
   
  Years ended December 31,  
 
   
  2010   2009  

Derivatives Not Designated as Hedging Instruments under ASC 815:

                 
 

Gasoline swaps

  Direct operating   $ 2.8   $ 7.4  
 

Interest rate caps

  Selling, general and administrative     (3.1 )   (2.6 )
 

Foreign exchange forward contracts

  Selling, general and administrative     (19.5 )   2.0  
 

Foreign exchange options

  Selling, general and administrative     (0.2 )   0.2  
               
   

Total

      $ (20.0 ) $ 7.0  
               

In connection with the Acquisition and the issuance of $3,550.0 million of floating rate Series 2005 Notes, our subsidiary, HVF, entered into certain interest rate swap agreements, or the "HVF Swaps," effective December 21, 2005, which qualified as cash flow hedging instruments in accordance with GAAP. These agreements matured 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 Series 2005 Notes 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 that matured in February 2010 and November 2010, respectively. $80.4 million of this payment was made to an affiliate of BAMLCP 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 income (loss)" associated with this cash flow hedging relationship was frozen and was then amortized into "Interest expense" over the respective terms of the associated debt in accordance with GAAP. Additionally, a new hedging relationship was designated between the HVF Swaps, which also qualified for cash flow hedge accounting in accordance with GAAP. Both at the inception of the hedge and throughout its remaining term, we measured 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 Series 2005 Notes. Subsequent to the resetting of the swaps at current market rates, there was no ineffectiveness in the hedging relationship because the critical terms of the HVF Swaps matched the terms of the hypothetical swaps.

As of December 31, 2010, the HVF Swaps and associated debt have matured. As of December 31, 2009, the balance reflected in "Accumulated other comprehensive income (loss)," relating to the HVF Swaps, including the amount frozen due to the designation of the previous cash flow hedging relationship, was a loss of $49.7 million (net of tax of $31.8 million). 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 conjunction with the refinanced Series 2009-1 Notes and the new Series 2010-2 Notes, HVF purchased an interest rate cap for $6.7 million, with a maximum notional amount equal to the refinanced Series 2009-1 Notes and the new Series 2010-2 Notes with a combined maximum principal amount of $2.1 billion, a strike rate of 5% and expected maturity date of March 25, 2013. Additionally, Hertz sold a 5% interest rate cap for $6.2 million, with a matching notional amount and term to the HVF interest rate cap. Also in December 2010, the Australian Securitization was completed and our Australian operating

131


Table of Contents


HERTZ GLOBAL HOLDINGS, INC. AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)


subsidiary purchased an interest rate cap for $0.5 million, with a maximum notional amount equal to the Australian Securitization maximum principal amount of A$250 million, a strike rate of 7% and expected maturity date of December 2012. Additionally, Hertz sold a 7% interest rate cap, for $0.4 million with a matching notional amount and term to the Australian operating subsidiary's interest rate cap. The fair values of all interest rate caps were calculated using a discounted cash flow method and applying observable market data (i.e. the 1-month LIBOR yield curve and credit default swap spreads). 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.

We purchase unleaded gasoline and diesel fuel at prevailing market rates. In January 2009, we began a program to manage our exposure to changes in fuel prices through the use of derivative commodity instruments. We currently have in place swaps to cover a portion of our fuel price exposure through June 2011. We presently hedge a portion of our overall unleaded gasoline and diesel fuel purchases with commodity swaps and have contracts in place that settle on a monthly basis. As of December 31, 2010, our outstanding commodity instruments for unleaded gasoline and diesel fuel totaled approximately 8.4 million gallons and 0.2 million gallons, respectively. The fair value of these commodity instruments was calculated using a discounted cash flow method and applying observable market data (i.e., NYMEX RBOB Gasoline and U.S. Department of Energy surveys, etc.). 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 December 31, 2010, were approximately $0.1 million. We limit counterparties to the transactions to financial institutions that have strong credit ratings. As of December 31, 2010 and 2009, the total notional amount of these foreign exchange options was $3.5 million and $0.3 million, respectively. As of December 31, 2010, these foreign exchange options mature through January 2012. The fair value of the foreign exchange options was calculated using a discounted cash flow method and applying observable market data (i.e. foreign currency exchange rates). 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 of December 31, 2010, the total notional amount of these forward contracts was $721.8 million, maturing within three months. The fair value of these foreign currency forward contracts was calculated based on foreign currency forward exchange rates.

On October 1, 2006, we designated our 7.875% Senior Notes due 2014 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 December 31, 2010 and 2009, losses of $6.8 million (net of tax of $5.1 million) and $19.2 million (net of tax of $17.8 million), respectively, attributable to the translation of our 7.875% Senior Notes due 2014 into the U.S. dollar are recorded in our consolidated balance sheet in "Accumulated other comprehensive income (loss)."

132


Table of Contents


HERTZ GLOBAL HOLDINGS, INC. AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)

Note 14—Related Party Transactions

Relationship with Hertz Investors, Inc. and the Sponsors

Stockholders Agreement

In connection with the Acquisition, we entered into a stockholders agreement (as amended, the "Stockholders Agreement") with investment funds associated with or designated by the Sponsors. The Stockholders Agreement contains agreements that entitle investment funds associated with or designated by the Sponsors to nominate all of our directors. The director nominees are to include three nominees of an investment fund associated with CD&R (one of whom shall serve as the chairman or, if the chief executive officer is the chairman, the lead director), two nominees of investment funds associated with Carlyle, two nominees of an investment fund associated with BAMLCP (collectively, the "Sponsor Designees") and up to six independent directors (subject to unanimous consent of the Sponsor Designees, for so long as Hertz Holdings remains a "controlled company" within the meaning of the New York Stock Exchange rules), subject to adjustment in the case that the applicable investment fund sells more than a specified amount of its shareholdings in us. In addition, upon Hertz Holdings ceasing to be a "controlled company" within the meaning of the New York Stock Exchange rules, if necessary to comply with the New York Stock Exchange rules, the director nominees of the Sponsors shall be reduced to two nominees of an investment fund associated with CD&R (one of whom shall serve as the chairman or, if the chief executive officer is the chairman, the lead director), one nominee of investment funds associated with Carlyle, and one nominee of an investment fund associated with BAMLCP, and additional independent directors will be elected by our Board of Directors to fill the resulting director vacancies. The Stockholders Agreement also provides that our chief executive officer shall be designated as a director, unless otherwise approved by a majority of the Sponsor Designees. In addition, the Stockholders Agreement provides that one of the nominees of an investment fund associated with CD&R shall serve as the chairman of the executive and governance committee and, unless otherwise agreed by this fund, as Chairman of our Board of Directors or lead director. In order to comply with New York Stock Exchange rules, we will be required to have a majority of independent directors on our Board of Directors within one year of our ceasing to be a "controlled company" within the meaning of the New York Stock Exchange rules.

The Stockholders Agreement grants to the investment funds associated with CD&R or to the majority of the Sponsor Designees the right to remove our chief executive officer. Any replacement chief executive officer requires the consent of the investment funds associated with CD&R as well as investment funds associated with at least one other Sponsor. It also contains restrictions on the transfer of our shares, and provides for tag-along and drag-along rights, in certain circumstances. The rights described above apply only for so long as the investment funds associated with the applicable Sponsor maintain certain specified minimum levels of shareholdings in us.

The Stockholders Agreement limits the rights of the investment funds associated with or designated by the Sponsors that have invested in our common stock and our affiliates, subject to several exceptions, to own, manage, operate or control any of our "competitors" (as defined in the Stockholders Agreement). The Stockholders Agreement may be amended from time to time in the future to eliminate or modify these restrictions without our consent.

Registration Rights Agreement

On December 21, 2005, we entered into a registration rights agreement (as amended, the "Registration Rights Agreement") with investment funds associated with or designated by the Sponsors. The Registration Rights Agreement grants to certain of these investment funds the right, to cause us, at our

133


Table of Contents


HERTZ GLOBAL HOLDINGS, INC. AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)


own expense, to use our best efforts to register such securities held by the investment funds for public resale, subject to certain limitations. The exercise of this right is limited to three requests by the group of investment funds associated with each Sponsor, except for registrations effected pursuant to Form S-3, which are unlimited, subject to certain limitations, if we are eligible to use Form S-3. The secondary offering of our common stock in June 2007 was effected pursuant to this Registration Rights Agreement. In the event we register any of our common stock, these investment funds have the right to require us to use our best efforts to include shares of our common stock held by them, subject to certain limitations, including as determined by the underwriters. The Registration Rights Agreement provides for us to indemnify the investment funds party to that agreement and their affiliates in connection with the registration of our securities.

Director Compensation Policy

In May 2010, our Board of Directors amended and restated our Director Compensation Policy. Pursuant to the policy prior to May 2010 our directors who are not also our employees each received a $150,000 annual retainer fee, of which 40% ($60,000) was payable in cash and 60% ($90,000) was payable in the form of shares of our common stock. Starting in May 2010, the policy now provides that our directors who are not also our employees each receive a $170,000 annual retainer fee, of which $70,000 is payable in cash and $100,000 is payable in the form of shares of our common stock

The chairperson of our Audit Committee is paid an additional annual cash fee of $25,000 and each other member of our Audit Committee is paid an additional annual cash fee of $10,000. The chairperson of our Compensation Committee is paid an additional annual cash fee of $15,000 and each other member of our Compensation Committee receives an additional annual cash fee of $10,000.

For the years ended December 31, 2010, 2009 and 2008, we recognized $1.8 million, $1.6 million and $1.8 million, respectively, of expense relating to the Director Compensation Policy in our consolidated statement of operations in "Selling, general and administrative" expenses.

Financing Arrangements with Related Parties

Affiliates of BAML Capital Partners (which is one of the Sponsors), including Merrill Lynch & Co., Inc., Bank of America, N.A. and certain of their affiliates (which are stockholders of Hertz Holdings), have provided various investment and commercial banking and financial advisory services to us for which they have received customary fees and commissions. In addition, these parties have acted as agents, lenders, purchasers and/or underwriters to us under our respective financing arrangements, for which they have received customary fees, commissions, expenses and/or other compensation. More specifically, these parties have acted in the following capacities, or similar capacities, with respect to our financing arrangements: lenders and/or agents under the Senior Credit Facilities, the U.S. Fleet Financing Facility and certain of the U.S. Fleet Variable Funding Notes; purchasers and/or underwriters under the Senior Notes, the Senior Subordinated Notes and certain of the U.S. Fleet Medium Term Notes; and structuring advisors and/or agents under the ABS Program.

As of December 31, 2010 and December 31, 2009, approximately $255 million and $246 million, respectively, of our outstanding debt was with related parties.

See Note 4—Debt.

134


Table of Contents


HERTZ GLOBAL HOLDINGS, INC. AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)

Other Sponsor Relationships

In May and June 2009, Merrill Lynch & Co., Inc., or "ML," an affiliate of one of our Sponsors, BAMLCP, acted as an underwriter in the common stock follow-on public offering and in the public offering of the Convertible Senior Notes, 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. This 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 these offerings, the Sponsors' ownership percentage in us is approximately 51%.

To date, Bank of America Corporation, and certain of its affiliates, collectively, "B of A," (which are affiliates of BAMLCP and are stockholders of Hertz Holdings) has paid to us approximately $4.9 million for "short-swing" profit liability resulting from principal trading activity in our common stock, which is subject to recovery by us under Section 16 of the Securities Exchange Act of 1934, as amended. In the event that B of A continues principal trading activity in our common stock, this amount may change.

Note 15—Earnings (Loss) Per Share

Basic earnings (loss) per share has been computed based upon the weighted average number of common shares outstanding. Diluted earnings (loss) per share has been 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.

The following table sets forth the computation of basic and diluted loss per share (in millions of dollars, except per share amounts):

 
  Years ended December 31,  
 
  2010   2009   2008  

Basic and diluted loss per share:

                   

Numerator:

                   
 

Net loss attributable to Hertz Global Holdings, Inc. and Subsidiaries' common stockholders

  $ (48.0 ) $ (126.0 ) $ (1,206.7 )
               

Denominator:

                   
 

Weighted average shares used in basic and diluted computation

    411.9     371.5     322.7  
               

Loss per share attributable to Hertz Global Holdings, Inc. and Subsidiaries' common stockholders, basic

  $ (0.12 ) $ (0.34 ) $ (3.74 )

Loss per share attributable to Hertz Global Holdings, Inc. and Subsidiaries' common stockholders, diluted

  $ (0.12 ) $ (0.34 ) $ (3.74 )

Diluted loss per share computations for the years ended December 31, 2010, 2009 and 2008 excluded the weighted-average impact of the assumed exercise of approximately 22.6 million, 21.7 million and 17.6 million shares, respectively, of stock options, RSUs and PSUs because such impact would be antidilutive. Additionally, for the years ended December 31, 2010 and 2009, there was no impact to the diluted loss per share computations associated with the Convertible Senior Notes, because such impact would be antidilutive.

135


Table of Contents


HERTZ GLOBAL HOLDINGS, INC. AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)

Note 16—Quarterly Financial Information (Unaudited)

Provided below is a summary of the quarterly operating results during 2010 and 2009 (in millions of dollars, except per share data).

Earnings per share amounts are computed independently each quarter. As a result, the sum of each quarter's per share amount may not equal the total per share amount for the respective year.

 
  First
Quarter
2010
  Second
Quarter
2010
  Third
Quarter
2010
  Fourth
Quarter
2010
 

Revenues

  $ 1,660.9   $ 1,879.6   $ 2,186.3   $ 1,835.8  

Income (loss) before income taxes

    (157.8 )   (6.2 )   158.3     (7.8 )

Net income (loss) attributable to Hertz Global Holdings, Inc. and Subsidiaries' common stockholders

    (150.4 )   (25.1 )   156.6     (29.2 )

Earnings (loss) per share, basic

  $ (0.37 ) $ (0.06 ) $ 0.38   $ (0.07 )

Earnings (loss) per share, diluted

  $ (0.37 ) $ (0.06 ) $ 0.36   $ (0.07 )

 

 
  First
Quarter
2009
  Second
Quarter
2009
  Third
Quarter
2009
  Fourth
Quarter
2009
 

Revenues

  $ 1,564.9   $ 1,754.5   $ 2,041.4   $ 1,740.7  

Income (loss) before income taxes

    (210.0 )   30.7     75.8     (67.4 )

Net income (loss) attributable to Hertz Global Holdings, Inc. and Subsidiaries' common stockholders

    (163.5 )   3.9     64.5     (30.9 )

Earnings (loss) per share, basic

  $ (0.51 ) $ 0.01   $ 0.16   $ (0.08 )

Earnings (loss) per share, diluted

  $ (0.51 ) $ 0.01   $ 0.15   $ (0.08 )

Note 17—Subsequent Events

In January 2011, Gerald A. Plescia, President, Hertz Equipment Rental Corporation, or "HERC," retired from the Company. Mark P. Frissora, our Chairman and Chief Executive Officer is assuming the temporary senior management responsibility for HERC until a successor is named.

In January 2011, Hertz redeemed in full its outstanding ($518.5 million principal amount) 10.5% Senior Subordinated Notes due 2016 which resulted in premiums paid of $27.2 million and the write-off of unamortized debt costs of $8.6 million. In January and February 2011, Hertz redeemed $1,105 million principal amount of its outstanding 8.875% Senior Notes due 2014 which resulted in premiums paid of $24.5 million and the write-off of unamortized debt costs of $14.4 million. We used the proceeds from the September 2010 issuance of $700 million aggregate principal amount of 7.50% Senior Notes, the December 2010 issuance of $500 million aggregate principal amount of 7.375% Senior Notes and the February 2011 issuance of $500 million aggregate principal amount of 6.75% Senior Notes (see below) for these redemptions.

In February 2011, Hertz issued $500 million aggregate principal amount of 6.75% Senior Notes due 2019. The 6.75% Senior Notes are guaranteed on a senior unsecured basis by the domestic subsidiaries of Hertz that guarantee its Senior Credit Facilities.

In February 2011, Hertz used existing corporate liquidity to pay off the maturing amount of the Brazilian Fleet Financing Facility.

136


Table of Contents

SCHEDULE I

CONDENSED FINANCIAL INFORMATION OF REGISTRANT

HERTZ GLOBAL HOLDINGS, INC.

PARENT COMPANY BALANCE SHEETS

(In Thousands of Dollars)

 
  December 31,  
 
  2010   2009  
       

ASSETS

             

Cash and cash equivalents

  $ 164   $ 175  

Accounts receivable from Hertz affiliate

    1,396     7,569  

Taxes receivable

    27,457     17,450  

Prepaid expenses and other assets

    18     2  

Investments in subsidiaries

    2,498,688     2,456,782  

Deferred charges

    7,839     10,133  
           
   

Total assets

  $ 2,535,562   $ 2,492,111  
           
     

LIABILITIES AND STOCKHOLDERS' EQUITY

             

Accounts payable

  $   $ 4,315  

Accrued liabilities

    2,079     2,067  

Debt

    387,085     367,352  

Deferred taxes on income

    31,577     38,229  
           
   

Total liabilities

    420,741     411,963  
           

Stockholders' equity:

             
 

Common Stock, $0.01 par value, 2,000,000,000 shares authorized, 413,462,889 and 410,245,225 shares issued and outstanding

    4,135     4,102  
 

Additional paid-in capital

    3,183,225     3,141,695  
 

Accumulated deficit

    (1,110,362 )   (1,062,318 )
 

Accumulated other comprehensive income (loss)

    37,823     (3,331 )
           
   

Total stockholders' equity

    2,114,821     2,080,148  
           
   

Total liabilities and stockholders' equity

  $ 2,535,562   $ 2,492,111  
           

The accompanying notes are an integral part of these financial statements.

137


Table of Contents

SCHEDULE I (Continued)

HERTZ GLOBAL HOLDINGS, INC.

PARENT COMPANY STATEMENTS OF OPERATIONS

(In Thousands of Dollars)

 
  Years ended December 31,  
 
  2010   2009   2008  

Revenues

  $   $   $  

Expenses:

                   
 

Selling, general and administrative

    70     144     (8 )
 

Interest expense, net of interest income

    46,888     26,610     (580 )
               
   

Total expenses (income)

    46,958     26,754     (588 )
               

Other income

    23,000          
               

Income (loss) before income taxes

    (23,958 )   (26,754 )   588  

(Provision) benefit for taxes on income

    16,660     11,267     (809 )

Equity in losses of subsidiaries, net of tax

    (17,746 )   (110,535 )   (1,206,525 )
               

Net loss

  $ (25,044 ) $ (126,022 ) $ (1,206,746 )
               

The accompanying notes are an integral part of these financial statements.

138


Table of Contents


SCHEDULE I (Continued)

HERTZ GLOBAL HOLDINGS, INC.

PARENT COMPANY STATEMENTS OF STOCKHOLDERS' EQUITY

(In Thousands of Dollars, except share data)

 
  Common Stock    
  Retained
Earnings
(Accumulated
Deficit)
  Accumulated
Other
Comprehensive
Income (Loss)
   
 
 
  Additional
Paid-In
Capital
  Total
Stockholders'
Equity
 
 
  Shares   Amount  

Balance at:

                                     

December 31, 2007

    321,862,083   $ 3,219   $ 2,469,213   $ 270,450   $ 170,507   $ 2,913,389  
 

Net loss

                      (1,206,746 )         (1,206,746 )
 

Total Comprehensive Loss of subsidiaries

                            (270,642 )   (270,642 )
                                     
 

Total Comprehensive Loss

                                  (1,477,388 )
                                     
 

Stock-based employee compensation charges, including tax benefit of $643

                27,380                 27,380  
 

Exercise of stock options

    1,086,360     11     6,743                 6,754  
 

Common shares issued to Directors

    38,856           243                 243  
 

Phantom shares issued to Directors

                150                 150  
 

Proceeds from disgorgement of stockholder short-swing profits, net of tax of $48

                90                 90  
                           

December 31, 2008

    322,987,299     3,230     2,503,819     (936,296 )   (100,135 )   1,470,618  
 

Net loss

                      (126,022 )         (126,022 )
 

Total Comprehensive Income of subsidiaries

                            96,804     96,804  
                                     
 

Total Comprehensive Loss

                                  (29,218 )
                                     
 

Proceeds from sale of common stock

    85,001,182     850     527,908                 528,758  
 

Proceeds from debt offering, net of tax of $46,204

                68,140                 68,140  
 

Stock-based employee compensation charges, net of tax of $0

                35,464                 35,464  
 

Exercise of stock options

    1,158,892     12     5,330                 5,342  
 

Employee stock purchase plan

    513,638     5     2,818                 2,823  
 

Proceeds from disgorgement of stockholder short-swing profits, net of tax of $7

                12                 12  
 

Net settlement on vesting of restricted stock

    402,593     4     (2,223 )               (2,219 )
 

Common shares issued to Directors

    181,621     1     245                 246  
 

Phantom shares issued to Directors

                182                 182  
                           

December 31, 2009

    410,245,225     4,102     3,141,695     (1,062,318 )   (3,331 )   2,080,148  
 

Net loss

                      (25,044 )         (25,044 )
 

Reduction in subsidiary equity for dividends received

                      (23,000 )         (23,000 )
 

Total Comprehensive Income of subsidiaries

                            41,154     41,154  
                                     
 

Total Comprehensive Loss

                                  (6,890 )
                                     
 

Stock-based employee compensation charges, net of tax of $0

                36,560                 36,560  
 

Exercise of stock options, net of tax of $(258)

    1,343,659     14     7,621                 7,635  
 

Employee stock purchase plan

    344,542     4     3,770                 3,774  
 

Proceeds from disgorgement of stockholder short-swing profits, net of tax of $3

                4                 4  
 

Net settlement on vesting of restricted stock

    1,421,705     14     (7,850 )               (7,836 )
 

Common shares issued to Directors

    107,758     1     1,187                 1,188  
 

Phantom shares issued to Directors

                238                 238  
                           

December 31, 2010

    413,462,889   $ 4,135   $ 3,183,225   $ (1,110,362 ) $ 37,823   $ 2,114,821  
                           

The accompanying notes are an integral part of these financial statements.

139


Table of Contents


SCHEDULE I (Continued)

HERTZ GLOBAL HOLDINGS, INC.

PARENT COMPANY STATEMENTS OF CASH FLOWS

(In Thousands of Dollars)

 
  Years ended December 31,  
 
  2010   2009   2008  

Cash flows from operating activities:

                   
 

Net loss

  $ (25,044 ) $ (126,022 ) $ (1,206,746 )
 

Adjustments to reconcile net loss to net cash used in operating activities:

                   
   

Amortization and write-off of deferred financing costs

    2,294     1,363      
   

Amortization of debt discount

    19,733     10,715      
   

Deferred taxes on income

    (6,652 )   6,189     (328 )
 

Changes in assets and liabilities:

                   
   

Receivables

            5  
   

Taxes receivable

    (10,007 )   (17,450 )    
   

Prepaid expenses and other assets

    (16 )       22  
   

Accounts payable

    (4,315 )   4,095     171  
   

Accrued liabilities

    12     2,036     (239 )
   

Accrued taxes

        (7 )   (270 )
 

Equity in losses of subsidiaries, net of tax

    17,746     110,535     1,206,525  
               

Net cash flows used in operating activities

    (6,249 )   (8,546 )   (860 )
               

Cash flows from investing activities:

                   
 

Investment in and advances to consolidated subsidiaries

        (990,117 )    
               

Net cash used in investing activities

        (990,117 )    
               

Cash flows from financing activities:

                   
 

Proceeds from sale of Convertible Senior Notes

        459,483      
 

Proceeds from exercise of stock options

    7,894     5,342     6,754  
 

Accounts receivable from Hertz affiliate

    6,173     7,186     (6,273 )
 

Proceeds from disgorgement of stockholders short swing profits

    7     19     138  
 

Net settlement on vesting of restricted stock

    (7,836 )   (2,219 )    
 

Proceeds from the sale of common stock

        528,758      
               

Net cash provided by financing activities

    6,238     998,569     619  
               

Net change in cash and cash equivalents during the period

    (11 )   (94 )   (241 )

Cash and cash equivalents at beginning of period

    175     269     510  
               

Cash and cash equivalents at end of period

  $ 164   $ 175   $ 269  
               

Supplemental disclosures of cash flow information:

                   

Cash paid (received) during the period for:

                   
 

Interest (net of amounts capitalized)

  $ 24,861   $ 12,538   $ (576 )
 

Income taxes

            1,383  

The accompanying notes are an integral part of these financial statements.

140


Table of Contents


SCHEDULE I (Continued)

HERTZ GLOBAL HOLDINGS, INC.

NOTES TO PARENT COMPANY FINANCIAL STATEMENTS

Note 1—Background and Basis of Presentation

Hertz Global Holdings, Inc., or "Hertz Holdings," is the top-level holding company that conducts substantially all of its business operations through its indirect subsidiaries. Hertz Holdings was incorporated in Delaware on August 31, 2005 in anticipation of the December 21, 2005 acquisition by its subsidiary, Hertz Investors, Inc., of the Hertz Corporation.

There are significant restrictions over the ability of Hertz Holdings to obtain funds from its indirect subsidiaries through dividends, loans or advances. Accordingly, these condensed financial statements have been presented on a "parent-only" basis. Under a parent-only presentation, the investments of Hertz Holdings in its consolidated subsidiaries are presented under the equity method of accounting. These parent-only financial statements should be read in conjunction with the consolidated financial statements of Hertz Holdings included in this Annual Report under the caption "Item 8—Financial Statements and Supplementary Data." For a discussion of background and basis of presentation, see Note 1 and Note 2 to the Notes to the consolidated financial statements included in this Annual Report under the caption "Item 8—Financial Statements and Supplementary Data."

Note 2—Debt

Convertible Senior Notes

In May and June 2009, we issued $474.8 million in aggregate principal amount of 5.25% convertible senior notes due January 2014, or the "Convertible Senior Notes." Our Convertible Senior Notes may be convertible by holders into shares of Hertz Holdings' 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.

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 offering of the Convertible Senior Notes 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, at issuance the debt was recorded at a discount of $117.9 million reflecting that its coupon was below the market yield for a similar security without the conversion feature at issuance. The debt is subsequently accreted to its par value over its expected life, with the market rate of interest at issuance being reflected in the statements of operations. The effective interest rate on the Convertible Senior Notes on the issuance date was 12%.

On January 1, 2011, our Convertible Senior Notes became convertible. This conversion right was triggered because our closing common stock price per share exceeded $10.77 for at least 20 trading days during the 30 consecutive trading day period ending on December 31, 2010. The Convertible Senior Notes will continue to be convertible until March 31, 2011, and may be convertible thereafter, if one or more of the conversion conditions specified in the indenture is satisfied during future measurement periods.

On June 1 and December 1, 2010, Hertz Holdings made semi-annual interest payments of approximately $12.5 million on the Convertible Senior Notes. Hertz Holdings made this payment with a

141


Table of Contents


SCHEDULE I (Continued)

HERTZ GLOBAL HOLDINGS, INC.

NOTES TO PARENT COMPANY FINANCIAL STATEMENTS (Continued)

combination of cash on hand and proceeds from the repayment of an inter-company loan from Hertz, and dividends received Hertz Holdings subsidiaries.

In the future, if our cash on hand and proceeds from the repayment of inter- company loans from Hertz is not sufficient to pay the semi-annual interest payment, we would need to receive a dividend, loan or advance from our subsidiaries. However, none of our subsidiaries are obligated to make funds available to us and certain of Hertz's credit facilities have requirements that must be met prior to it making dividends, loans or advances to us. In addition, Delaware law imposes requirements that may restrict Hertz's ability to make funds available to Hertz Holdings.

For a discussion of the debt obligations of the indirect subsidiaries of Hertz Holdings, see Note 4 to the Notes to the consolidated financial statements included in this Annual Report under the caption "Item 8—Financial Statements and Supplementary Data."

Note 3—Commitments and Contingencies

Hertz Holdings has no direct commitments and contingencies, but its indirect subsidiaries do. For a discussion of the commitments and contingencies of the indirect subsidiaries of Hertz Holdings, see Notes 9 and 11 to the Notes to the consolidated financial statements included in this Annual Report under the caption "Item 8—Financial Statements and Supplementary Data."

Note 4—Dividends

During 2010, Hertz Holdings received approximately $23 million of cash dividends from its subsidiaries. Hertz Holdings did not receive any cash dividends during 2009.

142


Table of Contents


SCHEDULE II

VALUATION AND QUALIFYING ACCOUNTS

HERTZ GLOBAL HOLDINGS, INC. AND SUBSIDIARIES

(In Thousands of Dollars)

 
   
  Additions    
   
 
 
  Balance at
Beginning of
Period
  Charged to
Expense
  Translation
Adjustments
  Deductions   Balance at
End of Period
 

Allowance for doubtful accounts:

                               
 

Year ended December 31, 2010

  $ 21,268   $ 19,667   $ (695 ) $ (20,532) (a) $ 19,708  
 

Year ended December 31, 2009

  $ 16,572   $ 27,951   $ 1,823   $ (25,078) (a) $ 21,268  
 

Year ended December 31, 2008

  $ 12,147   $ 31,068   $ (554 ) $ (26,089) (a) $ 16,572  

Tax valuation allowances:

                               
 

Year ended December 31, 2010

  $ 167,812   $ 27,473   $ (9,478 ) $   $ 185,807  
 

Year ended December 31, 2009

  $ 123,210   $ 39,689   $ 4,913   $   $ 167,812  
 

Year ended December 31, 2008

  $ 69,879   $ 58,526   $ (5,195 ) $   $ 123,210  

(a)
Amounts written off, net of recoveries.

143


Table of Contents

ITEM 9.    CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND FINANCIAL DISCLOSURE

None.

ITEM 9A.    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, or the "Exchange Act," 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 Exchange Act 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 Annual Report. Based upon this evaluation, our management, including our Chief Executive Officer and Chief Financial Officer, concluded that our disclosure controls and procedures are effective.

Management's Report on Internal Control Over Financial Reporting

Our management is responsible for establishing and maintaining adequate internal control over financial reporting, as such term is defined in Rule 13a-15(f) under the Exchange Act, as amended. Our internal control over financial reporting is a process designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles.

Because of its inherent limitations, internal control over financial reporting may not prevent or detect misstatements. Also, projections of any evaluation of effectiveness to future periods are subject to the risk that controls may become inadequate because of changes in conditions, or that the degree of compliance with the policies or procedures may deteriorate.

Under the supervision and with the participation of our management, including our Chief Executive Officer and Chief Financial Officer, we conducted an assessment of the effectiveness of our internal control over financial reporting as of December 31, 2010. The assessment was based on criteria established in the framework Internal Control—Integrated Framework , issued by the Committee of Sponsoring Organizations of the Treadway Commission. Based on this assessment, management concluded that our internal control over financial reporting was effective as of December 31, 2010. PricewaterhouseCoopers LLP, our independent registered public accounting firm, has issued an attestation report on our internal control over financial reporting. Their report is included in this Annual Report under the caption "Item 8—Financial Statements and Supplementary Data."

Changes in Internal Control Over Financial Reporting

No changes in our internal control over financial reporting occurred during the fiscal quarter ended December 31, 2010 that have materially affected, or are reasonably likely to materially affect, our internal control over financial reporting.

ITEM 9B.    OTHER INFORMATION

None.

144


Table of Contents


PART III

ITEM 10.    DIRECTORS, EXECUTIVE OFFICERS AND CORPORATE GOVERNANCE

Information related to our directors is set forth under the caption "Election of Directors" of our proxy statement, or the "2011 Proxy Statement," for our annual meeting of stockholders scheduled for May 26, 2011. Such information is incorporated herein by reference.

Information relating to our Executive Officers is included in Part I of this Annual Report under the caption "Executive Officers of the Registrant."

Information relating to compliance with Section 16(a) of the Exchange Act is set forth under the caption "Section 16(a) Beneficial Ownership Reporting Compliance" of our 2011 Proxy Statement. Such information is incorporated herein by reference.

Information relating to the Audit Committee and Board of Directors determinations concerning whether a member of the Audit Committee is a "financial expert" as that term is defined under Item 407(d)(5) of Regulation S-K is set forth under the caption "Corporate Governance and General Information Concerning the Board of Directors and its Committees" of our 2011 Proxy Statement. Such information is incorporated herein by reference.

Information related to our code of ethics is set forth under the caption "Corporate Governance and General Information Concerning the Board of Directors and its Committees" of our 2011 Proxy Statement. Such information is incorporated herein by reference.

ITEM 11.    EXECUTIVE COMPENSATION

Information relating to this item is set forth under the captions "Executive Compensation," "Compensation Committee Interlocks and Insider Participation" and "Compensation Committee Report" of our 2011 Proxy Statement. Such information is incorporated herein by reference.

ITEM 12.    SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT AND RELATED STOCKHOLDER MATTERS

Information relating to this item is set forth in this Annual Report under the caption "Item 5—Market for Registrant's Common Equity, Related Stockholder Matters and Issuer Purchases of Equity Securities—Equity Compensation Plan Information" and under the caption "Security Ownership of Certain Beneficial Owners, Directors and Officers" of our 2011 Proxy Statement. Such information is incorporated herein by reference.

ITEM 13.    CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS, AND DIRECTOR INDEPENDENCE

Information relating to this item is set forth under the captions "Certain Relationships and Related Party Transactions" and "Corporate Governance and General Information Concerning the Board of Directors and its Committees" of our 2011 Proxy Statement. Such information is incorporated herein by reference.

ITEM 14.    PRINCIPAL ACCOUNTING FEES AND SERVICES

Information relating to this item is set forth under the caption "Independent Registered Public Accounting Firm Fees" of our 2011 Proxy Statement. Such information is incorporated herein by reference.

145


Table of Contents


PART IV

ITEM 15.    EXHIBITS, FINANCIAL STATEMENT SCHEDULES

The following documents are filed as part of this Annual Report:

 
   
   
  Page

(a)

  1.  

Financial Statements:

   

     

Our financial statements filed herewith are set forth in Part II, Item 8 of this Annual Report as follows:

   

     

Hertz Global Holdings, Inc. and Subsidiaries—

   

     

Report of Independent Registered Public Accounting Firm

  80

     

Consolidated Balance Sheets

  81

     

Consolidated Statements of Operations

  82

     

Consolidated Statements of Changes in Equity

  83

     

Consolidated Statements of Cash Flows

  85

     

Notes to Consolidated Financial Statements

  86

 
2.
 

Financial Statement Schedules:

   

     

Our financial statement schedules filed herewith are set forth in Part II, Item 8 of this Annual Report as follows:

   

     

Hertz Global Holdings, Inc.—Schedule I—Condensed Financial Information of Registrant

  137

     

Hertz Global Holdings, Inc. and Subsidiaries—Schedule II—Valuation and Qualifying Accounts

  143

 
3.
 

Exhibits:

   

     

The attached list of exhibits in the "Exhibit Index" immediately following the signature pages to this Annual Report is filed as part of this Annual Report and is incorporated herein by reference in response to this item.

   

146


Table of Contents


SIGNATURES

Pursuant to the requirements of Section 13 or 15(d) 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, in the borough of Park Ridge, and state of New Jersey, on the 25 th  day of February, 2011.

    HERTZ GLOBAL HOLDINGS, INC.
(Registrant)

 

 

By:

 

/s/ ELYSE DOUGLAS

    Name:   Elyse Douglas
    Title:   Executive Vice President and Chief
Financial Officer

Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed below by the following persons on behalf of the registrant and in the capacities indicated on February 25, 2011:

Signature
 
Title

 

 

 
/s/ GEORGE W. TAMKE

George W. Tamke
  Lead Director

/s/ MARK P. FRISSORA

Mark P. Frissora

 

Chief Executive Officer and Chairman of the Board of Directors

/s/ ELYSE DOUGLAS

Elyse Douglas

 

Executive Vice President and Chief Financial Officer

/s/ JATINDAR S. KAPUR

Jatindar S. Kapur

 

Senior Vice President, Finance and Corporate Controller

/s/ BARRY H. BERACHA

Barry H. Beracha

 

Director

/s/ BRIAN A. BERNASEK

Brian A. Bernasek

 

Director

/s/ CARL T. BERQUIST

Carl T. Berquist

 

Director

/s/ MICHAEL J. DURHAM

Michael J. Durham

 

Director

/s/ ROBERT F. END

Robert F. End

 

Director

147


Table of Contents

Signature
 
Title

 

 

 
/s/ ANGEL L. MORALES

Angel L. Morales
  Director

/s/ GREGORY S. LEDFORD

Gregory S. Ledford

 

Director

/s/ NATHAN K. SLEEPER

Nathan K. Sleeper

 

Director

/s/ DAVID H. WASSERMAN

David H. Wasserman

 

Director

/s/ HENRY C. WOLF

Henry C. Wolf

 

Director

148


Table of Contents


EXHIBIT INDEX

Exhibit
Number
  Description
  3.1   Amended and Restated Certificate of Incorporation of Hertz Global Holdings, Inc. (Incorporated by reference to Exhibit 3.1 to the Annual Report on Form 10-K of Hertz Global Holdings, Inc., as filed on March 30, 2007).

 

3.2

 

Amended and Restated By-Laws of Hertz Global Holdings, Inc., effective August 12, 2009 (Incorporated by reference to Exhibit 3.1.1 to the Quarterly Report on Form 10-Q of Hertz Global Holdings,  Inc., as filed on November 6, 2009).

 

4.1.1

 

Indenture, dated as of December 21, 2005, between CCMG Acquisition Corporation, as Issuer, the Subsidiary Guarantors from time to time parties thereto, and Wells Fargo Bank, National Association, as Trustee, relating to the U.S. Dollar 8.875% Senior Notes due 2014 and the Euro 7.875% Senior Notes due 2014 (Incorporated by reference to Exhibit 4.1.1 to the Current Report on Form 8-K of The Hertz Corporation, as filed on March 31, 2006).

 

4.1.2

 

Merger Supplemental Indenture, dated as of December 21, 2005, between The Hertz Corporation and Wells Fargo Bank, National Association, as Trustee, relating to the U.S. Dollar 8.875% Senior Notes due 2014 and the Euro 7.875% Senior Notes due 2014 (Incorporated by reference to Exhibit 4.1.2 to the Current Report on Form 8-K of The Hertz Corporation, as filed on March 31, 2006).

 

4.1.3

 

Supplemental Indenture in Respect of Subsidiary Guarantee, dated as of December 21, 2005, between The Hertz Corporation, the Subsidiary Guarantors named therein, and Wells Fargo Bank, National Association, as Trustee, relating to the U.S. Dollar 8.875% Senior Notes due 2014 and the Euro 7.875% Senior Notes due 2014 (Incorporated by reference to Exhibit 4.1.3 to the Current Report on Form 8-K of The Hertz Corporation, as filed on March 31, 2006).

 

4.1.4

 

Third Supplemental Indenture, dated as of July 7, 2006, between The Hertz Corporation, the Subsidiary Guarantors named therein, and Wells Fargo Bank, National Association, as Trustee, relating to the U.S. Dollar 8.875% Senior Notes due 2014 and the Euro 7.875% Senior Notes due 2014 (Incorporated by reference to Exhibit 4.3 to the Current Report on Form 8-K of The Hertz Corporation, as filed on July 7, 2006).

 

4.1.5

 

Fourth Supplemental Indenture, dated as of October 15, 2007, among Simply Wheelz LLC, The Hertz Corporation, the Existing Guarantors named therein, and Wells Fargo Bank, National Association, as Trustee, relating to the U.S. Dollar 8.875% Senior Notes due 2014 and the Euro 7.875% Senior Notes due 2014 (Incorporated by reference to Exhibit 4.1.4 to the Quarterly Report on Form 10-Q of Hertz Global Holdings, Inc., as filed on November 14, 2007).

 

4.2.1

 

Indenture, dated as of September 30, 2010, among The Hertz Corporation, as Issuer, the Subsidiary Guarantors from time to time parties thereto, and Wells Fargo Bank, National Association, as Trustee, relating to the 7.50% Senior Notes Due 2018 (Incorporated by reference to Exhibit 4.21 to the Quarterly Report on Form 10-Q of Hertz Global Holdings, Inc., as filed on November 9, 2010).

 

4.2.2

 

Exchange and Registration Rights Agreement, dated as of September 30, 2010, among The Hertz Corporation, the Subsidiary Guarantors named therein and the representatives of the initial purchasers, relating to the 7.50% Senior Notes Due 2018 (Incorporated by reference to Exhibit 4.20 to the Quarterly Report on Form 10-Q of Hertz Global Holdings, Inc., as filed on November 9, 2010).

149


Table of Contents

Exhibit
Number
  Description
  4.3.1   Indenture, dated as of December 20, 2010, among The Hertz Corporation, as Issuer, the Subsidiary Guarantors from time to time parties thereto, and Wells Fargo Bank, National Association, as Trustee, relating to the 7.375% Senior Notes Due 2021.

 

4.3.2

 

Exchange and Registration Rights Agreement, dated as of December 20, 2010, among The Hertz Corporation, the Subsidiary Guarantors named therein and the representative of the initial purchasers, relating to the 7.375% Senior Notes Due 2021.

 

4.4.1

 

Indenture, dated as of February 8, 2011, among The Hertz Corporation, as Issuer, the Subsidiary Guarantors from time to time parties thereto, and Wells Fargo Bank, National Association, as Trustee, relating to the 6.75% Senior Notes Due 2019.

 

4.4.2

 

Exchange and Registration Rights Agreement, dated as of February 8, 2011, among The Hertz Corporation, the Subsidiary Guarantors named therein and the representative of the initial purchasers, relating to the 6.75% Senior Notes Due 2019.

 

4.5.1

 

Indenture, dated as of May 27, 2009, between Hertz Global Holdings, Inc., as Issuer, and Wells Fargo Bank, National Association, as Trustee, relating to the 5.25% Convertible Senior Notes due 2014 (Incorporated by reference to Exhibit 4.1 to the Current Report on Form 8-K of Hertz Global Holdings, Inc., as filed on May 27, 2009).

 

4.5.2

 

First Supplemental Indenture, dated as of August 19, 2009, between Hertz Global Holdings, Inc., as Issuer, and Wells Fargo Bank, National Association, as Trustee, relating to the 5.25% Convertible Senior Notes due 2014 (Incorporated by reference to Exhibit 4.19.1 to the Quarterly Report on Form 10-Q of Hertz Global Holdings, Inc., as filed on November 6, 2009).

 

4.6.1

 

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, relating to Rental Car Asset Backed Notes (Issuable in Series) (Incorporated by reference to Exhibit 4.9.1 to the Quarterly Report on Form 10-Q of Hertz Global Holdings, Inc., as filed on November 6, 2009).

 

4.6.2

 

Supplemental Indenture No. 1, dated as of December 21, 2010, to the Third Amended and Restated Base Indenture, between Hertz Vehicle Financing LLC and The Bank of New York Mellon Trust Company, N.A.

 

4.6.3

 

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 (Incorporated by reference to Exhibit 4.9.7 to the Quarterly Report on Form 10-Q of Hertz Global Holdings, Inc., as filed on November 6, 2009).

 

4.6.4

 

Amendment No. 1, dated as of December 21, 2010, to the Third Amended and Restated Master Motor Vehicle Operating Lease and Servicing Agreement, between The Hertz Corporation, as Lessee and Servicer, and Hertz Vehicle Financing LLC, as Lessor.

 

4.6.5

 

Second Amended and Restated Participation, Purchase and Sale Agreement, dated as of September 18, 2009, among Hertz General Interest LLC, Hertz Vehicle Financing LLC and The Hertz Corporation, as Lessee and Servicer (Incorporated by reference to Exhibit 4.9.8 to the Quarterly Report on Form 10-Q of Hertz Global Holdings, Inc., as filed on November 6, 2009).

150


Table of Contents

Exhibit
Number
  Description
  4.6.6   Amendment No. 1, dated as of December 21, 2010, to the Second Amended and Restated Purchase and Sale Agreement, among The Hertz Corporation, Hertz Vehicle Financing LLC and Hertz General Interest LLC.

 

4.6.7

 

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 (Incorporated by reference to Exhibit 4.9.11 to the Quarterly Report on Form 10-Q of Hertz Global Holdings, Inc., as filed on November 6, 2009).

 

4.6.8

 

Amendment No. 1, dated as of December 21, 2010, to the Third Amended and Restated Collateral Agency Agreement, among The Hertz Corporation, as a Secured Party and Servicer, Hertz Vehicle Financing LLC, as a Grantor, Hertz General Interest LLC, as a Grantor, and The Bank of New York Mellon Trust Company, N.A., as a Secured Party, Trustee and Collateral Agent.

 

4.6.9

 

Second Amended and Restated Administration Agreement, dated as of September 18, 2009, among The Hertz Corporation, Hertz Vehicle Financing LLC, and The Bank of New York Mellon Trust Company, N.A., as Trustee (Incorporated by reference to Exhibit 4.9.12 to the Quarterly Report on Form 10-Q of Hertz Global Holdings, Inc., as filed on November 6, 2009).

 

4.6.10

 

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. (Incorporated by reference to Exhibit 4.9.13 to the Quarterly Report on Form 10-Q of Hertz Global Holdings, Inc., as filed on November 6, 2009).

 

4.6.11

 

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. (Incorporated by reference to Exhibit 4.9.14 to the Quarterly Report on Form 10-Q of Hertz Global Holdings, Inc., as filed on November 6, 2009).

 

4.6.12

 

Supplement to Second Amended and Restated Collateral Agency Agreement, dated as of January 26, 2007, among The Hertz Corporation, as Grantor, Gelco Corporation d/b/a GE Fleet Services, as Secured Party and BNY Midwest Trust Company as Collateral Agent (Incorporated by reference to Exhibit 4.9.25 to the Annual Report on Form 10-K of Hertz Global Holdings, Inc., as filed on March 30, 2007).

 

4.7.1

 

Amended and Restated Series 2009-1 Supplement, dated as of December 16, 2010, 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.

 

4.7.2

 

Amended and Restated Series 2009-1 Note Purchase Agreement, dated as of December 16, 2010, 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.

151


Table of Contents

Exhibit
Number
  Description
  4.8.1   Series 2010-2 Supplement, dated as of December 16, 2010, 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.

 

4.8.2

 

Series 2010-2 Note Purchase Agreement, dated as of December 16, 2010, 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

 

Amended and Restated Series 2009-2 Supplement, dated as of June 18, 2010, 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 (Incorporated by reference to Exhibit 4.9.34 to the Quarterly Report on Form 10-Q of Hertz Global Holdings, Inc., as filed on August 6, 2010).

 

4.10

 

Series 2010-1 Supplement, dated as of July 22, 2010, 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 (Incorporated by reference to Exhibit 4.9.35 to the Quarterly Report on Form 10-Q of Hertz Global Holdings, Inc., as filed on August 6, 2010).

 

10.1.1

 

Credit Agreement, dated as of December 21, 2005, between The Hertz Corporation, the several lenders from time to time parties 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 and Smith Incorporated, as Documentation Agent, Deutsche Bank Securities Inc., Lehman Brothers Inc., and Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner and Smith Incorporated, as Joint Lead Arrangers, and BNP Paribas, The Royal Bank of Scotland plc, and Calyon New York Branch, as Co-Arrangers, and Deutsche Bank Securities Inc., Lehman Brothers, Inc., Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner and Smith Incorporated, Goldman Sachs Credit Partners L.P., and JPMorgan Chase Bank, N.A., as Joint Bookrunning Managers (referred to as the Senior Term Facility) (Incorporated by reference to Exhibit 4.6.1 to the Current Report on Form 8-K of The Hertz Corporation, as filed on March 31, 2006).

 

10.1.2

 

Guarantee and Collateral Agreement, dated as of December 21, 2005, between CCMG Corporation, The Hertz Corporation, certain of its subsidiaries, and Deutsche Bank AG, New York Branch, as Administrative Agent and Collateral Agent, relating to the Senior Term Facility (Incorporated by reference to Exhibit 4.6.2 to the Current Report on Form 8-K of The Hertz Corporation, as filed on March 31, 2006).

 

10.1.3

 

Amendment to Credit Agreement, dated as of June 30, 2006, among The Hertz Corporation, Deutsche Bank AG, New York Branch, and the other parties signatory thereto, relating to the Senior Term Facility (Incorporated by reference to Exhibit 4.1 to the Current Report on Form 8-K of The Hertz Corporation, as filed on July 7, 2006).

152


Table of Contents

Exhibit
Number
  Description
  10.1.4   Second Amendment to Credit Agreement, dated as of February 9, 2007, among The Hertz Corporation, Deutsche Bank AG, New York Branch, and the other parties signatory thereto, relating to the Senior Term Facility (Incorporated by reference to Exhibit 4.6.8 to the Annual Report on Form 10-K of Hertz Global Holdings, Inc., as filed on March 30, 2007).

 

10.1.5

 

Third Amendment to Credit Agreement, dated as of May 23, 2007, among The Hertz Corporation, Deutsche Bank AG, New York Branch, and the other parties signatory thereto, relating to the Senior Term Facility (Incorporated by reference to Exhibit 4.1.1 to the Quarterly Report on Form 10-Q of Hertz Global Holdings, Inc., as filed on November 14, 2007).

 

10.1.6

 

Fourth Amendment to Credit Agreement, dated as of March 31, 2009, among The Hertz Corporation, Deutsche Bank AG, New York Branch, and the other parties signatory thereto, relating to the Senior Term Facility (Incorporated by reference to Exhibit 4.1 to the Current Report on Form 8-K of Hertz Global Holdings, Inc., as filed on April 6, 2009).

 

10.1.7

 

Fifth Amendment to Credit Agreement, dated as of September 17, 2010, among The Hertz Corporation, Deutsche Bank AG, New York Branch, and the other parties signatory thereto, relating to the Senior Term Facility (Incorporated by reference to Exhibit 4.6.11 to the Quarterly Report on Form 10-Q of Hertz Global Holdings, Inc., as filed on November 9, 2010).

 

10.2.1

 

Credit Agreement, dated as of December 21, 2005, between Hertz Equipment Rental Corporation, The Hertz Corporation, the Canadian Borrowers parties thereto, the several lenders from time to time parties 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 and Smith Incorporated, as Documentation Agent, Deutsche Bank Securities Inc., Lehman Brothers Inc., and Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner and Smith Incorporated, as Joint Lead Arrangers, BNP Paribas, The Royal Bank of Scotland plc, and Calyon New York Branch, as Co-Arrangers, and Deutsche Bank Securities Inc., Lehman Brothers Inc., Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner and Smith Incorporated, Goldman Sachs Credit Partners L.P., and JPMorgan Chase Bank, N.A., as Joint Bookrunning Managers (referred to as the Senior ABL Facility) (Incorporated by reference to Exhibit 4.7.1 to the Current Report on Form 8-K of The Hertz Corporation, as filed on March 31, 2006).

 

10.2.2

 

U.S. Guarantee and Collateral Agreement, dated as of December 21, 2005, between CCMG Corporation, The Hertz Corporation, certain of its subsidiaries, and Deutsche Bank AG, New York Branch, as Administrative Agent and Collateral Agent, relating to the Senior ABL Facility (Incorporated by reference to Exhibit 4.7.2 to the Current Report on Form 8-K of The Hertz Corporation, as filed on March 31, 2006).

 

10.2.3

 

Canadian Guarantee and Collateral Agreement, dated as of December 21, 2005, between Matthews Equipment Limited, Western Shut-Down (1995) Limited, certain of its subsidiaries, and Deutsche Bank AG, Canada Branch, as Canadian Agent and Canadian Collateral Agent, relating to the Senior ABL Facility) (Incorporated by reference to Exhibit 4.7.3 to the Current Report on Form 8-K of The Hertz Corporation, as filed on March 31, 2006).

153


Table of Contents

Exhibit
Number
  Description
  10.2.4   Amendment to Credit Agreement, dated as of June 30, 2006, among Hertz Equipment Rental Corporation, The Hertz Corporation, Matthews Equipment Limited, Western Shut-Down (1995) Limited, Deutsche Bank AG, New York Branch, Deutsche Bank AG, Canada Branch, and the other parties signatory thereto, relating to the Senior ABL Facility) (Incorporated by reference to Exhibit 4.2 to the Current Report on Form 8-K of The Hertz Corporation, as filed on July 7, 2006).

 

10.2.5

 

Second Amendment to Credit Agreement, dated as of February 15, 2007, among Hertz Equipment Rental Corporation, The Hertz Corporation, Matthews Equipment Limited, Western Shut-Down (1995) Limited, Deutsche Bank AG, New York Branch, Deutsche Bank AG, Canada Branch, and the other parties signatory thereto, relating to the Senior ABL Facility (Incorporated by reference to Exhibit 4.7.10 to the Annual Report on Form 10-K of Hertz Global Holdings,  Inc., as filed on March 30, 2007).

 

10.2.6

 

Third Amendment to Credit Agreement, dated as of May 23, 2007, among Hertz Equipment Rental Corporation, The Hertz Corporation, Matthews Equipment Limited, Western Shut-Down (1995) Limited, Deutsche Bank AG, New York Branch, Deutsche Bank AG, Canada Branch, and the other parties signatory thereto, relating to the Senior ABL Facility (Incorporated by reference to Exhibit 4.1.2 to the Quarterly Report on Form 10-Q of Hertz Global Holdings, Inc., as filed on November 14, 2007).

 

10.2.7

 

Fourth Amendment to Credit Agreement, dated as of September 30, 2007, among Hertz Equipment Rental Corporation, The Hertz Corporation, Matthews Equipment Limited, Western Shut-Down (1995) Limited, Hertz Canada Equipment Rental Corporation, Deutsche Bank AG, New York Branch, Deutsche Bank AG, Canada Branch, and the other parties signatory thereto, relating to the Senior ABL Facility (Incorporated by reference to Exhibit 4.1.3 to the Quarterly Report on Form 10-Q of Hertz Global Holdings, Inc., as filed on November 14, 2007).

 

10.2.8

 

Fifth Amendment to Credit Agreement, dated as of September 17, 2010, among Hertz Equipment Rental Corporation, The Hertz Corporation, Matthews Equipment Limited, Western Shut-Down (1995) Limited, Hertz Canada Equipment Rental Partnership, Deutsche Bank AG, New York Branch, Deutsche Bank AG, Canada Branch, and the other parties signatory thereto, relating to the Senior ABL Facility (Incorporated by reference to Exhibit 4.7.13 to the Quarterly Report on Form 10-Q of Hertz Global Holdings, Inc., as filed on November 9, 2010).

 

10.3

 

Intercreditor Agreement, dated as of December 21, 2005, between Deutsche Bank AG, New York Branch, as ABL Agent, Deutsche Bank AG, New York Branch, as Term Agent, as acknowledged by CCMG Corporation, The Hertz Corporation and certain of its subsidiaries, relating to the Senior Term Facility and the Senior ABL Facility (Incorporated by reference to Exhibit 4.8 to the Current Report on Form 8-K of The Hertz Corporation, as filed on March 31, 2006).

 

10.4.1

 

Credit Agreement, dated as of September 29, 2006, among The Hertz Corporation and Puerto Ricancars, Inc., as Borrowers, the several lenders from time to time parties thereto, and Gelco Corporation d.b.a. GE Fleet Services, as Administrative Agent and Collateral Agent (referred to as the U.S. Fleet Financing Facility) (Incorporated by reference to Exhibit 4.13 to Amendment No. 4 to the Registration Statement on Form S-1 (File No. 333-135782) as filed on October 27, 2006).

154


Table of Contents

Exhibit
Number
  Description
  10.4.2   First Amendment to Credit Agreement, dated as of October 6, 2006, among The Hertz Corporation and Puerto Ricancars, Inc., as Borrowers, the several lenders from time to time parties thereto, and Gelco Corporation d.b.a. GE Fleet Services, as Administrative Agent and Collateral Agent, relating to the U.S. Fleet Financing Facility (Incorporated by reference to Exhibit 4.13.1 to Amendment No. 4 to the Registration Statement on Form S-1 (File No. 333-135782) as filed on October 27, 2006).

 

10.4.3

 

Second Amendment to Credit Agreement, dated as of October 31, 2006, among The Hertz Corporation and Puerto Ricancars, Inc., as Borrowers, the several lenders from time to time parties thereto, and Gelco Corporation d.b.a. GE Fleet Services, as Administrative Agent and Collateral Agent, relating to the U.S. Fleet Financing Facility (Incorporated by reference to Exhibit 4.13.2 to the Annual Report on Form 10-K of Hertz Global Holdings,  Inc., as filed on March 30, 2007).

 

10.5.1

 

Hertz Global Holdings, Inc. Stock Incentive Plan (Incorporated by reference to Exhibit 10.1 to the Current Report on Form 8-K of The Hertz Corporation, as filed on March 31, 2006).†

 

10.5.2

 

First Amendment to the Hertz Global Holdings, Inc. Stock Incentive Plan (Incorporated by reference to Exhibit 10.1.1 to Amendment No. 4 to the Registration Statement on Form S-1 (File No. 333-135782) as filed on October 27, 2006).†

 

10.5.3

 

Form of Stock Subscription Agreement under Stock Incentive Plan (Incorporated by reference to Exhibit 10.2 to the Current Report on Form 8-K of The Hertz Corporation, as filed on March 31, 2006).†

 

10.5.4

 

Form of Stock Option Agreement under Stock Incentive Plan (Incorporated by reference to Exhibit 10.3 to the Current Report on Form 8-K of The Hertz Corporation, as filed on March 31, 2006).†

 

10.5.5

 

Form of Management Stock Option Agreement under the Stock Incentive Plan (Incorporated by reference to Exhibit 10.1 to the Current Report on Form 8-K of Hertz Global Holdings, Inc., as filed on August 16, 2007).†

 

10.6.1

 

Hertz Global Holdings, Inc. Director Stock Incentive Plan (Incorporated by reference to Exhibit 10.33 to Amendment No. 6 to the Registration Statement on Form S-1 (File No. 333-135782) as filed on November 7, 2006).†

 

10.6.2

 

Form of Director Stock Option Agreement under Director Stock Incentive Plan (Incorporated by reference to Exhibit 10.36 to the Annual Report on Form 10-K of Hertz Global Holdings, Inc., as filed on February 29, 2008).†

 

10.7.1

 

Hertz Global Holdings, Inc. 2008 Omnibus Incentive Plan (as amended and restated, effective as of March 4, 2010) (Incorporated by reference to Exhibit 10.1 to the Current Report on Form 8-K of Hertz Global Holdings, Inc., as filed on June 1, 2010).†

 

10.7.2

 

Form of Performance Stock Unit Agreement under the Hertz Global Holdings, Inc. 2008 Omnibus Incentive Plan (Incorporated by reference to Exhibit 10.2 to the Current Report on Form 8-K of Hertz Global Holdings, Inc., as filed on June 1, 2010).†

 

10.7.3

 

Form of Restricted Stock Unit Agreement under the Hertz Global Holdings, Inc. 2008 Omnibus Incentive Plan (Incorporated by reference to Exhibit 10.3 to the Current Report on Form 8-K of Hertz Global Holdings, Inc., as filed on June 1, 2010).†

155


Table of Contents

Exhibit
Number
  Description
  10.7.4   Form of Employee Stock Option Agreement under the Hertz Global Holdings, Inc. 2008 Omnibus Incentive Plan (Incorporated by reference to Exhibit 10.4 to the Current Report on Form 8-K of Hertz Global Holdings, Inc., as filed on June 1, 2010).†

 

10.7.5

 

Form of Director Stock Option Agreement under the Hertz Global Holdings, Inc. 2008 Omnibus Incentive Plan (Incorporated by reference to Exhibit 10.5 to the Current Report on Form 8-K of Hertz Global Holdings, Inc., as filed on June 1, 2010).†

 

10.8.1

 

The Hertz Corporation Supplemental Retirement and Savings Plan (Incorporated by reference to Exhibit 10.7 to Amendment No. 1 to the Registration Statement on Form S-1 of The Hertz Corporation (File No. 333-125764) as filed on August 30, 2005).†

 

10.8.2

 

Amendment of The Hertz Corporation Supplemental Retirement and Savings Plan (as amended and restated, effective as of December 31, 2008) (Incorporated by reference to Exhibit 10.7 to the Annual Report on Form 10-K of Hertz Global Holdings, Inc., as filed on March 3, 2009).†

 

10.9

 

The Hertz Corporation Supplemental Executive Retirement Plan (as amended and restated, effective December 31, 2008) (Incorporated by reference to Exhibit 10.9 to the Annual Report on Form 10-K of Hertz Global Holdings, Inc., as filed on March 3, 2009).†

 

10.10

 

The Hertz Corporation Benefit Equalization Plan (as amended and restated, effective December 31, 2008) (Incorporated by reference to Exhibit 10.10 to the Annual Report on Form 10-K of Hertz Global Holdings, Inc., as filed on March 3, 2009).†

 

10.11

 

Hertz Global Holdings, Inc. Senior Executive Bonus Plan (Incorporated by reference to 10.6 to the Current Report on Form 8-K of Hertz Global Holdings, Inc., as filed on June 1, 2010).†

 

10.12

 

Hertz Global Holdings, Inc. Severance Plan for Senior Executives (Incorporated by reference to Exhibit 10.39 to the Quarterly Report on Form 10-Q of Hertz Global Holdings, Inc., as filed on November 7, 2008).†

 

10.13.1

 

Form of Change in Control Severance Agreement among Hertz Global Holdings, Inc. and executive officers (Incorporated by reference to Exhibit 10.40 to the Quarterly Report on Form 10-Q of Hertz Global Holdings, Inc., as filed on November 7, 2008).†

 

10.13.2

 

Form of Change in Control Severance Agreement among Hertz Global Holdings, Inc. and executive officers (form used for agreements entered into after March 3, 2010) (Incorporated by reference to 10.7 to the Current Report on Form 8-K of Hertz Global Holdings, Inc., as filed on June 1, 2010).†

 

10.14

 

The Hertz Corporation Key Officer Postretirement Assigned Car Benefit Plan (Incorporated by reference to Exhibit 10.11 to Amendment No. 1 to the Registration Statement on Form S-1 of The Hertz Corporation (File No. 333-125764) as filed on August 30, 2005).†

 

10.15

 

The Hertz Corporation Account Balance Defined Benefit Pension Plan (Incorporated by reference to Exhibit 10.12 to Amendment No. 1 to the Registration Statement on Form S-1 of The Hertz Corporation (File No. 333-125764) as filed on August 30, 2005).†

 

10.16

 

The Hertz Corporation (UK) 1972 Pension Plan (Incorporated by reference to Exhibit 10.13 to Amendment No. 1 to the Registration Statement on Form S-1 (File No. 333-125764) as filed on August 30, 2005).†

 

10.17

 

The Hertz Corporation (UK) Supplementary Unapproved Pension Scheme (Incorporated by reference to Exhibit 10.14 to Amendment No. 1 to the Registration Statement on Form S-1 of The Hertz Corporation (File No. 333-125764) as filed on August 30, 2005).†

156


Table of Contents

Exhibit
Number
  Description
  10.18   Non-Compete Agreement, dated April 10, 2000, between Hertz Europe Limited and Michel Taride (Incorporated by reference to Exhibit 10.6 to Amendment No. 1 to the Registration Statement on Form S-1 of The Hertz Corporation (File No. 333-125764) as filed on August 30, 2005).†

 

10.19

 

Amended and Restated Employment Agreement, dated as of December 31, 2008, between Hertz Global Holdings, Inc. and Mark P. Frissora (Incorporated by reference to Exhibit 10.28 to the Annual Report on Form 10-K of Hertz Global Holdings, Inc., as filed on March 3, 2009).†

 

10.20.1

 

Form of Director Indemnification Agreement (Incorporated by reference to Exhibit 10.29 to Amendment No. 3 to the Registration Statement on Form S-1 (File No. 333-135782) as filed on October 23, 2006).

 

10.20.2

 

Amendment No. 1 to Form of Director Indemnification Agreement (Incorporated by reference to Exhibit 10.29.1 to the Annual Report on Form 10-K of Hertz Global Holdings, Inc., as filed on March 3, 2009).

 

10.20.3

 

Form of Director Indemnification Agreement (form used for agreements entered into after April 2009) (Incorporated by reference to Exhibit 10.51 to the Quarterly Report on Form 10-Q of Hertz Global Holdings,  Inc., as filed on August 6, 2010).

 

10.21

 

Amended and Restated Indemnification Agreement, dated as of December 21, 2005, between The Hertz Corporation, Hertz Vehicles LLC, Hertz Funding Corp., Hertz General Interest LLC, and Hertz Vehicle Financing LLC (Incorporated by reference to Exhibit 10.18 to the Current Report on Form 8-K of The Hertz Corporation, as filed on March 31, 2006).

 

10.22.1

 

Indemnification Agreement, dated as of December 21, 2005, between CCMG Holdings, Inc. (now known as Hertz Global Holdings, Inc.), The Hertz Corporation, Clayton, Dubilier & Rice Fund VII,  L.P., CDR CCMG Co-Investor L.P., and Clayton, Dubilier & Rice, Inc. (Incorporated by reference to Exhibit 10.22 to the Current Report on Form 8-K of The Hertz Corporation, as filed on March 31, 2006).

 

10.22.2

 

Amendment No. 1 to the Indemnification Agreement, dated as of March 3, 2009, between CCMG Holdings, Inc. (now known as Hertz Global Holdings, Inc.), The Hertz Corporation, Clayton, Dubilier & Rice Fund VII, L.P., CDR CCMG Co-Investor L.P., and Clayton, Dubilier & Rice, Inc. (Incorporated by reference to Exhibit 10.22.1 to the Quarterly Report on Form 10-Q of Hertz Global Holdings,  Inc., as filed on May 8, 2009).

 

10.23.1

 

Indemnification Agreement, dated as of December 21, 2005, between CCMG Holdings, Inc. (now known as Hertz Global Holdings, Inc.), The Hertz Corporation, Carlyle Partners IV, L.P., CP IV Coinvestment L.P., CEP II U.S. Investments, L.P., CEP II Participations S.à.r.l., and TC Group IV, L.L.C. (Incorporated by reference to Exhibit 10.23 to the Current Report on Form 8-K of The Hertz Corporation, as filed on March 31, 2006).

 

10.23.2

 

Amendment No. 1 to the Indemnification Agreement, dated as of March 3, 2009, between CCMG Holdings, Inc. (now known as Hertz Global Holdings, Inc.), The Hertz Corporation, Carlyle Partners IV,  L.P., CP IV Coinvestment L.P., CEP II U.S. Investments, L.P., CEP II Participations S.à.r.l., and TC Group IV, L.L.C. (Incorporated by reference to Exhibit 10.23.1 to the Quarterly Report on Form 10-Q of Hertz Global Holdings, Inc., as filed on May 8, 2009).

157


Table of Contents

Exhibit
Number
  Description
  10.24.1   Indemnification Agreement, dated as of December 21, 2005, between CCMG Holdings, Inc. (now known as Hertz Global Holdings, Inc.), The Hertz Corporation, 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 Merrill Lynch Global Partners, Inc. (Incorporated by reference to Exhibit 10.24 to the Current Report on Form 8-K of The Hertz Corporation, as filed on March 31, 2006).

 

10.24.2

 

Amendment No. 1 to the Indemnification Agreement, dated as of March 3, 2009, between CCMG Holdings, Inc. (now known as Hertz Global Holdings, Inc.), The Hertz Corporation, 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 Merrill Lynch Global Partners, Inc. (Incorporated by reference to Exhibit 10.24.2 to the Quarterly Report on Form 10-Q of Hertz Global Holdings, Inc., as filed on May 8, 2009).

 

10.25

 

Tax Sharing Agreement, dated as of December 21, 2005, between CCMG Holdings, Inc. (now known as Hertz Global Holdings, Inc.), CCMG Corporation, The Hertz Corporation, and Hertz International, Ltd. (Incorporated by reference to Exhibit 10.25 to the Current Report on Form 8-K of The Hertz Corporation, as filed on March 31, 2006).

 

10.26

 

Tax Sharing Agreement, dated as of December 21, 2005, between CCMG Holdings, Inc. (now known as Hertz Global Holdings, Inc.), CCMG Corporation, and The Hertz Corporation (Incorporated by reference to Exhibit 10.26 to the Current Report on Form 8-K of The Hertz Corporation, as filed on March 31, 2006).

 

10.27.1

 

Amended and Restated Stockholders Agreement, dated as of November 20, 2006, among Hertz Global Holdings, Inc., 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 SICAR, ML Global Private Equity Fund, L.P., Merrill Lynch Ventures L.P. 2001, ML Hertz Co-Investor, L.P. and CMC-Hertz Partners, L.P. (Incorporated by reference to Exhibit 4.10 to the Annual Report on Form 10-K of Hertz Global Holdings, Inc., as filed on March 30, 2007).

 

10.27.2

 

Registration Rights Agreement, dated as of December 21, 2005, among CCMG Holdings, Inc. (now known as Hertz Global Holdings, Inc.), Clayton, Dubilier & Rice Fund VII, L.P., CDR CCMG Co-Investor 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, ML Hertz Co-Investor, L.P. and CMC-Hertz Partners, L.P. (Incorporated by reference to Exhibit 4.11 to Amendment No. 3 to the Registration Statement on Form S-1 (File No. 333-135782) as filed on October 23, 2006).

 

10.27.3

 

Amendment No. 1 to the Registration Rights Agreement, dated as of November 20, 2006, among CCMG Holdings, Inc. (now known as Hertz Global Holdings, Inc.), 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 SICAR, ML Global Private Equity Fund, L.P., Merrill Lynch Ventures L.P. 2001, ML Hertz Co-Investor, L.P. and CMC-Hertz Partners, L.P. (Incorporated by reference to Exhibit 4.12 to the Annual Report on Form 10-K of Hertz Global Holdings, Inc., as filed on March 30, 2007).

 

12

 

Computation of Consolidated Ratio of Earnings to Fixed Charges (Unaudited) for the years ended December 31, 2010, 2009, 2008, 2007, and 2006.

 

21.1

 

Subsidiaries of Hertz Global Holdings, Inc.

158


Table of Contents

Exhibit
Number
  Description
  23.1   Consent of Independent Registered Public Accounting Firm.

 

31.1

 

Certification of Chief Executive Officer pursuant to Rule 13a-14(a)/15d-14(a).

 

31.2

 

Certification of Chief Financial Officer pursuant to Rule 13a-14(a)/15d-14(a).

 

32.1

 

Certification of Chief Executive Officer pursuant to 18 U.S.C. Section 1350.

 

32.2

 

Certification of Chief Financial Officer pursuant to 18 U.S.C. Section 1350.

Indicates management contract or compensatory plan or arrangement.

As of December 31, 2010, we had various additional obligations which could be considered long-term debt, none of which exceeded 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.

Schedules and exhibits not included above have been omitted because the information required has been included in the financial statements or notes thereto or are not applicable or not required.

159




Exhibit 4.3.1

 

EXECUTION VERSION

 

THE HERTZ CORPORATION

as Issuer

 

and

 

the Subsidiary Guarantors from time to time parties hereto

 

and

 

WELLS FARGO BANK, NATIONAL ASSOCIATION
as Trustee

 


 

INDENTURE

 

DATED AS OF DECEMBER 20, 2010

 


 

7.375% SENIOR NOTES DUE 2021

 



 

TABLE OF CONTENTS

 

 

 

Page

 

 

 

ARTICLE I

 

DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION

 

 

 

Section 101.

Definitions

1

Section 102.

Other Definitions

47

Section 103.

Rules of Construction

48

Section 104.

Incorporation by Reference of TIA

48

Section 105.

Conflict with TIA

49

Section 106.

Compliance Certificates and Opinions

49

Section 107.

Form of Documents Delivered to Trustee

50

Section 108.

Acts of Noteholders; Record Dates

50

Section 109.

Notices, etc., to Trustee and Company

53

Section 110.

Notices to Holders; Waiver

53

Section 111.

Effect of Headings and Table of Contents

54

Section 112.

Successors and Assigns

54

Section 113.

Separability Clause

54

Section 114.

Benefits of Indenture

54

Section 115.

Governing Law; Waiver of Jury Trial

54

Section 116.

Legal Holidays

54

Section 117.

No Personal Liability of Directors, Officers, Employees, Incorporators and Stockholders

55

Section 118.

Exhibits and Schedules

55

Section 119.

Counterparts

55

Section 120.

U.S.A. Patriot Act

55

 

 

 

ARTICLE II

 

NOTE FORMS

 

 

 

Section 201.

Forms Generally

55

Section 202.

Form of Trustee’s Certificate of Authentication

57

Section 203.

Restrictive and Global Note Legends

58

 

 

 

ARTICLE III

 

THE NOTES

 

 

 

Section 301.

Title and Terms

60

Section 302.

Denominations

61

Section 303.

Execution, Authentication and Delivery and Dating

61

 

i



 

Table of Contents

(continued)

 

 

 

Page

 

 

 

Section 304.

Temporary Notes

62

Section 305.

Registrar and Paying Agent

62

Section 306.

Mutilated, Destroyed, Lost and Stolen Notes

63

Section 307.

Payment of Interest Rights Preserved

64

Section 308.

Persons Deemed Owners

65

Section 309.

Cancellation

65

Section 310.

Computation of Interest

66

Section 311.

CUSIP Numbers, ISINs, Etc.

66

Section 312.

Book-Entry Provisions for Global Notes

66

Section 313.

Special Transfer Provisions

68

Section 314.

Payment of Additional Interest

71

 

 

 

ARTICLE IV

 

COVENANTS

 

 

 

Section 401.

Payment of Principal, Premium and Interest

71

Section 402.

Maintenance of Office or Agency

71

Section 403.

Money for Payments to Be Held in Trust

72

Section 404.

[Reserved.]

73

Section 405.

SEC Reports

73

Section 406.

Statement as to Default

74

Section 407.

Limitation on Indebtedness

74

Section 408.

[Reserved]

78

Section 409.

Limitation on Restricted Payments

78

Section 410.

Limitation on Restrictions on Distributions from Restricted Subsidiaries

82

Section 411.

Limitation on Sales of Assets and Subsidiary Stock

84

Section 412.

Limitation on Transactions with Affiliates

87

Section 413.

Limitation on Liens

89

Section 414.

Future Subsidiary Guarantors

89

Section 415.

Purchase of Notes Upon a Change of Control

90

Section 416.

Termination of Covenants on Achievement of Investment Grade Rating

91

 

 

 

ARTICLE V

 

SUCCESSORS

 

 

 

Section 501.

When the Company May Merge, etc.

91

Section 502.

Successor Company Substituted

93

 

 

 

ARTICLE VI

 

REMEDIES

 

 

 

Section 601.

Events of Default

93

 

ii



 

Table of Contents

(continued)

 

 

 

 

 

Page

 

 

 

Section 602.

Acceleration of Maturity; Rescission and Annulment

95

Section 603.

Other Remedies; Collection Suit by Trustee

96

Section 604.

Trustee May File Proofs of Claim

96

Section 605.

Trustee May Enforce Claims Without Possession of Notes

96

Section 606.

Application of Money Collected

96

Section 607.

Limitation on Suits

97

Section 608.

Unconditional Right of Holders to Receive Principal and Interest

97

Section 609.

Restoration of Rights and Remedies

98

Section 610.

Rights and Remedies Cumulative

98

Section 611.

Delay or Omission Not Waiver

98

Section 612.

Control by Holders

98

Section 613.

Waiver of Past Defaults

99

Section 614.

Undertaking for Costs

99

Section 615.

Waiver of Stay, Extension or Usury Laws

99

 

 

 

ARTICLE VII

 

THE TRUSTEE

 

 

 

Section 701.

Certain Duties and Responsibilities

100

Section 702.

Notice of Defaults

101

Section 703.

Certain Rights of Trustee

101

Section 704.

Not Responsible for Recitals or Issuance of Notes

102

Section 705.

May Hold Notes

102

Section 706.

Money Held in Trust

102

Section 707.

Compensation and Reimbursement

103

Section 708.

Conflicting Interests

103

Section 709.

Corporate Trustee Required; Eligibility

103

Section 710.

Resignation and Removal; Appointment of Successor

104

Section 711.

Acceptance of Appointment by Successor

105

Section 712.

Merger, Conversion, Consolidation or Succession to Business

105

Section 713.

Preferential Collection of Claims Against the Company

105

Section 714.

Appointment of Authenticating Agent

106

 

 

 

ARTICLE VIII

 

HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND THE COMPANY

 

 

 

Section 801.

The Company to Furnish Trustee Names and Addresses of Holders

106

Section 802.

Preservation of Information; Communications to Holders

106

Section 803.

Reports by Trustee

107

 

iii



 

Table of Contents

(continued)

 

 

 

Page

 

 

 

ARTICLE IX

 

AMENDMENT, SUPPLEMENT OR WAIVER

 

 

 

Section 901.

Without Consent of Holders

107

Section 902.

With Consent of Holders

108

Section 903.

Execution of Amendments, Supplements or Waivers

109

Section 904.

Revocation and Effect of Consents

109

Section 905.

Conformity with TIA

110

Section 906.

Notation on or Exchange of Notes

110

 

 

 

ARTICLE X

 

REDEMPTION OF NOTES

 

 

 

Section 1001.

Right of Redemption

110

Section 1002.

Applicability of Article

112

Section 1003.

Election to Redeem; Notice to Trustee

112

Section 1004.

Selection by Trustee of Notes to Be Redeemed

112

Section 1005.

Notice of Redemption

112

Section 1006.

Deposit of Redemption Price

113

Section 1007.

Notes Payable on Redemption Date

114

Section 1008.

Notes Redeemed in Part

114

 

 

 

ARTICLE XI

 

SATISFACTION AND DISCHARGE

 

 

 

Section 1101.

Satisfaction and Discharge of Indenture

114

Section 1102.

Application of Trust Money

116

 

 

 

ARTICLE XII

 

DEFEASANCE OR COVENANT DEFEASANCE

 

 

 

Section 1201.

The Company’s Option to Effect Defeasance or Covenant Defeasance

116

Section 1202.

Defeasance and Discharge

116

Section 1203.

Covenant Defeasance

117

Section 1204.

Conditions to Defeasance or Covenant Defeasance

117

Section 1205.

Deposited Money and U.S. Government Obligations to Be Held in Trust; Other Miscellaneous Provisions

118

Section 1206.

Reinstatement

119

Section 1207.

Repayment to the Company

119

 

iv



 

Table of Contents

(continued)

 

 

 

Page

 

 

 

ARTICLE XIII

 

SUBSIDIARY GUARANTEES

 

 

 

Section 1301.

Guarantees Generally

120

Section 1302.

Continuing Guarantees

122

Section 1303.

Release of Subsidiary Guarantees

122

Section 1304.

[Reserved]

123

Section 1305.

Waiver of Subrogation

123

Section 1306.

Notation Not Required

123

Section 1307.

Successors and Assigns of Subsidiary Guarantors

123

Section 1308.

Execution and Delivery of Subsidiary Guarantees

123

Section 1309.

Notices

124

 

 

Exhibit A                                  Form of Initial Note

Exhibit B                                    Form of Exchange Note

Exhibit C                                    Form of Certificate of Beneficial Ownership

Exhibit D                                   Form of Regulation S Certificate

Exhibit E                                     Form of Supplemental Indenture in Respect of Subsidiary Guarantee

Exhibit F                                     Form of Certificate from Acquiring Institutional Accredited Investors

 

v



 

Certain Sections of this Indenture relating to Sections 310 through 318

inclusive of the Trust Indenture Act of 1939:

 

Trust Indenture Act Section

 

Indenture Section

 

 

 

 

§ 310

(a)(1)

 

709

 

(a)(2)

 

709

 

(a)(3)

 

Not Applicable

 

(a)(4)

 

Not Applicable

 

(a)(5)

 

709

 

(b)

 

708

§ 311

(a)

 

713

 

(b)

 

713

§ 312

(a)

 

801

 

 

 

802

 

(b)

 

802

 

(c)

 

802

§ 313

(a)

 

803

 

(b)

 

803

 

(c)

 

803

 

(d)

 

803

§ 314

(a)

 

405

 

(a)(4)

 

406

 

(b)

 

Not Applicable

 

(c)(1)

 

106

 

(c)(2)

 

106

 

(c)(3)

 

Not Applicable

 

(d)

 

Not Applicable

 

(e)

 

106

§ 315

(a)

 

701

 

(b)

 

702

 

 

 

803

 

(c)

 

701

 

(d)

 

701

 

(e)

 

614

 

vi



 

Trust Indenture Act Section

 

Indenture Section

 

 

 

 

§ 316

(a)

 

612

 

 

 

613

 

(a)(1)(A)

 

602

 

 

 

612

 

(a)(1)(B)

 

613

 

(a)(2)

 

Not Applicable

 

(b)

 

608

 

(c)

 

108

§ 317

(a)(1)

 

603

 

(a)(2)

 

604

 

(b)

 

403

§ 318

(a)

 

105

 


This cross-reference table shall not for any purpose be deemed to be part of this Indenture.

 

vii



 

INDENTURE, dated as of December 20, 2010 (as amended, supplemented or otherwise modified from time to time, this “ Indenture ”), among The Hertz Corporation, a corporation organized under the laws of the state of Delaware, as issuer, the Subsidiary Guarantors from time to time parties hereto and Wells Fargo Bank, National Association, a national banking association, as Trustee.

 

RECITALS OF THE COMPANY

 

The Company has duly authorized the execution and delivery of this Indenture to provide for the issuance of the Notes.

 

All things necessary to make the Original Notes, when executed and delivered by the Company and authenticated and delivered by the Trustee hereunder and duly issued by the Company, the valid several obligations of the Company, and to make this Indenture a valid agreement of the Company in accordance with the terms of the Original Notes and this Indenture, have been done.

 

NOW, THEREFORE, THIS INDENTURE WITNESSETH:

 

For and in consideration of the premises and the purchase of the Notes by the Holders thereof, it is mutually agreed, for the benefit of all Holders of the Notes, as follows:

 

ARTICLE I

 

DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION

 

Section 101.           Definitions .

 

2005 Acquisition Subordinated Notes ” means the “Notes” as such term is defined in the 2005 Senior Subordinated Indenture.

 

2005 Senior Indenture ” means the indenture, dated as of December 21, 2005, among the Company (as successor to CCMG Acquisition Corporation), the subsidiary guarantors party thereto and Wells Fargo Bank, National Association, as Trustee, governing the U.S. Dollar 8.875% Senior Notes due 2014 and the Euro 7.875% Senior Notes due 2014 of the Company, as the same may be amended, supplemented, waived or otherwise modified from time to time.

 

2005 Senior Subordinated Indenture ” means the indenture, dated as of December 21, 2005, among the Company (as successor to CCMG Acquisition Corporation), the subsidiary guarantors party thereto and Wells Fargo Bank, National Association, as Trustee, governing the

 



 

U.S. Dollar 10.5% Senior Subordinated Notes due 2016 of the Company, as the same may be amended, supplemented, waived or otherwise modified from time to time.

 

Acquired Indebtedness ” means Indebtedness of a Person ( i ) existing at the time such Person becomes a Subsidiary or ( ii ) assumed in connection with the acquisition of assets from such Person, in each case other than Indebtedness Incurred in connection with, or in contemplation of, such Person becoming a Subsidiary or such acquisition. Acquired Indebtedness shall be deemed to be Incurred on the date of the related acquisition of assets from any Person or the date the acquired Person becomes a Subsidiary.

 

Additional Assets ” means ( i ) any property or assets that replace the property or assets that are the subject of an Asset Disposition; ( ii ) any property or assets (other than Indebtedness and Capital Stock) used or to be used by the Company or a Restricted Subsidiary or otherwise useful in a Related Business (including any capital expenditures on any property or assets already so used); ( iii ) the Capital Stock of a Person that is engaged in a Related Business and becomes a Restricted Subsidiary as a result of the acquisition of such Capital Stock by the Company or another Restricted Subsidiary; or ( iv ) Capital Stock of any Person that at such time is a Restricted Subsidiary acquired from a third party.

 

Additional Notes ” means any notes issued under this Indenture in addition to the Original Notes (other than any Notes issued pursuant to Section 304 , 305 , 306 , 312(c ), 312(d)  or 1008 ).

 

Affiliate ” of any specified Person means any other Person, directly or indirectly, controlling or controlled by or under direct or indirect common control with such specified Person. For the purposes of this definition, “control” when used with respect to any Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled” have meanings correlative to the foregoing.

 

Asset Disposition ” means any sale, lease, transfer or other disposition of shares of Capital Stock of a Restricted Subsidiary (other than directors’ qualifying shares, or (in the case of a Foreign Subsidiary) to the extent required by applicable law), property or other assets (each referred to for the purposes of this definition as a “disposition”) by the Company or any of its Restricted Subsidiaries (including any disposition by means of a merger, consolidation or similar transaction), other than ( i ) a disposition to the Company or a Restricted Subsidiary, ( ii ) a disposition in the ordinary course of business, ( iii ) a disposition of Cash Equivalents or Temporary Cash Investments, ( iv ) the sale or discount (with or without recourse, and on customary or commercially reasonable terms) of accounts receivable or notes receivable arising in the ordinary course of business, or the conversion or exchange of accounts receivable for notes receivable, ( v ) any Restricted Payment Transaction, ( vi ) a disposition that is governed by Article V, ( vii ) any Financing Disposition, ( viii ) any “fee in lieu” or other disposition of assets to any governmental authority or agency that continue in use by the Company or any Restricted Subsidiary, so long as the Company or any Restricted Subsidiary may obtain title to such assets upon reasonable notice by paying a nominal fee, ( ix ) any exchange of property pursuant to or

 

2


 

intended to qualify under Section 1031 (or any successor section) of the Code, or any exchange of equipment to be leased, rented or otherwise used in a Related Business, ( x ) any financing transaction with respect to property built or acquired by the Company or any Restricted Subsidiary after the Issue Date, including without limitation any sale/leaseback transaction or asset securitization, ( xi ) any disposition arising from foreclosure, condemnation or similar action with respect to any property or other assets, or exercise of termination rights under any lease, license, concession or other agreement or pursuant to buy/sell arrangements under any joint venture or similar agreement or arrangement, ( xii ) any disposition of Capital Stock, Indebtedness or other securities of an Unrestricted Subsidiary, ( xiii ) a disposition of Capital Stock of a Restricted Subsidiary pursuant to an agreement or other obligation with or to a Person (other than the Company or a Restricted Subsidiary) from whom such Restricted Subsidiary was acquired, or from whom such Restricted Subsidiary acquired its business and assets (having been newly formed in connection with such acquisition), entered into in connection with such acquisition, ( xiv ) a disposition of not more than 5% of the outstanding Capital Stock of a Foreign Subsidiary that has been approved by the Board of Directors, ( xv ) any disposition or series of related dispositions for aggregate consideration not to exceed $50.0 million, ( xvi ) any disposition of all or any part of the Capital Stock or business or assets of ( a ) Car Rental System do Brasil Locação de Veículos Ltda or any successor in interest thereto or ( b ) any other Subsidiary engaged in, or Special Purpose Entity otherwise supporting or relating to, the business of leasing or renting Vehicles in Brazil, ( xvii ) the abandonment or other disposition of trademarks, copyrights, patents or other intellectual property that are, in the good faith determination of the Company, no longer economically practicable to maintain or useful in the conduct of the business of the Company and its subsidiaries taken as a whole, ( xviii ) any HERC Disposition or ( xix ) any license, sublicense or other grant of right-of-use of any trademark, copyright, patent or other intellectual property, any lease or sublease of real or other property, or any disposition for Fair Market Value, to any Franchisee or any Franchise Special Purpose Entity.

 

Authenticating Agent ” means any Person authorized by the Trustee pursuant to Section 714 to act on behalf of the Trustee to authenticate Notes of one or more series.

 

Average Book Value ” means, for any period, the amount equal to ( x ) the sum of the respective book values of Rental Car Vehicles of the Company and its Restricted Subsidiaries as of the end of each of the most recent thirteen fiscal months of the Company that have ended at or prior to the end of such period, divided by ( y ) 13.

 

Average Interest Rate ” means, for any period, the amount equal to ( x ) the total interest expense of the Company and its Restricted Subsidiaries for such period (excluding any interest expense on any Indebtedness of any Special Purpose Subsidiary that is a Restricted Subsidiary directly or indirectly Incurred to finance or refinance the acquisition of, or secured by, Rental Car Vehicles and/or related rights and/or assets), divided by ( y ) the Average Principal Amount of Indebtedness of the Company and its Restricted Subsidiaries for such period (excluding any Indebtedness of any Special Purpose Subsidiary that is a Restricted Subsidiary directly or indirectly Incurred to finance or refinance the acquisition of, or secured by, Rental Car Vehicles and/or related rights and/or assets).

 

3



 

Average Principal Amount ” means, for any period, the amount equal to ( x ) the sum of the respective aggregate outstanding principal amounts of the applicable Indebtedness as of the end of each of the most recent thirteen fiscal months of the Company that have ended at or prior to the end of such period, divided by ( y ) 13.

 

Board of Directors ” means, for any Person, the board of directors or other governing body of such Person or, if such Person is owned or managed by a single entity, the board of directors or other governing body of such entity, or, in either case, any committee thereof duly authorized to act on behalf of such board or governing body. Unless otherwise provided, “Board of Directors” means the Board of Directors of the Company.

 

Borrowing Base ” means the sum of ( 1 ) 60% of the book value of Inventory (excluding Equipment) of the Company and its Domestic Subsidiaries, ( 2 ) 85% of the book value of Receivables of the Company and its Domestic Subsidiaries, ( 3 ) 90% of the book value of Equipment of the Company and its Domestic Subsidiaries and ( 4 ) cash, Cash Equivalents and Temporary Cash Investments of the Company and its Domestic Subsidiaries (in each case, determined as of the end of the most recently ended fiscal month of the Company for which internal consolidated financial statements of the Company are available, and, in the case of any determination relating to any Incurrence of Indebtedness, on a pro forma basis including ( x ) any property or assets of a type described above acquired since the end of such fiscal month and ( y ) any property or assets of a type described above being acquired in connection therewith). The Borrowing Base, as of any date of determination, shall not include Inventory and Equipment the acquisition of which shall have been financed or refinanced by the Incurrence of Purchase Money Obligations pursuant to Section 407(b)(iv) , to the extent such Purchase Money Obligations (or any Refinancing Indebtedness in respect thereof) shall then remain outstanding pursuant to such clause (on a pro forma basis after giving effect to any Incurrence of Indebtedness and the application of proceeds therefrom).

 

Business Day ” means a day other than a Saturday, Sunday or other day on which commercial banking institutions are authorized or required by law to close in New York City (or any other city in which a Paying Agent maintains its office).

 

Capital Stock ” of any Person means any and all shares of, rights to purchase, warrants or options for, or other equivalents of or interests in (however designated) equity of such Person, including any Preferred Stock, but excluding any debt securities convertible into such equity.

 

Capitalized Lease Obligation ” means an obligation that is required to be classified and accounted for as a capitalized lease for financial reporting purposes in accordance with GAAP. The Stated Maturity of any Capitalized Lease Obligation shall be the date of the last payment of rent or any other amount due under the related lease.

 

Carlyle ” means TC Group L.L.C. (which operates under the trade name The Carlyle Group).

 

4



 

Carlyle Investors ” means, collectively, ( i ) Carlyle Partners IV, L.P., a Delaware limited partnership, or any successor thereto, ( ii ) CEP II Participations S.àr.l., a Luxembourg limited liability company, or any successor thereto, ( iii ) CP IV Co-investment, L.P., a Delaware limited partnership, or any successor thereto, ( iv ) CEP II U.S. Investments, L.P., a Delaware limited partnership, or any successor thereto, ( v ) CMC-Hertz Partners, L.P., a Delaware limited partnership, or any successor thereto, ( vi ) any Affiliate of any thereof, and ( vii ) any successor in interest to any thereof.

 

Cash Equivalents ” means any of the following: (a )   money, ( b ) securities issued or fully guaranteed or insured by the United States of America or a member state of the European Union or any agency or instrumentality of any thereof, ( c ) time deposits, certificates of deposit or bankers’ acceptances of ( i ) any lender under a Senior Credit Agreement or any affiliate thereof or ( ii ) any commercial bank having capital and surplus in excess of $500,000,000 (or the foreign currency equivalent thereof as of the date of such investment) and the commercial paper of the holding company of which is rated at least A-1 or the equivalent thereof by S&P or at least P-1 or the equivalent thereof by Moody’s (or if at such time neither is issuing ratings, then a comparable rating of another nationally recognized rating agency), ( d ) repurchase obligations with a term of not more than seven days for underlying securities of the types described in clauses (b) and (c) above entered into with any financial institution meeting the qualifications specified in clause (c) above, ( e ) money market instruments, commercial paper or other short-term obligations rated at least A-1 or the equivalent thereof by S&P or at least P-1 or the equivalent thereof by Moody’s (or if at such time neither is issuing ratings, then a comparable rating of another nationally recognized rating agency), ( f ) investments in money market funds subject to the risk limiting conditions of Rule 2a-7 or any successor rule of the SEC under the Investment Company Act of 1940, as amended and ( g ) investments similar to any of the foregoing denominated in foreign currencies approved by the Board of Directors.

 

CDR ” means Clayton, Dubilier & Rice, LLC and any successor in interest thereto, and any successor to its investment management business.

 

CDR Investors ” means, collectively, ( i ) Clayton, Dubilier & Rice Fund VII, L.P., a Cayman Islands exempted limited partnership, or any successor thereto, ( ii ) CDR CCMG Co-Investor L.P., a Cayman Islands exempted limited partnership, or any successor thereto, ( iii ) CD&R Parallel Fund VII, L.P., a Cayman Islands exempted limited partnership, or any successor thereto, ( iv ) any Affiliate of any thereof, and ( v ) any successor in interest to any thereof.

 

Change of Control ” means:

 

(i)            any “person” (as such term is used in Sections 13(d) and 14(d) of the Exchange Act), other than one or more Permitted Holders or a Parent, becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act), directly or indirectly, of more than 50% of the total voting power of the Voting Stock of the Company, provided that ( x ) so long as the Company is a Subsidiary of any Parent, no “person” shall be deemed to be or become a “beneficial owner” of more than 50% of the

 

5



 

total voting power of the Voting Stock of the Company unless such “person” shall be or become a “beneficial owner” of more than 50% of the total voting power of the Voting Stock of such Parent and ( y ) any Voting Stock of which any Permitted Holder is the “beneficial owner” shall not in any case be included in any Voting Stock of which any such “person” is the “beneficial owner”;

 

(ii)           the Company merges or consolidates with or into, or sells or transfers (in one or a series of related transactions) all or substantially all of the assets of the Company and its Restricted Subsidiaries to, another Person (other than one or more Permitted Holders) and any “person” (as defined in clause (i) above), other than one or more Permitted Holders or any Parent, is or becomes the “beneficial owner” (as so defined), directly or indirectly, of more than 50% of the total voting power of the Voting Stock of the surviving Person in such merger or consolidation, or the transferee Person in such sale or transfer of assets, as the case may be, provided that ( x ) so long as such surviving or transferee Person is a Subsidiary of a parent Person, no “person” shall be deemed to be or become a “beneficial owner” of more than 50% of the total voting power of the Voting Stock of such surviving or transferee Person unless such “person” shall be or become a “beneficial owner” of more than 50% of the total voting power of the Voting Stock of such parent Person and ( y ) any Voting Stock of which any Permitted Holder is the “beneficial owner” shall not in any case be included in any Voting Stock of which any such “person” is the beneficial owner; or

 

(iii)          during any period of two consecutive years (during which period the Company has been a party to this Indenture), individuals who at the beginning of such period were members of the board of directors of the Company (together with any new members thereof whose election by such board of directors or whose nomination for election by holders of Capital Stock of the Company was approved by one or more Permitted Holders or by a vote of a majority of the members of such board of directors then still in office who were either members thereof at the beginning of such period or whose election or nomination for election was previously so approved) cease for any reason to constitute a majority of such board of directors then in office.

 

For the purpose of this definition, the Reorganization Assets (whether individually or in the aggregate) shall not be deemed at any time to constitute all or substantially all of the assets of the Company and its Restricted Subsidiaries, and any sale or transfer of all or any part of the Reorganization Assets (whether directly or indirectly, whether by sale or transfer of any such assets, or of any Capital Stock or other interest in any Person holding such assets, or of any combination thereof, and whether in one or more transactions, or otherwise) shall not be deemed at any time to constitute a sale or transfer of all or substantially all of the assets of the Company and its Restricted Subsidiaries.

 

Clearstream ” means Clearstream Banking, société anonyme, or any successor securities clearing agency.

 

6



 

Code ” means the Internal Revenue Code of 1986, as amended.

 

Commodities Agreement ” means, in respect of a Person, any commodity futures contract, forward contract, option or similar agreement or arrangement (including derivative agreements or arrangements), as to which such Person is a party or beneficiary.

 

Company ” means The Hertz Corporation, a Delaware corporation, and any successor in interest thereto.

 

Company Request ,” “ Company Order ” and “ Company Consent ” mean, respectively, a written request, order or consent signed in the name of the Company by an Officer of the Company.

 

Consolidated Coverage Ratio ” as of any date of determination means the ratio of ( i ) the aggregate amount of Consolidated EBITDA for the period of the most recent four consecutive fiscal quarters ending prior to the date of such determination for which consolidated financial statements of the Company are available to ( ii ) Consolidated Interest Expense for such four fiscal quarters; provided , that

 

(1)           if since the beginning of such period the Company or any Restricted Subsidiary has Incurred any Indebtedness that remains outstanding on such date of determination or if the transaction giving rise to the need to calculate the Consolidated Coverage Ratio is an Incurrence of Indebtedness, Consolidated EBITDA and Consolidated Interest Expense for such period shall be calculated after giving effect on a pro forma basis to such Indebtedness as if such Indebtedness had been Incurred on the first day of such period (except that in making such computation, the amount of Indebtedness under any revolving credit facility outstanding on the date of such calculation shall be computed based on (A)  the average daily balance of such Indebtedness during such four fiscal quarters or such shorter period for which such facility was outstanding or (B)  if such facility was created after the end of such four fiscal quarters, the average daily balance of such Indebtedness during the period from the date of creation of such facility to the date of such calculation),

 

(2)           if since the beginning of such period the Company or any Restricted Subsidiary has repaid, repurchased, redeemed, defeased or otherwise acquired, retired or discharged any Indebtedness that is no longer outstanding on such date of determination (each, a “ Discharge ”) or if the transaction giving rise to the need to calculate the Consolidated Coverage Ratio involves a Discharge of Indebtedness (in each case other than Indebtedness Incurred under any revolving credit facility unless such Indebtedness has been permanently repaid), Consolidated EBITDA and Consolidated Interest Expense for such period shall be calculated after giving effect on a pro forma basis to such Discharge of such Indebtedness, including with the proceeds of such new Indebtedness, as if such Discharge had occurred on the first day of such period,

 

7



 

(3)           if since the beginning of such period the Company or any Restricted Subsidiary shall have disposed of any company, any business or any group of assets constituting an operating unit of a business (any such disposition, a “ Sale ”), the Consolidated EBITDA for such period shall be reduced by an amount equal to the Consolidated EBITDA (if positive) attributable to the assets that are the subject of such Sale for such period or increased by an amount equal to the Consolidated EBITDA (if negative) attributable thereto for such period and Consolidated Interest Expense for such period shall be reduced by an amount equal to ( A ) the Consolidated Interest Expense attributable to any Indebtedness of the Company or any Restricted Subsidiary repaid, repurchased, redeemed, defeased or otherwise acquired, retired or discharged with respect to the Company and its continuing Restricted Subsidiaries in connection with such Sale for such period (including but not limited to through the assumption of such Indebtedness by another Person) plus ( B ) if the Capital Stock of any Restricted Subsidiary is sold, the Consolidated Interest Expense for such period attributable to the Indebtedness of such Restricted Subsidiary to the extent the Company and its continuing Restricted Subsidiaries are no longer liable for such Indebtedness after such Sale,

 

(4)           if since the beginning of such period the Company or any Restricted Subsidiary (by merger, consolidation or otherwise) shall have made an Investment in any Person that thereby becomes a Restricted Subsidiary, or otherwise acquired any company, any business or any group of assets constituting an operating unit of a business, including any such Investment or acquisition occurring in connection with a transaction causing a calculation to be made hereunder (any such Investment or acquisition, a “ Purchase ”), Consolidated EBITDA and Consolidated Interest Expense for such period shall be calculated after giving pro forma effect thereto (including the Incurrence of any related Indebtedness) as if such Purchase occurred on the first day of such period, and

 

(5)           if since the beginning of such period any Person became a Restricted Subsidiary or was merged or consolidated with or into the Company or any Restricted Subsidiary, and since the beginning of such period such Person shall have Discharged any Indebtedness or made any Sale or Purchase that would have required an adjustment pursuant to clause (2), (3) or (4) above if made by the Company or a Restricted Subsidiary since the beginning of such period, Consolidated EBITDA and Consolidated Interest Expense for such period shall be calculated after giving pro forma effect thereto as if such Discharge, Sale or Purchase occurred on the first day of such period.

 

For purposes of this definition, whenever pro forma effect is to be given to any Sale, Purchase or other transaction, or the amount of income or earnings relating thereto and the amount of Consolidated Interest Expense associated with any Indebtedness Incurred or repaid, repurchased, redeemed, defeased or otherwise acquired, retired or discharged in connection therewith, the pro forma calculations in respect thereof (including without limitation in respect of anticipated cost savings or synergies relating to any such Sale, Purchase or other transaction) shall be as determined in good faith by the Chief Financial Officer or an authorized Officer of the Company. If any Indebtedness bears a floating rate of interest and is being given pro forma

 

8



 

effect, the interest expense on such Indebtedness shall be calculated as if the rate in effect on the date of determination had been the applicable rate for the entire period (taking into account any Interest Rate Agreement applicable to such Indebtedness). If any Indebtedness bears, at the option of the Company or a Restricted Subsidiary, a rate of interest based on a prime or similar rate, a eurocurrency interbank offered rate or other fixed or floating rate, and such Indebtedness is being given pro forma effect, the interest expense on such Indebtedness shall be calculated by applying such optional rate as the Company or such Restricted Subsidiary may designate. If any Indebtedness that is being given pro forma effect was Incurred under a revolving credit facility, the interest expense on such Indebtedness shall be computed based upon the average daily balance of such Indebtedness during the applicable period. Interest on a Capitalized Lease Obligation shall be deemed to accrue at an interest rate determined in good faith by a responsible financial or accounting officer of the Company to be the rate of interest implicit in such Capitalized Lease Obligation in accordance with GAAP.

 

Consolidated EBITDA ” means, for any period, the Consolidated Net Income for such period, plus the following to the extent deducted in calculating such Consolidated Net Income, without duplication: ( i ) provision for all taxes (whether or not paid, estimated or accrued) based on income, profits or capital, ( ii ) Consolidated Interest Expense and any Special Purpose Financing Fees, ( iii ) depreciation (excluding Consolidated Vehicle Depreciation), amortization (including but not limited to amortization of goodwill and intangibles and amortization and write-off of financing costs) and all other noncash charges or noncash losses, ( iv ) any expenses or charges related to any Equity Offering, Investment or Indebtedness permitted by this Indenture (whether or not consummated or incurred, and including any offering or sale of Capital Stock to the extent the proceeds thereof were intended to be contributed to the equity capital of the Company or its Restricted Subsidiaries), ( v ) the amount of any minority interest expense and ( vi ) any management, monitoring, consulting and advisory fees and related expenses paid to any of Carlyle, CDR or ML and their respective Affiliates.

 

Consolidated Interest Expense ” means, for any period, ( i ) the total interest expense of the Company and its Restricted Subsidiaries to the extent deducted in calculating Consolidated Net Income, net of any interest income of the Company and its Restricted Subsidiaries, including without limitation any such interest expense consisting of ( a ) interest expense attributable to Capitalized Lease Obligations, ( b ) amortization of debt discount, ( c ) interest in respect of Indebtedness of any other Person that has been Guaranteed by the Company or any Restricted Subsidiary, but only to the extent that such interest is actually paid by the Company or any Restricted Subsidiary, ( d ) noncash interest expense, ( e ) the interest portion of any deferred payment obligation and ( f ) commissions, discounts and other fees and charges owed with respect to letters of credit and bankers’ acceptance financing, plus ( ii ) Preferred Stock dividends paid in cash in respect of Disqualified Stock of the Company held by Persons other than the Company or a Restricted Subsidiary and minus ( iii ) to the extent otherwise included in such interest expense referred to in clause (i) above, ( x ) Consolidated Vehicle Interest Expense and ( y ) amortization or write-off of financing costs, in each case under clauses (i) through (iii) as determined on a Consolidated basis in accordance with GAAP (to the extent applicable, in the case of Consolidated Vehicle Interest Expense); provided , that gross

 

9



 

interest expense shall be determined after giving effect to any net payments made or received by the Company and its Restricted Subsidiaries with respect to Interest Rate Agreements.

 

Consolidated Net Income ” means, for any period, the net income (loss) of the Company and its Restricted Subsidiaries, determined on a Consolidated basis in accordance with GAAP and before any reduction in respect of Preferred Stock dividends; provided , that there shall not be included in such Consolidated Net Income:

 

(i)            any net income (loss) of any Person if such Person is not a Restricted Subsidiary, except that ( A ) the Company’s equity in the net income of any such Person for such period shall be included in such Consolidated Net Income up to the aggregate amount actually distributed by such Person during such period to the Company or a Restricted Subsidiary as a dividend or other distribution (subject, in the case of a dividend or other distribution to a Restricted Subsidiary, to the limitations contained in clause (ii) below) and ( B ) the Company’s equity in the net loss of such Person shall be included to the extent of the aggregate Investment of the Company or any of its Restricted Subsidiaries in such Person,

 

(ii)           solely for purposes of determining the amount available for Restricted Payments under Section 409 (a)(3)(A) , any net income (loss) of any Restricted Subsidiary that is not a Subsidiary Guarantor if such Restricted Subsidiary is subject to restrictions, directly or indirectly, on the payment of dividends or the making of similar distributions by such Restricted Subsidiary, directly or indirectly, to the Company by operation of the terms of such Restricted Subsidiary’s charter or any agreement, instrument, judgment, decree, order, statute or governmental rule or regulation applicable to such Restricted Subsidiary or its stockholders (other than ( x ) restrictions that have been waived or otherwise released, ( y ) restrictions pursuant to the Notes or this Indenture and ( z ) restrictions in effect on the Issue Date with respect to a Restricted Subsidiary and other restrictions with respect to such Restricted Subsidiary that taken as a whole are not materially less favorable to the Noteholders than such restrictions in effect on the Issue Date), except that ( A ) the Company’s equity in the net income of any such Restricted Subsidiary for such period shall be included in such Consolidated Net Income up to the aggregate amount of any dividend or distribution that was or that could have been made by such Restricted Subsidiary during such period to the Company or another Restricted Subsidiary (subject, in the case of a dividend that could have been made to another Restricted Subsidiary, to the limitation contained in this clause) and ( B ) the net loss of such Restricted Subsidiary shall be included to the extent of the aggregate Investment of the Company or any of its other Restricted Subsidiaries in such Restricted Subsidiary,

 

(iii)          any gain or loss realized upon the sale or other disposition of any asset of the Company or any Restricted Subsidiary (including pursuant to any sale/leaseback transaction) that is not sold or otherwise disposed of in the ordinary course of business (as determined in good faith by the Board of Directors),

 

10



 

(iv)          any item classified as an extraordinary, unusual or nonrecurring gain, loss or charge (including fees, expenses and charges associated with the Transactions and any acquisition, merger or consolidation after the Issue Date),

 

(v)           the cumulative effect of a change in accounting principles,

 

(vi)          all deferred financing costs written off and premiums paid in connection with any early extinguishment of Indebtedness,

 

(vii)         any unrealized gains or losses in respect of Currency Agreements,

 

(viii)        any unrealized foreign currency transaction gains or losses in respect of Indebtedness of any Person denominated in a currency other than the functional currency of such Person,

 

(ix)           any noncash compensation charge arising from any grant of stock, stock options or other equity based awards,

 

(x)            to the extent otherwise included in Consolidated Net Income, any unrealized foreign currency translation or transaction gains or losses in respect of Indebtedness or other obligations of the Company or any Restricted Subsidiary owing to the Company or any Restricted Subsidiary, and

 

(xi)           any noncash charge, expense or other impact attributable to application of the purchase method of accounting (including the total amount of depreciation and amortization, cost of sales or other noncash expense resulting from the write-up of assets to the extent resulting from such purchase accounting adjustments).

 

In the case of any unusual or nonrecurring gain, loss or charge not included in Consolidated Net Income pursuant to clause (iv) above in any determination thereof, the Company will deliver an Officer’s Certificate to the Trustee promptly after the date on which Consolidated Net Income is so determined, setting forth the nature and amount of such unusual or nonrecurring gain, loss or charge. Notwithstanding the foregoing, for the purpose of Section 409 (a)(3)(A)  only, there shall be excluded from Consolidated Net Income, without duplication, any income consisting of dividends, repayments of loans or advances or other transfers of assets from Unrestricted Subsidiaries to the Company or a Restricted Subsidiary, and any income consisting of return of capital, repayment or other proceeds from dispositions or repayments of Investments consisting of Restricted Payments, in each case to the extent such income would be included in Consolidated Net Income and such related dividends, repayments, transfers, return of capital or other proceeds are applied by the Company to increase the amount of Restricted Payments permitted under Section 409 (a)(3)(C)  or( D ).

 

Consolidated Quarterly Tangible Assets ” means, as of any date of determination, the total assets less the sum of the goodwill, net, and other intangible assets, net, in each case reflected on the consolidated balance sheet of the Company and its Restricted Subsidiaries as at

 

11



 

the end of any fiscal quarter of the Company for which such a balance sheet is available, determined on a Consolidated basis in accordance with GAAP (and, in the case of any determination relating to any Incurrence of Indebtedness or any Investment, on a pro forma basis including any property or assets being acquired in connection therewith).

 

Consolidated Secured Indebtedness ” means, as of any date of determination, an amount equal to the Consolidated Total Indebtedness as of such date that in each case is then secured by Liens on property or assets of the Company and its Restricted Subsidiaries (other than property or assets held in a defeasance or similar trust or arrangement for the benefit of the Indebtedness secured thereby).

 

Consolidated Secured Leverage Ratio ” means, as of any date of determination, the ratio of ( x ) Consolidated Secured Indebtedness as at such date (after giving effect to any Incurrence or Discharge of Indebtedness on such date) to ( y ) the aggregate amount of Consolidated EBITDA for the period of the most recent four consecutive fiscal quarters ending prior to the date of such determination for which consolidated financial statements of the Company are available, provided , that:

 

(1)           if since the beginning of such period the Company or any Restricted Subsidiary shall have made a Sale, the Consolidated EBITDA for such period shall be reduced by an amount equal to the Consolidated EBITDA (if positive) attributable to the assets that are the subject of such Sale for such period or increased by an amount equal to the Consolidated EBITDA (if negative) attributable thereto for such period;

 

(2)           if since the beginning of such period the Company or any Restricted Subsidiary (by merger, consolidation or otherwise) shall have made a Purchase (including any Purchase occurring in connection with a transaction causing a calculation to be made hereunder), Consolidated EBITDA for such period shall be calculated after giving pro forma effect thereto as if such Purchase occurred on the first day of such period; and

 

(3)           if since the beginning of such period any Person became a Restricted Subsidiary or was merged or consolidated with or into the Company or any Restricted Subsidiary, and since the beginning of such period such Person shall have made any Sale or Purchase that would have required an adjustment pursuant to clause (1) or (2) above if made by the Company or a Restricted Subsidiary since the beginning of such period, Consolidated EBITDA for such period shall be calculated after giving pro forma effect thereto as if such Sale or Purchase occurred on the first day of such period.

 

For purposes of this definition, whenever pro forma effect is to be given to any Sale, Purchase or other transaction, or the amount of income or earnings relating thereto, the pro forma calculations in respect thereof (including without limitation in respect of anticipated cost savings or synergies relating to any such Sale, Purchase or other transaction) shall be as determined in good faith by a responsible financial or accounting Officer of the Company.

 

12


 

Consolidated Tangible Assets ” means, as of any date of determination, the amount equal to ( x ) the sum of Consolidated Quarterly Tangible Assets as at the end of each of the most recently ended four fiscal quarters of the Company for which a calculation thereof is available, divided by ( y ) four; provided that for purposes of Section 407 (b)  , Section 409(b) , Section 411 and the definition of “Permitted Investment,” Consolidated Tangible Assets shall not be less than $14,426.0 million.

 

Consolidated Total Indebtedness ” means, as of any date of determination, an amount equal to ( 1 ) the aggregate principal amount of outstanding Indebtedness of the Company and its Restricted Subsidiaries (other than Notes) as of such date consisting of (without duplication) Indebtedness for borrowed money (including Purchase Money Obligations and unreimbursed outstanding drawn amounts under funded letters of credit); Capitalized Lease Obligations; debt obligations evidenced by bonds, debentures, notes or similar instruments; Disqualified Stock; and (in the case of any Restricted Subsidiary that is not a Subsidiary Guarantor) Preferred Stock, determined on a Consolidated basis in accordance with GAAP (excluding items eliminated in Consolidation, and for the avoidance of doubt, excluding Hedging Obligations), minus ( 2 ) the amount of such Indebtedness consisting of Indebtedness of a type referred to in, or Incurred pursuant to, Section 407 (b)(ix)  to the extent not Incurred to finance or refinance the acquisition of Rental Car Vehicles, and minus ( 3 ) the Consolidated Vehicle Indebtedness as of such date.

 

Consolidated Vehicle Depreciation ” means, for any period, depreciation on all Rental Car Vehicles (after adjustments thereto), to the extent deducted in calculating Consolidated Net Income for such period.

 

Consolidated Vehicle Indebtedness ” means, as of any date of determination, the amount equal to either ( a ) the sum of ( x ) the aggregate principal amount of then outstanding Indebtedness of any Special Purpose Subsidiary that is a Restricted Subsidiary directly or indirectly Incurred to finance or refinance the acquisition of, or secured by, Rental Car Vehicles and/or related rights and/or assets plus ( y ) the aggregate principal amount of other then outstanding Indebtedness of the Company and its Restricted Subsidiaries that is attributable to the financing or refinancing of Rental Car Vehicles and /or related rights and/or assets, as determined in good faith by the Chief Financial Officer or an authorized Officer of the Company (which determination shall be conclusive) or, at the Company’s option, ( b ) 90% of the book value of Rental Car Vehicles of the Company and its Restricted Subsidiaries (such book value being determined as of the end of the most recently ended fiscal month of the Company for which internal consolidated financial statements of the Company are available, on a pro forma basis including ( x ) any Rental Car Vehicles acquired by the Company or any Restricted Subsidiary since the end of such fiscal month and ( y ) in the case of any determination relating to any Incurrence of Indebtedness, any Rental Car Vehicles being acquired by the Company or any Restricted Subsidiary in connection therewith).

 

Consolidated Vehicle Interest Expense ” means, for any period, the sum of ( a ) the aggregate interest expense for such period on any Indebtedness of any Special Purpose

 

13



 

Subsidiary that is a Restricted Subsidiary directly or indirectly Incurred to finance or refinance the acquisition of, or secured by, Rental Car Vehicles and/or related rights and/or assets plus ( b ) either ( x ) the aggregate interest expense for such period on other Indebtedness of the Company and its Restricted Subsidiaries that is attributable to the financing or refinancing of Rental Car Vehicles and/or any related rights and/or assets, as determined in good faith by the Chief Financial Officer or an authorized Officer of the Company (which determination shall be conclusive) or, at the Company’s option, ( y ) an amount of the total interest expense of the Company and its Restricted Subsidiaries for such period equal to ( i ) the Average Interest Rate for such period multiplied by ( ii ) the amount equal to ( 1 ) 90% of the Average Book Value for such period of Rental Car Vehicles of the Company and its Restricted Subsidiaries minus ( 2 ) the Average Principal Amount for such period of any Indebtedness of any Special Purpose Subsidiary that is a Restricted Subsidiary directly or indirectly Incurred to finance or refinance the acquisition of, or secured by, Rental Car Vehicles and/or related rights and/or assets.

 

Consolidation ” means the consolidation of the accounts of each of the Restricted Subsidiaries with those of the Company in accordance with GAAP; provided that “Consolidation” will not include consolidation of the accounts of any Unrestricted Subsidiary, but the interest of the Company or any Restricted Subsidiary in any Unrestricted Subsidiary will be accounted for as an investment. The term “Consolidated” has a correlative meaning.

 

Contribution Amounts ” means the aggregate amount of capital contributions applied by the Company to permit the Incurrence of Contribution Indebtedness pursuant to Section 407(b)(xii) .

 

Contribution Indebtedness ” means Indebtedness of the Company or any Restricted Subsidiary in an aggregate principal amount not greater than twice the aggregate amount of cash contributions (other than Excluded Contributions) made to the capital of the Company or such Restricted Subsidiary after the Issue Date (whether through the issuance or sale of Capital Stock or otherwise); provided that such Contribution Indebtedness (a)  is incurred within 180 days after the making of the related cash contribution and (b)  is so designated as Contribution Indebtedness pursuant to an Officer’s Certificate on the date of Incurrence thereof.

 

Corporate Trust Office ” means the office of the Trustee at which at any particular time its corporate trust business shall be administered, which office on the Issue Date is located at 45 Broadway, 14 th  Floor, New York, NY 10006, Attention:  Corporate Trust Services — Administrator for The Hertz Corporation.

 

Credit Facilities ” means one or more of ( i ) the Senior Term Facility, ( ii ) the Senior ABL Facility, and ( iii ) any other facilities or arrangements designated by the Company, in each case with one or more banks or other lenders or institutions providing for revolving credit loans, term loans, receivables or fleet financings (including without limitation through the sale of receivables or fleet assets to such institutions or to special purpose entities formed to borrow from such institutions against such receivables or fleet assets or the creation of any Liens in respect of such receivables or fleet assets in favor of such institutions), letters of credit or other Indebtedness, in each case, including all agreements, instruments and documents executed and

 

14



 

delivered pursuant to or in connection with any of the foregoing, including but not limited to any notes and letters of credit issued pursuant thereto and any guarantee and collateral agreement, patent and trademark security agreement, mortgages or letter of credit applications and other guarantees, pledge agreements, security agreements and collateral documents, in each case as the same may be amended, supplemented, waived or otherwise modified from time to time, or refunded, refinanced, restructured, replaced, renewed, repaid, increased or extended from time to time (whether in whole or in part, whether with the original banks, lenders or institutions or other banks, lenders or institutions or otherwise, and whether provided under any original Credit Facility or one or more other credit agreements, indentures, financing agreements or other Credit Facilities or otherwise). Without limiting the generality of the foregoing, the term “Credit Facility” shall include any agreement ( i ) changing the maturity of any Indebtedness Incurred thereunder or contemplated thereby, ( ii ) adding Subsidiaries as additional borrowers or guarantors thereunder, ( iii ) increasing the amount of Indebtedness Incurred thereunder or available to be borrowed thereunder or ( iv ) otherwise altering the terms and conditions thereof.

 

Credit Facility Indebtedness ” means any and all amounts, whether outstanding on the Issue Date or thereafter incurred, payable under or in respect of any Credit Facility, including without limitation principal, premium (if any), interest (including interest accruing on or after the filing of any petition in bankruptcy or for reorganization relating to the Company or any Restricted Subsidiary whether or not a claim for post-filing interest is allowed in such proceedings), fees, charges, expenses, reimbursement obligations, guarantees, other monetary obligations of any nature and all other amounts payable thereunder or in respect thereof.

 

Currency Agreement ” means, in respect of a Person, any foreign exchange contract, currency swap agreement or other similar agreement or arrangements (including derivative agreements or arrangements), as to which such Person is a party or a beneficiary.

 

Default ” means any event or condition that is, or after notice or passage of time or both would be, an Event of Default.

 

Depositary ” means The Depository Trust Company, its nominees and successors.

 

Designated Noncash Consideration ” means the Fair Market Value of noncash consideration received by the Company or one of its Restricted Subsidiaries in connection with an Asset Disposition that is so designated as Designated Noncash Consideration pursuant to an Officer’s Certificate, setting forth the basis of such valuation.

 

Designated Senior Indebtedness ” means, with respect to a Person, ( i ) the Credit Facility Indebtedness under or in respect of the Senior Credit Facilities and ( ii ) any other Senior Indebtedness of such Person that, at the date of determination, has an aggregate principal amount equal to or under which, at the date of determination, the holders thereof are committed to lend up to, at least $25.0 million and is specifically designated by such Person in an agreement or instrument evidencing or governing such Senior Indebtedness as “Designated Senior Indebtedness” for purposes of this Indenture.

 

15



 

Disinterested Directors ” means, with respect to any Affiliate Transaction, one or more members of the Board of Directors of the Company, or one or more members of the Board of Directors of a Parent, having no material direct or indirect financial interest in or with respect to such Affiliate Transaction. A member of any such Board of Directors shall not be deemed to have such a financial interest by reason of such member’s holding Capital Stock of the Company or any Parent or any options, warrants or other rights in respect of such Capital Stock.

 

Disqualified Stock ” means, with respect to any Person, any Capital Stock (other than Management Stock) that by its terms (or by the terms of any security into which it is convertible or for which it is exchangeable or exercisable) or upon the happening of any event (other than following the occurrence of a Change of Control or other similar event described under such terms as a “change of control,” or an Asset Disposition) ( i ) matures or is mandatorily redeemable pursuant to a sinking fund obligation or otherwise, ( ii ) is convertible or exchangeable for Indebtedness or Disqualified Stock or ( iii ) is redeemable at the option of the holder thereof (other than following the occurrence of a Change of Control or other similar event described under such terms as a “change of control,” or an Asset Disposition), in whole or in part, in each case on or prior to the final Stated Maturity of the Notes; provided that Capital Stock issued to any employee benefit plan, or by any such plan to any employees of the Company or any Subsidiary, shall not constitute Disqualified Stock solely because it may be required to be repurchased or otherwise acquired or retired in order to satisfy applicable statutory or regulatory obligations.

 

Dollars ” or “ $ ” means dollars in lawful currency of the United States of America.

 

Domestic Subsidiary ” means any Restricted Subsidiary of the Company other than a Foreign Subsidiary.

 

Equipment ” means ( a ) any Vehicles and ( b ) any equipment owned by or leased to the Company or any of its Subsidiaries that is revenue earning equipment, or is classified as “revenue earning equipment” in the consolidated financial statements of the Company, including any such equipment consisting of ( i ) construction, industrial, commercial and office equipment, ( ii ) earthmoving, material handling, compaction, aerial and electrical equipment, ( iii ) air compressors, pumps and small tools, and ( iv ) other personal property.

 

Equity Offering ” means a sale of Capital Stock ( x ) that is a sale of Capital Stock of the Company (other than Disqualified Stock), or ( y ) proceeds of which in an amount equal to or exceeding the Redemption Amount are contributed to the equity capital of the Company or any of its Restricted Subsidiaries.

 

Euroclear ” means Euroclear Bank S.A./N.V., as operator of the Euroclear System, or any successor securities clearing agency.

 

Exchange Act ” means the Securities Exchange Act of 1934, as amended.

 

16



 

Exchange Notes ” means the Company’s 7.375% Senior Notes due 2021, containing terms substantially identical to the Initial Notes or any Initial Additional Notes (except that ( i ) such Exchange Notes may omit terms with respect to transfer restrictions and may be registered under the Securities Act, and ( ii ) certain provisions relating to an increase in the stated rate of interest thereon may be eliminated), that are issued and exchanged for ( a ) the Initial Notes, as provided for in a registration rights agreement relating to such Initial Notes and this Indenture, or ( b ) such Initial Additional Notes as may be provided in any registration rights agreement relating to such Additional Notes and this Indenture (including any amendment or supplement hereto).

 

Excluded Contribution ” means Net Cash Proceeds, or the Fair Market Value of property or assets, received by the Company as capital contributions to the Company after December 21, 2005, or from the issuance or sale (other than to a Restricted Subsidiary) of Capital Stock (other than Disqualified Stock) of the Company, in each case to the extent designated as an Excluded Contribution pursuant to an Officer’s Certificate of the Company and not previously included in the calculation set forth in Section 409 (a)(3)(B)(x)  for purposes of determining whether a Restricted Payment may be made.

 

Fair Market Value ” means, with respect to any asset or property, the fair market value of such asset or property as determined in good faith by the Board of Directors, whose determination will be conclusive.

 

Financing Disposition ” means any sale, transfer, conveyance or other disposition of, or creation or incurrence of any Lien on, property or assets by the Company or any Subsidiary thereof to or in favor of any Special Purpose Entity, or by any Special Purpose Subsidiary, in each case in connection with the Incurrence by a Special Purpose Entity of Indebtedness, or obligations to make payments to the obligor on Indebtedness, which may be secured by a Lien in respect of such property or assets.

 

Fixed GAAP Date ” means December 21, 2005, provided that at any time after the Issue Date, the Company may by written notice to the Trustee elect to change the Fixed GAAP Date to be the date specified in such notice, and upon such notice, the Fixed GAAP Date shall be such date for all periods beginning on and after the date specified in such notice.

 

Fixed GAAP Terms ” means ( a ) the definitions of the terms “Borrowing Base,” “Capitalized Lease Obligation,” “Consolidated Coverage Ratio,” “Consolidated EBITDA,” “Consolidated Interest Expense,” “Consolidated Net Income,” “Consolidated Quarterly Tangible Assets,” “Consolidated Secured Indebtedness,” “Consolidated Secured Leverage Ratio,” “Consolidated Tangible Assets,” “Consolidated Total Indebtedness,” “Consolidated Vehicle Depreciation,” “Consolidated Vehicle Indebtedness,” “Consolidated Vehicle Interest Expense,” “Foreign Borrowing Base,” “Inventory,” and “Receivable,” ( b ) all defined terms in this Indenture to the extent used in or relating to any of the foregoing definitions, and all ratios and computations based on any of the foregoing definitions, and ( c ) any other term or provision of this Indenture or the Notes that, at the Company’s election, may be specified by the Company by written notice to the Trustee from time to time.

 

17



 

Foreign Borrowing Base ” means the sum of ( 1)  60% of the book value of Inventory (excluding Equipment) of Foreign Subsidiaries, ( 2 ) 85% of the book value of Receivables of Foreign Subsidiaries, ( 3 ) 90% of the book value of Equipment of Foreign Subsidiaries and ( 4 ) cash, Cash Equivalents and Temporary Cash Investments of Foreign Subsidiaries (in each case, determined as of the end of the most recently ended fiscal month of the Company for which internal consolidated financial statements of the Company are available, and, in the case of any determination relating to any Incurrence of Indebtedness, on a pro forma basis including ( x ) any property or assets of a type described above acquired since the end of such fiscal month and ( y ) any property or assets of a type described above being acquired in connection therewith). The Foreign Borrowing Base, as of any date of determination, shall not include Inventory and Equipment the acquisition of which shall have been financed or refinanced by the Incurrence of Purchase Money Obligations pursuant to Section 407 (b)(iv) , to the extent such Purchase Money Obligations (or any Refinancing Indebtedness in respect thereof) shall then remain outstanding pursuant to such clause (on a pro forma basis after giving effect to any Incurrence of Indebtedness and the application of proceeds therefrom).

 

Foreign Subsidiary ” means ( a ) any Restricted Subsidiary of the Company that is not organized under the laws of the United States of America or any state thereof or the District of Columbia and ( b ) any Restricted Subsidiary of the Company that has no material assets other than securities or Indebtedness of one or more Foreign Subsidiaries (or Subsidiaries thereof), intellectual property relating to such Foreign Subsidiaries (or Subsidiaries thereof) and other assets relating to an ownership interest in any such securities, Indebtedness, intellectual property or Subsidiaries.

 

Franchise Equipment ” means ( a ) any Franchise Vehicles and ( b ) any equipment owned by or leased to any Franchisee that is revenue earning equipment, or is of a type that would be classified as “revenue earning equipment” in the consolidated financial statements of the Company, including any such equipment consisting of ( i ) construction, industrial, commercial and office equipment, ( ii ) earthmoving, material handling, compaction, aerial and electrical equipment, ( iii ) air compressors, pumps and small tools, and ( iv ) other personal property.

 

Franchise Financing Disposition ” means any sale, transfer, conveyance or other disposition of, or creation or incurrence of any Lien on, property or assets by the Company or any Subsidiary thereof to or in favor of any Franchise Special Purpose Entity, in connection with the Incurrence by a Franchise Special Purpose Entity of Indebtedness, or obligations to make payments to the obligor on Indebtedness, which may be secured by a Lien in respect of such property or assets.

 

Franchise Lease Obligation ” means any Capitalized Lease Obligation, and any other lease, of any Franchisee relating to any property used, occupied or held for use or occupation by any Franchisee in connection with any of its Franchise Equipment operations.

 

Franchise Rental Car Vehicles ” means all passenger Franchise Vehicles owned by or leased to any Franchisee or any Franchise Special Purpose Entity that are or have been

 

18



 

offered for lease or rental by any Franchisee in its car rental operations, including any such Franchise Vehicles being held for sale.

 

Franchise SPE Fleet Amount ” as of any date of determination means, with respect to any Indebtedness or Investment, an amount equal to 90% of the aggregate book value of Franchise Rental Car Vehicles and/or other Franchise Equipment of any Franchise Special Purpose Entity (such book value being determined as of the end of the most recently ended fiscal month of such Franchise Special Purpose Entity for which internal financial statements (or other requisite borrowing base or financial information) are available to the Company, and (at the Company’s option) on a pro forma basis including any Franchise Rental Car Vehicles and/or other Franchise Equipment acquired by such Franchise Special Purpose Entity since the end of such fiscal month or being acquired by such Franchise Special Purpose Entity in connection with its Incurrence of such Indebtedness or the making of such Investment).

 

Franchise Special Purpose Entity ” means any Person ( a ) that is engaged in the business of ( i ) acquiring, selling, collecting, financing or refinancing Receivables, accounts (as defined in the Uniform Commercial Code as in effect in any jurisdiction from time to time), other accounts and/or other receivables, and/or related assets, and/or ( ii ) acquiring, selling, leasing, financing or refinancing Franchise Rental Car Vehicles and/or other Franchise Equipment, and/or related rights (including under leases, manufacturer warranties and buy-back programs, and insurance policies) and/or assets (including managing, exercising and disposing of any such rights and/or assets), and ( b ) is designated as a “Franchise Special Purpose Entity” by the Company.

 

Franchise Vehicle Indebtedness ” as of any date of determination means ( a ) Indebtedness of any Franchise Special Purpose Entity directly or indirectly Incurred to finance or refinance the acquisition of, or secured by, Franchise Rental Car Vehicles and/or other Franchise Equipment and/or related rights and/or assets, in an aggregate principal amount (as to such Franchise Special Purpose Entity, and taken together with the aggregate amount of Investments then outstanding pursuant to clause (xix)(1) of the definition of “Permitted Investments”) not exceeding the Franchise SPE Fleet Amount, ( b ) Indebtedness of any Franchisee or any Affiliate thereof that is attributable to the financing or refinancing of Franchise Rental Car Vehicles and/or other Franchise Equipment and/or related rights and/or assets, as determined in good faith by the Chief Financial Officer or an authorized Officer of the Company (which determination shall be conclusive), in an aggregate principal amount (as to such Franchisee and all Affiliates thereof, and taken together with the aggregate amount of Investments then outstanding pursuant to clause (xix)(2) of the definition of “Permitted Investments”) not exceeding the Franchisee Asset Value Amount and ( c ) Indebtedness of any Franchisee in an aggregate principal amount (as to all such Franchisees, and taken together with the aggregate amount of Investments then outstanding pursuant to clause (xix)(3) of the definition of “Permitted Investments”) not exceeding the Franchisee Revenue Amount.

 

19



 

Franchise Vehicles ” means vehicles owned or operated by, or leased or rented to or by, any Franchisee, including automobiles, trucks, tractors, trailers, vans, sport utility vehicles, buses, campers, motor homes, motorcycles and other motor vehicles.

 

Franchisee ” means any Person that is a franchisee of the Company or any of its Subsidiaries (or of any other Franchisee), or any Affiliate of such Person.

 

Franchisee Asset Value Amount ” as of any date of determination means, with respect to any Indebtedness or Investment, an amount equal to 80% of the aggregate fair market value of Franchise Rental Car Vehicles and/or other Franchise Equipment of any Franchisee or any Affiliate (such fair market value being as determined in good faith by the Chief Financial Officer or an authorized Officer of the Company (which determination shall be conclusive) as of the end of the most recently ended fiscal month of the Company for which internal consolidated financial statements of the Company are available, and (at the Company’s option) on a pro forma basis including any Franchise Rental Car Vehicles and/or other Franchise Equipment acquired by such Franchisee or any Affiliate thereof since the end of such fiscal month or being acquired by such Franchisee or any Affiliate thereof in connection with its Incurrence of such Indebtedness or the making of such Investment).

 

Franchisee Revenue Amount ” as of any date of determination means, with respect to any Indebtedness or Investment, an amount equal to 10% of the aggregate revenues of all Franchisees for the period of the most recent four consecutive fiscal quarters ending prior to such date for which consolidated financial statements of the Company are available (such amount being as determined in good faith by the Chief Financial Officer or an authorized Officer of the Company, which determination shall be conclusive).

 

GAAP ” means generally accepted accounting principles in the United States of America as in effect on the Fixed GAAP Date (for purposes of the Fixed GAAP Terms) and as in effect from time to time (for all other purposes of this Indenture), including those set forth in the opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or in such other statements by such other entity as approved by a significant segment of the accounting profession, and subject to the following:  If at any time the SEC permits or requires U.S.-domiciled companies subject to the reporting requirements of the Exchange Act to use IFRS in lieu of GAAP for financial reporting purposes, the Company may elect by written notice to the Trustee to so use IFRS in lieu of GAAP and, upon any such notice, references herein to GAAP shall thereafter be construed to mean ( a ) for periods beginning on and after the date specified in such notice, IFRS as in effect on the date specified in such notice (for purposes of the Fixed GAAP Terms) and as in effect from time to time (for all other purposes of this Indenture) and ( b ) for prior periods, GAAP as defined in the first sentence of this definition.  All ratios and computations based on GAAP contained in this Indenture shall be computed in conformity with GAAP.

 

Guarantee ” means any obligation, contingent or otherwise, of any Person directly or indirectly guaranteeing any Indebtedness or other obligation of any other Person;

 

20



 

provided that the term “Guarantee” shall not include endorsements for collection or deposit in the ordinary course of business. The term “Guarantee” used as a verb has a corresponding meaning.

 

Guarantor Subordinated Obligations ” means, with respect to a Subsidiary Guarantor, any Indebtedness of such Subsidiary Guarantor (whether outstanding on the Issue Date or thereafter Incurred) that is expressly subordinated in right of payment to the obligations of such Subsidiary Guarantor under its Subsidiary Guarantee pursuant to a written agreement.

 

Hedging Obligations ” of any Person means the obligations of such Person pursuant to any Interest Rate Agreement, Currency Agreement or Commodities Agreement.

 

HERC ” means Hertz Equipment Rental Corporation, a Delaware corporation, and any successor in interest thereto, and any of the Company’s other Subsidiaries and successors in interest thereto to the extent any of such Subsidiaries form part of the HERC Business.

 

HERC Assets ” means the assets of HERC that relate to or form part of the HERC Business.

 

HERC Business ” means the industrial, construction and material handling equipment rental business of the Company and its Subsidiaries including, without limitation, the business of renting earthmoving equipment, material handling equipment, aerial and electrical equipment, air compressors, generators, pumps, small tools, compaction equipment and construction related trucks and the selling of new equipment and consumables.

 

HERC Disposition ” means (i)  any sale or other disposition of Capital Stock of HERC (whether by issuance or sale of Capital Stock, merger, or otherwise) or any Subsidiary thereof to one or more Persons (other than the Company or a Restricted Subsidiary) in any transaction or series of related transactions following the consummation of which HERC or such Subsidiary is no longer a Restricted Subsidiary of the Company (excluding any HERC Offering) or (ii)  any sale or other disposition of all or substantially all of the assets of HERC and/or one or more of its Subsidiaries to one or more Persons (other than the Company or a Restricted Subsidiary) in any transaction or series of related transactions.

 

HERC Offering ” means a public offering of Capital Stock of HERC pursuant to a registration statement filed with the SEC.

 

Hertz Investors ” means Hertz Investors, Inc., a Delaware corporation, and any successor in interest thereto.

 

Holder ” or “ Noteholder ” means the Person in whose name a Note is registered in the Note Register.

 

21



 

Holding ” means Hertz Global Holdings, Inc., a Delaware corporation, and any successor in interest thereto.

 

IFRS ” means International Financial Reporting Standards and applicable accounting requirements set by the International Accounting Standards Board or any successor thereto (or the Financial Accounting Standards Board, the Accounting Principles Board of the American Institute of Certified Public Accountants, or any successor to either such Board, or the SEC, as the case may be), as in effect from time to time.

 

Incur ” means issue, assume, enter into any Guarantee of, incur or otherwise become liable for; and the terms “Incurs,” “Incurred” and “Incurrence” shall have a correlative meaning; provided , that any Indebtedness or Capital Stock of a Person existing at the time such Person becomes a Subsidiary (whether by merger, consolidation, acquisition or otherwise) shall be deemed to be Incurred by such Subsidiary at the time it becomes a Subsidiary. Accrual of interest, the accretion of accreted value, the payment of interest in the form of additional Indebtedness, and the payment of dividends on Capital Stock constituting Indebtedness in the form of additional shares of the same class of Capital Stock, will not be deemed to be an Incurrence of Indebtedness. Any Indebtedness issued at a discount (including Indebtedness on which interest is payable through the issuance of additional Indebtedness) shall be deemed Incurred at the time of original issuance of the Indebtedness at the initial accreted amount thereof.

 

Indebtedness ” means, with respect to any Person on any date of determination (without duplication):

 

(i)            the principal of indebtedness of such Person for borrowed money,

 

(ii)           the principal of obligations of such Person evidenced by bonds, debentures, notes or other similar instruments,

 

(iii)          all reimbursement obligations of such Person in respect of letters of credit, bankers’ acceptances or other similar instruments (the amount of such obligations being equal at any time to the aggregate then undrawn and unexpired amount of such letters of credit, bankers’ acceptances or other instruments plus the aggregate amount of drawings thereunder that have not then been reimbursed),

 

(iv)          all obligations of such Person to pay the deferred and unpaid purchase price of property (except Trade Payables), which purchase price is due more than one year after the date of placing such property in final service or taking final delivery and title thereto,

 

(v)           all Capitalized Lease Obligations of such Person,

 

22


 

(vi)          the redemption, repayment or other repurchase amount of such Person with respect to any Disqualified Stock of such Person or (if such Person is a Subsidiary of the Company other than a Subsidiary Guarantor) any Preferred Stock of such Subsidiary, but excluding, in each case, any accrued dividends (the amount of such obligation to be equal at any time to the maximum fixed involuntary redemption, repayment or repurchase price for such Capital Stock, or if less (or if such Capital Stock has no such fixed price), to the involuntary redemption, repayment or repurchase price therefor calculated in accordance with the terms thereof as if then redeemed, repaid or repurchased, and if such price is based upon or measured by the fair market value of such Capital Stock, such fair market value shall be as determined in good faith by the Board of Directors or the board of directors or other governing body of the issuer of such Capital Stock),

 

(vii)         all Indebtedness of other Persons secured by a Lien on any asset of such Person, whether or not such Indebtedness is assumed by such Person; provided that the amount of Indebtedness of such Person shall be the lesser of (A) the fair market value of such asset at such date of determination (as determined in good faith by the Company) and (B) the amount of such Indebtedness of such other Persons,

 

(viii)        all Guarantees by such Person of Indebtedness of other Persons, to the extent so Guaranteed by such Person, and

 

(ix)           to the extent not otherwise included in this definition, net Hedging Obligations of such Person (the amount of any such obligation to be equal at any time to the termination value of such agreement or arrangement giving rise to such Hedging Obligation that would be payable by such Person at such time).

 

The amount of Indebtedness of any Person at any date shall be determined as set forth above or otherwise provided in this Indenture, or otherwise shall equal the amount thereof that would appear as a liability on a balance sheet of such Person (excluding any notes thereto) prepared in accordance with GAAP.

 

Initial Additional Notes ” means Additional Notes issued in an offering not registered under the Securities Act (and any Notes issued in respect thereof pursuant to Section 304 , 305 , 306 , 312(c) , 312(d)  or 1008 ).

 

Initial Notes ” means the Company’s 7.375% Senior Notes due 2021 issued on the Issue Date in an aggregate principal amount of $500 million (and any Notes issued in respect thereof pursuant to Section 304 , 305 , 306 , 312(c) , 312(d)  or 1008 ).

 

interest ,” with respect to the Notes, means interest on the Notes and, except for purposes of Article IX , additional or special interest pursuant to the terms of any Note.

 

23



 

Interest Payment Date ” means, when used with respect to any Note and any installment of interest thereon, the date specified in such Note as the fixed date on which such installment of interest is due and payable, as set forth in such Note.

 

Interest Rate Agreement ” means, with respect to any Person, any interest rate protection agreement, future agreement, option agreement, swap agreement, cap agreement, collar agreement, hedge agreement or other similar agreement or arrangement (including derivative agreements or arrangements), as to which such Person is party or a beneficiary.

 

Inventory ” means goods held for sale, lease or use by a Person in the ordinary course of business, net of any reserve for goods that have been segregated by such Person to be returned to the applicable vendor for credit, as determined in accordance with GAAP.

 

Investment ” in any Person by any other Person means any direct or indirect advance, loan or other extension of credit (other than to customers, dealers, licensees, franchisees, suppliers, directors, officers or employees of any Person in the ordinary course of business) or capital contribution (by means of any transfer of cash or other property to others or any payment for property or services for the account or use of others) to, or any purchase or acquisition of Capital Stock, Indebtedness or other similar instruments issued by, such Person. For purposes of the definition of “Unrestricted Subsidiary” and Section 409 only, ( i ) “Investment” shall include the portion (proportionate to the Company’s equity interest in such Subsidiary) of the Fair Market Value of the net assets of any Subsidiary of the Company at the time that such Subsidiary is designated an Unrestricted Subsidiary, provided that upon a redesignation of such Subsidiary as a Restricted Subsidiary, the Company shall be deemed to continue to have a permanent “Investment” in an Unrestricted Subsidiary in an amount (if positive) equal to ( x ) the Company’s “Investment” in such Subsidiary at the time of such redesignation less ( y ) the portion (proportionate to the Company’s equity interest in such Subsidiary) of the Fair Market Value of the net assets of such Subsidiary at the time of such redesignation, and ( ii ) any property transferred to or from an Unrestricted Subsidiary shall be valued at its Fair Market Value at the time of such transfer. Guarantees shall not be deemed to be Investments. The amount of any Investment outstanding at any time shall be the original cost of such Investment, reduced (at the Company’s option) by any dividend, distribution, interest payment, return of capital, repayment or other amount or value received in respect of such Investment; provided , that to the extent that the amount of Restricted Payments outstanding at any time is so reduced by any portion of any such amount or value that would otherwise be included in the calculation of Consolidated Net Income, such portion of such amount or value shall not be so included for purposes of calculating the amount of Restricted Payments that may be made pursuant to Section 409(a) .

 

Investment Grade Rating ” means a rating of Baa3 or better by Moody’s and BBB- or better by S&P (or, in either case, the equivalent of such rating by such organization), or an equivalent rating by any other Rating Agency.

 

24



 

Investors ” means ( i ) the CDR Investors, Carlyle Investors and Merrill Lynch Investors, ( ii ) any Person that acquired Voting Stock of Holding on or prior to December 21, 2005, and any Affiliate of such Person, and ( iii ) any of their respective successors in interest.

 

Issue Date ” means the first date on which Initial Notes are issued.

 

Lien ” means any mortgage, pledge, security interest, encumbrance, lien or charge of any kind (including any conditional sale or other title retention agreement or lease in the nature thereof).

 

Management Advances ” means ( 1 ) loans or advances made to directors, officers, employees or consultants of any Parent, the Company or any Restricted Subsidiary ( x ) in respect of travel, entertainment or moving-related expenses incurred in the ordinary course of business, ( y ) in respect of moving-related expenses incurred in connection with any closing or consolidation of any facility, or ( z ) in the ordinary course of business and (in the case of this clause (z)) not exceeding $15.0 million in the aggregate outstanding at any time, ( 2 ) promissory notes of Management Investors acquired in connection with the issuance of Management Stock to such Management Investors, ( 3 ) Management Guarantees, or ( 4 ) other Guarantees of borrowings by Management Investors in connection with the purchase of Management Stock, which Guarantees are permitted under Section 407 .

 

Management Agreements ” means, collectively, ( i ) the Stock Subscription Agreements, each dated as of December 21, 2005, between Holding and each of the Investors party thereto, ( ii ) the Consulting Agreements, each dated as of December 21, 2005, among Holding and The Hertz Corporation and each of CDR, TC Group IV, L.L.C. and Merrill Lynch Global Partners, Inc., or Affiliates thereof, respectively, ( iii ) the Indemnification Agreements, each dated as of December 21, 2005, among Holding and The Hertz Corporation and each of ( a ) CDR and each CDR Investor, ( b ) TC Group IV, L.L.C. and each Carlyle Investor and ( c ) ML and each Merrill Lynch Investor, or Affiliates thereof, respectively, ( iv ) the Registration Rights Agreement, dated as of December 21, 2005, among Holding and the Investors party thereto and any other Person party thereto from time to time, ( v ) the Stockholders Agreement, dated as of December 21, 2005, by and among Holding and the Investors party thereto and any other Person party thereto from time to time, and ( vi ) the Stock Subscription Agreements, each dated May 19, 2009, between Holding and each of Clayton, Dubilier & Rice Fund VII, L.P., CD&R Parallel Fund VII, L.P., Carlyle Partners IV, L.P., and CP IV Coinvestment, L.P., in each case in clauses (i) through (vi) as the same may be amended, supplemented, waived or otherwise modified from time to time in accordance with the terms thereof and of this Indenture.

 

Management Guarantees ” means guarantees ( x ) of up to an aggregate principal amount outstanding at any time of $20.0 million of borrowings by Management Investors in connection with their purchase of Management Stock or ( y ) made on behalf of, or in respect of loans or advances made to, directors, officers or employees of any Parent, the Company or any Restricted Subsidiary ( 1 ) in respect of travel, entertainment and moving-related expenses incurred in the ordinary course of business, or ( 2 ) in the ordinary course of business and (in the case of this clause (2)) not exceeding $15.0 million in the aggregate outstanding at any time.

 

25



 

Management Investors ” means the officers, directors, employees and other members of the management of any Parent, the Company or any of their respective Subsidiaries, or family members or relatives thereof ( provided that, solely for purposes of the definition of “Permitted Holders,” such relatives shall include only those Persons who are or become Management Investors in connection with estate planning for or inheritance from other Management Investors, as determined in good faith by the Company, which determination shall be conclusive), or trusts, partnerships or limited liability companies for the benefit of any of the foregoing, or any of their heirs, executors, successors and legal representatives, who at any date beneficially own or have the right to acquire, directly or indirectly, Capital Stock of the Company or any Parent.

 

Management Stock ” means Capital Stock of the Company or any Parent (including any options, warrants or other rights in respect thereof) held by any of the Management Investors.

 

Merrill Lynch Investors ” means, collectively, ( i ) ML Global Private Equity Fund, L.P., a Cayman Islands exempted limited partnership, or any successor thereto, ( ii ) Merrill Lynch Ventures L.P. 2001, a Delaware limited partnership, or any successor thereto, ( iii ) CMC-Hertz Partners, L.P., a Delaware limited partnership, or any successor thereto, ( iv ) ML Hertz Co-Investor, L.P., a Delaware limited partnership, or any successor thereto, ( v ) any Affiliate of any thereof, and ( vi ) any successor in interest to any thereof.

 

ML ” means Merrill Lynch Global Private Equity, Inc. (formerly known as Merrill Lynch Global Partners, Inc.), or any successor thereto.

 

Moody’s ” means Moody’s Investors Service, Inc., and its successors.

 

Net Available Cash ” from an Asset Disposition means cash payments received (including any cash payments received by way of deferred payment of principal pursuant to a note or installment receivable or otherwise, but only as and when received, but excluding any other consideration received in the form of assumption by the acquiring person of Indebtedness or other obligations relating to the properties or assets that are the subject of such Asset Disposition or received in any other noncash form) therefrom, in each case net of ( i ) all legal, title and recording tax expenses, commissions and other fees and expenses incurred, and all Federal, state, provincial, foreign and local taxes required to be paid or to be accrued as a liability under GAAP, as a consequence of such Asset Disposition (including as a consequence of any transfer of funds in connection with the application thereof in accordance with Section 411 ), ( ii ) all payments made, and all installment payments required to be made, on any Indebtedness that is secured by any assets subject to such Asset Disposition, in accordance with the terms of any Lien upon such assets, or that must by its terms, or in order to obtain a necessary consent to such Asset Disposition, or by applicable law, be repaid out of the proceeds from such Asset Disposition, including but not limited to any payments required to be made to increase borrowing availability under any revolving credit facility, ( iii ) all distributions and other payments required to be made to minority interest holders in Subsidiaries or joint ventures as a result of such Asset Disposition, or to any other Person (other than the Company or a Restricted

 

26



 

Subsidiary) owning a beneficial interest in the assets disposed of in such Asset Disposition, ( iv ) any liabilities or obligations associated with the assets disposed of in such Asset Disposition and retained, indemnified or issued by the Company or any Restricted Subsidiary after such Asset Disposition, including without limitation pension and other post-employment benefit liabilities, liabilities related to environmental matters, and liabilities relating to any indemnification obligations associated with such Asset Disposition, and ( v ) the amount of any purchase price or similar adjustment ( x ) claimed by any Person to be owed by the Company or any Restricted Subsidiary, until such time as such claim shall have been settled or otherwise finally resolved, or ( y ) paid or payable by the Company or any Restricted Subsidiary, in either case in respect of such Asset Disposition.

 

Net Cash Proceeds ,” with respect to any issuance or sale of any securities of the Company or any Subsidiary by the Company or any Subsidiary, or any capital contribution, means the cash proceeds of such issuance, sale or contribution net of attorneys’ fees, accountants’ fees, underwriters’ or placement agents’ fees, discounts or commissions and brokerage, consultant and other fees actually incurred in connection with such issuance, sale or contribution and net of taxes paid or payable as a result thereof.

 

Non-Recourse Indebtedness ” means Indebtedness of HERC:

 

(a)           as to which neither the Company nor any of its Restricted Subsidiaries (other than HERC and its Subsidiaries) ( a ) provides any Guarantee or credit support of any kind (including any undertaking, guarantee, indemnity, Lien, agreement or instrument that would constitute Indebtedness) or ( b ) is directly or indirectly liable (as a guarantor or otherwise);

 

(b)           no default with respect to which would permit, upon notice, lapse of time or both any holder of any other Indebtedness of the Company or any of its Restricted Subsidiaries (other than Indebtedness outstanding on, or otherwise committed as of, the Issue Date) to declare a default on such other Indebtedness or cause the payment of the Indebtedness to be accelerated or payable prior to its Stated Maturity; and

 

(c)           the explicit terms of which provide there is no recourse against any of the assets of the Company or its Restricted Subsidiaries (other than HERC and its Subsidiaries and Capital Stock of HERC or any of its Subsidiaries).

 

Non-U.S. Person ” means a Person who is not a U.S. person, as defined in Regulation S.

 

Notes ” means the Initial Notes, any Additional Notes, the Exchange Notes and any notes issued in respect thereof pursuant to Section 304 , 305 , 306 , 312(c) , 312(d)  or 1008 .

 

Obligations ” means, with respect to any Indebtedness, any principal, premium (if any), interest (including interest accruing on or after the filing of any petition in bankruptcy or for reorganization relating to the Company or any Restricted Subsidiary whether or not a claim

 

27



 

for post-filing interest is allowed in such proceedings), fees, charges, expenses, reimbursement obligations, Guarantees of such Indebtedness (or of Obligations in respect thereof), other monetary obligations of any nature and all other amounts payable thereunder or in respect thereof.

 

Offering Memorandum ” means the confidential Offering Memorandum of the Company, dated December 6, 2010, relating to the offering of the Notes.

 

Officer ” means, with respect to the Company or any other obligor upon the Notes, the Chairman of the Board, the President, the Chief Executive Officer, the Chief Financial Officer, any Vice President, the Controller, the Treasurer or the Secretary ( a ) of such Person or ( b ) if such Person is owned or managed by a single entity, of such entity (or any other individual designated as an “Officer” for the purposes of this Indenture by the Board of Directors).

 

Officer’s Certificate ” means, with respect to the Company or any other obligor upon the Notes, a certificate signed by one Officer of such Person.

 

Opinion of Counsel ” means a written opinion from legal counsel who is reasonably acceptable to the Trustee. The counsel may be an employee of or counsel to the Company or the Trustee.

 

Original Notes ” means the Initial Notes and any Exchange Notes issued in exchange therefor.

 

Outstanding ,” when used with respect to Notes means, as of the date of determination, all Notes theretofore authenticated and delivered under this Indenture, except :

 

(i)            Notes theretofore cancelled by the Trustee or delivered to the Trustee for cancellation;

 

(ii)           Notes for whose payment or redemption money in the necessary amount has been theretofore deposited with the Trustee or any Paying Agent in trust for the Holders of such Notes, provided that, if such Notes are to be redeemed, notice of such redemption has been duly given pursuant to this Indenture or provision therefor reasonably satisfactory to the Trustee has been made; and

 

(iii)          Notes paid pursuant to Section 306 in exchange for or in lieu of which other Notes have been authenticated and delivered pursuant to this Indenture.

 

A Note does not cease to be Outstanding because the Company or any Affiliate of the Company holds the Note, provided that in determining whether the Holders of the requisite amount of Outstanding Notes have given any request, demand, authorization, direction, notice, consent or waiver hereunder, Notes owned by the Company or any Affiliate of the Company shall be disregarded and deemed not to be Outstanding, except that, for the purpose of determining whether the Trustee shall be protected in relying on any such request, demand,

 

28



 

authorization, direction, notice, consent or waiver, only Notes which the Trustee actually knows are so owned shall be so disregarded.  Notes so owned that have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the reasonable satisfaction of the Trustee the pledgee’s right to act with respect to such Notes and that the pledgee is not the Company or an Affiliate of the Company.

 

Parent ” means any of Holding, Hertz Investors and any Other Parent and any other Person that is a Subsidiary of Holding, Hertz Investors or any Other Parent and of which the Company is a Subsidiary. As used herein, “Other Parent” means a Person of which the Company becomes a Subsidiary after the Issue Date, provided that either ( x ) immediately after the Company first becomes a Subsidiary of such Person, more than 50% of the Voting Stock of such Person shall be held by one or more Persons that held more than 50% of the Voting Stock of a Parent of the Company immediately prior to the Company first becoming such Subsidiary or ( y ) such Person shall be deemed not to be an Other Parent for the purpose of determining whether a Change of Control shall have occurred by reason of the Company first becoming a Subsidiary of such Person.

 

Parent Expenses ” means ( i ) costs (including all professional fees and expenses) incurred by any Parent in connection with maintaining its existence or in connection with its reporting obligations under, or in connection with compliance with, applicable laws or applicable rules of any governmental, regulatory or self-regulatory body or stock exchange, this Indenture or any other agreement or instrument relating to Indebtedness of the Company or any Restricted Subsidiary, including in respect of any reports filed with respect to the Securities Act, Exchange Act or the respective rules and regulations promulgated thereunder, ( ii ) expenses incurred by any Parent in connection with the acquisition, development, maintenance, ownership, prosecution, protection and defense of its intellectual property and associated rights (including but not limited to trademarks, service marks, trade names, trade dress, patents, copyrights and similar rights, including registrations and registration or renewal applications in respect thereof; inventions, processes, designs, formulae, trade secrets, know-how, confidential information, computer software, data and documentation, and any other intellectual property rights; and licenses of any of the foregoing) to the extent such intellectual property and associated rights relate to the business or businesses of the Company or any Subsidiary thereof, ( iii ) indemnification obligations of any Parent owing to directors, officers, employees or other Persons under its charter or by-laws or pursuant to written agreements with or for the benefit of any such Person, or obligations in respect of director and officer insurance (including premiums therefor), ( iv ) other administrative and operational expenses of any Parent incurred in the ordinary course of business, and ( v ) fees and expenses incurred by any Parent in connection with any offering of Capital Stock or Indebtedness, ( w ) which offering is not completed, or ( x ) where the net proceeds of such offering are intended to be received by or contributed or loaned to the Company or a Restricted Subsidiary, or ( y ) in a prorated amount of such expenses in proportion to the amount of such net proceeds intended to be so received, contributed or loaned, or ( z ) otherwise on an interim basis prior to completion of such offering so long as any Parent shall cause the amount of such expenses to be repaid to the Company or the relevant Restricted Subsidiary out of the proceeds of such offering promptly if completed.

 

29



 

Paying Agent ” means any Person authorized by the Company to pay the principal of (and premium, if any) or interest on any Notes on behalf of the Company; provided that neither the Company nor any of its Affiliates shall act as Paying Agent for purposes of Section 1102 or Section 1205 .

 

Permitted Holder ” means any of the following: ( i ) any of the Investors; ( ii ) any of the Management Investors, CDR, Carlyle, ML and their respective Affiliates; ( iii ) any investment fund or vehicle managed, sponsored or advised by CDR, Carlyle, ML or any Affiliate thereof, and any Affiliate of or successor to any such investment fund or vehicle; ( iv ) any limited or general partners of, or other investors in, any CDR Investor, Carlyle Investor or Merrill Lynch Investor or any Affiliate thereof, or any such investment fund or vehicle; and ( v ) any Person acting in the capacity of an underwriter in connection with a public or private offering of Capital Stock of any Parent or the Company. In addition, any “person” (as such term is used in Sections 13(d) and 14(d) of the Exchange Act) whose status as a “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act) constitutes or results in a Change of Control in respect of which a Change of Control Offer is made in accordance with the requirements of this Indenture, together with its Affiliates, shall thereafter constitute Permitted Holders.

 

Permitted Investment ” means an Investment by the Company or any Restricted Subsidiary in, or consisting of, any of the following:

 

(i)            a Restricted Subsidiary, the Company, or a Person that will, upon the making of such Investment, become a Restricted Subsidiary (and any Investment held by such Person that was not acquired by such Person in contemplation of so becoming a Restricted Subsidiary);

 

(ii)           another Person if as a result of such Investment such other Person is merged or consolidated with or into, or transfers or conveys all or substantially all its assets to, or is liquidated into, the Company or a Restricted Subsidiary (and, in any case, any Investment held by such Person that was not acquired by such Person in contemplation of such merger, consolidation or transfer);

 

(iii)          Temporary Cash Investments or Cash Equivalents;

 

(iv)          receivables owing to the Company or any Restricted Subsidiary, if created or acquired in the ordinary course of business;

 

(v)           any securities or other Investments received as consideration in, or retained in connection with, sales or other dispositions of property or assets, including Asset Dispositions made in compliance with Section 411 ;

 

(vi)          securities or other Investments received in settlement of debts created in the ordinary course of business and owing to, or of other claims asserted by, the Company or any Restricted Subsidiary, or as a result of foreclosure, perfection or

 

30



 

enforcement of any Lien, or in satisfaction of judgments, including in connection with any bankruptcy proceeding or other reorganization of another Person;

 

(vii)         Investments in existence or made pursuant to legally binding written commitments in existence on the Issue Date;

 

(viii)        Currency Agreements, Interest Rate Agreements, Commodities Agreements and related Hedging Obligations, which obligations are Incurred in compliance with Section 407 ;

 

(ix)           pledges or deposits (x) with respect to leases or utilities provided to third parties in the ordinary course of business or (y) otherwise described in the definition of “Permitted Liens” or made in connection with Liens permitted under Section 413 ;

 

(x)            (1) Investments in or by any Special Purpose Subsidiary, or in connection with a Financing Disposition by or to or in favor of any Special Purpose Entity, including Investments of funds held in accounts permitted or required by the arrangements governing such Financing Disposition or any related Indebtedness, or (2) any promissory note issued by the Company, or any Parent, provided that if such Parent receives cash from the relevant Special Purpose Entity in exchange for such note, an equal cash amount is contributed by any Parent to the Company;

 

(xi)           bonds secured by assets leased to and operated by the Company or any Restricted Subsidiary that were issued in connection with the financing of such assets so long as the Company or any Restricted Subsidiary may obtain title to such assets at any time by paying a nominal fee, canceling such bonds and terminating the transaction;

 

(xii)          Notes;

 

(xiii)         any Investment to the extent made using Capital Stock of the Company (other than Disqualified Stock), or Capital Stock of any Parent, as consideration;

 

(xiv)        Management Advances;

 

(xv)         Investments consisting of, or arising out of or related to, Vehicle Rental Concession Rights, including any Investments referred to in the definition of the term “Vehicle Rental Concession Rights”, and any Investments in Franchisees arising as a result of the Company or any Restricted Subsidiary being party to any Vehicle Rental Concession or any related agreement jointly with any Franchisee, or leasing or subleasing any part of a Public Facility or other property to any Franchisee, or guaranteeing any obligation of any Franchisee in respect of any Vehicle Rental Concession or any related agreement;

 

31



 

(xvi)        Investments in Related Businesses in an aggregate amount outstanding at any time not to exceed 3% of Consolidated Tangible Assets;

 

(xvii)       any transaction to the extent it constitutes an Investment that is permitted by and made in accordance with the provisions of Section 412(b)  (except transactions described in clauses (i), (v) and (vi) of such paragraph), including any Investment pursuant to any transaction described in Section 412(b)(ii)  (whether or not any Person party thereto is at any time an Affiliate of the Company);

 

(xviii)      other Investments in an aggregate amount outstanding at any time not to exceed 1.0% of Consolidated Tangible Assets; and

 

(xix)         ( 1 ) Investments in Franchise Special Purpose Entities directly or indirectly to finance or refinance the acquisition of Franchise Rental Car Vehicles and/or other Franchise Equipment and/or related rights and/or assets, in an aggregate amount outstanding at any time (as to all such Franchise Special Purpose Entities, and taken together with the then outstanding aggregate principal amount of Indebtedness classified by the Company under clause (a) of the definition of “Franchise Vehicle Indebtedness”) not exceeding the Franchise SPE Fleet Amount, ( 2 ) Investments in Franchisees attributable to the financing or refinancing of Franchise Rental Car Vehicles and/or other Franchise Equipment and/or related rights and/or assets, as determined in good faith by the Chief Financial Officer or an authorized Officer of the Company (which determination shall be conclusive), in an aggregate amount outstanding at any time (as to all such Franchisees, and taken together with the then outstanding aggregate principal amount of Indebtedness classified by the Company under clause (b) of the definition of “Franchise Vehicle Indebtedness”) not exceeding the Franchise Asset Value Amount, ( 3 ) Investments in Franchisees in an aggregate amount outstanding at any time (as to all such Franchisees, and taken together with the then outstanding aggregate principal amount of Indebtedness classified by the Company under clause (c) of the definition of “Franchise Vehicle Indebtedness”) not exceeding the Franchisee Revenue Amount, ( 4 ) Investments in Capital Stock of Franchisees and Franchise Special Purpose Entities (including pursuant to capital contributions), and ( 5 ) Investments in Franchisees arising as the result of Guarantees of Franchise Vehicle Indebtedness or Franchise Lease Obligations.

 

If any Investment pursuant to clause (xvi), (xviii) or (xix) above, or Section 409(b)(vii) , as applicable, is made in any Person that is not a Restricted Subsidiary and such Person thereafter ( A ) becomes a Restricted Subsidiary or ( B ) is merged or consolidated into, or transfers or conveys all or substantially all its assets to, or is liquidated into, the Company or a Restricted Subsidiary, then such Investment shall thereafter be deemed to have been made pursuant to clause (i) or (ii) above, respectively, and not clause (xvi), (xviii) or (xix) above, or Section 409(b)(vii) , as applicable (and, in the case of the foregoing clause (A), for so long as such Person continues to be a Restricted Subsidiary unless and until such Person is merged or consolidated into, or transfers or conveys all or substantially all its assets to, or is liquidated into, the Company or a Restricted Subsidiary).

 

32


 

Permitted Liens ” means:

 

(a)           Liens for taxes, assessments or other governmental charges not yet delinquent or the nonpayment of which in the aggregate would not reasonably be expected to have a material adverse effect on the Company and its Restricted Subsidiaries or that are being contested in good faith and by appropriate proceedings if adequate reserves with respect thereto are maintained on the books of the Company or a Subsidiary thereof, as the case may be, in accordance with GAAP;

 

(b)           Liens with respect to outstanding motor vehicle fines and carriers’, warehousemen’s, mechanics’, landlords’, materialmen’s, repairmen’s or other like Liens arising in the ordinary course of business in respect of obligations that are not overdue for a period of more than 60 days or that are bonded or that are being contested in good faith and by appropriate proceedings;

 

(c)           pledges, deposits or Liens in connection with workers’ compensation, unemployment insurance and other social security and other similar legislation or other insurance-related obligations (including, without limitation, pledges or deposits securing liability to insurance carriers under insurance or self-insurance arrangements);

 

(d)           pledges, deposits or Liens to secure the performance of bids, tenders, trade, government or other contracts (other than for borrowed money), obligations for utilities, leases, licenses, statutory obligations, completion guarantees, surety, judgment, appeal or performance bonds, other similar bonds, instruments or obligations, and other obligations of a like nature incurred in the ordinary course of business;

 

(e)           easements (including reciprocal easement agreements), rights-of-way, building, zoning and similar restrictions, utility agreements, covenants, reservations, restrictions, encroachments, charges, and other similar encumbrances or title defects incurred, or leases or subleases granted to others, in the ordinary course of business, which do not in the aggregate materially interfere with the ordinary conduct of the business of the Company and its Subsidiaries, taken as a whole;

 

(f)            Liens existing on, or provided for under written arrangements existing on, the Issue Date, or (in the case of any such Liens securing Indebtedness of the Company or any of its Subsidiaries existing or arising under written arrangements existing on the Issue Date) securing any Refinancing Indebtedness in respect of such Indebtedness so long as the Lien securing such Refinancing Indebtedness is limited to all or part of the same property or assets (plus improvements, accessions, proceeds or dividends or distributions in respect thereof) that secured (or under such written arrangements could secure) the original Indebtedness;

 

33



 

(g)           (i) mortgages, liens, security interests, restrictions, encumbrances or any other matters of record that have been placed by any developer, landlord or other third party on property over which the Company or any Restricted Subsidiary of the Company has easement rights or on any leased property and subordination or similar agreements relating thereto and (ii) any condemnation or eminent domain proceedings affecting any real property;

 

(h)           Liens securing Indebtedness (including Liens securing any Obligations in respect thereof) consisting of Hedging Obligations, Purchase Money Obligations or Capitalized Lease Obligations Incurred in compliance with Section 407 ;

 

(i)            Liens arising out of judgments, decrees, orders or awards in respect of which the Company or any Restricted Subsidiary shall in good faith be prosecuting an appeal or proceedings for review, which appeal or proceedings shall not have been finally terminated, or if the period within which such appeal or proceedings may be initiated shall not have expired;

 

(j)            leases, subleases, licenses or sublicenses to third parties;

 

(k)           Liens securing Indebtedness (including Liens securing any Obligations in respect thereof) consisting of ( A )( 1 ) Indebtedness Incurred in compliance with Section 407(b)(i) , Section 407(b)(iv) , Section 407(b)(v) , Section 407(b)(vii) , Section 407(b)(viii) , Section 407(b)(ix)  or Section 407(b)(xi) , or Section 407(b)(iii)  (other than Refinancing Indebtedness Incurred in respect of Indebtedness described in Section 407(a) ), (2) Credit Facility Indebtedness Incurred in compliance with Section 407(b) , (3) the Notes, (4) Indebtedness of any Restricted Subsidiary that is not a Subsidiary Guarantor, (5) Indebtedness or other obligations of any Special Purpose Entity or (6) obligations in respect of Management Advances or Management Guarantees; in each case under the foregoing clauses (1) through (6) including Liens securing any Guarantee of any thereof, or (B)  Non-Recourse Indebtedness of HERC to the extent such Liens do not extend to property or assets other than HERC Assets;

 

(l)            Liens existing on property or assets of a Person at the time such Person becomes a Subsidiary of the Company (or at the time the Company or a Restricted Subsidiary acquires such property or assets, including any acquisition by means of a merger or consolidation with or into the Company or any Restricted Subsidiary); provided, however, that such Liens are not created in connection with, or in contemplation of, such other Person becoming such a Subsidiary (or such acquisition of such property or assets), and that such Liens are limited to all or part of the same property or assets (plus improvements, accessions, proceeds or dividends or distributions in respect thereof) that secured (or, under the written arrangements under which such Liens arose, could secure) the obligations to which such Liens relate; provided further, that for purposes of this clause (l), if a Person other than the Company is the Successor Company with respect thereto, any Subsidiary thereof shall be deemed to become a Subsidiary of

 

34



 

the Company, and any property or assets of such Person or any such Subsidiary shall be deemed acquired by the Company or a Restricted Subsidiary, as the case may be, when such Person becomes such Successor Company;

 

(m)          Liens on Capital Stock, Indebtedness or other securities of an Unrestricted Subsidiary that secure Indebtedness or other obligations of such Unrestricted Subsidiary;

 

(n)           any encumbrance or restriction (including, but not limited to, pursuant to put and call agreements or buy/sell arrangements) with respect to Capital Stock of any joint venture or similar arrangement pursuant to any joint venture or similar agreement;

 

(o)           Liens securing Indebtedness (including Liens securing any Obligations in respect thereof) consisting of Refinancing Indebtedness Incurred in respect of any Indebtedness secured by, or securing any refinancing, refunding, extension, renewal or replacement (in whole or in part) of any other obligation secured by, any other Permitted Liens, provided that any such new Lien is limited to all or part of the same property or assets (plus improvements, accessions, proceeds or dividends or distributions in respect thereof) that secured (or, under the written arrangements under which the original Lien arose, could secure) the obligations to which such Liens relate;

 

(p)           Liens ( 1 ) arising by operation of law (or by agreement to the same effect) in the ordinary course of business, ( 2 ) on property or assets under construction (and related rights) in favor of a contractor or developer or arising from progress or partial payments by a third party relating to such property or assets, ( 3 ) on receivables (including related rights), ( 4 ) on cash set aside at the time of the Incurrence of any Indebtedness or government securities purchased with such cash, in either case to the extent that such cash or government securities prefund the payment of interest on such Indebtedness and are held in an escrow account or similar arrangement to be applied for such purpose, ( 5 ) securing or arising by reason of any netting or set-off arrangement entered into in the ordinary course of banking or other trading activities (including in connection with purchase orders and other agreements with customers), ( 6 ) in favor of the Company or any Subsidiary (other than Liens on property or assets of the Company or any Subsidiary Guarantor in favor of any Subsidiary that is not a Subsidiary Guarantor), ( 7 ) arising out of conditional sale, title retention, consignment or similar arrangements for the sale of goods entered into in the ordinary course of business, ( 8 ) on inventory or goods and proceeds securing the obligations in respect of bankers’ acceptances issued or created to facilitate the purchase, shipment or storage of such inventory or other goods, ( 9 ) relating to pooled deposit or sweep accounts to permit satisfaction of overdraft, cash pooling or similar obligations incurred in the ordinary course of business, ( 10 ) attaching to commodity trading or other brokerage accounts incurred in the ordinary course of business, ( 11 ) arising in connection with repurchase agreements permitted under Section 407 , on assets that are the subject of such repurchase agreements, ( 12 ) in favor of any Special Purpose Entity in connection with any Financing Disposition or ( 13 ) in favor of

 

35



 

any Franchise Special Purpose Entity in connection with any Franchise Financing Disposition;

 

(q)           Liens on or under, or arising out of or relating to, any Vehicle Rental Concession Rights;

 

(r)            other Liens securing obligations incurred in the ordinary course of business, which obligations do not exceed $50.0 million at any time outstanding; and

 

(s)           Liens securing Indebtedness (including Liens securing any Obligations in respect thereof) consisting of Indebtedness Incurred in compliance with Section 407 , provided that on the date of the Incurrence of such Indebtedness after giving effect to such Incurrence (or on the date of the initial borrowing of such Indebtedness after giving pro forma effect to the Incurrence of the entire committed amount of such Indebtedness), the Consolidated Secured Leverage Ratio shall not exceed 4.0 to 1.0.

 

Person ” means any individual, corporation, partnership, joint venture, association, joint-stock company, limited liability company, trust, unincorporated organization, government or any agency or political subdivision thereof or any other entity.

 

Place of Payment ” means a city or any political subdivision thereof in which any Paying Agent appointed pursuant to Article III is located.

 

Predecessor Notes ” of any particular Note means every previous Note evidencing all or a portion of the same debt as that evidenced by such particular Note; and, for the purposes of this definition, any Note authenticated and delivered under Section 306 in lieu of a mutilated, lost, destroyed or stolen Note shall be deemed to evidence the same debt as the mutilated, lost, destroyed or stolen Note.

 

Preferred Stock ” as applied to the Capital Stock of any corporation means Capital Stock of any class or classes (however designated) that by its terms is preferred as to the payment of dividends, or as to the distribution of assets upon any voluntary or involuntary liquidation or dissolution of such corporation, over shares of Capital Stock of any other class of such corporation.

 

Public Facility ” means ( i ) any airport; marine port; rail, subway, bus or other transit stop, station or terminal; stadium; convention center; or military camp, fort, post or base or ( ii ) any other facility owned or operated by any nation or government or political subdivision thereof, or agency, authority or other instrumentality of any thereof, or other entity exercising regulatory, administrative or other functions of or pertaining to government, or any organization of nations (including the United Nations, the European Union and the North Atlantic Treaty Organization).

 

Public Facility Operator ” means a Person that grants or has the power to grant a Vehicle Rental Concession.

 

36



 

Purchase Money Obligations ” means any Indebtedness Incurred to finance or refinance the acquisition, leasing, construction or improvement of property (real or personal) or assets, and whether acquired through the direct acquisition of such property or assets or the acquisition of the Capital Stock of any Person owning such property or assets, or otherwise; provided that for purposes of Section 407(b)(iv) , the term “Purchase Money Obligations” shall not include Indebtedness to the extent Incurred to finance or refinance the direct acquisition of Inventory or Equipment (not acquired through the acquisition of Capital Stock of any Person owning property or assets, or through the acquisition of property or assets, that include Inventory or Equipment).

 

QIB ” or “ Qualified Institutional Buyer ” means a “qualified institutional buyer,” as that term is defined in Rule 144A.

 

Rating Agency ” means Moody’s or S&P or, if Moody’s or S&P or both shall not make a rating on the Notes publicly available, a nationally recognized statistical rating agency or agencies, as the case may be, selected by the Company which shall be substituted for Moody’s or S&P or both, as the case may be.

 

Receivable ” means a right to receive payment pursuant to an arrangement with another Person pursuant to which such other Person is obligated to pay, as determined in accordance with GAAP.

 

Redemption Date ,” when used with respect to any Note to be redeemed or purchased, means the date fixed for such redemption or purchase by or pursuant to this Indenture and the Notes.

 

refinance ” means refinance, refund, replace, renew, repay, modify, restate, defer, substitute, supplement, reissue, resell or extend (including pursuant to any defeasance or discharge mechanism); and the terms “refinances,” “refinanced” and “refinancing” as used for any purpose in this Indenture shall have a correlative meaning.

 

Refinancing Credit Facility ” means any syndicated Credit Facility under which the Company incurs Indebtedness to refinance all or any portion of its Indebtedness under the Senior Credit Facilities.

 

Refinancing Indebtedness ” means Indebtedness that is Incurred to refinance any Indebtedness existing on the date of this Indenture or Incurred in compliance with this Indenture (including Indebtedness of the Company that refinances Indebtedness of any Restricted Subsidiary (to the extent permitted in this Indenture) and Indebtedness of any Restricted Subsidiary that refinances Indebtedness of another Restricted Subsidiary) including Indebtedness that refinances Refinancing Indebtedness; provided, that ( 1 ) if the Indebtedness being refinanced is Subordinated Obligations or Guarantor Subordinated Obligations, the Refinancing Indebtedness has a final Stated Maturity at the time such Refinancing Indebtedness is Incurred that is equal to or greater than the final Stated Maturity of the Indebtedness being refinanced (or if shorter, the Notes), ( 2 ) such Refinancing Indebtedness is Incurred in an aggregate principal

 

37



 

amount (or if issued with original issue discount, an aggregate issue price) that is equal to or less than the sum of ( x ) the aggregate principal amount (or if issued with original issue discount, the aggregate accreted value) then outstanding of the Indebtedness being refinanced, plus ( y ) fees, underwriting discounts, premiums and other costs and expenses incurred in connection with such Refinancing Indebtedness and ( 3 ) Refinancing Indebtedness shall not include ( x ) Indebtedness of a Restricted Subsidiary that is not a Subsidiary Guarantor that refinances Indebtedness of the Company or a Subsidiary Guarantor that could not have been initially Incurred by such Restricted Subsidiary pursuant to Section 407 or ( y ) Indebtedness of the Company or a Restricted Subsidiary that refinances Indebtedness of an Unrestricted Subsidiary.

 

Regular Record Date ” for the interest payable on any Interest Payment Date means the date specified for that purpose in Section 301 .

 

Regulation S ” means Regulation S under the Securities Act.

 

Regulation S Certificate ” means a certificate substantially in the form attached hereto as Exhibit D .

 

Related Business ” means those businesses in which the Company or any of its Subsidiaries is engaged on the date of this Indenture, or that are related, complementary, incidental or ancillary thereto or extensions, developments or expansions thereof.

 

Related Taxes ” means any taxes, charges or assessments, including but not limited to sales, use, transfer, rental, ad valorem, value-added, stamp, property, consumption, franchise, license, capital, net worth, gross receipts, excise, occupancy, intangibles or similar taxes, charges or assessments (other than federal, state or local taxes measured by income and federal, state or local withholding imposed by any government or other taxing authority on payments made by any Parent other than to another Parent), required to be paid by any Parent by virtue of its being incorporated or having Capital Stock outstanding (but not by virtue of owning stock or other equity interests of any corporation or other entity other than the Company, any of its Subsidiaries or any Parent), or being a holding company parent of the Company, any of its Subsidiaries or any Parent or receiving dividends from or other distributions in respect of the Capital Stock of the Company, any of its Subsidiaries or any Parent, or having guaranteed any obligations of the Company or any Subsidiary thereof, or having made any payment in respect of any of the items for which the Company or any of its Subsidiaries is permitted to make payments to any Parent pursuant to Section 409 , or acquiring, developing, maintaining, owning, prosecuting, protecting or defending its intellectual property and associated rights (including but not limited to receiving or paying royalties for the use thereof) relating to the business or businesses of the Company or any Subsidiary thereof, or any other federal, state, foreign, provincial or local taxes measured by income for which any Parent is liable up to an amount not to exceed, with respect to federal taxes, the amount of any such taxes that the Company and its Subsidiaries would have been required to pay on a separate company basis, or on a consolidated basis as if the Company had filed a consolidated return on behalf of an affiliated group (as defined in Section 1504 of the Code) of which it were the common parent, or with respect to state and local taxes, the amount of any such taxes that the Company and its Subsidiaries would

 

38



 

have been required to pay on a separate company basis, or on a consolidated, combined, unitary or affiliated basis as if the Company had filed a consolidated, combined, unitary or affiliated return on behalf of an affiliated group (as defined in the applicable state or local tax laws for filing such return) consisting only of the Company and its Subsidiaries.  Taxes include all interest, penalties and additions relating thereto.

 

Rental Car Vehicles ” means all passenger Vehicles owned by or leased to the Company or a Restricted Subsidiary that are classified as “revenue earning equipment” in the consolidated financial statements of the Company and are or have been offered for lease or rental by any of the Company and its Restricted Subsidiaries in their car rental operations (and not, for the avoidance of doubt, in connection with any business or operations involving the leasing or renting of other types of Equipment), including any such Vehicles being held for sale.

 

Reorganization Assets ” means HERC Assets and any assets sold, leased, transferred or otherwise disposed of to any Franchisee or any Franchise Special Purpose Entity.

 

Resale Restriction Termination Date ” means, with respect to any Note, the date that is one year (or such other period as may hereafter be provided under Rule 144 under the Securities Act or any successor provision thereto as permitting the resale by non-affiliates of Restricted Securities without restriction) after the later of the original issue date in respect of such Note and the last date on which the Company or any Affiliate of the Company was the owner of such Note (or any Predecessor Note thereto).

 

Responsible Officer ” when used with respect to the Trustee means any vice president or assistant vice president, any trust officer or assistant trust officer, or any other officer of the Trustee customarily performing functions similar to those performed by any of the above designated officers and also means, with respect to a particular corporate trust matter, any other officer to whom such matter is referred because of his knowledge of and familiarity with the particular subject.

 

Restricted Payment Transaction ” means any Restricted Payment permitted pursuant to Section 409 , any Permitted Payment, any Permitted Investment, or any transaction specifically excluded from the definition of the term “Restricted Payment” (including pursuant to the exception contained in clause (i) and the parenthetical exclusions contained in clauses (ii) and (iii) of such definition).

 

Restricted Security ” has the meaning assigned to such term in Rule 144(a)(3) under the Securities Act; provided , however , that the Trustee shall be entitled to receive, at its request, and conclusively rely on an Opinion of Counsel with respect to whether any Note constitutes a Restricted Security.

 

Restricted Subsidiary ” means any Subsidiary of the Company other than an Unrestricted Subsidiary.

 

Rule 144A ” means Rule 144A under the Securities Act.

 

39



 

S&P ” means Standard & Poor’s Ratings Group, a division of The McGraw-Hill Companies, Inc., and its successors.

 

SEC ” means the Securities and Exchange Commission.

 

Securities Act ” means the Securities Act of 1933, as amended.

 

Senior ABL Agreement ” means the Credit Agreement, dated as of December 21, 2005, among HERC; the Company; the Canadian borrowers 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; the lenders party thereto from time to time; Deutsche Bank Securities Inc., Lehman Brothers Inc. and Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated, as joint lead arrangers; BNP Paribas, The Royal Bank of Scotland plc and Calyon, as co-arrangers; and Deutsche Bank Securities Inc., Lehman Brothers Inc., Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated, Goldman Sachs Credit Partners L.P. and JPMorgan Chase Bank, N.A., as joint bookrunning managers, as such agreement may be amended, supplemented, waived or otherwise modified from time to time or refunded, refinanced, restructured, replaced, renewed, repaid, increased or extended from time to time (whether in whole or in part, whether with the original administrative agent and lenders or other agents and lenders or otherwise, and whether provided under the original Senior ABL Agreement or other credit agreements or otherwise, unless such agreement, instrument or document expressly provides that it is not intended to be and is not a Senior ABL Agreement).

 

Senior ABL Facility ” means the collective reference to the Senior ABL Agreement, any Loan Documents (as defined therein), any notes and letters of credit issued pursuant thereto and any guarantee and collateral agreement, patent and trademark security agreement, mortgages, letter of credit applications and other guarantees, pledge agreements, security agreements and collateral documents, and other instruments and documents, executed and delivered pursuant to or in connection with any of the foregoing, in each case as the same may be amended, supplemented, waived or otherwise modified from time to time, or refunded, refinanced, restructured, replaced, renewed, repaid, increased or extended from time to time (whether in whole or in part, whether with the original agent and lenders or other agents and lenders or otherwise, and whether provided under the original Senior ABL Agreement or one or more other credit agreements, indentures (including this Indenture) or financing agreements or otherwise, unless such agreement, instrument or document expressly provides that it is not intended to be and is not a Senior ABL Facility). Without limiting the generality of the foregoing, the term “Senior ABL Facility” shall include any agreement ( i ) changing the maturity of any Indebtedness Incurred thereunder or contemplated thereby, ( ii ) adding Subsidiaries of the Company or HERC as additional borrowers or guarantors thereunder, ( iii ) increasing the amount of Indebtedness Incurred thereunder or available to be borrowed thereunder or ( iv ) otherwise altering the terms and conditions thereof.

 

40



 

Senior Credit Agreements ” means, collectively, the Senior ABL Agreement and the Senior Term Agreement.

 

Senior Credit Facilities ” means, collectively, the Senior ABL Facility and the Senior Term Facility.

 

Senior Indebtedness ” means any Indebtedness of the Company or any Restricted Subsidiary other than, in the case of the Company, Subordinated Obligations and, in the case of any Subsidiary Guarantor, Guarantor Subordinated Obligations.

 

Senior Term Agreement ” means the Credit Agreement, dated as of December 21, 2005, among the Company; any other borrowers party thereto from time to time; 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; the lenders party thereto from time to time; Deutsche Bank Securities Inc., Lehman Brothers Inc. and Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated, as joint lead arrangers; BNP Paribas, The Royal Bank of Scotland plc and Calyon, as co-arrangers; and Deutsche Bank Securities Inc., Lehman Brothers Inc., Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated, Goldman Sachs Credit Partners L.P. and JPMorgan Chase Bank, N.A., as joint bookrunning managers, as such agreement may be amended, supplemented, waived or otherwise modified from time to time or refunded, refinanced, restructured, replaced, renewed, repaid, increased or extended from time to time (whether in whole or in part, whether with the original administrative agent and lenders or other agents and lenders or otherwise, and whether provided under the original Senior Term Agreement or other credit agreements or otherwise, unless such agreement, instrument or document expressly provides that it is not intended to be and is not a Senior Term Agreement).

 

Senior Term Facility ” means the collective reference to the Senior Term Agreement, any Loan Documents (as defined therein), any notes and letters of credit issued pursuant thereto and any guarantee and collateral agreement, patent and trademark security agreement, mortgages, letter of credit applications and other guarantees, pledge agreements, security agreements and collateral documents, and other instruments and documents, executed and delivered pursuant to or in connection with any of the foregoing, in each case as the same may be amended, supplemented, waived or otherwise modified from time to time, or refunded, refinanced, restructured, replaced, renewed, repaid, increased or extended from time to time (whether in whole or in part, whether with the original agent and lenders or other agents and lenders or otherwise, and whether provided under the original Senior Term Agreement or one or more other credit agreements, indentures (including this Indenture) or financing agreements or otherwise, unless such agreement, instrument or document expressly provides that it is not intended to be and is not a Senior Term Facility). Without limiting the generality of the foregoing, the term “Senior Term Facility” shall include any agreement ( i ) changing the maturity of any Indebtedness Incurred thereunder or contemplated thereby, ( ii ) adding Subsidiaries of the Company as additional borrowers or guarantors thereunder, ( iii ) increasing the amount of

 

41



 

Indebtedness Incurred thereunder or available to be borrowed thereunder or ( iv ) otherwise altering the terms and conditions thereof.

 

Significant Subsidiary ” means any Restricted Subsidiary that would be a “significant subsidiary” of the Company within the meaning of Rule 1-02 under Regulation S-X promulgated by the SEC, as such Regulation is in effect on the Issue Date.

 

Special Purpose Entity ” means ( x ) any Special Purpose Subsidiary or ( y ) any other Person that is engaged in the business of ( i ) acquiring, selling, collecting, financing or refinancing Receivables, accounts (as defined in the Uniform Commercial Code as in effect in any jurisdiction from time to time), other accounts and/or other receivables, and/or related assets, and/or ( ii ) acquiring, selling, leasing, financing or refinancing Vehicles and/or other Equipment, and/or related rights (including under leases, manufacturer warranties and buy-back programs, and insurance policies) and/or assets (including managing, exercising and disposing of any such rights and/or assets).

 

Special Purpose Financing ” means any financing or refinancing of assets consisting of or including Receivables, Vehicles and/or other Equipment of the Company or any Restricted Subsidiary that have been transferred to a Special Purpose Entity or made subject to a Lien in a Financing Disposition.

 

Special Purpose Financing Fees ” means distributions or payments made directly or by means of discounts with respect to any participation interest issued or sold in connection with, and other fees paid to a Person that is not a Restricted Subsidiary in connection with, any Special Purpose Financing.

 

Special Purpose Financing Undertakings ” means representations, warranties, covenants, indemnities, guarantees of performance and (subject to clause (y) of the proviso below) other agreements and undertakings entered into or provided by the Company or any of its Restricted Subsidiaries that the Company determines in good faith (which determination shall be conclusive) are customary or otherwise necessary or advisable in connection with a Special Purpose Financing or a Financing Disposition; provided that ( x ) it is understood that Special Purpose Financing Undertakings may consist of or include ( i ) reimbursement and other obligations in respect of notes, letters of credit, surety bonds and similar instruments provided for credit enhancement purposes or ( ii ) Hedging Obligations, or other obligations relating to Interest Rate Agreements, Currency Agreements or Commodities Agreements entered into by the Company or any Restricted Subsidiary, in respect of any Special Purpose Financing or Financing Disposition, and ( y ) subject to the preceding clause (x), any such other agreements and undertakings shall not include any Guarantee of Indebtedness of a Special Purpose Subsidiary by the Company or a Restricted Subsidiary that is not a Special Purpose Subsidiary.

 

Special Purpose Subsidiary ” means a Subsidiary of the Company that ( a ) is engaged solely in ( x ) the business of ( i ) acquiring, selling, collecting, financing or refinancing Receivables, accounts (as defined in the Uniform Commercial Code as in effect in any jurisdiction from time to time) and other accounts and receivables (including any thereof

 

42


 

constituting or evidenced by chattel paper, instruments or general intangibles), all proceeds thereof and all rights (contractual and other), collateral and other assets relating thereto, and/or ( ii ) acquiring, selling, leasing, financing or refinancing Vehicles and/or other Equipment, and/or related rights (including under leases, manufacturer warranties and buy-back programs, and insurance policies) and /or assets (including managing, exercising and disposing of any such rights and/or assets), all proceeds thereof and all rights (contractual and other), collateral and other assets relating thereto, and ( y ) any business or activities incidental or related to such business, and ( b ) is designated as a “Special Purpose Subsidiary” by the Company.

 

Special Record Date ” for the payment of any Defaulted Interest means a date fixed by the Trustee pursuant to Section 307 .

 

Stated Maturity ” means, with respect to any Indebtedness, the date specified in such Indebtedness as the fixed date on which the payment of principal of such Indebtedness is due and payable, including pursuant to any mandatory redemption provision (but excluding any provision providing for the repurchase or repayment of such Indebtedness at the option of the holder thereof upon the happening of any contingency).

 

Subordinated Obligations ” means any Indebtedness of the Company (whether outstanding on the date of this Indenture or thereafter Incurred) that is expressly subordinated in right of payment to the Notes pursuant to a written agreement.

 

Subsidiary ” of any Person means any corporation, association, partnership or other business entity of which more than 50% of the total voting power of shares of Capital Stock or other equity interests (including partnership interests) entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof is at the time owned or controlled, directly or indirectly, by ( i ) such Person or ( ii ) one or more Subsidiaries of such Person.

 

Subsidiary Guarantee ” means any guarantee of the Notes that may from time to time be entered into by a Restricted Subsidiary of the Company on or after the Issue Date pursuant to Section 414 .

 

Subsidiary Guarantor ” means any Restricted Subsidiary of the Company that enters into a Subsidiary Guarantee.

 

Successor Company ” shall have the meaning assigned thereto in Section 501 .

 

Tax Sharing Agreement ” means the Tax Sharing Agreement, dated as of December 21, 2005, among the Company, Holding and Hertz Investors, as the same may be amended, supplemented, waived or otherwise modified from time to time in accordance with the terms thereof and of this Indenture.

 

Temporary Cash Investments ” means any of the following: ( i ) any investment in ( x ) direct obligations of the United States of America, a member state of the European Union or

 

43



 

any country in whose currency funds are being held pending their application in the making of an investment or capital expenditure by the Company or a Restricted Subsidiary in that country or with such funds, or any agency or instrumentality of any thereof or obligations Guaranteed by the United States of America or a member state of the European Union or any country in whose currency funds are being held pending their application in the making of an investment or capital expenditure by the Company or a Restricted Subsidiary in that country or with such funds, or any agency or instrumentality of any of the foregoing, or obligations guaranteed by any of the foregoing or ( y ) direct obligations of any foreign country recognized by the United States of America rated at least “A” by S&P or “A-1” by Moody’s (or, in either case, the equivalent of such rating by such organization or, if no rating of S&P or Moody’s then exists, the equivalent of such rating by any nationally recognized rating organization), ( ii ) overnight bank deposits, and investments in time deposit accounts, certificates of deposit, bankers’ acceptances and money market deposits (or, with respect to foreign banks, similar instruments) maturing not more than one year after the date of acquisition thereof issued by ( x ) any bank or other institutional lender under a Credit Facility or any affiliate thereof or ( y ) a bank or trust company that is organized under the laws of the United States of America, any state thereof or any foreign country recognized by the United States of America having capital and surplus aggregating in excess of $250.0 million (or the foreign currency equivalent thereof) and whose long term debt is rated at least “A” by S&P or “A-1” by Moody’s (or, in either case, the equivalent of such rating by such organization or, if no rating of S&P or Moody’s then exists, the equivalent of such rating by any nationally recognized rating organization) at the time such Investment is made, ( iii ) repurchase obligations with a term of not more than 30 days for underlying securities or instruments of the types described in clause (i) or (ii) above entered into with a bank meeting the qualifications described in clause (ii) above, ( iv ) Investments in commercial paper, maturing not more than 270 days after the date of acquisition, issued by a Person (other than that of the Company or any of its Subsidiaries), with a rating at the time as of which any Investment therein is made of “P-2” (or higher) according to Moody’s or “A-2” (or higher) according to S&P (or, in either case, the equivalent of such rating by such organization or, if no rating of S&P or Moody’s then exists, the equivalent of such rating by any nationally recognized rating organization), ( v ) Investments in securities maturing not more than one year after the date of acquisition issued or fully guaranteed by any state, commonwealth or territory of the United States of America, or by any political subdivision or taxing authority thereof, and rated at least “A” by S&P or “A” by Moody’s (or, in either case, the equivalent of such rating by such organization or, if no rating of S&P or Moody’s then exists, the equivalent of such rating by any nationally recognized rating organization), ( vi ) Preferred Stock (other than of the Company or any of its Subsidiaries) having a rating of “A” or higher by S&P or “A2” or higher by Moody’s (or, in either case, the equivalent of such rating by such organization or, if no rating of S&P or Moody’s then exists, the equivalent of such rating by any nationally recognized rating organization), ( vii ) investment funds investing 95% of their assets in securities of the type described in clauses (i)-(vi) above (which funds may also hold reasonable amounts of cash pending investment and/or distribution), ( viii ) any money market deposit accounts issued or offered by a domestic commercial bank or a commercial bank organized and located in a country recognized by the United States of America, in each case, having capital and surplus in excess of $250.0 million (or the foreign currency equivalent thereof), or investments in money market funds subject to the risk limiting conditions of Rule 2a-

 

44



 

7 (or any successor rule) of the SEC under the Investment Company Act of 1940, as amended, and ( ix ) similar investments approved by the Board of Directors in the ordinary course of business.

 

TIA ” means the Trust Indenture Act of 1939 (15 U.S.C. §§ 77aaa-7bbbb) as in effect on the date of this Indenture, except as otherwise provided herein.

 

Trade Payables ” means, with respect to any Person, any accounts payable or any indebtedness or monetary obligation to trade creditors created, assumed or guaranteed by such Person arising in the ordinary course of business in connection with the acquisition of goods or services.

 

Transactions ” means, collectively, any or all of the following (whether or not consummated): the entry into this Indenture, the offer of the Notes, the issuance of the Notes and all other transactions relating to any of the foregoing (including payment of fees and expenses related to any of the foregoing).

 

Trustee ” means the party named as such in the first paragraph of this Indenture until a successor replaces it and, thereafter, means the successor.

 

Unrestricted Subsidiary ” means ( i ) any Subsidiary of the Company that at the time of determination is an Unrestricted Subsidiary, as designated by the Board of Directors in the manner provided below, and ( ii ) any Subsidiary of an Unrestricted Subsidiary. The Board of Directors may designate any Subsidiary of the Company (including any newly acquired or newly formed Subsidiary of the Company) to be an Unrestricted Subsidiary unless such Subsidiary or any of its Subsidiaries owns any Capital Stock or Indebtedness of, or owns or holds any Lien on any property of, the Company or any other Restricted Subsidiary of the Company that is not a Subsidiary of the Subsidiary to be so designated; provided, that ( A ) such designation was made at or prior to the Issue Date, or ( B ) the Subsidiary to be so designated has total consolidated assets of $1,000 or less or ( C ) if such Subsidiary has consolidated assets greater than $1,000, then such designation would be permitted under Section 409 . The Board of Directors may designate any Unrestricted Subsidiary to be a Restricted Subsidiary; provided, that immediately after giving effect to such designation ( x ) the Company could Incur at least $1.00 of additional Indebtedness under Section 407(a)  or ( y ) the Consolidated Coverage Ratio would be greater than it was immediately prior to giving effect to such designation or ( z ) such Subsidiary shall be a Special Purpose Subsidiary with no Indebtedness outstanding other than Indebtedness that can be Incurred (and upon such designation shall be deemed to be Incurred and outstanding) pursuant to Section 407(a) . Any such designation by the Board of Directors shall be evidenced to the Trustee by promptly filing with the Trustee a copy of the resolution of the Company’s Board of Directors giving effect to such designation and an Officer’s Certificate of the Company certifying that such designation complied with the foregoing provisions.

 

U.S. Government Obligation ” means ( x ) any security that is ( i ) a direct obligation of the United States of America for the payment of which the full faith and credit of the United States of America is pledged or ( ii ) an obligation of a Person controlled or supervised

 

45



 

by and acting as an agency or instrumentality of the United States of America the payment of which is unconditionally guaranteed as a full faith and credit obligation by the United States of America, which, in either case under the preceding clause (i) or (ii), is not callable or redeemable at the option of the issuer thereof, and ( y ) any depositary receipt issued by a bank (as defined in Section 3(a)(2) of the Securities Act) as custodian with respect to any U.S. Government Obligation that is specified in clause (x) above and held by such bank for the account of the holder of such depositary receipt, or with respect to any specific payment of principal of or interest on any U.S. Government Obligation that is so specified and held, provided that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depositary receipt from any amount received by the custodian in respect of the U.S. Government Obligation or the specific payment of principal or interest evidenced by such depositary receipt.

 

Vehicle Rental Concession ” means any right, whether or not exclusive, to conduct a Vehicle rental business at a Public Facility, or to pick up or discharge persons or otherwise to possess or use all or part of a Public Facility in connection with such a business, and any related rights or interests.

 

Vehicle Rental Concession Rights ” means any or all of the following: ( a ) any Vehicle Rental Concession, ( b ) any rights of the Company, any Restricted Subsidiary or any Franchisee under or relating to ( i ) any law, regulation, license, permit, request for proposals, invitation to bid, lease, agreement or understanding with a Public Facility Operator in connection with which a Vehicle Rental Concession has been or may be granted to the Company, any Restricted Subsidiary or any Franchisee and ( ii ) any agreement with, or Investment or other interest or participation in, any Person, property or asset required ( x ) by any such law, ordinance, regulation, license, permit, request for proposals, invitation to bid, lease, agreement or understanding or ( y ) by any Public Facility Operator as a condition to obtaining or maintaining a Vehicle Rental Concession, and ( c ) any liabilities or obligations relating to or arising in connection with any of the foregoing.

 

Vehicles ” means vehicles owned or operated by, or leased or rented to or by, the Company or any of its Subsidiaries, including automobiles, trucks, tractors, trailers, vans, sport utility vehicles, buses, campers, motor homes, motorcycles and other motor vehicles.

 

Vice President ”, when used with respect to any Person, means any vice president of such Person, whether or not designated by a number or a word or words added before or after the title “vice president.”

 

Voting Stock ” of an entity means all classes of Capital Stock of such entity then outstanding and normally entitled to vote in the election of directors or all interests in such entity with the ability to control the management or actions of such entity.

 

46



 

Section 102.           Other Definitions .

 

Term

 

Defined in
Section

 

 

 

“Act”

 

108

“Affiliate Transaction”

 

412

“Agent Members”

 

312

“Amendment”

 

410

“Applicable Premium”

 

1001

“Authentication Order”

 

303

“Bankruptcy Law”

 

601

“Certificate of Beneficial Ownership”

 

313

“Change of Control Offer”

 

415

“Covenant Defeasance”

 

1203

“Custodian”

 

601

“Defaulted Interest”

 

307

“Defeasance”

 

1202

“Defeased Notes”

 

1201

“Distribution Compliance Period”

 

201

“Event of Default”

 

601

“Excess Proceeds”

 

411

“Expiration Date”

 

108

“Global Notes”

 

201

“Initial Agreement”

 

410

“Initial Lien”

 

413

“Minimum Denomination”

 

302

“Note Register” and “Note Registrar”

 

305

“Notice of Default”

 

601

“Offer”

 

411

“Paying Agent”

 

305

“Permanent Regulation S Global Note”

 

201

“Permitted Payment”

 

409

“Physical Notes”

 

201

“Private Placement Legend”

 

203

“Redemption Amount”

 

1001

“Redemption Price”

 

1001

“Refinancing Agreement”

 

410

“Regular Record Date”

 

301

“Regulation S Global Notes”

 

201

“Regulation S Note Exchange Date”

 

313

“Regulation S Physical Notes”

 

201

“Reporting Date”

 

405

“Restricted Payment”

 

409

 

47



 

Term

 

Defined in
Section

 

 

 

“Rule 144A Global Note”

 

201

“Rule 144A Physical Notes”

 

201

“Subsidiary Guaranteed Obligations”

 

1301

“Successor Company”

 

501

“Temporary Regulation S Global Note”

 

201

“Termination Date”

 

416

“Treasury Rate”

 

1001

 

Section 103.           Rules of Construction .  For all purposes of this Indenture, except as otherwise expressly provided or unless the context otherwise requires:

 

(1)           the terms defined in this Indenture have the meanings assigned to them in this Indenture;

 

(2)           “ or ” is not exclusive;

 

(3)           all accounting terms not otherwise defined herein have the meanings assigned to them in accordance with GAAP;

 

(4)           the words “ herein ,” “ hereof ” and “ hereunder ” and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or other subdivision;

 

(5)           all references to “ $ ” or “ dollars ” shall refer to the lawful currency of the United States of America;

 

(6)           the words “ include ,” “ included ” and “ including ,” as used herein, shall be deemed in each case to be followed by the phrase “ without limitation ,” if not expressly followed by such phrase or the phrase “ but not limited to ”;

 

(7)           words in the singular include the plural, and words in the plural include the singular;

 

(8)           references to sections of, or rules under, the Securities Act shall be deemed to include substitute, replacement or successor sections or rules adopted by the SEC from time to time; and

 

(9)           any reference to a Section, Article or clause refers to such Section, Article or clause of this Indenture.

 

Section 104.           Incorporation by Reference of TIA .  Whenever this Indenture refers to a provision of the TIA, the provision is incorporated by reference in and made a part of

 

48



 

this Indenture.  This Indenture is subject to the mandatory provisions of the TIA, which are incorporated by reference in and made a part of this Indenture.  Any terms incorporated by reference in this Indenture that are defined by the TIA, defined by any TIA reference to another statute or defined by SEC rule under the TIA, have the meanings so assigned to them therein.  The following TIA terms have the following meanings:

 

indenture securities ” means the Notes.

 

indenture security holder ” means a Noteholder.

 

indenture to be qualified ” means this Indenture.

 

indenture trustee ” or “ institutional trustee ” means the Trustee.

 

obligor ” on the indenture securities means the Company, any Subsidiary Guarantor, and any successor or other obligor on the indenture securities.

 

Section 105.           Conflict with TIA .  If any provision hereof limits, qualifies or conflicts with a provision of the TIA that is required under the TIA to be a part of and govern this Indenture, the latter provision shall control.  If any provision of this Indenture modifies or excludes any provision of the TIA that may be so modified or excluded, the latter provision shall be deemed ( i ) to apply to this Indenture as so modified or ( ii ) to be excluded, as the case may be.

 

Section 106.           Compliance Certificates and Opinions .  Upon any application or request by the Company or by any other obligor upon the Notes (including any Subsidiary Guarantor) to the Trustee to take any action under any provision of this Indenture, the Company or such other obligor (including any Subsidiary Guarantor), as the case may be, shall furnish to the Trustee such certificates and opinions as may be required under the TIA.  Each such certificate or opinion shall be given in the form of one or more Officer’s Certificates, if to be given by an Officer, or an Opinion of Counsel, if to be given by counsel, and shall comply with the requirements of the TIA and any other requirements set forth in this Indenture.  Notwithstanding the foregoing, in the case of any such request or application as to which the furnishing of any Officer’s Certificate or Opinion of Counsel is specifically required by any provision of this Indenture relating to such particular request or application, no additional certificate or opinion need be furnished.

 

Every certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture (except for certificates provided for in Section 406 ) shall include:

 

(1)           a statement that the individual signing such certificate or opinion has read such covenant or condition and the definitions herein relating thereto;

 

49



 

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

 

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

 

(4)           a statement as to whether, in the opinion of such individual, such condition or covenant has been complied with.

 

Section 107.           Form of Documents Delivered to Trustee .  In any case where several matters are required to be certified by, or covered by an opinion of, any specified Person, it is not necessary that all such matters be certified by, or covered by the opinion of, only one such Person, or that they be so certified or covered by only one document, but one such Person may certify or give an opinion with respect to some matters and one or more other such Persons as to other matters, and any such Person may certify or give an opinion as to such matters in one or several documents.

 

Any certificate or opinion of an Officer may be based, insofar as it relates to legal matters, upon a certificate or opinion of, or representations by, counsel, unless such Officer knows that the certificate or opinion or representations with respect to the matters upon which his certificate or opinion is based are erroneous.  Any such certificate or opinion of counsel may be based, insofar as it relates to factual matters, upon a certificate or opinion of, or representations by, an Officer or Officers to the effect that the information with respect to such factual matters is in the possession of the Company, unless such counsel knows that the certificate or opinion or representations with respect to such matters are erroneous.

 

Where any Person is required to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or other instruments under this Indenture, they may, but need not, be consolidated and form one instrument.

 

Section 108.           Acts of Noteholders; Record Dates .  (a)  Any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given or taken by Holders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders in person or by agent duly appointed in writing; and, except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments are delivered to the Trustee, and, where it is hereby expressly required, to the Company, as the case may be.  Such instrument or instruments (and the action embodied therein and evidenced thereby) are herein sometimes referred to as the “ Act ” of the Holders signing such instrument or instruments.  Proof of execution of any such instrument or of a writing appointing any such agent shall be sufficient for any purpose of this Indenture and (subject to Section 701 ) conclusive in favor of the Trustee, the Company and any other obligor upon the Notes, if made in the manner provided in this Section 108 .

 

50



 

(b)   The fact and date of the execution by any Person of any such instrument or writing may be proved by the affidavit of a witness of such execution or by the certificate of any notary public or other officer authorized by law to take acknowledgments of deeds, certifying that the individual signing such instrument or writing acknowledged to him the execution thereof.  Where such execution is by an officer of a corporation or a member of a partnership or other legal entity other than an individual, on behalf of such corporation or partnership or entity, such certificate or affidavit shall also constitute sufficient proof of such Person’s authority.  The fact and date of the execution of any such instrument or writing, or the authority of the person executing the same, may also be proved in any other manner that the Trustee deems sufficient.

 

(c)   The ownership of Notes shall be proved by the Note Register.

 

(d)   Any request, demand, authorization, direction, notice, consent, waiver or other action by the Holder of any Note shall bind the Holder of every Note issued upon the transfer thereof or in exchange therefor or in lieu thereof, in respect of anything done, suffered or omitted to be done by the Trustee, the Company or any other obligor upon the Notes in reliance thereon, whether or not notation of such action is made upon such Note.

 

(e)   (i)    The Company may set any day as a record date for the purpose of determining the Holders of Outstanding Notes entitled to give, make or take any request, demand, authorization, direction, notice, consent, waiver or other action provided or permitted by this Indenture to be given, made or taken by Holders of Notes, provided that the Company may not set a record date for, and the provisions of this paragraph shall not apply with respect to, the giving or making of any notice, declaration, request or direction referred to in the next paragraph.  If any record date is set pursuant to this paragraph, the Holders of Outstanding Notes on such record date (or their duly designated proxies), and no other Holders, shall be entitled to take the relevant action, whether or not such Persons remain Holders after such record date; provided that no such action shall be effective hereunder unless taken on or prior to the applicable Expiration Date by Holders of the requisite principal amount of Outstanding Notes on such record date.  Nothing in this paragraph shall be construed to prevent the Company from setting a new record date for any action for which a record date has previously been set pursuant to this paragraph (whereupon the record date previously set shall automatically and with no action by any Person be cancelled and of no effect), and nothing in this paragraph shall be construed to render ineffective any action taken by Holders of the requisite principal amount of Outstanding Notes on the date such action is taken.  Promptly after any record date is set pursuant to this paragraph, the Company, at its expense,  shall cause notice of such record date, the proposed action by Holders and the applicable Expiration Date to be given to the Trustee in writing and to each Holder of Notes in the manner set forth in Section 110 .

 

(ii)           The Trustee may set any day as a record date for the purpose of determining the Holders of Outstanding Notes entitled to join in the giving or making of ( A ) any Notice of Default, ( B ) any declaration of acceleration referred to in Section 602 , ( C ) any request to institute proceedings referred to in Section 607(ii)  or ( D ) any direction

 

51



 

referred to in Section 612 , in each case with respect to Notes.  If any record date is set pursuant to this paragraph, the Holders of Outstanding Notes on such record date, and no other Holders, shall be entitled to join in such notice, declaration, request or direction, whether or not such Holders remain Holders after such record date; provided that no such action shall be effective hereunder unless taken on or prior to the applicable Expiration Date by Holders of the requisite principal amount of Outstanding Notes on such record date.  Nothing in this paragraph shall be construed to prevent the Trustee from setting a new record date for any action for which a record date has previously been set pursuant to this paragraph (whereupon the record date previously set shall automatically and with no action by any Person be cancelled and of no effect), and nothing in this paragraph shall be construed to render ineffective any action taken by Holders of the requisite principal amount of Outstanding Notes on the date such action is taken.  Promptly after any record date is set pursuant to this paragraph, the Trustee, at the Company’s expense, shall cause notice of such record date, the proposed action by Holders and the applicable Expiration Date to be given to the Company in writing and to each Holder of Notes in the manner set forth in Section 110 .

 

(iii)          With respect to any record date set pursuant to this Section 108 , the party hereto that sets such record dates may designate any day as the “ Expiration Date ” and from time to time may change the Expiration Date to any earlier or later day; provided that no such change shall be effective unless notice of the proposed new Expiration Date is given to the Company or the Trustee, whichever such party is not setting a record date pursuant to this Section 108(e)  in writing, and to each Holder of Notes in the manner set forth in Section 110 , on or prior to the existing Expiration Date.  If an Expiration Date is not designated with respect to any record date set pursuant to this Section 108 , the party hereto that set such record date shall be deemed to have initially designated the 180th day after such record date as the Expiration Date with respect thereto, subject to its right to change the Expiration Date as provided in this paragraph.  Notwithstanding the foregoing, no Expiration Date shall be later than the 180th day after the applicable record date.

 

(iv)          Without limiting the foregoing, a Holder entitled hereunder to take any action hereunder with regard to any particular Note may do so with regard to all or any part of the principal amount of such Note or by one or more duly appointed agents each of which may do so pursuant to such appointment with regard to all or any part of such principal amount.

 

(v)           Without limiting the generality of the foregoing, a Holder, including the Depositary, that is the Holder of a Global Note, may make, give or take, by a proxy or proxies duly appointed in writing, any request, demand, authorization, direction, notice, consent, waiver or other action provided in this Indenture to be made, given or taken by Holders, and the Depositary, as the Holder of a Global Note, may provide its proxy or proxies to the beneficial owners of interest in any such Global Note through such depositary’s standing instructions and customary practices.

 

52


 

(vi)          The Company may fix a record date for the purpose of determining the persons who are beneficial owners of interests in any Global Note held by the Depositary entitled under the procedures of such depositary to make, give or take, by a proxy or proxies duly appointed in writing, any request, demand, authorization, direction, notice, consent, waiver or other action provided in this Indenture to be made, given or taken by Holders.  If such a record date is fixed, the Holders on such record date or their duly appointed proxy or proxies, and only such persons, shall be entitled to make, give or take such request, demand, authorization direction, notice consent, waiver or other action, whether or not such Holders remain Holders after such record date.  No such request, demand, authorization, direction, notice, consent, waiver or other action shall be valid or effective if made, given or taken more than 90 days after such record date.

 

Section 109.                                 Notices, etc., to Trustee and Company .  Any request, demand, authorization, direction, notice, consent, waiver or Act of Holders or other document provided or permitted by this Indenture to be made upon, given or furnished to, or filed with,

 

(1)           the Trustee by any Holder or by the Company or by any other obligor upon the Notes shall be sufficient for every purpose hereunder if made, given, furnished or filed in writing to or with the Trustee at 45 Broadway, 14 th  Floor, New York, NY 10006, Attention:  Corporate Trust Services Administrator for The Hertz Corporation (telephone:  (212) 515-5244; telecopier:  (212) 515-1589) or at any other address furnished in writing to the Company by the Trustee, or

 

(2)           the Company by the Trustee or by any Holder shall be sufficient for every purpose hereunder if in writing and mailed, first-class postage prepaid, to the Company at The Hertz Corporation, 225 Brae Boulevard, Park Ridge, New Jersey 07656, Attention: Richard J. Frecker, Assistant General Counsel;  with copies to Jenner & Block LLP, 353 N. Clark Street, Chicago, Illinois 60654, Attention:  Thomas A. Monson, Esq. (telephone:  (312) 840-8611; telecopier:  (312) 840-8711) and Donald E. Batterson, Esq. (telephone: (312) 923-2607; telecopier: (312) 923-2707), or at any other address previously furnished in writing to the Trustee by the Company.

 

(3)           The Issuer or the Trustee, by notice to the other, may designate additional or different addresses for subsequent notices or communications.

 

Section 110.           Notices to Holders; Waiver .  Where this Indenture provides for notice to Holders of any event, such notice shall be sufficiently given (unless otherwise herein expressly provided) if in writing and mailed, first-class postage prepaid, or by overnight air courier guaranteeing next day delivery, to each Holder affected by such event, at such Holder’s address as it appears in the Note Register, not later than the latest date, and not earlier than the earliest date, prescribed for the giving of such notice.  In any case where notice to Holders is given by mail, neither the failure to mail such notice, nor any defect in any notice so mailed, to any particular Holder shall affect the sufficiency of such notice with respect to other Holders.

 

53



 

Where this Indenture provides for notice in any manner, such notice may be waived in writing by the 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 Holders 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 case, by reason of the suspension of regular mail service, or by reason of any other cause, it shall be impossible to mail notice of any event as required by any provision of this Indenture, then such notification as shall be made with the approval of the Trustee (such approval not to be unreasonably withheld) shall constitute a sufficient notification for every purpose hereunder.

 

Section 111.           Effect of Headings and Table of Contents .  The Article and Section headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof.

 

Section 112.           Successors and Assigns .  All covenants and agreements in this Indenture by the Company shall bind its respective successors and assigns, whether so expressed or not.  All agreements of the Trustee in this Indenture shall bind its successors.

 

Section 113.           Separability Clause .  In case any provision in this Indenture or in the 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 114.           Benefits of Indenture .  Nothing in this Indenture or in the Notes, express or implied, shall give to any Person, other than the parties hereto and their successors hereunder, any Paying Agent and the Holders, any benefit or any legal or equitable right, remedy or claim under this Indenture.

 

Section 115.           GOVERNING LAW; WAIVER OF JURY TRIAL .  THIS INDENTURE AND THE NOTES 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 INDENTURE OR THE NOTES.  EACH OF THE COMPANY AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE NOTES OR THE TRANSACTION CONTEMPLATED HEREBY.

 

Section 116.           Legal Holidays .  In any case where any Interest Payment Date, Redemption Date or Stated Maturity of any Note shall not be a Business Day at any Place of

 

54



 

Payment, then (notwithstanding any other provision of this Indenture or of the Notes) payment of interest or principal and premium (if any) need not be made at such Place of Payment on such date, but may be made on the next succeeding Business Day at such Place of Payment with the same force and effect as if made on the Interest Payment Date or Redemption Date, or at the Stated Maturity, and no interest shall accrue on such payment for the intervening period.

 

Section 117.           No Personal Liability of Directors, Officers, Employees, Incorporators and Stockholders .  No director, officer, employee, incorporator or stockholder of the Company, any Subsidiary Guarantor or any Subsidiary of any thereof shall have any liability for any obligation of the Company or any Subsidiary Guarantor under this Indenture, the Notes or any Subsidiary Guarantee, or for any claim based on, in respect of, or by reason of, any such obligation or its creation.  Each Noteholder, by accepting the Notes, waives and releases all such liability.  The waiver and release are part of the consideration for issuance of the Notes.

 

Section 118.           Exhibits and Schedules .  All exhibits and schedules attached hereto are by this reference made a part hereof with the same effect as if herein set forth in full.

 

Section 119.           Counterparts .  This 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 Indenture and of signature pages by facsimile or PDF transmission shall constitute effective execution and delivery of this Indenture as to the parties hereto and may be used in lieu of the original 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.

 

Section 120.           U.S.A. Patriot Act .  The parties hereto acknowledge that in accordance with Section 326 of the U.S.A. Patriot Act, the Trustee, like all financial institutions and in order to help fight the funding of terrorism and money laundering, is required to obtain, verify, and record information that identifies each person or legal entity that establishes a relationship or opens an account with the Trustee.  The parties to this Indenture agree that they will provide the Trustee with such information as it may request in order for the Trustee to satisfy the requirements of the U.S.A. Patriot Act.

 

ARTICLE II

 

NOTE FORMS

 

Section 201.           Forms Generally .  ( a) The Initial Notes and Initial Additional Notes that are not Exchange Notes and the Trustee’s certificate of authentication relating thereto shall be in substantially the forms set forth, or referenced, in this Article II and Exhibit A annexed hereto.  The Exchange Notes and any Additional Notes that are not Initial Additional Notes, or that are issued in a registered offering pursuant to the Securities Act, and the Trustee’s certificate of authentication relating thereto shall be in substantially the forms set forth, or referenced, in this Article II and Exhibit B annexed hereto.  Each of Exhibits A and B is hereby incorporated in and expressly made a part of this Indenture.  The Notes may have such

 

55



 

appropriate insertions, omissions, substitutions, notations, legends, endorsements, identifications and other variations as are required or permitted by law, stock exchange rule or depositary rule or usage, agreements to which the Company is subject, if any, or other customary usage, or as may consistently herewith be determined by the Officers of the Company executing such Notes, as evidenced by such execution ( provided always that any such notation, legend, endorsement, identification or variation is in a form acceptable to the Company).  Each Note shall be dated the date of its authentication.  The terms of the Notes set forth in Exhibits A and B are part of the terms of this Indenture.  Any portion of the text of any Note may be set forth on the reverse thereof, with an appropriate reference thereto on the face of the Note.

 

Initial Notes and any Initial Additional Notes offered and sold in reliance on Rule 144A shall, unless the Company otherwise notifies the Trustee in writing, be issued in the form of one or more permanent global Notes in substantially the form set forth in Exhibit A hereto, except as otherwise permitted herein. Such Global Notes shall be referred to collectively herein as the “ Rule 144A Global Note .”  The Rule 144A Global Note shall be deposited with the Trustee, as custodian for the Depositary or its nominee, in each case for credit to an account of an Agent Member, and shall be duly executed by the Company and authenticated by the Trustee as hereinafter provided.  The aggregate principal amount of a Rule 144A Global Note may from time to time be increased or decreased by adjustments made on the records of the Trustee as hereinafter provided.

 

Initial Notes and any Initial Additional Notes offered and sold in offshore transactions in reliance on Regulation S under the Securities Act shall, unless the Company otherwise notifies the Trustee in writing, be issued in the form of one or more temporary global Notes in substantially the form set forth in Exhibit A hereto, except as otherwise permitted herein.  Such Global Notes will be referred to collectively herein as the “ Temporary Regulation S Global Note .”  The Temporary Regulation S Global Note shall be deposited with the Trustee, as custodian for the Depositary or its nominee for the accounts of designated Agent Members holding on behalf of Euroclear or Clearstream and shall be duly executed by the Company and authenticated by the Trustee as hereinafter provided.  The aggregate principal amount of a Regulation S Global Note may from time to time be increased or increased by adjustments made on the records of the Trustee as hereinafter provided.

 

Following the expiration of the distribution compliance period set forth in Regulation S (the “ Distribution Compliance Period ”) with respect to any Temporary Regulation S Global Note, beneficial interests in such Temporary Regulation S Global Note shall be exchanged as provided in Sections 312 and 313 for beneficial interests in one or more permanent global Notes in substantially the form set forth in Exhibit A hereto, except as otherwise permitted herein.  Such Global Notes will be referred to collectively herein as the “ Permanent Regulation S Global Note .”  The Permanent Regulation S Global Notes and the Temporary Regulation S Global Notes shall be referred to collectively herein as the “ Regulation S Global Notes .”  The Permanent Regulation S Global Note shall be deposited with the Trustee, as custodian for the Depositary or its nominee for credit to the account of an Agent Member and shall be duly executed by the Company and authenticated by the Trustee as hereinafter provided.

 

56



 

Simultaneously with the authentication of a Permanent Regulation S Global Note, the Trustee shall cancel the related Temporary Regulation S Global Note.

 

Subject to the limitations on the issuance of certificated Notes set forth in Sections 312 and 313 , Initial Notes and any Initial Additional Notes issued pursuant to Section 305 in exchange for or upon transfer of beneficial interests ( x ) in a Rule 144A Global Note shall be in the form of permanent certificated Notes substantially in the form set forth in Exhibit A hereto (the “ Rule 144A Physical Notes ”) or ( y ) in a Regulation S Global Note (if any), on or after the Regulation S Note Exchange Date with respect to such Regulation S Global Note, shall be in the form of permanent certificated Notes substantially in the form set forth in Exhibit A hereto (the “ Regulation S Physical Notes ”) as hereinafter provided.

 

The Rule 144A Physical Notes and Regulation S Physical Notes shall be construed to include any certificated Notes issued in respect thereof pursuant to Section 304 , 305 , 306 or 1008 , and the Rule 144A Global Notes and Regulation S Global Notes shall be construed to include any global Notes issued in respect thereof pursuant to Section 304 , 305 , 306 or 1008 .  The Rule 144A Physical Notes and the Regulation S Physical Notes, together with any other certificated Notes issued and authenticated pursuant to this Indenture, are sometimes collectively herein referred to as the “ Physical Notes .”  The Rule 144A Global Notes and the Regulation S Global Notes, together with any other global Notes that are issued and authenticated pursuant to this Indenture, are sometimes collectively referred to as the “ Global Notes .”

 

Exchange Notes shall be issued substantially in the form set forth in Exhibit B hereto and, subject to Section 312(b) , shall be in the form of one or more Global Notes.

 

Section 202.           Form of Trustee’s Certificate of Authentication .  The Notes will have endorsed thereon a Trustee’s certificate of authentication in substantially the following form:

 

This is one of the Notes referred to in the within-mentioned Indenture.

 

 

 

 

as Trustee

 

 

 

 

 

By:

 

 

 

 

Authorized Signatory

Dated:

 

 

 

57



 

If an appointment of an Authenticating Agent is made pursuant to Section 714 , the Notes may have endorsed thereon, in lieu of the Trustee’s certificate of authentication, an alternative certificate of authentication in substantially the following form:

 

This is one of the Notes referred to in the within-mentioned Indenture.

 

 

 

WELLS FARGO BANK,
NATIONAL ASSOCIATION

 

 

as Trustee

 

 

 

 

 

 

By:

 

 

 

 

As Authenticating Agent

 

 

 

 

 

 

By:

 

 

 

 

Authorized Signatory

Dated:

 

 

 

 

Section 203.           Restrictive and Global Note Legends .  Each Global Note and Physical Note (and all Notes issued in exchange therefor or substitution thereof) shall bear the following legend set forth below (the “ Private Placement Legend ”) on the face thereof until the Private Placement Legend is removed or not required in accordance with Section 313(4) :

 

“THIS NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “ SECURITIES ACT ”), OR UNDER THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS EXCEPT AS SET FORTH BELOW. EACH PURCHASER OF THIS NOTE IS HEREBY NOTIFIED THAT THE SELLER OF THIS NOTE MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER OR ANOTHER EXEMPTION UNDER THE SECURITIES ACT.

 

BY ITS ACCEPTANCE HEREOF, THE HOLDER OF THIS NOTE ( 1 ) REPRESENTS THAT ( A ) IT IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT), ( B ) IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS NOTE IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT OR ( C ) IT IS AN “INSTITUTIONAL” ACCREDITED INVESTOR (AS DEFINED IN RULE 501(a)(1), (2), (3), OR (7) UNDER REGULATION D PROMULGATED UNDER THE SECURITIES ACT (AN “ ACCREDITED INVESTOR ”)) AND ( 2 ) AGREES THAT IT WILL NOT WITHIN [ONE YEAR— FOR NOTES ISSUED PURSUANT TO RULE 144A ][40 DAYS— FOR NOTES ISSUED IN OFFSHORE TRANSACTIONS PURSUANT TO REGULATION S ] AFTER THE LATER OF THE DATE OF THE ORIGINAL ISSUANCE OF THIS NOTE AND THE DATE ON WHICH THE COMPANY OR ANY OF ITS AFFILIATES OWNED SUCH NOTE, OFFER, RESELL OR OTHERWISE TRANSFER THIS NOTE EXCEPT ( A ) ( I ) TO THE COMPANY OR ANY

 

58



 

SUBSIDIARY THEREOF, ( II ) FOR SO LONG AS THIS NOTE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT INSIDE THE UNITED STATES TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, ( III ) INSIDE THE UNITED STATES TO AN ACCREDITED INVESTOR THAT IS ACQUIRING THE NOTES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF SUCH AN ACCREDITED INVESTOR, IN EACH CASE IN A MINIMUM PRINCIPAL AMOUNT OF THE NOTES OF $250,000, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO OR FOR THE OFFER OR SALE IN CONNECTION WITH ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, AND THAT PRIOR TO SUCH TRANSFER, FURNISHES (OR HAS FURNISHED ON ITS BEHALF BY A U.S. BROKER-DEALER) TO THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER OF THIS NOTE (THE FORM OF WHICH LETTER CAN BE OBTAINED FROM THE TRUSTEE FOR THIS NOTE), ( IV ) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT (IF AVAILABLE), ( V ) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), ( VI ) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, OR ( VII ) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND ( B ) IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES OF THE UNITED STATES AND OTHER JURISDICTIONS. THE HOLDER OF THIS NOTE FURTHER AGREES THAT IT WILL GIVE TO EACH PERSON TO WHOM THIS NOTE IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN CONNECTION WITH ANY TRANSFER OF THIS NOTE PURSUANT TO SUBCLAUSES (III) TO (VI) OF CLAUSE (A) ABOVE, THE HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE TRUSTEE AND THE COMPANY SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS EITHER OF THEM MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. AS USED HEREIN, THE TERMS “OFFSHORE TRANSACTION,” “UNITED STATES” AND “U.S. PERSON” HAVE THE MEANING GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT.”

 

Each Global Note, whether or not an Initial Note, shall also bear the following legend on the face thereof:

 

UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“ DTC ”) TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN

 

59



 

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 INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.

 

TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN SECTIONS 312 AND 313 OF THE INDENTURE (AS DEFINED HEREIN).

 

Each Temporary Regulation S Global Note shall also bear the following legend on the face thereof:

 

EXCEPT AS SPECIFIED IN THE INDENTURE, BENEFICIAL OWNERSHIP INTERESTS IN THIS TEMPORARY REGULATION S GLOBAL NOTE WILL NOT BE EXCHANGEABLE FOR INTERESTS IN THE PERMANENT REGULATION S GLOBAL NOTE OR ANY OTHER NOTE REPRESENTING AN INTEREST IN THE NOTES REPRESENTED HEREBY WHICH DO NOT CONTAIN A LEGEND CONTAINING RESTRICTIONS ON TRANSFER, UNTIL THE EXPIRATION OF THE “40 DAY DISTRIBUTION COMPLIANCE PERIOD” (WITHIN THE MEANING OF RULE 903(b)(2) OF REGULATION S UNDER THE SECURITIES ACT).  DURING SUCH 40 DAY DISTRIBUTION COMPLIANCE PERIOD, BENEFICIAL OWNERSHIP INTERESTS IN THIS TEMPORARY REGULATION S GLOBAL NOTE MAY ONLY BE SOLD, PLEDGED OR TRANSFERRED THROUGH EUROCLEAR BANK S.A./N.A., AS OPERATOR OF THE EUROCLEAR SYSTEM, OR CLEARSTREAM BANKING, SOCIÉTÉ ANONYME.

 

ARTICLE III

 

THE NOTES

 

Section 301.           Title and Terms .  The aggregate principal amount of Notes that may be authenticated and delivered and Outstanding under this Indenture is not limited.  The Initial Notes will be issued in an aggregate principal amount of $500.0 million.  Additional Notes (including any Exchange Notes issued in exchange therefor) will vote (or consent) as a single class with the other Notes and otherwise be treated as Notes for all purposes of this Indenture.

 

The Notes shall be known and designated as the “7.375% Senior Notes due 2021” of the Company.  The final Stated Maturity of the Notes shall be January 15, 2021.  Interest on the Outstanding principal amount of Notes will accrue at the rate of 7.375% per annum and will

 

60



 

be payable, semi-annually in arrears on January 15 and July 15 in each year, commencing on July 15, 2011, to holders of record on the immediately preceding January 1 and July 1, respectively (each such January 1 and July 1, a “ Regular Record Date ”).  Interest on the Original Notes will accrue from the most recent date to which interest has been paid or duly provided for or, if no interest has been paid, from the date hereof; and interest on any Additional Notes (and Exchange Notes issued in exchange therefor) will accrue (or will be deemed to have accrued) from the most recent date to which interest has been paid or duly provided for or, if no interest has been paid on such Additional Notes, from the Interest Payment Date immediately preceding the date of issuance of such Additional Notes, or if the date of issuance of such Additional Notes is an Interest Payment Date, from such date of issuance; provided that if any Note is surrendered for exchange on or after a record date for an Interest Payment Date that will occur on or after the date of such exchange, interest on the Note received in exchange thereof will accrue from the date of such Interest Payment Date.

 

Section 302.           Denominations .  The Notes shall be issuable only in fully registered form, without coupons, and only in minimum denominations of $2,000 (the “ Minimum Denomination ”) and integral multiples of $1,000 in excess thereof.

 

Section 303.           Execution, Authentication and Delivery and Dating .  The Notes shall be executed on behalf of the Company by one Officer of the Company.  The signature of any such Officer on the Notes may be manual or by facsimile.

 

Notes bearing the manual or facsimile signature of an individual who was at any time an Officer of the Company shall bind the Company, notwithstanding that such individual has ceased to hold such office prior to the authentication and delivery of such Notes or did not hold such office at the date of such Notes.

 

At any time and from time to time after the execution and delivery of this Indenture, the Company may deliver Notes executed by the Company to the Trustee for authentication; and the Trustee shall authenticate and deliver ( i ) Initial Notes for original issue in the aggregate principal amount not to exceed $500.0 million, ( ii ) Additional Notes in one or more series from time to time for original issue in aggregate principal amounts specified by the Company and ( iii ) Exchange Notes from time to time for issue in exchange for a like principal amount of Initial Notes or Initial Additional Notes, in each case specified in clauses (i) through (iii) above, upon a written order of the Company in the form of an Officer’s Certificate of the Company (an “ Authentication Order ”).  Such Officer’s Certificate shall specify the amount of Notes to be authenticated and the date on which the Notes are to be authenticated, the “CUSIP”, “ISIN”, “Common Code” or other similar identification numbers of such Notes, if any, whether the Notes are to be Initial Notes, Additional Notes or Exchange Notes and whether the Notes are to be issued as one or more Global Notes or Physical Notes and such other information as the Company may include or the Trustee may reasonably request.

 

All Notes shall be dated the date of their authentication.

 

61



 

No Note shall be entitled to any benefit under this Indenture or be valid or obligatory for any purpose, unless there appears on such Note a certificate of authentication substantially in the form provided for herein executed by the Trustee by manual signature, and such certificate upon any Note shall be conclusive evidence, and the only evidence, that such Note has been duly authenticated and delivered hereunder.

 

Section 304.           Temporary Notes .  Until definitive Notes are ready for delivery, the Company may prepare and upon receipt of an Authentication Order the Trustee shall authenticate temporary Notes.  Temporary Notes shall be substantially in the form of definitive Notes but may have variations that the Company consider appropriate for temporary Notes.  If temporary Notes are issued, the Company will cause definitive Notes to be prepared without unreasonable delay.  After the preparation of definitive Notes, the temporary Notes shall be exchangeable for definitive Notes upon surrender of the temporary Notes at the office or agency of the Company in a Place of Payment, without charge to the Holder.  Upon surrender for cancellation of any one or more temporary Notes the Company shall execute and upon receipt of an Authentication Order the Trustee shall authenticate and deliver in exchange therefor a like principal amount of definitive Notes of authorized denominations.  Until so exchanged the temporary Notes shall in all respects be entitled to the same benefits under this Indenture as definitive Notes of the same series and tenor.

 

Section 305.           Registrar and Paying Agent .  The Company shall cause to be kept at the Corporate Trust Office of the Trustee a register (the register maintained in such office and in any other office or agency of the Company in a Place of Payment being herein sometimes collectively referred to as the “ Note Register ”) in which, subject to such reasonable regulations as it may prescribe, the Company shall provide for the registration of Notes and of transfers of Notes.  The Company may have one or more co-registrars.  The term “ Note Registrar ” includes any co-registrars.

 

The Company shall also maintain an office or agent within the United States where Notes may be presented for payment (the “ Paying Agent ”); provided , however , that at the option of the Company payment of interest on a Note may be made by wire transfer of immediately available funds to the account designated to the Company by the Person entitled thereto or by check mailed to the address of the Person entitled thereto as such address shall appear in the Note Register.  The Company may have one or more additional paying agents, and the term “ Paying Agent ” includes any additional Paying Agent.

 

The Company initially appoints the Trustee as “Note Registrar” and “Paying Agent” in connection with the Notes until such time it has resigned or a successor has been appointed.  The Company may change the Paying Agent or Note Registrar for any series of Notes without prior notice to the Holders of Notes.  The Company may enter into an appropriate agency agreement with any Note Registrar or Paying Agent not a party to this Indenture.  Any such agency agreement shall implement the provisions of this Indenture that relate to such agent.  The Company shall notify the Trustee in writing of the name and address of any such agent.  If the Company fails to appoint or maintain a Note Registrar or Paying Agent, the Trustee shall act as

 

62


 

such and shall be entitled to appropriate compensation therefor pursuant to Section 707 .  The Company or any wholly-owned Domestic Subsidiary of the Company may act as Paying Agent, Note Registrar or transfer agent.

 

Upon surrender for transfer of any Note at the office or agency of the Company in a Place of Payment, in compliance with all applicable requirements of this Indenture and applicable law, the Company shall execute, and the Trustee shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Notes of the same series, of any authorized denominations and of a like aggregate principal amount.

 

At the option of the Holder, Notes may be exchanged for other Notes of the same series, of any authorized denominations and of a like tenor and aggregate principal amount, upon surrender of the Notes to be exchanged at such office or agency.  Whenever any Notes are so surrendered for exchange, the Company shall execute, and the Trustee shall authenticate and deliver, the Notes that the Holder making the exchange is entitled to receive.

 

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

 

Every Note presented or surrendered for transfer or exchange shall (if so required by the Company or the Trustee) be duly endorsed, or be accompanied by a written instrument of transfer in form satisfactory to the Company and the Note Registrar duly executed, by the Holder thereof or such Holder’s attorney duly authorized in writing.

 

No service charge shall be made for any registration of transfer or exchange of Notes, but the Company may require payment of a sum sufficient to cover any transfer tax or other governmental charge that may be imposed in connection therewith.

 

The Company shall not be required ( i ) to issue, transfer or exchange any Note during a period beginning at the opening of business 15 Business Days before the day of the mailing of a notice of redemption (or purchase) of Notes selected for redemption (or purchase) under Section 1004 and ending at the close of business on the day of such mailing, or ( ii ) to transfer or exchange any Note so selected for redemption (or purchase) in whole or in part.

 

Section 306.           Mutilated, Destroyed, Lost and Stolen Notes .  If a mutilated Note is surrendered to the Note Registrar or if the Holder of a Note claims that the Note has been lost, destroyed or wrongfully taken, the Company shall issue and the Trustee shall authenticate a replacement Note if the requirements of Section 8-405 of the Uniform Commercial Code are met, such that the Holder ( a ) satisfies the Company or the Trustee within a reasonable time after such Holder has notice of such loss, destruction or wrongful taking and the Note Registrar does not register a transfer prior to receiving such notification, ( b ) makes such request to the Company or the Trustee prior to the Note being acquired by a protected purchaser as defined in Section 8-303 of the Uniform Commercial Code (a “protected purchaser”) and ( c ) satisfies any other reasonable requirements of the Trustee.  Such Holder shall furnish an indemnity bond sufficient

 

63



 

in the judgment of the Trustee to protect the Company, the Trustee, a Paying Agent and the Note Registrar from any loss that any of them may suffer if a Note is replaced.

 

In case any such mutilated, destroyed, lost or stolen Note has become or is about to become due and payable, the Company in its discretion may, instead of issuing a new Note, pay such Note.

 

Upon the issuance of any new Note under this Section 306 , the Company may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee) connected therewith.

 

Every new Note issued pursuant to this Section 306 in lieu of any destroyed, lost or stolen Note shall constitute an original additional contractual obligation of the Company, whether or not the destroyed, lost or stolen Note shall be at any time enforceable by anyone, and shall be entitled to all the benefits of this Indenture equally and ratably with any and all other Notes duly issued hereunder.

 

The provisions of this Section 306 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 Notes.

 

Section 307.           Payment of Interest Rights Preserved .  Interest on any Note that is payable, and is punctually paid or duly provided for, on any Interest Payment Date shall be paid to the Person in whose name that Note (or one or more Predecessor Notes) is registered at the close of business on the Regular Record Date for such interest specified in Section 301 .

 

Any interest on any Note that is payable, but is not punctually paid or duly provided for, on any Interest Payment Date (herein called “ Defaulted Interest ”) shall forthwith cease to be payable to the registered Holder on the relevant Regular Record Date by virtue of having been such Holder; and such Defaulted Interest may be paid by the Company, at its election, as provided in clause (1) or clause (2) below:

 

(1)           The Company may elect to make payment of any Defaulted Interest to the Persons in whose names the Notes (or their respective Predecessor Notes) are registered at the close of business on a Special Record Date for the payment of such Defaulted Interest, which shall be fixed in the following manner.  The Company shall notify the Trustee and Paying Agent in writing of the amount of Defaulted Interest proposed to be paid on each Note and the date of the proposed payment, and at the same time the Company shall deposit with the Trustee or Paying Agent an amount of money equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements reasonably satisfactory to the Trustee or Paying Agent for such deposit prior to the date of the proposed payment, such money when deposited to be held in trust for the benefit of the Persons entitled to such Defaulted Interest as provided in this clause (1).  Thereupon the Trustee shall fix a Special Record Date for the payment of

 

64



 

such Defaulted Interest which shall be not more than 15 nor less than 10 days prior to the date of the proposed payment and not less than 10 days after the receipt by the Trustee and the Paying Agent of the notice of the proposed payment.  The Trustee shall promptly notify the Company of such Special Record Date and, in the name and at the expense of the Company, shall cause notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor to be mailed, first class postage prepaid, to each Holder at such Holder’s address as it appears in the Note Register, not less than 10 days prior to such Special Record Date.  Notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor having been so mailed, such Defaulted Interest shall be paid to the Persons in whose names the Notes (or their respective Predecessor Notes) are registered on such Special Record Date and shall no longer be payable pursuant to the following clause (2).

 

(2)           The Company may make payment of any Defaulted Interest in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Notes may be listed, and upon such notice as may be required by such exchange, if, after notice given by the Company to the Trustee and the Paying Agent of the proposed payment pursuant to this clause (2), such payment shall be deemed practicable by the Trustee.

 

Subject to the foregoing provisions of this Section 307 , each Note delivered under this Indenture upon transfer of or in exchange for or in lieu of any other Note of the same series shall carry the rights to interest accrued and unpaid, and to accrue, that were carried by such other Note of such series.

 

Section 308.           Persons Deemed Owners .  The Company, any Subsidiary Guarantor, the Trustee, the Paying Agent and any agent of any of them may treat the Person in whose name any Note is registered as the owner of such Note for the purpose of receiving payment of principal of (and premium, if any), and (subject to Section 307 ) interest on, such Note and for all other purposes whatsoever, whether or not such Note be overdue, and neither the Company, any Subsidiary Guarantor, the Trustee, the Paying Agent nor any agent of any of them shall be affected by notice to the contrary.

 

Section 309.           Cancellation .  All Notes surrendered for payment, redemption, transfer, exchange or conversion shall, if surrendered to any Person other than the Trustee, be delivered to the Trustee and, if not already cancelled, shall be promptly cancelled by it.  The Company may at any time deliver to the Trustee for cancellation any Notes previously authenticated and delivered hereunder that the Company may have acquired in any manner whatsoever, and all Notes so delivered shall be promptly cancelled by the Trustee.  No Notes shall be authenticated in lieu of or in exchange for any Notes cancelled as provided in this Section 309 , except as expressly permitted by this Indenture.  All cancelled Notes held by the Trustee shall be disposed of by the Trustee in accordance with its customary procedures (subject to the record retention requirements of the Exchange Act).

 

65



 

Section 310.           Computation of Interest .  Interest on the Notes shall be computed on the basis of a 360-day year of twelve 30-day months.

 

Section 311.           CUSIP Numbers, ISINs, Etc .  The Company in issuing the Notes may use “CUSIP” numbers, ISINs and “Common Code” numbers (if then generally in use), and if so, the Trustee may use the CUSIP numbers, ISINs and “Common Code” numbers in notices of redemption or exchange as a convenience to Holders; provided , however , that any such notice may state that no representation is made as to the correctness or accuracy of such numbers printed in the notice or on the Notes; that reliance may be placed only on the other identification numbers printed on the Notes; and that any redemption shall not be affected by any defect in or omission of such numbers.  The Company will promptly notify the Trustee of any change in the CUSIP numbers.

 

Section 312.           Book-Entry Provisions for Global Notes .  ( a) Each Global Note initially shall ( i ) be registered in the name of the Depositary for such Global Note or the nominee of such Depositary, in each case for credit to the account of an Agent Member, and ( ii ) be delivered to the Trustee as custodian for such Depositary.  Neither the Company nor any agent of the Company shall have any responsibility or liability for any aspect of the records relating to or payments made on account of beneficial ownership interests of a Global Note, or for maintaining, supervising or reviewing any records relating to such beneficial ownership interests.

 

Members of, or participants in, the Depositary (“ Agent Members ”) shall have no rights under this Indenture with respect to any Global Note held on their behalf by the Depositary, or its custodian, or under such Global Notes.  The Depositary may be treated by the Company, any other obligor upon the Notes, the Trustee and any agent of any of them as the absolute owner of the Global Notes for all purposes whatsoever.  Notwithstanding the foregoing, nothing herein shall prevent the Company, any other obligor upon the Notes, the Trustee or any agent of any of them from giving effect to any written certification, proxy or other authorization furnished by the Depositary or impair, as between the Depositary and its Agent Members, the operation of customary practices governing the exercise of the rights of a beneficial owner of any Note.  The registered holder of a Global Note may grant proxies and otherwise authorize any Person, including Agent Members and Persons that may hold interests through Agent Members, to take any action that a Holder is entitled to take under this Indenture or the Notes.

 

(b)   Transfers of a Global Note shall be limited to transfers of such Global Note in whole, but, subject to the immediately succeeding sentence, not in part, to the Depositary, its successors or their respective nominees.  Interests of beneficial owners in a Global Note may not be transferred or exchanged for Physical Notes unless ( i ) the Company has consented thereto in writing, or such transfer or exchange is made pursuant to the next sentence, and ( ii ) such transfer or exchange is in accordance with the applicable rules and procedures of the Depositary and the provisions of Sections 305 and 313 .  Subject to the limitation on issuance of Physical Notes set forth in Section 313(3) , Physical Notes shall be transferred to all beneficial owners in exchange for their beneficial interests in the relevant Global Note, if ( i ) in the case of a Global Note, the Depositary notifies the Company at any time that it is unwilling or unable to continue as

 

66



 

Depositary for the Global Notes and a successor depositary is not appointed within 120 days; ( ii ) in the case of a Global Note, the Depositary ceases to be registered as a “Clearing Agency” under the Securities Exchange Act of 1934 and a successor depositary is not appointed within 120 days; ( iii ) the Company, at its option, notifies the Trustee that it elects to cause the issuance of Physical Notes; or ( iv ) an Event of Default shall have occurred and be continuing with respect to the Notes and the Trustee has received a written request from the Depositary to issue Physical Notes.

 

(c)   In connection with any transfer or exchange of a portion of the beneficial interest in any Global Note to beneficial owners for Physical Notes pursuant to Section 312(b) , the Note Registrar shall record on its books and records the date and a decrease in the principal amount of such Global Note in an amount equal to the beneficial interest in the Global Note being transferred, and the Company shall execute, and the Trustee shall authenticate and deliver, one or more Physical Notes of like tenor and principal amount of authorized denominations.

 

(d)   In connection with a transfer of an entire Global Note to beneficial owners pursuant to Section 312(b) , the applicable Global Note shall be deemed to be surrendered to the Trustee for cancellation, and the Company shall execute, and the Trustee shall authenticate and deliver, to each beneficial owner identified by the Depositary, Euroclear or Clearstream, as the case may be, in exchange for its beneficial interest in the applicable Global Note, an equal aggregate principal amount at maturity of Rule 144A Physical Notes (in the case of any Rule 144A Global Note) or Regulation S Physical Notes (in the case of any Regulation S Global Note), as the case may be, of authorized denominations.

 

(e)   The transfer and exchange of a Global Note or beneficial interests therein shall be effected through the Depositary, in accordance with this Indenture (including applicable restrictions on transfer set forth in Section 313 ) and the procedures therefor of the Depositary, Euroclear or Clearstream, as the case may be.  Any beneficial interest in one of the Global Notes that is transferred to a Person who takes delivery in the form of an interest in a different Global Note will, upon transfer, cease to be an interest in such Global Note and become an interest in the other Global Note and, accordingly, will thereafter be subject to all transfer restrictions, if any, and other procedures applicable to beneficial interests in such other Global Note for as long as it remains such an interest.  A transferor of a beneficial interest in a Global Note shall deliver to the Note Registrar a written order given in accordance with the procedures of the Depositary or of Euroclear or Clearstream, as applicable, containing information regarding the participant account of the Depositary to be credited with a beneficial interest in the relevant Global Note.  Subject to Section 313 , the Note Registrar shall, in accordance with such instructions, instruct the Depositary or Euroclear or Clearstream, as applicable, to credit to the account of the Person specified in such instructions a beneficial interest in such Global Note and to debit the account of the Person making the transfer the beneficial interest in the Global Note being transferred.

 

(f)    Any Physical Note delivered in exchange for an interest in a Global Note pursuant to Section 312(b) shall, unless such exchange is made on or after the Resale Restriction

 

67



 

Termination Date applicable to such Note and except as otherwise provided in Section 203 and Section 313 , bear the Private Placement Legend.

 

(g)   Notwithstanding the foregoing, through the Distribution Compliance Period, a beneficial interest in a Regulation S Global Note may be held only through Euroclear or Clearstream, or designated Agent Members holding on behalf of Euroclear or Clearstream unless delivery is made in accordance with the applicable provisions of Section 313 .

 

(h)   The Holder of any Global Note may grant proxies and otherwise authorize any Person, including Agent Members and Persons that may hold interests through Agent Members, to take any action which a Holder is entitled to take under this Indenture or the Notes.

 

(i)    Neither the Trustee nor any agent of the Trustee shall have any responsibility or liability for any action taken by, or any failure to act by, the Depositary.

 

Section 313.           Special Transfer Provisions .

 

(1)           Transfers to Non-U.S. Persons .  The following provisions shall apply with respect to the registration of any proposed transfer of a Note that is a Restricted Security to any Non-U.S. Person:  The Note Registrar shall register such transfer if it complies with all other applicable requirements of this Indenture (including Section 305 ) and,

 

(a)           if ( x ) such transfer is after the relevant Resale Restriction Termination Date with respect to such Note or ( y ) the proposed transferor has delivered to the Note Registrar and the Company and the Trustee a Regulation S Certificate and, unless otherwise agreed by the Company and the Trustee, an opinion of counsel, certifications and other information satisfactory to the Company and the Trustee, and

 

(b)           if the proposed transferor is or is acting through an Agent Member holding a beneficial interest in a Global Note, upon receipt by the Note Registrar and the Company and the Trustee of ( x ) the certificate, opinion, certifications and other information, if any, required by clause (a) above and ( y ) written instructions given in accordance with the procedures of the Note Registrar and of the Depositary;

 

whereupon ( i ) the Note Registrar shall reflect on its books and records the date and (if the transfer does not involve a transfer of any Outstanding Physical Note) a decrease in the principal amount of the relevant Global Note in an amount equal to the principal amount of the beneficial interest in the relevant Global Note to be transferred, and ( ii ) either ( A ) if the proposed transferee is or is acting through an Agent Member holding a beneficial interest in a relevant Regulation S Global Note, the Note Registrar shall reflect on its books and records the date and an increase in the principal amount of such Regulation S Global Note in an amount equal to the principal amount of the beneficial interest being so transferred or ( B ) otherwise the Company shall execute and the Trustee shall authenticate and deliver one or more Physical Notes of like tenor and amount.

 

68



 

(2)           Transfers to QIBs .  The following provisions shall apply with respect to the registration of any proposed transfer of a Note that is a Restricted Security to a QIB (excluding transfers to Non-U.S. Persons):  The Note Registrar shall register such transfer if it complies with all other applicable requirements of this Indenture (including Section 305 ) and,

 

(a)           if such transfer is being made by a proposed transferor who has checked the box provided for on the form of such Note stating, or has otherwise certified to the Note Registrar and the Company and the Trustee in writing, that the sale has been made in compliance with the provisions of Rule 144A to a transferee who has signed the certification provided for on the form of such Note stating, or has otherwise certified to Note Registrar and the Company and the Trustee in writing, that it is purchasing such Note 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 within the meaning of Rule 144A, 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 the Company as it 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; and

 

(b)           if the proposed transferee is an Agent Member, and the Note to be transferred consists of a Physical Note that after transfer is to be evidenced by an interest in a Global Note or consists of a beneficial interest in a Global Note that after the transfer is to be evidenced by an interest in a different Global Note, upon receipt by the Note Registrar of written instructions given in accordance with the procedures of the Note Registrar and of the Depositary or Euroclear or Clearstream, as applicable, whereupon the Note Registrar shall reflect on its books and records the date and an increase in the principal amount of the transferee Global Note in an amount equal to the principal amount of the Physical Note or such beneficial interest in such transferor Global Note to be transferred, and the Trustee shall cancel the Physical Note so transferred or reflect on its books and records the date and a decrease in the principal amount of such transferor Global Note, as the case may be.

 

(3)           Limitation on Issuance of Physical Notes .  No Physical Note shall be exchanged for a beneficial interest in any Global Note, except in accordance with Section 312 and this Section 313 .

 

A beneficial owner of an interest a Temporary Regulation S Global Note (and, in the case of any Additional Notes for which no Temporary Regulation S Global Note is issued, any Regulation S Global Note) shall not be permitted to exchange such interest for a Physical Note or (in the case of such interest in a Temporary Regulation S Global Note) an interest in a Permanent Regulation S Global Note until a date, which must be after the expiration of the Distribution Compliance Period, on which the Company receives a certificate of beneficial ownership substantially in the form of Exhibit C from such beneficial owner (a “ Certificate of

 

69



 

Beneficial Ownership ”).  Such date, as it relates to a Regulation S Global Note, is herein referred to as the “ Regulation S Note Exchange Date .”

 

(4)           Private Placement Legend .  Upon the transfer, exchange or replacement of Notes not bearing the Private Placement Legend, the Note Registrar shall deliver Notes that do not bear the Private Placement Legend.  Upon the transfer, exchange or replacement of Notes bearing the Private Placement Legend, the Note Registrar shall deliver only Notes that bear the Private Placement Legend unless ( i ) the requested transfer is after the relevant Resale Restriction Termination Date with respect to such Notes, ( ii ) upon written request of the Company after there is delivered to the Note Registrar an opinion of counsel (which opinion and counsel are satisfactory to the Company and the Trustee) to the effect that neither such legend nor the related restrictions on transfer are required in order to maintain compliance with the provisions of the Securities Act, ( iii ) with respect to a Regulation S Global Note (on or after the Regulation S Note Exchange Date with respect to such Regulation S Global Note) or Regulation S Physical Note, in each case with the agreement of the Company, or ( iv ) such Notes are sold or exchanged pursuant to an effective registration statement under the Securities Act.

 

(5)           Other Transfers .  The Note Registrar shall effect and register, upon receipt of a written request from the Company to do so, a transfer not otherwise permitted by this Section 313 , such registration to be done in accordance with the otherwise applicable provisions of this Section 313 , upon the furnishing by the proposed transferor or transferee of a written opinion of counsel (which opinion and counsel are satisfactory to the Company and the Trustee) to the effect that, and such other certifications or information as the Company or the Trustee may require (including, in the case of a transfer to an Accredited Investor (as defined in Rule 501(a)(1), (2), (3) or (7) under Regulation D promulgated under the Securities Act), a certificate substantially in the form of Exhibit F ) to confirm that, the proposed transfer is being made pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act.

 

A Note that is a Restricted Security may not be transferred other than as provided in this Section 313 .  A beneficial interest in a Global Note that is a Restricted Security may not be exchanged for a beneficial interest in another Global Note other than through a transfer in compliance with this Section 313 .

 

(6)           General .  By its acceptance of any Note bearing the Private Placement Legend, each Holder of such a Note acknowledges the restrictions on transfer of such Note set forth in this Indenture and in the Private Placement Legend and agrees that it will transfer such Note only as provided in this Indenture.

 

The Note Registrar shall retain copies of all letters, notices and other written communications received pursuant to Section 312 or this Section 313 (including all Notes received for transfer pursuant to Section 313 ).  The Company shall have the right to require the Note Registrar to deliver to the Company, at the Company’s expense, copies of all such letters, notices or other written communications at any reasonable time upon the giving of reasonable written notice to the Note Registrar.

 

70



 

In connection with any transfer of any Note, the Trustee, the Note Registrar and the Company shall be entitled to receive, shall be under no duty to inquire into, may conclusively presume the correctness of, and shall be fully protected in conclusively relying upon the certificates, opinions and other information referred to herein (or in the forms provided herein, attached hereto or to the Notes, or otherwise) received from any Holder and any transferee of any Note regarding the validity, legality and due authorization of any such transfer, the eligibility of the transferee to receive such Note and any other facts and circumstances related to such transfer.

 

Section 314.           Payment of Additional Interest .  (a)  Under certain circumstances the Company will be obligated to pay certain additional amounts of interest to the Holders of certain Initial Notes, as more particularly set forth in such Initial Notes.

 

(b)   Under certain circumstances the Company may be obligated to pay certain additional amounts of interest to the Holders of certain Initial Additional Notes, as may be more particularly set forth in such Initial Additional Notes.

 

(c)   Prior to any Interest Payment Date on which any such additional interest is payable, the Company shall give notice to the Trustee of the amount of any additional interest due on such Interest Payment Date.

 

ARTICLE IV

 

COVENANTS

 

Section 401.           Payment of Principal, Premium and Interest .  The Company shall duly and punctually pay the principal of (and premium, if any) and interest on the Notes in accordance with the terms of the Notes and this Indenture.  Principal amount (and premium, if any) and interest on the Notes shall be considered paid on the date due if the Company shall have deposited with the Paying Agent (if other than the Company or a wholly-owned Domestic Subsidiary of the Company) as of 12:00 p.m. New York City time on the due date money in immediately available funds and designated for and sufficient to pay all principal amount (and premium, if any) and interest then due.

 

Section 402.           Maintenance of Office or Agency .  ( a) The Company shall maintain in the United States one or more offices or agencies where Notes may be presented or surrendered for payment, where Notes may be surrendered for transfer or exchange and where notices and demands to or upon the Company in respect of the Notes and this Indenture may be served.  The Company shall give prompt written notice to the Trustee of the location, and of any change in the location, of such office or agency.  If at any time the Company shall fail to maintain such 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 of the Trustee.

 

71



 

(b)           The Company 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 purposes and may from time to time rescind such designations.

 

The Company hereby designates the Corporate Trust Office of the Trustee as such office or agency of the Company where Notes may be presented or surrendered for payment or for transfer or exchange for so long as such Corporate Trust Office remains a Place of Payment in accordance with Section 305 hereof.

 

Section 403.           Money for Payments to Be Held in Trust .  If the Company shall at any time act as its own Paying Agent, it shall, on or before 12:00 p.m., New York City time on each due date of the principal of (and premium, if any) or interest on, any of the Notes, segregate and hold in trust for the benefit of the Persons entitled thereto a sum sufficient to pay the principal (and premium, if any) or interest so becoming due until such sums shall be paid to such Persons or otherwise disposed of as herein provided, and shall promptly notify the Trustee of its action or failure so to act.

 

If the Company is not acting as its own Paying Agent, it shall, on or prior to 12:00 p.m., New York City time on each due date of the principal of (and premium, if any) or interest on, any Notes, deposit with a Paying Agent a sum sufficient to pay the principal (and premium, if any) or interest, so becoming due, such sum to be held in trust for the benefit of the Persons entitled to such principal, premium or interest, and (unless such Paying Agent is the Trustee) the Company shall promptly notify the Trustee of its action or failure so to act.

 

If the Company is not acting as its own Paying Agent, the Company shall cause any 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, subject to the provisions of this Section 403 , that such Paying Agent shall

 

(1)           hold all sums held by it for the payment of principal of (and premium, if any) or interest on 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;

 

(2)           give the Trustee notice of any default by the Company (or any other obligor upon the Notes) in the making of any such payment of principal (and premium, if any) or interest;

 

(3)           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; and

 

(4)           acknowledge, accept and agree to comply in all respects with the provisions of this Indenture and TIA relating to the duties, rights and liabilities of such Paying Agent.

 

72


 

The Company may at any time, for the purpose of obtaining the satisfaction and discharge of this Indenture or for any other purpose, pay, or by Company Order direct any Paying Agent to pay, to the Trustee all sums held in trust by the Company or such Paying Agent, such sums to be held by the Trustee upon the same trusts as those upon which such sums were held by the Company or 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.

 

Any money deposited with the Trustee or any Paying Agent, or then held by the Company, in trust for the payment of the principal of (and premium, if any) or interest on any Note and remaining unclaimed for two years after such principal (and premium, if any) or interest has become due and payable shall be paid to the Company on Company Request, or (if then held by the Company) shall be discharged from such trust; and the Holder of such Note shall thereafter, as an unsecured general creditor, look only to the Company for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust money, and all liability of the Company as trustee thereof, shall thereupon cease.

 

Section 404.           [Reserved.]

 

Section 405.           SEC Reports .  Notwithstanding that the Company may not be required to be or remain subject to the reporting requirements of Section 13(a) or 15(d) of the Exchange Act, the Company will file with the SEC (unless such filing is not permitted under the Exchange Act or by the SEC), so long as the Notes are Outstanding, the annual reports, information, documents and other reports that the Company is required to file with the SEC pursuant to such Section 13(a) or 15(d) or would be so required to file if the Company were so subject. The Company will also, within 15 days after the date on which the Company was so required to file or would be so required to file if the Company were so subject, transmit by mail to all Holders (as their names and addresses appear in the Note Register), and to the Trustee (or make available on a Company website) copies of any such information, documents and reports (without exhibits) so required to be filed. 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 Company’s accountants not being “independent” (as defined pursuant to the Exchange Act and the rules and regulations of the SEC thereunder), the Company 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 ( a ) the Company 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 405 (such initial date, the “ Reporting Date ”) and ( b ) if the Company makes such an election and such filing has not been made, or such information, documents and reports have not been transmitted or made available, as the case may be, within 90 days after such Reporting Date, liquidated damages will accrue on the Notes at a rate of

 

73



 

0.50% per annum from the date that is 90 days after such Reporting Date to the earlier of (x)  the date on which such filing has been made, or such information, documents and reports have been transmitted or made available, as the case may be, and (y)  the first anniversary of such Reporting Date (provided that not more than 0.50% per annum in liquidated damages shall be payable for any period regardless of the number of such elections by the Company). The Company will be deemed to have satisfied the requirements of this Section 405 if any Parent files and provides reports, documents and information of the types otherwise so required, in each case within the applicable time periods, and the Company is not required to file such reports, documents and information separately under the applicable rules and regulations of the SEC (after giving effect to any exemptive relief) because of the filings by such Parent. The Company also will comply with the other provisions of TIA § 314(a).

 

Section 406.           Statement as to Default .  The Company shall deliver to the Trustee, within 120 days after the end of each fiscal year of the Company ending after January 1, 2011, an Officer’s Certificate to the effect that to the best knowledge of the signer thereof the Company is or is not in default in the performance and observance of any of the terms, provisions and conditions of this Indenture (without regard to any period of grace or requirement of notice provided hereunder) and, if the Company shall be in default, specifying all such defaults and the nature and status thereof of which such signer may have knowledge.  To the extent required by the TIA, each Subsidiary Guarantor shall comply with TIA § 314(a)(4).  The individual signing any certificate given by any Person pursuant to this Section 406 shall be the principal executive, financial or accounting officer of such Person, in compliance with TIA § 314(a)(4).

 

Section 407.           Limitation on Indebtedness .  (a)  The Company will not, and will not permit any Restricted Subsidiary to, Incur any Indebtedness; provided , however , that the Company or any Restricted Subsidiary may Incur Indebtedness if on the date of the Incurrence of such Indebtedness, after giving effect to the Incurrence thereof, the Consolidated Coverage Ratio would be greater than 2.00:1.00.

 

(b)   Notwithstanding the foregoing paragraph (a), the Company and its Restricted Subsidiaries may Incur the following Indebtedness:

 

(i)            Indebtedness Incurred pursuant to any Credit Facility (including but not limited to in respect of letters of credit or bankers’ acceptances issued or created thereunder) and Indebtedness Incurred other than under any Credit Facility, and (without limiting the foregoing), in each case, any Refinancing Indebtedness in respect thereof, in a maximum principal amount at any time outstanding not exceeding in the aggregate the amount equal to ( A ) $2,250.0 million, plus ( B ) the greater of ( x ) $1,600.0 million and ( y ) an amount equal to ( 1 ) the Borrowing Base less ( 2 ) the aggregate principal amount of Indebtedness Incurred by Special Purpose Subsidiaries that are Domestic Subsidiaries and then outstanding pursuant to clause (ix) of this paragraph (b), plus ( C ) in the event of any refinancing of any such Indebtedness, the aggregate amount of fees, underwriting discounts, premiums and other costs and expenses incurred in connection with such refinancing;

 

74



 

(ii)           Indebtedness ( A ) of any Restricted Subsidiary to the Company or ( B ) of the Company or any Restricted Subsidiary to any Restricted Subsidiary; provided , that any subsequent issuance or transfer of any Capital Stock of such Restricted Subsidiary to which such Indebtedness is owed, or other event, that results in such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any other subsequent transfer of such Indebtedness (except to the Company or a Restricted Subsidiary) will be deemed, in each case, an Incurrence of such Indebtedness by the issuer thereof not permitted by this clause (ii);

 

(iii)          Indebtedness represented by the Notes (other than any Additional Notes that are not Exchange Notes), any Indebtedness (other than the Indebtedness described in clause (ii) above) outstanding on the Issue Date (other than any Additional Notes) and any Refinancing Indebtedness Incurred in respect of any Indebtedness described in this clause (iii) or paragraph (a) above;

 

(iv)          Purchase Money Obligations and Capitalized Lease Obligations, and any Refinancing Indebtedness with respect thereto;

 

(v)           Indebtedness consisting of ( w ) accommodation guarantees for the benefit of trade creditors of the Company or any of its Restricted Subsidiaries, ( x ) Guarantees in connection with the construction or improvement of all or any portion of a Public Facility to be used by the Company or any Restricted Subsidiary, ( y ) Guarantees required (in the good faith determination of the Company) in connection with Vehicle Rental Concession Rights or ( z ) any Guarantee in respect of any Franchise Vehicle Indebtedness or Franchise Lease Obligation;

 

(vi)          ( A ) Guarantees by the Company or any Restricted Subsidiary of Indebtedness or any other obligation or liability of the Company or any Restricted Subsidiary (other than any Indebtedness Incurred by the Company or such Restricted Subsidiary, as the case may be, in violation of this Section 407 ), or ( B ) without limiting Section 413 , Indebtedness of the Company or any Restricted Subsidiary arising by reason of any Lien granted by or applicable to such Person securing Indebtedness of the Company or any Restricted Subsidiary (other than any Indebtedness Incurred by the Company or such Restricted Subsidiary, as the case may be, in violation of this Section 407 );

 

(vii)         Indebtedness of the Company or any Restricted Subsidiary ( A ) arising from the honoring of a check, draft or similar instrument of such Person drawn against insufficient funds, provided that such Indebtedness is extinguished within five Business Days of its Incurrence, or ( B ) consisting of guarantees, indemnities, obligations in respect of earnouts or other purchase price adjustments, or similar obligations, Incurred in connection with the acquisition or disposition of any business, assets or Person;

 

(viii)        Indebtedness of the Company or any Restricted Subsidiary in respect of ( A ) letters of credit, bankers’ acceptances or other similar instruments or obligations

 

75



 

issued, or relating to liabilities or obligations incurred, in the ordinary course of business (including those issued to governmental entities in connection with self-insurance under applicable workers’ compensation statutes), or ( B ) completion guarantees, surety, judgment, appeal or performance bonds, or other similar bonds, instruments or obligations, provided, or relating to liabilities or obligations incurred, in the ordinary course of business, or ( C ) Hedging Obligations, entered into for bona fide hedging purposes, or ( D ) Management Guarantees, or ( E ) the financing of insurance premiums in the ordinary course of business, or ( F ) take-or-pay obligations under supply arrangements incurred in the ordinary course of business, or ( G ) netting, overdraft protection and other arrangements arising under standard business terms of any bank at which the Company or any Restricted Subsidiary maintains an overdraft, cash pooling or other similar facility or arrangement;

 

(ix)           Indebtedness ( A ) of a Special Purpose Subsidiary secured by a Lien on all or part of the assets disposed of in, or otherwise Incurred in connection with, a Financing Disposition or ( B ) otherwise Incurred in connection with a Special Purpose Financing; provided that ( 1 ) such Indebtedness is not recourse to the Company or any Restricted Subsidiary that is not a Special Purpose Subsidiary (other than with respect to Special Purpose Financing Undertakings), ( 2 ) in the event such Indebtedness shall become recourse to the Company or any Restricted Subsidiary that is not a Special Purpose Subsidiary (other than with respect to Special Purpose Financing Undertakings), such Indebtedness will be deemed to be, and must be classified by the Company as, Incurred at such time (or at the time initially Incurred) under one or more of the other provisions of this Section 407 for so long as such Indebtedness shall be so recourse; and ( 3 ) in the event that at any time thereafter such Indebtedness shall comply with the provisions of the preceding subclause (1), the Company may classify such Indebtedness in whole or in part as Incurred under this Section 407(b)(ix) ;

 

(x)            Indebtedness of any Person that is assumed by the Company or any Restricted Subsidiary in connection with its acquisition of assets from such Person or any Affiliate thereof or is issued and outstanding on or prior to the date on which such Person was acquired by the Company or any Restricted Subsidiary or merged or consolidated with or into any Restricted Subsidiary (other than Indebtedness Incurred to finance, or otherwise Incurred in connection with, such acquisition), provided that on the date of such acquisition, merger or consolidation, after giving effect thereto, the Company could Incur at least $1.00 of additional Indebtedness pursuant to paragraph (a) above; and any Refinancing Indebtedness with respect to any such Indebtedness;

 

(xi)           Indebtedness of the Company or any Restricted Subsidiary in an aggregate principal amount at any time outstanding not exceeding an amount equal to ( A ) the greater of ( x ) $2,900.0 million and ( y ) an amount equal to ( 1 ) the Foreign Borrowing Base less ( 2 ) the aggregate principal amount of Indebtedness Incurred by Special Purpose Subsidiaries that are Foreign Subsidiaries and then outstanding pursuant to clause (ix) of this paragraph (b) plus ( B ) in the event of any refinancing of any Indebtedness Incurred

 

76



 

under this clause (xi), the aggregate amount of fees, underwriting discounts, premiums and other costs and expenses incurred in connection with such refinancing;

 

(xii)          Contribution Indebtedness, and any Refinancing Indebtedness with respect thereto;

 

(xiii)         Indebtedness issuable upon the conversion or exchange of shares of Disqualified Stock issued in accordance with Section 407(a) , and any Refinancing Indebtedness with respect thereto;

 

(xiv)        Non-Recourse Indebtedness of HERC; and

 

(xv)         Indebtedness of the Company or any Restricted Subsidiary in an aggregate principal amount at any time outstanding not exceeding an amount equal to 3.25% of Consolidated Tangible Assets.

 

(c)   For purposes of determining compliance with, and the outstanding principal amount of any particular Indebtedness Incurred pursuant to and in compliance with, this Section 407 , ( i ) any other obligation of the obligor on such Indebtedness (or of any other Person who could have Incurred such Indebtedness under this Section 407 ) arising under any Guarantee, Lien or letter of credit, bankers’ acceptance or other similar instrument or obligation supporting such Indebtedness shall be disregarded to the extent that such Guarantee, Lien or letter of credit, bankers’ acceptance or other similar instrument or obligation secures the principal amount of such Indebtedness; ( ii ) in the event that Indebtedness meets the criteria of more than one of the types of Indebtedness described in paragraph (b) above, the Company, in its sole discretion, shall classify such item of Indebtedness and may include the amount and type of such Indebtedness in one or more of such clauses (including in part under one such clause and in part under another such clause); and ( iii ) the amount of Indebtedness issued at a price that is less than the principal amount thereof shall be equal to the amount of the liability in respect thereof determined in accordance with GAAP.

 

(d)   For purposes of determining compliance with any Dollar-denominated restriction on the Incurrence of Indebtedness denominated in a foreign currency, the Dollar-equivalent principal amount of such Indebtedness Incurred pursuant thereto shall be calculated based on the relevant currency exchange rate in effect on the date that such Indebtedness was Incurred, in the case of term Indebtedness, or first committed, in the case of revolving credit Indebtedness, provided that ( x ) the Dollar-equivalent principal amount of any such Indebtedness outstanding on the Issue Date shall be calculated based on the relevant currency exchange rate in effect on the Issue Date, ( y ) if such Indebtedness is Incurred to refinance other Indebtedness denominated in a foreign currency (or in a different currency from such Indebtedness so being Incurred), and such refinancing would cause the applicable Dollar-denominated restriction to be exceeded if calculated at the relevant currency exchange rate in effect on the date of such refinancing, such Dollar-denominated restriction shall be deemed not to have been exceeded so long as the principal amount of such refinancing Indebtedness does not exceed ( i ) the outstanding or committed principal amount (whichever is

 

77



 

higher) of such Indebtedness being refinanced plus ( ii ) the aggregate amount of fees, underwriting discounts, premiums and other costs and expenses incurred in connection with such refinancing and ( z ) the Dollar-equivalent principal amount of Indebtedness denominated in a foreign currency and Incurred pursuant to a Senior Credit Facility shall be calculated based on the relevant currency exchange rate in effect on, at the Company’s option, ( i ) the Issue Date, ( ii ) any date on which any of the respective commitments under such Senior Credit Facility shall be reallocated between or among facilities or subfacilities thereunder, or on which such rate is otherwise calculated for any purpose thereunder, or ( iii ) the date of such Incurrence. The principal amount of any Indebtedness Incurred to refinance other Indebtedness, if Incurred in a different currency from the Indebtedness being refinanced, shall be calculated based on the currency exchange rate applicable to the currencies in which such respective Indebtedness is denominated that is in effect on the date of such refinancing.

 

Section 408.           [Reserved] .

 

Section 409.           Limitation on Restricted Payments .  (a)  The Company shall not, and shall not permit any Restricted Subsidiary, directly or indirectly, to ( i ) declare or pay any dividend or make any distribution on or in respect of its Capital Stock (including any such payment in connection with any merger or consolidation to which the Company is a party) except ( x ) dividends or distributions payable solely in its Capital Stock (other than Disqualified Stock) and ( y ) dividends or distributions payable to the Company or any Restricted Subsidiary (and, in the case of any such Restricted Subsidiary making such dividend or distribution, to other holders of its Capital Stock on no more than a pro rata basis, measured by value), ( ii ) purchase, redeem, retire or otherwise acquire for value any Capital Stock of the Company held by Persons other than the Company or a Restricted Subsidiary (other than any acquisition of Capital Stock deemed to occur upon the exercise of options if such Capital Stock represents a portion of the exercise price thereof), ( iii ) voluntarily purchase, repurchase, redeem, defease or otherwise voluntarily acquire or retire for value, prior to scheduled maturity, scheduled repayment or scheduled sinking fund payment, any Subordinated Obligations (other than a purchase, repurchase, redemption, defeasance or other acquisition or retirement for value ( x ) of 2005 Acquisition Subordinated Notes or ( y ) in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case under this clause (y) due within one year of the date of such acquisition or retirement) or ( iv ) make any Investment (other than a Permitted Investment) in any Person (any such dividend, distribution, purchase, repurchase, redemption, defeasance, other acquisition or retirement or Investment being herein referred to as a “ Restricted Payment ”), if at the time the Company or such Restricted Subsidiary makes such Restricted Payment and after giving effect thereto:

 

(1)           a Default shall have occurred and be continuing (or would result therefrom);

 

(2)           the Company could not Incur at least an additional $1.00 of Indebtedness pursuant to Section 407(a) ; or

 

78



 

(3)           the aggregate amount of such Restricted Payment and all other Restricted Payments (the amount so expended, if other than in cash, to be as determined in good faith by the Board of Directors, whose determination shall be conclusive and evidenced by a resolution of the Board of Directors) declared or made subsequent to the Issue Date and then outstanding would exceed, without duplication, the sum of:

 

(A)          50% of the Consolidated Net Income accrued during the period (treated as one accounting period) beginning on October 1, 2010 to the end of the most recent fiscal quarter ending prior to the date of such Restricted Payment for which consolidated financial statements of the Company are available (or, in case such Consolidated Net Income shall be a negative number, 100% of such negative number);

 

(B)           the aggregate Net Cash Proceeds and the fair value (as determined in good faith by the Board of Directors) of property or assets received ( x ) by the Company as capital contributions to the Company after the Issue Date or from the issuance or sale (other than to a Restricted Subsidiary) of its Capital Stock (other than Disqualified Stock) after the Issue Date (other than Excluded Contributions and Contribution Amounts) or ( y ) by the Company or any Restricted Subsidiary from the Incurrence by the Company or any Restricted Subsidiary after the Issue Date of Indebtedness that shall have been converted into or exchanged for Capital Stock of the Company (other than Disqualified Stock) or Capital Stock of any Parent, plus the amount of any cash and the fair value (as determined in good faith by the Board of Directors) of any property or assets, received by the Company or any Restricted Subsidiary upon such conversion or exchange;

 

(C)           the aggregate amount equal to the net reduction in Investments in Unrestricted Subsidiaries resulting from ( i ) dividends, distributions, interest payments, return of capital, repayments of Investments or other transfers of assets to the Company or any Restricted Subsidiary from any Unrestricted Subsidiary, including dividends or other distributions related to dividends or other distributions made pursuant to clause (x) of the following paragraph (b), or ( ii ) the redesignation of any Unrestricted Subsidiary as a Restricted Subsidiary (valued in each case as provided in the definition of “ Investment ”), not to exceed in the case of any such Unrestricted Subsidiary the aggregate amount of Investments (other than Permitted Investments) made by the Company or any Restricted Subsidiary in such Unrestricted Subsidiary after the Issue Date;

 

(D)          in the case of any disposition or repayment of any Investment constituting a Restricted Payment (without duplication of any amount deducted in calculating the amount of Investments at any time outstanding included in the amount of Restricted Payments), an amount in the aggregate equal to the lesser of the return of capital, repayment or other proceeds with respect to all such

 

79



 

Investments received by the Company or a Restricted Subsidiary and the initial amount of all such Investments constituting Restricted Payments; and

 

(E)           an amount equal to the amount available as of the Issue Date for making Restricted Payments pursuant to Section 409(a)(3)  of the 2005 Senior Indenture.

 

(b)   The provisions of Section 409(a ) will not prohibit any of the following (each, a “ Permitted Payment ”):

 

(i)            any purchase, redemption, repurchase, defeasance or other acquisition or retirement of Capital Stock of the Company or Subordinated Obligations made by exchange (including any such exchange pursuant to the exercise of a conversion right or privilege in connection with which cash is paid in lieu of the issuance of fractional shares) for, or out of the proceeds of the substantially concurrent issuance or sale of, Capital Stock of the Company (other than Disqualified Stock and other than Capital Stock issued or sold to a Subsidiary) or a substantially concurrent capital contribution to the Company, in each case other than Excluded Contributions and Contribution Amounts; provided, that the Net Cash Proceeds from such issuance, sale or capital contribution shall be excluded in subsequent calculations under Section 409(a)(3)(B) ;

 

(ii)           any purchase, redemption, repurchase, defeasance or other acquisition or retirement of Subordinated Obligations ( w ) made by exchange for, or out of the proceeds of the substantially concurrent Incurrence of, Indebtedness of the Company or Refinancing Indebtedness Incurred in compliance with Section 407 , ( x ) from Net Available Cash to the extent permitted by Section 411 , ( y ) following the occurrence of a Change of Control (or other similar event described therein as a “change of control”), but only if the Company shall have complied with Section 415 and, if required, purchased all Notes tendered pursuant to the offer to repurchase all the Notes required thereby, prior to purchasing or repaying such Subordinated Obligations or ( z ) constituting Acquired Indebtedness;

 

(iii)          any dividend paid within 60 days after the date of declaration thereof if at such date of declaration such dividend would have complied with Section 409(a) ;

 

(iv)          Investments or other Restricted Payments in an aggregate amount outstanding at any time not to exceed the amount of Excluded Contributions;

 

(v)           loans, advances, dividends or distributions by the Company to any Parent to permit any Parent to repurchase or otherwise acquire its Capital Stock (including any options, warrants or other rights in respect thereof), or payments by the Company to repurchase or otherwise acquire Capital Stock of any Parent or the Company (including any options, warrants or other rights in respect thereof), in each case from Management Investors (including any repurchase or acquisition by reason of the Company or any Parent retaining any Capital Stock, option, warrant or other right in respect of tax

 

80



 

withholding obligations, and any related payment in respect of any such obligation), such payments, loans, advances, dividends or distributions not to exceed an amount (net of repayments of any such loans or advances) equal to ( x ) ( 1 ) $20.0 million, plus ( 2 ) $5.0 million multiplied by the number of calendar years that have commenced since the Issue Date, plus ( y ) the Net Cash Proceeds received by the Company since the Issue Date from, or as a capital contribution from, the issuance or sale to Management Investors of Capital Stock (including any options, warrants or other rights in respect thereof), to the extent such Net Cash Proceeds are not included in any calculation under Section 409(a)(3)(B)(x) , plus ( z ) the cash proceeds of key man life insurance policies received by the Company or any Restricted Subsidiary (or by any Parent and contributed to the Company) since the Issue Date to the extent such cash proceeds are not included in any calculation under Section 409(a)(3)(A) ;

 

(vi)          the payment by the Company of, or loans, advances, dividends or distributions by the Company to any Parent to pay, dividends on the common stock or equity of the Company or any Parent following a public offering of such common stock or equity in an amount not to exceed in any fiscal year 6% of the aggregate gross proceeds received by the Company (whether directly, or indirectly through a contribution to common equity capital) in or from such public offering;

 

(vii)         Restricted Payments (including loans or advances) in an aggregate amount outstanding at any time not to exceed an amount (net of repayments of any such loans or advances) equal to 1.0% of Consolidated Tangible Assets;

 

(viii)        loans, advances, dividends or distributions to any Parent or other payments by the Company or any Restricted Subsidiary ( A ) to satisfy or permit any Parent to satisfy obligations under the Management Agreements, ( B ) pursuant to the Tax Sharing Agreement, or ( C ) to pay or permit any Parent to pay any Parent Expenses or any Related Taxes;

 

(ix)           payments by the Company, or loans, advances, dividends or distributions by the Company to any Parent to make payments, to holders of Capital Stock of the Company or any Parent in lieu of issuance of fractional shares of such Capital Stock, not to exceed $5.0 million in the aggregate outstanding at any time;

 

(x)            dividends or other distributions of, or Investments paid for or made with, Capital Stock, Indebtedness or other securities of either ( A ) Unrestricted Subsidiaries or ( B ) HERC;

 

(xi)           any Restricted Payment pursuant to or in connection with the Transactions;

 

(xii)          the declaration and payment of dividends to holders of any class or series of Disqualified Stock, or of any Preferred Stock of a Restricted Subsidiary, Incurred in accordance with the terms of Section 407 ;

 

81



 

(xiii)         Restricted Payments in an aggregate amount outstanding at any time not to exceed the amount of ( A ) the Net Cash Proceeds to the Company or any Restricted Subsidiary of any HERC Offering and/or ( B ) the Net Available Cash to the Company or any Restricted Subsidiary from any HERC Disposition; provided that, upon and after giving effect to any such Restricted Payment, no Default or Event of Default shall have occurred and be continuing and no default or event of default shall have occurred and be continuing under either the 2005 Senior Indenture or the 2005 Senior Subordinated Indenture; and

 

(xiv)        loans, advances, dividends or distributions to any Parent or other payments by the Company or any Restricted Subsidiary to pay or permit any Parent to pay principal, interest and premiums, if any, in respect of Holding’s 5.25% convertible senior notes due 2014 in accordance with such notes and the indenture governing such notes.

 

provided , that ( A ) in the case of clauses (iii), (vi),(vii) and (ix), the net amount of any such Permitted Payment shall be included in subsequent calculations of the amount of Restricted Payments, ( B ) in the case of clause (v), at the time of any calculation of the amount of Restricted Payments, the net amount of Permitted Payments that have then actually been made under clause (v) that is in excess of 50% of the total amount of Permitted Payments then permitted under clause (v) shall be included in such calculation of the amount of Restricted Payments, ( C ) in all cases other than pursuant to clauses (A) and (B) immediately above, the net amount of any such Permitted Payment shall be excluded in subsequent calculations of the amount of Restricted Payments and ( D ) solely with respect to clause (vii), no Default or Event of Default shall have occurred and be continuing at the time of any such Permitted Payment after giving effect thereto.

 

(c)           The Company, in its sole discretion, may classify any Investment or other Restricted Payment as being made in part under one of the provisions of this Section 409 (or, in the case of any Investment, the clauses of Permitted Investments) and in part under one or more other such provisions (or, as applicable, clauses).

 

Section 410.           Limitation on Restrictions on Distributions from Restricted Subsidiaries .  The Company will not, and will not permit any Restricted Subsidiary to, create or otherwise cause to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to ( i ) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the Company, ( ii ) make any loans or advances to the Company or ( iii ) transfer any of its property or assets to the Company ( provided that dividend or liquidation priority between classes of Capital Stock, or subordination of any obligation (including the application of any remedy bars thereto) to any other obligation, will not be deemed to constitute such an encumbrance or restriction), except any encumbrance or restriction:

 

(1)           pursuant to an agreement or instrument in effect at or entered into on the Issue Date, any Credit Facility, this Indenture or the Notes;

 

82


 

(2)           pursuant to any agreement or instrument of a Person, or relating to Indebtedness or Capital Stock of a Person, which Person is acquired by or merged or consolidated with or into the Company or any Restricted Subsidiary, or which agreement or instrument is assumed by the Company or any Restricted Subsidiary in connection with an acquisition of assets from such Person, as in effect at the time of such acquisition, merger or consolidation (except to the extent that such Indebtedness was incurred to finance, or otherwise in connection with, such acquisition, merger or consolidation); provided that for purposes of this clause (2), if a Person other than the Company is the Successor Company with respect thereto, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, by the Company or a Restricted Subsidiary, as the case may be, when such Person becomes such Successor Company;

 

(3)           pursuant to an agreement or instrument (a “ Refinancing Agreement ”) effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise extends, renews, refunds, refinances or replaces, an agreement or instrument referred to in clause (1) or (2) of this Section 410 or this clause (3) (an “ Initial Agreement ”) or contained in any amendment, supplement or other modification to an Initial Agreement (an “ Amendment ”); provided , however , that the encumbrances and restrictions contained in any such Refinancing Agreement or Amendment taken as a whole are not materially less favorable to the Holders of the Notes than encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such Refinancing Agreement or Amendment relates (as determined in good faith by the Company);

 

(4)           ( A ) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any lease, license or other contract, ( B ) by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of the Company or any Restricted Subsidiary not otherwise prohibited by this Indenture, ( C ) contained in mortgages, pledges or other security agreements securing Indebtedness of a Restricted Subsidiary to the extent restricting the transfer of the property or assets subject thereto, ( D ) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary, ( E ) pursuant to Purchase Money Obligations that impose encumbrances or restrictions on the property or assets so acquired, ( F ) on cash or other deposits or net worth imposed by customers or suppliers under agreements entered into in the ordinary course of business, ( G ) pursuant to customary provisions contained in agreements and instruments entered into in the ordinary course of business (including but not limited to leases and joint venture and other similar agreements entered into in the ordinary course of business), ( H ) that arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets of the Company or any Restricted Subsidiary in any manner material to the Company or such Restricted Subsidiary, ( I ) pursuant to Hedging Obligations or ( J ) in connection with or relating to any Vehicle Rental Concession Right;

 

83



 

(5)           with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition of all or substantially all the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;

 

(6)           by reason of any applicable law, rule, regulation or order, or required by any regulatory authority having jurisdiction over the Company or any Restricted Subsidiary or any of their businesses; or

 

(7)           pursuant to an agreement or instrument ( A ) relating to any Indebtedness permitted to be Incurred subsequent to the Issue Date pursuant to Section 407 ( i ) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders of the Notes than the encumbrances and restrictions contained in the Initial Agreements (as determined in good faith by the Company), or ( ii ) if such encumbrance or restriction is not materially more disadvantageous to the Holders of the Notes than is customary in comparable financings (as determined in good faith by the Company) and either ( x ) the Company determines in good faith that such encumbrance or restriction will not materially affect the Company’s ability to make principal or interest payments on the Notes or ( y ) such encumbrance or restriction applies only if a default occurs in respect of a payment or financial covenant relating to such Indebtedness, ( B ) relating to any sale of receivables by a Foreign Subsidiary, ( C ) relating to Indebtedness of or a Franchise Financing Disposition by or to or in favor of any Franchisee or Franchise Special Purpose Entity or to any Franchise Lease Obligation or (D) relating to Indebtedness of or a Financing Disposition by or to or in favor of any Special Purpose Entity.

 

Section 411.                                 Limitation on Sales of Assets and Subsidiary Stock .  (a)  The Company will not, and will not permit any Restricted Subsidiary to, make any Asset Disposition unless

 

(i)            the Company or such Restricted Subsidiary receives consideration (including by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise) at the time of such Asset Disposition at least equal to the fair market value of the shares and assets subject to such Asset Disposition, as such fair market value may be determined (and shall be determined, to the extent such Asset Disposition or any series of related Asset Dispositions involves aggregate consideration in excess of $25.0 million) in good faith by the Board of Directors, whose determination shall be conclusive (including as to the value of all noncash consideration),

 

(ii)           in the case of any Asset Disposition (or series of related Asset Dispositions) having a fair market value of $25.0 million or more, at least 75% of the consideration therefor (excluding, in the case of an Asset Disposition (or series of related Asset Dispositions), any consideration by way of relief from, or by any other Person assuming

 

84



 

responsibility for, any liabilities, contingent or otherwise, that are not Indebtedness) received by the Company or such Restricted Subsidiary is in the form of cash, and

 

(iii)          an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied by the Company (or any Restricted Subsidiary, as the case may be) as follows:

 

(A)          first , either ( x ) to the extent the Company elects (or is required by the terms of any Credit Facility Indebtedness, any Senior Indebtedness of the Company or any Subsidiary Guarantor or any Indebtedness of a Restricted Subsidiary that is not a Subsidiary Guarantor), to prepay, repay or purchase any such Indebtedness or (in the case of letters of credit, bankers’ acceptances or other similar instruments) cash collateralize any such Indebtedness (in each case other than Indebtedness owed to the Company or a Restricted Subsidiary) within 365 days after the later of the date of such Asset Disposition and the date of receipt of such Net Available Cash, ( y ) to the extent the Company or such Restricted Subsidiary elects, to invest in Additional Assets (including by means of an investment in Additional Assets by a Restricted Subsidiary with an amount equal to Net Available Cash received by the Company or another Restricted Subsidiary) within 365 days from the later of the date of such Asset Disposition and the date of receipt of such Net Available Cash, or, if such investment in Additional Assets is a project authorized by the Board of Directors that will take longer than such 365 days to complete, the period of time necessary to complete such project or ( z ) in the case of any HERC Offering, to make one or more Restricted Payments pursuant to Section 409(b)(xiii) ;

 

(B)           second , to the extent of the balance of such Net Available Cash after application in accordance with clause (A) above (such balance, the “ Excess Proceeds ”), to make an offer to purchase Notes and (to the extent the Company or such Restricted Subsidiary elects, or is required by the terms thereof) to purchase, redeem or repay any other Senior Indebtedness of the Company or a Restricted Subsidiary, pursuant and subject to Section 411(b)  and Section 411(c)  and the agreements governing such other Indebtedness; and

 

(C)           third , to the extent of the balance of such Net Available Cash after application in accordance with clauses (A) and (B) above, to fund (to the extent consistent with any other applicable provision of this Indenture) any general corporate purpose (including but not limited to the repurchase, repayment or other acquisition or retirement of any Subordinated Obligations);

 

provided , however , that in connection with any prepayment, repayment or purchase of Indebtedness pursuant to clause (A)(x) or (B) above, the Company or such Restricted Subsidiary will retire such Indebtedness and will cause the related loan commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased.

 

85



 

Notwithstanding the foregoing provisions of this Section 411 , the Company and the Restricted Subsidiaries shall not be required to apply any Net Available Cash or equivalent amount in accordance with this Section 411 except to the extent that the aggregate Net Available Cash from all Asset Dispositions or equivalent amount that is not applied in accordance with this Section 411 exceeds $50.0 million. If the aggregate principal amount of Notes or other Indebtedness of the Company or a Restricted Subsidiary validly tendered and not withdrawn (or otherwise subject to purchase, redemption or repayment) in connection with an offer pursuant to clause (B) above exceeds the Excess Proceeds, the Excess Proceeds will be apportioned between such Notes and such other Indebtedness of the Company or a Restricted Subsidiary, with the portion of the Excess Proceeds payable in respect of such Notes to equal the lesser of ( x ) the Excess Proceeds amount multiplied by a fraction, the numerator of which is the outstanding principal amount of such Notes and the denominator of which is the sum of the outstanding principal amount of the Notes and the outstanding principal amount of the relevant other Indebtedness of the Company or a Restricted Subsidiary, and ( y ) the aggregate principal amount of Notes validly tendered and not withdrawn.

 

For the purposes of clause (ii) of paragraph (a) above, the following are deemed to be cash: ( 1 ) Temporary Cash Investments and Cash Equivalents, ( 2 ) the assumption of Indebtedness of the Company (other than Disqualified Stock of the Company) or any Restricted Subsidiary and the release of the Company or such Restricted Subsidiary from all liability on payment of the principal amount of such Indebtedness in connection with such Asset Disposition, ( 3 ) Indebtedness of any Restricted Subsidiary that is no longer a Restricted Subsidiary as a result of such Asset Disposition, to the extent that the Company and each other Restricted Subsidiary are released from any Guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Disposition, ( 4 ) securities received by the Company or any Restricted Subsidiary from the transferee that are converted by the Company or such Restricted Subsidiary into cash within 180 days, ( 5 ) consideration consisting of Indebtedness of the Company or any Restricted Subsidiary, ( 6 ) Additional Assets and ( 7 ) any Designated Noncash Consideration received by the Company or any of its Restricted Subsidiaries in an Asset Disposition having an aggregate Fair Market Value, taken together with all other Designated Noncash Consideration received pursuant to this clause, not to exceed an aggregate amount at any time outstanding equal to 1.25% of Consolidated Tangible Assets (with the Fair Market Value of each item of Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value).

 

(b)   In the event of an Asset Disposition that requires the purchase of Notes pursuant to Section 411(a)(iii)(B ), the Company will be required to purchase Notes tendered pursuant to an offer by the Company for the Notes (the “ Offer ”) at a purchase price of 100% of their principal amount plus accrued and unpaid interest to the date of purchase in accordance with the procedures (including prorating in the event of oversubscription) set forth in Section 411(c) . If the aggregate purchase price of the Notes tendered pursuant to the Offer is less than the Net Available Cash allotted to the purchase of Notes, the remaining Net Available Cash will be available to the Company for use in accordance with Section 411(a)(iii)(B)  (to repay other Indebtedness of the Company or a Restricted Subsidiary) or Section 411(a)(iii)(C) . The

 

86



 

Company shall not be required to make an Offer for Notes pursuant to this Section 411 if the Net Available Cash available therefor (after application of the proceeds as provided in Section 411(a)(iii)(A) ) is less than $50.0 million for any particular Asset Disposition (which lesser amounts shall be carried forward for purposes of determining whether an Offer is required with respect to the Net Available Cash from any subsequent Asset Disposition). No Note will be repurchased in part if less than the Minimum Denomination in original principal amount of such Note would be left outstanding.

 

(c)   The Company shall, not later than 45 days after the Company becomes obligated to make an Offer pursuant to this Section 411 , mail a notice to each Holder with a copy to the Trustee stating:  ( 1 ) that an Asset Disposition that requires the purchase of a portion of the Notes has occurred and that such Holder has the right (subject to the prorating described below) to require the Company to purchase a portion of such Holder’s Notes at a purchase price in cash equal to 100% of the principal amount thereof, plus accrued and unpaid interest, if any, to the date of purchase (subject to Section 307 ); ( 2 ) the repurchase date (which shall be no earlier than 30 days nor later than 60 days from the date such notice is mailed); ( 3 ) the instructions determined by the Company, consistent with this Section 411 , that a Holder must follow in order to have its Notes purchased; and ( 4 ) the amount of the Offer.  If, upon the expiration of the period for which the Offer remains open, the aggregate principal amount of Notes surrendered by Holder exceeds the amount of the Offer, the Company shall select the Notes to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $2,000 or integral multiples of $1,000 in excess thereof shall be purchased).

 

(d)   The Company will comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the repurchase of Notes pursuant to this Section 411 . To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section 411 , the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under this Section 411 by virtue thereof.

 

Section 412.           Limitation on Transactions with Affiliates .  (a)  The Company will not, and will not permit any Restricted Subsidiary to, directly or indirectly, enter into or conduct any transaction or series of related transactions (including the purchase, sale, lease or exchange of any property or the rendering of any service) with any Affiliate of the Company (an “ Affiliate Transaction ”) unless ( i ) the terms of such Affiliate Transaction are not materially less favorable to the Company or such Restricted Subsidiary, as the case may be, than those that could be obtained at the time in a transaction with a Person who is not such an Affiliate and ( ii ) if such Affiliate Transaction involves aggregate consideration in excess of $50.0 million, the terms of such Affiliate Transaction have been approved by a majority of the Disinterested Directors. For purposes of this Section 412(a) , any Affiliate Transaction shall be deemed to have satisfied the requirements set forth in this Section 412(a)  if ( x ) such Affiliate Transaction is approved by a majority of the Disinterested Directors or ( y ) in the event there are no Disinterested Directors, a

 

87



 

fairness opinion is provided by a nationally recognized appraisal or investment banking firm with respect to such Affiliate Transaction.

 

(b)   The provisions of Section 412(a ) will not apply to:

 

(i)            any Restricted Payment Transaction,

 

(ii)           ( 1)  the entering into, maintaining or performance of any employment or consulting contract, collective bargaining agreement, benefit plan, program or arrangement, related trust agreement or any other similar arrangement for or with any current or former employee, officer or director or consultant of or to the Company, any Restricted Subsidiary or any Parent heretofore or hereafter entered into in the ordinary course of business, including vacation, health, insurance, deferred compensation, severance, retirement, savings or other similar plans, programs or arrangements, ( 2 ) payments, compensation, performance of indemnification or contribution obligations, the making or cancellation of loans or any issuance, grant or award of stock, options, other equity-related interests or other securities, to any such employees, officers, directors or consultants in the ordinary course of business, ( 3 ) the payment of reasonable fees to directors of the Company or any of its Subsidiaries or any Parent (as determined in good faith by the Company, such Subsidiary or such Parent), ( 4 ) any transaction with an officer or director of the Company or any of its Subsidiaries or any Parent in the ordinary course of business not involving more than $100,000 in any one case, or (5) Management Advances and payments in respect thereof (or in reimbursement of any expenses referred to in the definition of such term),

 

(iii)          any transaction between or among any of the Company, one or more Restricted Subsidiaries or one or more Special Purpose Entities,

 

(iv)          any transaction arising out of agreements or instruments in existence on the Issue Date (other than any Tax Sharing Agreement or Management Agreement referred to in Section 412(b)(vii) ), and any payments made pursuant thereto,

 

(v)           any transaction in the ordinary course of business on terms that are fair to the Company and its Restricted Subsidiaries in the reasonable determination of the board of directors or senior management of the Company, or are not materially less favorable to the Company or the relevant Restricted Subsidiary than those that could be obtained at the time in a transaction with a Person who is not an Affiliate of the Company,

 

(vi)          any transaction in the ordinary course of business, or approved by a majority of the Board of Directors, between the Company or any Restricted Subsidiary and any Affiliate of the Company controlled by the Company that is a Franchisee, a Franchise Special Purpose Entity, a joint venture or similar entity,

 

(vii)         the execution, delivery and performance of any Tax Sharing Agreement and any Management Agreements, including payment to CDR, Carlyle or ML or any of

 

88



 

their respective Affiliates of fees of up to $7.5 million in the aggregate in any fiscal year, and fees in connection with any acquisition, disposition, merger, recapitalization or similar transaction as provided in any such Management Agreement, plus all out-of-pocket expenses incurred by CDR, Carlyle or ML or any such Affiliate in connection with its performance of management consulting, monitoring, financial advisory or other services with respect to the Company and its Restricted Subsidiaries,

 

(viii)        the Transactions, all transactions in connection therewith (including but not limited to the financing thereof), and all fees and expenses paid or payable in connection with the Transactions, and

 

(ix)           any issuance or sale of Capital Stock (other than Disqualified Stock) of the Company or capital contribution to the Company.

 

Section 413.           Limitation on Liens The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, create or permit to exist any Lien (other than Permitted Liens) on any of its property or assets (including Capital Stock of any other Person), whether owned on the date of this Indenture or thereafter acquired, securing any Indebtedness (the “ Initial Lien ”), unless contemporaneously therewith effective provision is made to secure the Indebtedness due under this Indenture and the Notes or, in respect of Liens on any Restricted Subsidiary’s property or assets, any Subsidiary Guarantee of such Restricted Subsidiary, equally and ratably with (or on a senior basis to, in the case of Subordinated Obligations or Guarantor Subordinated Obligations) such obligation for so long as such obligation is so secured by such Initial Lien. Any such Lien thereby created in favor of the Notes or any such Subsidiary Guarantee will be automatically and unconditionally released and discharged upon ( i ) the release and discharge of the Initial Lien to which it relates, ( ii ) in the case of any such Lien in favor of any such Subsidiary Guarantee, upon the termination and discharge of such Subsidiary Guarantee in accordance with the terms of Section 1303 or ( iii ) any sale, exchange or transfer (other than a transfer constituting a transfer of all or substantially all of the assets of the Company that is governed by the provisions of Section 501 ) to any Person not an Affiliate of the Company of the property or assets secured by such Initial Lien, or of all of the Capital Stock held by the Company or any Restricted Subsidiary in, or all or substantially all the assets of, any Restricted Subsidiary creating such Initial Lien.

 

Section 414.           Future Subsidiary Guarantors .  From and after the Issue Date, the Company will cause each Domestic Subsidiary that guarantees payment by the Company of any Indebtedness of the Company under the Senior Credit Facilities to execute and deliver to the Trustee a supplemental indenture or other instrument pursuant to which such Domestic Subsidiary will guarantee payment of the Notes, whereupon such Domestic Subsidiary will become a Subsidiary Guarantor for all purposes under this Indenture. In addition, the Company may cause any Subsidiary that is not a Subsidiary Guarantor so to guarantee payment of the Notes and become a Subsidiary Guarantor.

 

89



 

Section 415.           Purchase of Notes Upon a Change of Control .

 

(a)   Upon the occurrence after the Issue Date of a Change of Control, each Holder of Notes will have the right to require the Company to repurchase all or any part of such Notes at a purchase price in cash equal to 101% of the principal amount thereof, plus accrued and unpaid interest, if any, to the date of repurchase (subject to Section 307 ); provided , however , that the Company shall not be obligated to repurchase Notes pursuant to this Section 415 in the event that it has exercised its right to redeem all of the Notes as provided in Article X .

 

(b)   In the event that, at the time of such Change of Control, the terms of any Credit Facility Indebtedness constituting Designated Senior Indebtedness restrict or prohibit the repurchase of the Notes pursuant to this Section 415 , then prior to the mailing of the notice to Holders provided for in Section 415(c)  but in any event not later than 30 days following the date the Company obtains actual knowledge of any Change of Control (unless the Company has exercised its right to redeem all the Notes as provided in Article X ), the Company shall, or shall cause one or more of its Subsidiaries to, ( i ) repay in full all such Credit Facility Indebtedness subject to such terms or offer to repay in full all such Credit Facility Indebtedness and repay the Credit Facility Indebtedness of each lender who has accepted such offer or ( ii ) obtain the requisite consent under the agreements governing such Credit Facility Indebtedness to permit the repurchase of the Notes as provided for in Section 415(c) . The Company shall first comply with the provisions of the immediately preceding sentence before it shall be required to repurchase Notes pursuant to the provisions set forth in this Section 415 . The Company’s failure to comply with the provisions of this Section 415(b ) or Section 415(c ) shall constitute an Event of Default described in Section 601(iv ) and not in Section 601(ii ).

 

(c)   Unless the Company has exercised its right to redeem all the Notes as set forth in Article X , the Company shall, not later than 30 days following the date the Company obtains actual knowledge of any Change of Control having occurred, mail a notice (a “ Change of Control Offer ”) to each Holder with a copy to the Trustee stating: ( 1 ) that a Change of Control has occurred or may occur and that such Holder has, or upon such occurrence will have, the right to require the Company to purchase such Holder’s Notes at a purchase price in cash equal to 101% of the principal amount thereof, plus accrued and unpaid interest, if any, to the date of purchase (subject to the right of Holders of record on a record date to receive interest on the relevant interest payment date); ( 2 ) the repurchase date (which shall be no earlier than 30 days nor later than 60 days from the date such notice is mailed); ( 3 ) the instructions determined by the Company, consistent with this Section 415 , that a Holder must follow in order to have its Notes purchased; and ( 4 ) if such notice is mailed prior to the occurrence of a Change of Control, that such offer is conditioned on the occurrence of such Change of Control. No Note will be repurchased in part if less than the Minimum Denomination in original principal amount of such Note would be left outstanding.

 

(d)   The Company will not be required to make a Change of Control Offer upon a Change of Control if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Indenture applicable to a Change of Control Offer made by the Company and purchases all Notes validly tendered and not withdrawn under such Change of Control Offer.

 

90



 

(e)   The Company will comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the repurchase of Notes pursuant to this Section 415 . To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section 415 , the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under this Section 415 by virtue thereof.

 

Section 416.           Termination of Covenants on Achievement of Investment Grade Rating .  If on any day following the Issue Date (a) the Notes have Investment Grade Ratings from both Rating Agencies, and (b) no Default has occurred and is continuing under this Indenture, then, beginning on that day (the “ Termination Date ”) and continuing at all times thereafter regardless of any subsequent changes in the rating of the Notes, Sections 407 , 409 , 410 , 411 , 412 , 414 , and 501(a)(iii)  will cease to be effective and will not be applicable to the Company and its Restricted Subsidiaries.  Following the Termination Date, the Board of Directors may not designate any of its Subsidiaries as Unrestricted Subsidiaries unless such designation would have complied with Section 409 as if such covenant would have been in effect during such period.  At any time after the Termination Date, any reference in the definitions of “Permitted Liens” and “Unrestricted Subsidiary” to Section 407 or any provision thereof shall be construed as if such covenant were in effect.

 

ARTICLE V

 

SUCCESSORS

 

Section 501.           When the Company May Merge, etc .  (a) The Company will not consolidate with or merge with or into, or convey, transfer or lease all or substantially all its assets to, any Person, unless:

 

(i)            the resulting, surviving or transferee Person (the “ Successor Company ”) will be a Person organized and existing under the laws of the United States of America, any State thereof or the District of Columbia and the Successor Company (if not the Company) will expressly assume all the obligations of the Company under the Notes and this Indenture by executing and delivering to the Trustee a supplemental indenture or one or more other documents or instruments in form reasonably satisfactory to the Trustee;

 

(ii)           immediately after giving effect to such transaction (and treating any Indebtedness that becomes an obligation of the Successor Company or any Restricted Subsidiary as a result of such transaction as having been Incurred by the Successor Company or such Restricted Subsidiary at the time of such transaction), no Default will have occurred and be continuing;

 

91



 

(iii)          immediately after giving effect to such transaction, either ( A ) the Company (or, if applicable, the Successor Company with respect thereto) could Incur at least $1.00 of additional Indebtedness pursuant to Section 407(a) , or ( B ) the Consolidated Coverage Ratio of the Company (or, if applicable, the Successor Company with respect thereto) would equal or exceed the Consolidated Coverage Ratio of the Company immediately prior to giving effect to such transaction;

 

(iv)          each Subsidiary Guarantor (other than ( x ) any Subsidiary Guarantor that will be released from its obligations under its Subsidiary Guarantee in connection with such transaction and ( y ) any party to any such consolidation or merger) shall have delivered a supplemental indenture or other document or instrument in form reasonably satisfactory to the Trustee, confirming its Subsidiary Guarantee (other than any Subsidiary Guarantee that will be discharged or terminated in connection with such transaction); and

 

(v)           the Company will have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each to the effect that such consolidation, merger or transfer complies with the provisions described in this paragraph, provided that ( x ) in giving such opinion such counsel may rely on an Officer’s Certificate as to compliance with the foregoing clauses (ii) and (iii) and as to any matters of fact, and ( y ) no Opinion of Counsel will be required for a consolidation, merger or transfer described in Section 501(b) .

 

Any Indebtedness that becomes an obligation of the Successor Company or any Restricted Subsidiary (or that is deemed to be Incurred by any Restricted Subsidiary that becomes a Restricted Subsidiary) as a result of any such transaction undertaken in compliance with this Section 501 , and any Refinancing Indebtedness with respect thereto, shall be deemed to have been Incurred in compliance with Section 407 .

 

(b)   Clauses (ii) and (iii) of Section 501(a)  will not apply to any transaction in which the Company consolidates or merges with or into or transfers all or substantially all its properties and assets to ( x ) an Affiliate incorporated or organized for the purpose of reincorporating or reorganizing the Company in another jurisdiction or changing its legal structure to a corporation or other entity or ( y ) a Restricted Subsidiary of the Company so long as all assets of the Company and the Restricted Subsidiaries immediately prior to such transaction (other than Capital Stock of such Restricted Subsidiary) are owned by such Restricted Subsidiary and its Restricted Subsidiaries immediately after the consummation thereof.  Section 501(a)  will not apply to any transaction in which any Restricted Subsidiary consolidates with, merges into or transfers all or part of its assets to the Company.

 

(c)   For the purpose of this Section 501 , the Reorganization Assets (whether individually or in the aggregate) shall not be deemed at any time to constitute all or substantially all of the assets of the Company, and any sale or transfer of all or any part of the Reorganization Assets (whether directly or indirectly, whether by sale or transfer of any such assets, or of any Capital Stock or other interest in any Person holding such assets, or of any combination thereof, and whether in one or more transactions, or otherwise) shall not be deemed at any time to constitute a sale or transfer of all or substantially all of the assets of the Company.

 

92


 

Section 502.            Successor Company Substituted .  Upon any transaction involving the Company in accordance with Section 501 in which the Company is not the Successor Company, the Successor Company shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture, and thereafter the predecessor Company shall be relieved of all obligations and covenants under this Indenture, except that the predecessor Company in the case of a lease of all or substantially all its assets shall not be released from the obligation to pay the principal of and interest on the Notes.

 

ARTICLE VI

 

REMEDIES

 

Section 601.            Events of Default .  An “ Event of Default ” means the occurrence of the following:

 

(i)             a default in any payment of interest on any Note when due, continued for a period of 30 days;

 

(ii)            a default in the payment of principal of any Note when due, whether at its Stated Maturity, upon optional redemption, upon required repurchase, upon declaration of acceleration or otherwise;

 

(iii)           the failure by the Company to comply with its obligations under Section 501(a );

 

(iv)           the failure by the Company to comply for 30 days after the notice specified in the penultimate paragraph of this Section 601 with any of its obligations under Section 415 (other than a failure to purchase the Notes);

 

(v)            the failure by the Company to comply for 60 days after the notice specified in the penultimate paragraph of this Section 601 with its other agreements contained in the Notes or this Indenture;

 

(vi)           the failure by any Subsidiary Guarantor to comply for 45 days after the notice specified in the penultimate paragraph of this Section 601 with its obligations under its Subsidiary Guarantee;

 

(vii)          the failure by the Company or any Restricted Subsidiary to pay any Indebtedness for borrowed money (other than Indebtedness owed to the Company or any Restricted Subsidiary) within any applicable grace period after final maturity or the acceleration of any such Indebtedness by the holders thereof because of a default, if the total amount of such Indebtedness so unpaid or accelerated exceeds $75.0 million or its foreign currency equivalent; provided, that no Default or Event of Default will be deemed to occur with respect to any such Indebtedness that is paid or otherwise acquired or retired (or for which such failure to pay or

 

93



 

acceleration is waived or rescinded) within 20 Business Days after such failure to pay or such acceleration;

 

(viii)         the taking of any of the following actions by the Company or a Significant Subsidiary, or by each of such other Restricted Subsidiaries that are not Significant Subsidiaries but would in the aggregate constitute a Significant Subsidiary if considered as a single Person, pursuant to or within the meaning of any Bankruptcy Law:

 

(A)  the commencement of a voluntary case;

 

(B)  the consent to the entry of an order for relief against it in an involuntary case;

 

(C)  the consent to the appointment of a Custodian of it or for any substantial part of its property; or

 

(D)  the making of a general assignment for the benefit of its creditors;

 

(ix)            a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that:

 

(A)  is for relief against the Company or any Significant Subsidiary, or against each of such other Restricted Subsidiaries that are not Significant Subsidiaries but would in the aggregate constitute a Significant Subsidiary if considered as a single Person, in an involuntary case;

 

(B)  appoints ( x ) a Custodian of the Company or any Significant Subsidiary or for any substantial part of its property, or ( y ) a Custodian of each of such other Restricted Subsidiaries that are not Significant Subsidiaries but would in the aggregate constitute a Significant Subsidiary if considered as a single Person, or for any substantial part of their property in the aggregate; or

 

(C)  orders the winding up or liquidation of the Company or any Significant Subsidiary, or of each of such other Restricted Subsidiaries that are not Significant Subsidiaries but would in the aggregate constitute a Significant Subsidiary if considered as a single Person;

 

and the order or decree remains unstayed and in effect for 60 days;

 

(x)             the rendering of any judgment or decree for the payment of money in an amount (net of any insurance or indemnity payments actually received in respect thereof prior to or within 90 days from the entry thereof, or to be received in respect thereof in the event any appeal thereof shall be unsuccessful) in excess of $75.0 million or its foreign currency equivalent against the Company or a Significant Subsidiary, or jointly and severally against other Restricted Subsidiaries that are not Significant Subsidiaries but would in the aggregate constitute a

 

94



 

Significant Subsidiary if considered as a single Person, that is not discharged, or bonded or insured by a third Person, if such judgment or decree remains outstanding for a period of 90 days following such judgment or decree and is not discharged, waived or stayed; or

 

(xi)            the failure of any Subsidiary Guarantee by a Subsidiary Guarantor that is a Significant Subsidiary to be in full force and effect (except as contemplated by the terms thereof or of this Indenture) or the denial or disaffirmation in writing by any Subsidiary Guarantor that is a Significant Subsidiary of its obligations under this Indenture or its Subsidiary Guarantee (other than by reason of the termination of this Indenture or such Subsidiary Guarantee or the release of such Subsidiary Guarantee in accordance with such Subsidiary Guarantee and this Indenture), if such Default continues for 10 days.

 

The foregoing will constitute Events of Default whatever the reason for any such Event of Default and whether it is voluntary or involuntary or is effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body.

 

The term “ Bankruptcy Law ” means Title 11, United States Code, or any similar Federal, state or foreign law for the relief of debtors.  The term “ Custodian ” means any receiver, trustee, assignee, liquidator, custodian or similar official under any Bankruptcy Law.

 

However, a Default under clause (iv), (v) or (vi) will not constitute an Event of Default until the Trustee or the Holders of at least 30% in principal amount of the Outstanding Notes notify the Company in writing of the Default and the Company does not cure such Default within the time specified in such clause after receipt of such notice.  Such notice must specify the Default, demand that it be remedied and state that such notice is a “ Notice of Default .”  When a Default or an Event of Default is cured, it ceases.

 

The Company shall deliver to the Trustee, within 30 days after the occurrence thereof, written notice in the form of an Officer’s Certificate of any Event of Default under clause (vii) or (x) and any event that with the giving of notice or the lapse of time would become an Event of Default under clause (iv), (v) or (vi), its status and what action the Company is taking or proposes to take with respect thereto.

 

Section 602.            Acceleration of Maturity; Rescission and Annulment .  If an Event of Default (other than an Event of Default specified in Section 601(viii)  or Section 601(ix) ) occurs and is continuing, the Trustee by written notice to the Company, or the Holders of at least thirty percent (30%) in principal amount of the Outstanding Notes by written notice to the Company and the Trustee, in either case specifying in such notice the respective Event of Default and that such notice is a “notice of acceleration,” may declare the principal of and accrued but unpaid interest on all the Notes to be due and payable. Upon the effectiveness of such a declaration, such principal and interest will be due and payable immediately.

 

Notwithstanding the foregoing, if an Event of Default specified in Section 601(viii)  or Section 601(ix)  occurs and is continuing, the principal of and accrued interest on all the

 

95



 

Outstanding Notes will ipso facto become immediately due and payable without any declaration or other act on the part of the Trustee or any Holder.  The Holders of a majority in principal amount of the Outstanding Notes by notice to the Company and the Trustee may rescind an acceleration and its consequences if the rescission would not conflict with any judgment or decree and if all existing Events of Default have been cured or waived except non-payment of principal or interest that has become due solely because of such acceleration.  No such rescission shall affect any subsequent Default or impair any right consequent thereto.

 

Section 603.            Other Remedies; Collection Suit by Trustee .  If an Event of Default occurs and is continuing, the Trustee may, but is not obligated under this Section 603 to, pursue any available remedy to collect the payment of principal of or interest on the Notes or to enforce the performance of any provision of the Notes or this Indenture.  If an Event of Default specified in Section 601(i)  or 601(ii)  occurs and is continuing, the Trustee may recover judgment in its own name and as trustee of an express trust against the Company for the whole amount then due and owing (together with interest on any unpaid interest to the extent lawful) and the amounts provided for in Section 707 .

 

Section 604.            Trustee May File Proofs of Claim .  The Trustee may 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 and the Holders allowed in any judicial proceedings relative to the Company or any other obligor upon the Notes, its creditors or its property and, unless prohibited by law or applicable regulations, may vote on behalf of the Holders in any election of a trustee in bankruptcy or other Person performing similar functions, and any Custodian in any such judicial proceeding is hereby authorized by each Holder to make payments to the Trustee and, in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amount due it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and its counsel, and any other amounts due the Trustee under Section 707 .

 

No provision of this Indenture shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting the Notes or the rights of any Holder thereof or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding.

 

Section 605.            Trustee May Enforce Claims Without Possession of Notes .  All rights of action and claims under this Indenture or the Notes may be prosecuted and enforced by the Trustee without the possession of any of the Notes or the production thereof in any proceeding relating thereto, and any such proceeding instituted by the Trustee shall be brought in its own name as trustee of an express trust, and any recovery of judgment shall, after provision for the payment of the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, be for the ratable benefit of the Holders of the Notes in respect of which such judgment has been recovered.

 

Section 606.            Application of Money Collected .  Any money collected by the Trustee pursuant to this Article VI shall be applied in the following order, at the date or dates

 

96



 

fixed by the Trustee and, in case of the distribution of such money on account of principal (or premium, if any) or interest, upon presentation of the Notes and the notation thereon of the payment if only partially paid and upon surrender thereof if fully paid:

 

First :  To the payment of all amounts due the Trustee under Section 707 ;

 

Second :  To the payment of the amounts then due and unpaid upon the Notes for principal (and premium, if any) and interest, in respect of which or for the benefit of which such money has been collected, ratably, without preference or priority of any kind, according to the amounts due and payable on such Notes for principal (and premium, if any) and interest, respectively; and

 

Third :  to the Company.

 

Section 607.            Limitation on Suits Subject to Section 608 hereof, no Holder may pursue any remedy with respect to this Indenture or the Notes unless:

 

(i)             such Holder has previously given the Trustee written notice that an Event of Default is continuing;

 

(ii)            Holders of at least 30% in principal amount of the Outstanding Notes have requested the Trustee in writing to pursue the remedy;

 

(iii)           such Holder or Holders have offered to the Trustee security or indemnity reasonably satisfactory to it against any loss, liability or expense;

 

(iv)           the Trustee has not complied with the request within 60 days after receipt of the request and the offer of security or indemnity; and

 

(v)            the Holders of a majority in principal amount of the Outstanding Notes have not given the Trustee a direction inconsistent with the request within such 60-day period.

 

A Holder may not use this Indenture to affect, disturb or prejudice the rights of another Holder, to obtain a preference or priority over another Holder or to enforce any right under this Indenture except in the manner herein provided and for the equal and ratable benefit of all Holders (it being understood that the Trustee does not have an affirmative duty to ascertain whether or not such actions or forbearances are unduly prejudicial to such Holders).

 

Section 608.            Unconditional Right of Holders to Receive Principal and Interest .  Notwithstanding any other provision in this Indenture, the Holder of any Note shall have the absolute and unconditional right to receive payment of the principal of, premium (if any) on and all (subject to Section 307 ) interest on such Note on the respective Stated Maturity or Interest Payment Dates expressed in such Note and to institute suit for the enforcement of any such

 

97



 

payment on or after such respective Stated Maturity or Interest Payment Dates, and such right shall not be impaired without the consent of such Holder.

 

Section 609.            Restoration of Rights and Remedies .  If the Trustee or any Holder has instituted any proceeding to enforce any right or remedy under this Indenture or any Note and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to such Holder, then and in every such case the Company, any other obligor upon the Notes, the Trustee and the Holders shall, subject to any determination in such proceeding, be restored severally and respectively to their former positions hereunder, and thereafter all rights and remedies of the Trustee and the Holders shall continue as though no such proceeding had been instituted.

 

Section 610.            Rights and Remedies Cumulative .  No right or remedy herein conferred upon or reserved to the Trustee or to the Holders is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise.  The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy.

 

Section 611.            Delay or Omission Not Waiver .  No delay or omission of the Trustee or of any Holder of any Note to exercise any right or remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein.  Every right and remedy given by this Article VI or by law to the Trustee or to the Holders may be exercised from time to time, and as often as may be deemed expedient, by the Trustee or by the Holders, as the case may be.

 

Section 612.            Control by Holders .  The Holders of not less than a majority in aggregate principal amount of the Outstanding Notes shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee or of exercising any trust or power conferred on the Trustee, provided that

 

(1)            such direction shall not be in conflict with any rule of law or with this Indenture, and

 

(2)            the Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction.

 

However, the Trustee may refuse to follow any direction that conflicts with law or this Indenture or, subject to Section 701 , that the Trustee determines is unduly prejudicial to the rights of any other Holder or that would involve the Trustee in personal liability; provided , however , that the Trustee may take any other action deemed proper by the Trustee that is not inconsistent with such direction.  Prior to taking any action under this Indenture, the Trustee shall be entitled to indemnification satisfactory to it in its sole discretion against all losses and expenses caused by taking or not taking such action.  This Section 612 shall be in lieu of

 

98



 

§ 316(a)(1)(A) of the TIA, and such § 316(a)(1)(A) of the TIA is hereby expressly excluded from this Indenture and the Notes, as permitted by the TIA.

 

Section 613.            Waiver of Past Defaults .  The Holders of not less than a majority in aggregate principal amount of the Outstanding Notes may on behalf of the Holders of all the Notes waive any past Default hereunder and its consequences, except a Default

 

(1)            in the payment of the principal of or interest on any Note (which may only be waived with the consent of each Holder of Notes affected), or

 

(2)            in respect of a covenant or provision hereof that pursuant to the second paragraph of Section 902 cannot be modified or amended without the consent of the Holder of each Outstanding Note affected.

 

Upon any such waiver, such Default shall cease to exist, and any Event of Default 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 Default or Event of Default or impair any right consequent thereon.  In case of any such waiver, the Company, any other obligor upon the Notes, the Trustee and the Holders shall be restored to their former positions and rights hereunder and under the Notes, respectively.  This paragraph of this Section 613 shall be in lieu of § 316(a)(1)(B) of the TIA and such § 316(a)(1)(B) of the TIA is hereby expressly excluded from this Indenture and the Notes, as permitted by the TIA.

 

Section 614.            Undertaking for Costs .  All parties to this Indenture agree, and each Holder of any Note by such Holder’s acceptance thereof shall be deemed to have agreed, that any court may in its discretion require, in any suit for the enforcement of any right or remedy under this Indenture or the Notes, or in any suit against the Trustee for any action taken, suffered or omitted by it as Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys’ fees and expenses, against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant.  This Section 614 shall not apply to any suit instituted by the Trustee, to any suit instituted by any Holder, or group of Holders, holding in the aggregate more than 10% in principal amount of the Outstanding Notes, or to any suit instituted by any Holder for the enforcement of the payment of the principal of (or premium, if any) or interest on any Note on or after the respective Stated Maturity or Interest Payment Dates expressed in such Note.

 

Section 615.            Waiver of Stay, Extension or Usury Laws .  The Company (to the extent that it may lawfully do so) shall not at any time insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay or extension law or any usury or other similar law wherever enacted, now or at any time hereafter in force, that would prohibit or forgive the Company from paying all or any portion of the principal of (or premium, if any) or interest on the Notes contemplated herein or in the Notes or that may affect the covenants or the performance of this Indenture; and the Company (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law, and shall not hinder, delay or impede

 

99



 

the execution of any power herein granted to the Trustee, but will suffer and permit the execution of every such power as though no such law had been enacted.

 

ARTICLE VII

 

THE TRUSTEE

 

Section 701.            Certain Duties and Responsibilities .  (a)  Except during the continuance of an Event of Default,

 

(1)            the Trustee undertakes to perform such duties and only such duties as are specifically set forth in this Indenture, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and

 

(2)            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; but in the case of any such certificates or opinions that by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they conform to the requirements of this Indenture, but need not verify the contents thereof.

 

(b)    In case an Event of Default 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 person would exercise or use under the circumstances in the conduct of such person’s own affairs.

 

(c)    No provision of this Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that ( i ) this paragraph does not limit the effect of Section 701(a) ; ( ii ) the Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer, unless it is proved that the Trustee was negligent in ascertaining the pertinent facts; and ( 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 612 .

 

(d)    No provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers, if it shall have reasonable grounds to believe that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it.

 

(e)    Whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section 701 and Section 703 .

 

100



 

Section 702.            Notice of Defaults .  If a Default occurs and is continuing and is known to the Trustee, the Trustee must mail within 90 days after it occurs, to all Holders as their names and addresses appear in the Note Register, notice of such Default hereunder known to the Trustee unless such Default shall have been cured or waived; provided, however , that, except in the case of a Default in the payment of the principal of, premium, if any, or interest on any Note, the Trustee shall be protected in withholding such notice if and so long as the Trustee in good faith determines that the withholding of such notice is in the interests of the Holders.

 

Section 703.            Certain Rights of Trustee .  Subject to the provisions of Section 701 :

 

(1)            the Trustee may conclusively rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;

 

(2)            any request or direction of the Company mentioned herein shall be sufficiently evidenced by a Company Request or Company Order thereof, and any resolution of any Person’s board of directors shall be sufficiently evidenced if certified by an Officer of such Person as having been duly adopted and being in full force and effect on the date of such certificate;

 

(3)            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, rely upon an Officer’s Certificate of the Company;

 

(4)            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 in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon;

 

(5)            the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of any of the Holders pursuant to this Indenture, unless such Holders shall have offered to the Trustee security or indemnity reasonably satisfactory to it against the costs, expenses and liabilities which might be incurred by it in compliance with such request or direction;

 

(6)            the Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, note, other evidence of indebtedness or other paper or document;

 

101



 

(7)            the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder;

 

(8)            the Trustee shall not be liable for any action taken, suffered, or omitted to be taken by it in good faith and reasonably believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Indenture;

 

(9)            the Trustee shall not be deemed to have notice of any Default or Event of Default unless a Responsible Officer of the Trustee has actual knowledge thereof or unless notice of any event which is in fact such a default is received by the Trustee at the Corporate Trust Office of the Trustee, and such notice references the Notes and this Indenture; and

 

(10)          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.

 

Section 704.            Not Responsible for Recitals or Issuance of Notes .  The recitals contained herein and in the Notes, except the Trustee’s certificates of authentication, shall be taken as the statements of the Company, and neither the Trustee nor any Authenticating Agent assumes any responsibility for their correctness.  The Trustee makes no representations as to the validity or sufficiency of this Indenture or of the Notes, except that the Trustee represents that it is duly authorized to execute and deliver this Indenture, authenticate the Notes and perform its obligations hereunder and that the statements made by it in a Statement of Eligibility on Form T-1 supplied to the Company and any other obligor upon the Notes in connection with the registration of any Notes and any Subsidiary Guarantees issued hereunder are and will be true and accurate subject to the qualifications set forth therein.  Neither the Trustee nor any Authenticating Agent shall be accountable for the use or application by the Company of the Notes or the proceeds thereof.

 

Section 705.            May Hold Notes .  The Trustee, any Authenticating Agent, any Paying Agent, any Note Registrar or any other agent of the Company, in its individual or any other capacity, may become the owner or pledgee of Notes and, subject to Section 708 and Section 713 , may otherwise deal with the Company or its Affiliates with the same rights it would have if it were not Trustee, Authenticating Agent, Paying Agent, Note Registrar or such other agent.

 

Section 706.            Money Held in Trust .  Money held by the Trustee in trust hereunder need not be segregated from other funds except to the extent required by law.  The Trustee shall be under no liability for interest on any money received by it hereunder except as otherwise agreed in writing with the Company.

 

102


 

Section 707.           Compensation and Reimbursement .  The Company agrees,

 

(1)           to pay to the Trustee from time to time such compensation as the Company and the Trustee shall from time to time agree in writing for all services rendered by the Trustee hereunder (which compensation shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust);

 

(2)           except as otherwise expressly provided herein, to reimburse the Trustee upon its request for all reasonable out-of-pocket expenses incurred by the Trustee in accordance with any provision of this Indenture (including the reasonable compensation and the expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance as may be attributable to its negligence or bad faith; and

 

(3)           to indemnify the Trustee for, and to hold it harmless against, any loss, liability or expense incurred without negligence or bad faith on the Trustee’s part, arising out of or in connection with the administration of the trust or trusts hereunder, including the costs and expenses of defending itself against any claim or liability in connection with the exercise or performance of any of its powers or duties hereunder.

 

The Trustee shall have a lien prior to the Notes as to all property and funds held by it hereunder for any amount owing it or any predecessor Trustee pursuant to this Section 707 , except with respect to funds held in trust for the benefit of the Holders of particular Notes.

 

When the Trustee incurs expenses or renders services in connection with an Event of Default specified in Section 601(viii)  or Section 601(ix) , the expenses (including the reasonable charges and expenses of its counsel) and the compensation for the services are intended to constitute expenses of administration under any applicable Federal or state bankruptcy, insolvency or other similar law.

 

The Company need not pay for any settlement made without its consent.  The provisions of this Section 707 shall survive the termination of this Indenture.

 

Section 708.           Conflicting Interests .  If the Trustee has or shall acquire a conflicting interest within the meaning of the TIA, the Trustee shall eliminate such interest, apply to the SEC for permission to continue as Trustee with such conflict or resign, to the extent and in the manner provided by, and subject to the provisions of, the TIA and this Indenture.  To the extent permitted by the TIA, the Trustee shall not be deemed to have a conflicting interest by virtue of being a trustee under this Indenture with respect to Original Notes and Additional Notes, or a trustee under any other indenture between the Company and the Trustee.

 

Section 709.           Corporate Trustee Required; Eligibility .  There shall at all times be one (and only one) Trustee hereunder.  The Trustee shall be a Person that is eligible pursuant to the TIA to act as such and has a combined capital and surplus of at least $50,000,000.  If any such Person publishes reports of condition at least annually, pursuant to law or to the requirements of its supervising or examining authority, then for the purposes of this Section 709

 

103



 

and to the extent permitted by the TIA, the combined capital and surplus of such Person shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published.  If at any time the Trustee shall cease to be eligible in accordance with the provisions of this Section 709 , it shall resign immediately in the manner and with the effect hereinafter specified in this Article.

 

Section 710.           Resignation and Removal; Appointment of Successor .  No resignation or removal of the Trustee and no appointment of a successor Trustee pursuant to this Article shall become effective until the acceptance of appointment by the successor Trustee in accordance with the applicable requirements of Section 711 .

 

The Trustee may resign at any time by giving written notice thereof to the Company.  If the instrument of acceptance by a successor Trustee required by Section 711 shall not have been delivered to the Trustee within 30 days after the giving of such notice of resignation, the resigning Trustee may petition at the expense of the Company any court of competent jurisdiction for the appointment of a successor Trustee.

 

The Trustee may be removed at any time by Act of the Holders of a majority in principal amount of the Outstanding Notes, delivered to the Trustee and to the Company.

 

If at any time:

 

(1)           the Trustee shall fail to comply with Section 708 after written request therefor by the Company or by any Holder who has been a bona fide Holder of a Note for at least six months, or

 

(2)           the Trustee shall cease to be eligible under Section 709 and shall fail to resign after written request therefor by the Company or by any such Holder, or

 

(3)           the Trustee shall become incapable of acting or shall be adjudged bankrupt or insolvent or a receiver of the Trustee or of its property shall be appointed or any public officer shall take charge or control of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation,

 

then, in any such case, ( A ) the Company may remove the Trustee, or ( B ) subject to Section 614 , any Holder who has been a bona fide Holder of a Note for at least six months may, on behalf of itself and all others similarly situated, petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee or Trustees.

 

If the Trustee shall resign, be removed or become incapable of acting, or if a vacancy shall occur in the office of Trustee for any cause, the Company shall promptly appoint a successor Trustee and shall comply with the applicable requirements of Section 711 .  If, within one year after such resignation, removal or incapability, or the occurrence of such vacancy, a successor Trustee shall be appointed by Act of the Holders of a majority in principal amount of the Outstanding Notes delivered to the Company and the retiring Trustee, the successor Trustee

 

104



 

so appointed shall, forthwith upon its acceptance of such appointment in accordance with the applicable requirements of Section 711 , become the successor Trustee and to that extent supersede the successor Trustee appointed by the Company.  If no successor Trustee shall have been so appointed by the Company or the Holders and accepted appointment in the manner required by Section 711 , then, subject to Section 614 , any Holder who has been a bona fide Holder of a Note for at least six months may, on behalf of itself and all others similarly situated, petition any court of competent jurisdiction for the appointment of a successor Trustee.

 

The Company shall give notice of each resignation and each removal of the Trustee and each appointment of a successor Trustee to all Holders in the manner provided in Section 110 .  Each notice shall include the name of the successor Trustee and the address of its Corporate Trust Office.

 

Section 711.           Acceptance of Appointment by Successor .  In case of the appointment hereunder of a successor Trustee, every such successor Trustee so appointed shall execute, acknowledge and deliver to the Company and to the retiring Trustee an instrument accepting such appointment, and thereupon the resignation or removal of the retiring Trustee shall become effective and such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee; but, on the request of the Company or the successor Trustee, such retiring Trustee shall, upon payment of its charges, execute and deliver an instrument transferring to such successor Trustee all the rights, powers and trusts of the retiring Trustee and shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder.

 

Upon request of any such successor Trustee, the Company shall execute any and all instruments for more fully and certainly vesting in and confirming to such successor Trustee all such rights, powers and trusts referred to above.

 

No successor Trustee shall accept its appointment unless at the time of such acceptance such successor Trustee shall be qualified and eligible under this Article VII .

 

Section 712.           Merger, Conversion, Consolidation or Succession to Business .  Any corporation into which the Trustee may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Trustee shall be a party, or any corporation succeeding to all or substantially all the corporate trust business of the Trustee, shall be the successor of the Trustee hereunder, provided such corporation shall be otherwise qualified and eligible under this Article VII , without the execution or filing of any paper or any further act on the part of any of the parties hereto.  In case any Notes shall have been authenticated, but not delivered, by the Trustee then in office, any successor by merger, conversion or consolidation to such authenticating Trustee may adopt such authentication and deliver the Notes so authenticated with the same effect as if such successor Trustee had itself authenticated such Notes.

 

Section 713.           Preferential Collection of Claims Against the Company .  If and when the Trustee shall be or become a creditor of the Company (or any other obligor upon the

 

105



 

Notes), the Trustee shall be subject to the provisions of the TIA regarding the collection of claims against the Company (or any such other obligor) or realizing on certain property received by it in respect of such claims.

 

Section 714.           Appointment of Authenticating Agent .  The Trustee may appoint an Authenticating Agent acceptable to the Company to authenticate the Notes.  Any such appointment shall be evidenced by an instrument in writing signed by a Responsible Officer, a copy of which instrument shall be promptly furnished to the Company.  Unless limited by the terms of such appointment, an Authenticating Agent may authenticate Notes whenever the Trustee may do so.  Each reference in this Indenture to authentication (or execution of a certificate of authentication) by the Trustee includes authentication (or execution of a certificate of authentication) by such Authenticating Agent.  An Authenticating Agent has the same rights as any Note Registrar, Paying Agent or agent for service of notices and demands.

 

ARTICLE VIII

 

HOLDERS’ LISTS AND REPORTS BY
TRUSTEE AND THE COMPANY

 

Section 801.           The Company to Furnish Trustee Names and Addresses of Holders .  The Company will furnish or cause to be furnished to the Trustee

 

(1)           semi-annually, not more than 10 days after each Regular Record Date, a list, in such form as the Trustee may reasonably require, of the names and addresses of the Holders as of such Regular Record Date, and

 

(2)           at such other times as the Trustee may request in writing, within 30 days after the receipt by the Company of any such request, a list of similar form and content as of a date not more than 15 days prior to the time such list is furnished;

 

provided , however , that if and to the extent and so long as the Trustee shall be the Note Registrar, no such list need be furnished pursuant to this Section 801 .

 

Section 802.           Preservation of Information; Communications to Holders .  The Trustee shall preserve, in as current a form as is reasonably practicable, the names and addresses of Holders contained in the most recent list, if any, furnished to the Trustee as provided in Section 801 and the names and addresses of Holders received by the Trustee in its capacity as Note Registrar; provided , however , that if and so long as the Trustee shall be the Note Registrar, the Note Register shall satisfy the requirements relating to such list.  None of the Company, any Subsidiary Guarantor or the Trustee or any other Person shall be under any responsibility with regard to the accuracy of such list.  The Trustee may destroy any list furnished to it as provided in Section 801 upon receipt of a new list so furnished.

 

106



 

The rights of Holders to communicate with other Holders with respect to their rights under this Indenture or under the Notes, and the corresponding rights and privileges of the Trustee, shall be as provided by the TIA.

 

Every Holder of Notes, by receiving and holding the same, agrees with the Company and the Trustee that neither the Company nor the Trustee, nor any agent of either of them, shall be held accountable by reason of any disclosure of information as to names and addresses of Holders made pursuant to the TIA.

 

Section 803.           Reports by Trustee .  Within 60 days after each July 15, beginning with July 15, 2011, the Trustee shall transmit to Holders such reports concerning the Trustee and its actions under this Indenture as may be required pursuant to the TIA at the times and in the manner provided pursuant thereto for so long as any Notes remain outstanding.  A copy of each such report shall, at the time of such transmission to Holders, be filed by the Trustee or any applicable listing agent with each stock exchange upon which any Notes are listed, with the SEC and with the Company.  The Company will notify the Trustee when any Notes are listed on any stock exchange.

 

ARTICLE IX

 

AMENDMENT, SUPPLEMENT OR WAIVER

 

Section 901.           Without Consent of Holders .  Without the consent of (or notice to) the Holders of any Notes, the Company, the Trustee and (as applicable) each Subsidiary Guarantor may amend or supplement this Indenture or the Notes, for any of the following purposes:

 

(1)           to cure any ambiguity, mistake, omission, defect or inconsistency,

 

(2)           to provide for the assumption by a Successor Company of the obligations of the Company or a Subsidiary Guarantor under this Indenture,

 

(3)           to provide for uncertificated Notes in addition to or in place of certificated Notes,

 

(4)           to add Guarantees with respect to the Notes, to secure the Notes, to confirm and evidence the release, termination or discharge of any Guarantee or Lien with respect to or securing the Notes when such release, termination or discharge is provided for under this Indenture,

 

(5)           to add to the covenants of the Company for the benefit of the Holders or to surrender any right or power conferred upon the Company,

 

(6)           to provide for or confirm the issuance of Additional Notes,

 

107



 

(7)           to conform the text of this Indenture, the Notes or any Subsidiary Guarantee to any provision of the “Description of Notes” section of the Offering Memorandum,

 

(8)           to increase the minimum denomination of the Notes to equal the dollar equivalent of €1,000 rounded up to the nearest $1,000 (including for the purposes of redemption or repurchase of any Note in part),

 

(9)           to make any change that does not materially adversely affect the rights of any Holder under the Notes or this Indenture, or

 

(10)         to comply with any requirement of the SEC in connection with the qualification of this Indenture under the TIA or otherwise.

 

Section 902.           With Consent of Holders .  Subject to Section 608 , the Company,  the Trustee and (if applicable) each Subsidiary Guarantor may amend or supplement this Indenture or the Notes with the written consent of the Holders of a majority in aggregate principal amount of the Outstanding Notes (including consents obtained in connection with a tender offer or exchange offer for Notes), and the Holders of not less than a majority in aggregate principal amount of the Outstanding Notes by written notice to the Trustee (including consents obtained in connection with a tender offer or exchange offer for Notes) may waive any existing Default or Event of Default or compliance by the Company or any Subsidiary Guarantor with any provision of this Indenture, the Notes or any Subsidiary Guarantee.

 

Notwithstanding the provisions of this Section 902 , without the consent of each Holder affected, an amendment or waiver, including a waiver pursuant to Section 613 , may not:

 

(i)            reduce the principal amount of the Notes whose Holders must consent to an amendment or waiver;

 

(ii)           reduce the rate of or extend the time for payment of interest on any Note;

 

(iii)          reduce the principal of or extend the Stated Maturity of any Note;

 

(iv)          reduce the premium payable upon the redemption of any Note or change the date on which any Note may be redeemed as described in Section 1001 ;

 

(v)           make any Note payable in money other than that stated in such Note;

 

(vi)          impair the right of any Holder to receive payment of principal of and interest on such Holder’s Notes on or after the due dates therefor or to institute suit for the enforcement of any such payment on or with respect to such Holder’s Notes; or

 

(vii)         make any change in the amendment or waiver provisions described in this paragraph.

 

108



 

It shall not be necessary for the consent of the Holders under this Section 902 to approve the particular form of any proposed amendment, supplement or waiver, but it shall be sufficient if such consent approves the substance thereof.

 

After an amendment, supplement or waiver under this Section 902 becomes effective, the Company shall mail to the Holders, with a copy to the Trustee, a notice briefly describing the amendment, supplement or waiver.  Any failure of the Company to mail such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any supplemental indenture or the effectiveness of any such amendment, supplement or waiver.

 

Section 903.           Execution of Amendments, Supplements or Waivers .  The Trustee shall sign any amendment, supplement or waiver authorized pursuant to this Article IX if the amendment, supplement or waiver 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 or refusing to sign such amendment, supplement or waiver, the Trustee shall receive, and shall be fully protected in relying upon, an Officer’s Certificate and an Opinion of Counsel to the effect that the execution of such amendment, supplement or waiver has been duly authorized, executed and delivered by the Company and that, subject to applicable bankruptcy, insolvency, fraudulent transfer, fraudulent conveyance, reorganization, moratorium and other laws now or hereinafter in effect affecting creditors’ rights or remedies generally and to general principles of equity (including standards of materiality, good faith, fair dealing and reasonableness), whether considered in a proceeding at law or at equity, such amendment, supplement or waiver is a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms.

 

Section 904.           Revocation and Effect of Consents .  Until an amendment, supplement or waiver becomes effective, a consent to it by a Holder is a continuing consent by the Holder and every subsequent Holder of that Note or any Note that evidences all or any part of the same debt as the consenting Holder’s Note, even if notation of the consent is not made on any Note.  Subject to the following paragraph of this Section 904 , any such Holder or subsequent Holder may revoke the consent as to such Holder’s Note by written notice to the Trustee or the Company, received by the Trustee or the Company, as the case may be, before the date on which the Trustee receives an Officer’s Certificate certifying that the Holders of the requisite principal amount of Notes have consented (and not theretofore revoked such consent) to the amendment, supplement or waiver.  The Company may, but shall not be obligated to, fix a record date for the purpose of determining the Holders entitled to consent to any amendment, supplement or waiver as set forth in Section 108 .

 

After an amendment, supplement or waiver becomes effective, it shall bind every Holder of Notes, unless it makes a change described in any of clauses (i) through (viii) of the second paragraph of Section 902 .  In that case, the amendment, supplement or waiver shall bind each Holder of a Note who has consented to it and every subsequent Holder of such Note or any Note that evidences all or any part of the same debt as the consenting Holder’s Note.

 

109



 

Section 905.           Conformity with TIA .  Every amendment or supplemental indenture executed pursuant to this Article shall conform to the requirements of the TIA as then in effect.

 

Section 906.           Notation on or Exchange of Notes .  If an amendment, supplement or waiver changes the terms of a Note, the Trustee shall (if required by the Company and in accordance with the specific direction of the Company) request the Holder of the Note to deliver it to the Trustee.  The Trustee shall (if required by the Company and in accordance with the specific direction of the Company) place an appropriate notation on the Note about the changed terms and return it to the Holder.  Alternatively, if the Company or the Trustee so determines, the Company in exchange for the Note shall issue and the Trustee shall authenticate a new Note that reflects the changed terms.  Failure to make the appropriate notation or issue a new Note shall not affect the validity and effect of such amendment, supplement or waiver.

 

ARTICLE X

 

REDEMPTION OF NOTES

 

Section 1001.         Right of Redemption .  (a)  The Notes of any series will be redeemable, at the Company’s option, in whole or in part, at any time and from time to time on and after January 15, 2016 and prior to maturity at the applicable redemption price set forth below. Such redemption may be made upon notice mailed by first-class mail to each Holder’s registered address in accordance with Section 1005 . The Company may provide in such notice that payment of the redemption price and the performance of the Company’s obligations with respect to such redemption may be performed by another Person. Any such redemption and notice may, in the Company’s discretion, be subject to the satisfaction of one or more conditions precedent, including but not limited to the occurrence of a Change of Control. The Notes will be so redeemable at the following redemption prices (expressed as a percentage of principal amount), plus accrued and unpaid interest, if any, to the relevant Redemption Date (subject to Section 307 ), if redeemed during the 12-month period commencing on January 15 of the years set forth below:

 

 

Redemption Period

 

Price

 

 

2016

 

103.688

%

 

2017

 

102.458

%

 

2018

 

101.229

%

 

2019 and thereafter

 

100.000

%

 

(b)   In addition, at any time and from time to time on or prior to January 15, 2014, the Company at its option may redeem Notes in an aggregate principal amount equal to up to 35% of the original aggregate principal amount of the Notes (including the principal amount of any Additional Notes), with funds in an equal aggregate amount (the “ Redemption Amount ”) not exceeding the aggregate proceeds of one or more Equity Offerings, at a redemption price

 

110



 

(expressed as a percentage of principal amount thereof) of 107.375%, plus accrued and unpaid interest, if any, to the Redemption Date (subject to Section 307 ); provided, however , that an aggregate principal amount of Notes equal to at least 65% of the original aggregate principal amount of Notes (including the principal amount of any Additional Notes) must remain outstanding immediately after each such redemption of Notes.

 

The Company may make such redemption upon notice mailed by first-class mail to each Holder’s registered address in accordance with Section 1005 (but in no event more than 180 days after the completion of the related Equity Offering). The Company may provide in such notice that payment of the redemption price and performance of the Company’s obligations with respect to such redemption may be performed by another Person. Any such notice may be given prior to the completion of the related Equity Offering, and any such redemption or notice may, at the Company’s discretion, be subject to the satisfaction of one or more conditions precedent, including but not limited to the completion of the related Equity Offering.

 

(c)   At any time prior to January 15, 2016, Notes of any series may also be redeemed or purchased (by the Company or any other Person) in whole or in part, at the Company’s option, at a price (the “ Redemption Price ”) equal to 100% of the principal amount thereof plus the Applicable Premium as of, and accrued but unpaid interest, if any, to, the Redemption Date (subject to Section 307 ). Such redemption or purchase may be made upon notice mailed by first-class mail to each Holder’s registered address in accordance with Section 1005 . The Company may provide in such notice that payment of the Redemption Price and performance of the Company’s obligations with respect to such redemption or purchase may be performed by another Person. Any such redemption, purchase or notice may, at the Company’s discretion, be subject to the satisfaction of one or more conditions precedent, including but not limited to the occurrence of a Change of Control.

 

Applicable Premium ” means, with respect to a Note at any Redemption Date, the greater of ( i ) 1.0% of the principal amount of such Note and ( ii ) the excess of ( A ) the present value at such Redemption Date of ( 1 ) the redemption price of such Note on January 15, 2016 (such redemption price being that described in Section 1001(a) ) plus ( 2 ) all required remaining scheduled interest payments due on such Note through such date (excluding accrued and unpaid interest to the Redemption Date), computed using a discount rate equal to the Treasury Rate plus 50 basis points, over ( B ) the principal amount of such Note on such Redemption Date, as calculated by the Company or on behalf of the Company by such Person as the Company shall designate; provided that such calculation shall not be a duty or obligation of the Trustee.

 

Treasury Rate ” means, with respect to a Redemption Date, the yield to maturity at the time of computation of United States Treasury securities with a constant maturity (as compiled and published in the most recent Federal Reserve Statistical Release H.15(519) that has become publicly available at least two Business Days prior to such Redemption Date (or, if such Statistical Release is no longer published, any publicly available source of similar market data)) most nearly equal to the period from such Redemption Date to January 15, 2016; provided , however , that if the period from the Redemption Date to such date is not equal to the constant

 

111



 

maturity of a United States Treasury security for which a weekly average yield is given, the Treasury Rate shall be obtained by linear interpolation (calculated to the nearest one-twelfth of a year) from the weekly average yields of United States Treasury securities for which such yields are given, except that if the period from the Redemption Date to such date is less than one year, the weekly average yield on actually traded United States Treasury securities adjusted to a constant maturity of one year shall be used.

 

Section 1002.         Applicability of Article .  Redemption or purchase of Notes as permitted by Section 1001 shall be made in accordance with this Article X .

 

Section 1003.         Election to Redeem; Notice to Trustee .  In case of any redemption at the election of the Company of less than all of the Notes, the Company shall, at least two Business Days (but not more than 60 days) prior to the date on which notice is required to be mailed or caused to be mailed to Holders pursuant to Section 1005 , notify the Trustee of such Redemption Date and of the principal amount of Notes to be redeemed.

 

Section 1004.         Selection by Trustee of Notes to Be Redeemed .  In the case of any partial redemption, selection of the Notes for redemption will be made by the Trustee not more than 60 days prior to the Redemption Date on a pro rata basis, by lot or by such other method as the Trustee in its sole discretion shall deem to be fair and appropriate, although no Note of $2,000 in original principal amount or less will be redeemed in part.

 

The Trustee shall promptly notify the Company in writing of the Notes selected for redemption and, in the case of any Note selected for partial redemption, the principal amount thereof to be redeemed.  On and after the Redemption Date, interest will cease to accrue on Notes or portions thereof called for redemption.

 

For all purposes of this Indenture, unless the context otherwise requires, all provisions relating to the redemption of Notes shall relate, in the case of any Note redeemed or to be redeemed only in part, to the portion of the principal of such Note that has been or is to be redeemed.

 

Section 1005.         Notice of Redemption .  Notice of redemption or purchase as provided in Section 1001 shall be given by first-class mail, postage prepaid, mailed not less than 30 nor more than 60 days prior to the Redemption Date, to each Holder of Notes to be redeemed, at such Holder’s address appearing in the Note Register.  Each Notice of redemption shall identify the Notes to be redeemed (including the CUSIP number).

 

Any such notice shall state:

 

(1)           the expected Redemption Date,

 

(2)           the redemption price (or the formula by which the redemption price will be determined),

 

112


 

(3)            if less than all Outstanding Notes are to be redeemed, the identification (and, in the case of partial redemption, the portion of the respective principal amounts) of the Notes to be redeemed,

 

(4)            that, on the Redemption Date, the redemption price will become due and payable upon each such Note, and that, unless the Company defaults in making such redemption payment or the Paying Agent is prohibited from making such payment pursuant to the terms of this Indenture, interest thereon shall cease to accrue from and after said date, and

 

(5)            the place where such Notes are to be surrendered for payment of the redemption price.

 

In addition, if such redemption, purchase or notice is subject to satisfaction of one or more conditions precedent, as permitted by Section 1001 , such notice shall describe each such condition, and if applicable, shall state that, in the Company’s discretion, the Redemption Date may be delayed until such time as any or all such conditions shall be satisfied, or such redemption or purchase may not occur and such notice may be rescinded in the event that any or all such conditions shall not have been satisfied by the Redemption Date, or by the Redemption Date as so delayed.

 

The Company may provide in such notice that payment of the redemption price and the performance of the Company’s obligations with respect to such redemption may be performed by another Person.

 

Notice of such redemption or purchase of Notes to be so redeemed or purchased at the election of the Company shall be given by the Company or, at the Company’s request (made to the Trustee at least 40 days (or such shorter period as shall be satisfactory to the Trustee) prior to the Redemption Date), by the Trustee in the name and at the expense of the Company.  Any such request will set forth the information to be stated in such notice, as provided by this Section 1005 .

 

The notice if mailed in the manner herein provided shall be conclusively presumed to have been given, whether or not the Holder receives such notice.  In any case, failure to give such notice by mail or any defect in the notice to the Holder of any Note designated for redemption as a whole or in part shall not affect the validity of the proceedings for the redemption of any other Note.

 

Section 1006.          Deposit of Redemption Price .  On or prior to 12:00 p.m., New York City time, on any Redemption Date, the Company shall deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, the Company shall segregate and hold in trust as provided in Section 403 ) an amount of money sufficient to pay the redemption price of, and any accrued and unpaid interest on, all the Notes or portions thereof which are to be redeemed on that date.

 

113



 

Section 1007.          Notes Payable on Redemption Date .  Notice of redemption having been given as provided in this Article X , the Notes so to be redeemed shall, on the Redemption Date, become due and payable at the redemption price herein specified and from and after such date (unless the Company shall default in the payment of the redemption price or the Paying Agent is prohibited from paying the redemption price pursuant to the terms of this Indenture) such Notes shall cease to bear interest.  Upon surrender of such Notes for redemption in accordance with such notice, such Notes shall be paid by the Company at the redemption price.  Installments of interest whose Interest Payment Date is on or prior to the Redemption Date shall be payable to the Holders of such Notes registered as such on the relevant Regular Record Dates according to their terms and the provisions of Section 307 .

 

On and after any Redemption Date, if money sufficient to pay the redemption price of and any accrued and unpaid interest on Notes called for redemption shall have been made available in accordance with Section 1006 , the Notes (or the portions thereof) called for redemption will cease to accrue interest and the only right of the Holders of such Notes (or portions thereof) will be to receive payment of the redemption price of and, subject to the last sentence of the preceding paragraph, any accrued and unpaid interest on such Notes (or portions thereof) to the Redemption Date.  If any Note (or portion thereof) called for redemption shall not be so paid upon surrender thereof for redemption, the principal (and premium, if any) shall, until paid, bear interest from the Redemption Date at the rate borne by the Note (or portion thereof).

 

Section 1008.          Notes Redeemed in Part .  Any Note that is to be redeemed only in part shall be surrendered at the Place of Payment (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or its attorney duly authorized in writing) and the Company shall execute and the Trustee shall authenticate and deliver to the Holder of such Note without service charge, a new Note or Notes, of any authorized denomination as requested by such Holder in aggregate principal amount equal to and in exchange for the unredeemed portion of the principal of the Note so surrendered.

 

ARTICLE XI

 

SATISFACTION AND DISCHARGE

 

Section 1101.          Satisfaction and Discharge of Indenture .  This Indenture shall be discharged and shall cease to be of further effect (except as to any surviving rights of registration of transfer or exchange of Notes herein expressly provided for), and the Trustee, on demand of and at the expense of the Company, shall execute proper instruments acknowledging satisfaction and discharge of this Indenture, when

 

(i)             either

 

(a)            all Notes theretofore authenticated and delivered (other than ( i ) Notes that have been destroyed, lost or stolen and that have been replaced or paid as provided in Section 306 , and ( ii ) Notes for whose payment money has

 

114



 

theretofore been deposited in trust or segregated and held in trust by the Company and thereafter repaid to the Company or discharged from such trust, as provided in Section 403 ) have been cancelled or delivered to the Trustee for cancellation; or

 

(b)            all such Notes not theretofore cancelled or delivered to the Trustee for cancellation

 

(1)            have become due and payable, or

 

(2)            will become due and payable at their Stated Maturity within one year, or

 

(3)            have been or are to be called for redemption within one year under arrangements reasonably satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company,

 

(ii)            the Company has irrevocably deposited or caused to be deposited with the Trustee money or U.S. Government Obligations, or a combination thereof, sufficient (without reinvestment) to pay and discharge the entire Indebtedness on such Notes not theretofore cancelled or delivered to the Trustee for cancellation, for principal (and premium, if any) and interest to the date of such deposit (in the case of Notes that have become due and payable), or to the Stated Maturity or Redemption Date, as the case may be ( provided that if such redemption is made pursuant to Section 1001(c) , (x) the amount of money or U.S. Government Obligations or a combination thereof that the Company must irrevocably deposit or cause to be deposited will be determined using an assumed Applicable Premium calculated as of the date of such deposit, as calculated by the Company, and (y) the Company must irrevocably deposit or cause to be deposited additional money in trust on the Redemption Date, as required by Section 1006 , as necessary to pay the Applicable Premium as determined on such date);

 

(iii)           the Company has paid or caused to be paid all other sums then payable hereunder by the Company; and

 

(iv)           the Company has delivered to the Trustee an Officer’s Certificate of the Company and an Opinion of Counsel, each to the effect that all conditions precedent provided for in this Section 1101 relating to the satisfaction and discharge of this Indenture have been complied with, provided that any such counsel may rely on any Officer’s Certificate as to matters of fact (including as to compliance with the foregoing clauses (i), (ii) and (iii)).

 

Notwithstanding the satisfaction and discharge of this Indenture, the obligations of the Company to the Trustee under Section 707 and, if money shall have been deposited with

 

115



 

the Trustee pursuant to Section 1101(ii) , the obligations of the Trustee under Section 1102 shall survive.

 

Section 1102.          Application of Trust Money .  Subject to the provisions of the last paragraph of Section 403 , all money and/or U.S. Government Obligations (including the proceeds thereof) deposited with the Trustee pursuant to Section 1101 shall be held in trust and applied by it, in accordance with the provisions of the Notes and this Indenture, to the payment, either directly or through any Paying Agent as the Trustee may determine, to the Persons entitled thereto, of the principal (and premium, if any) and interest on the Notes; but such money need not be segregated from other funds except to the extent required by law.

 

ARTICLE XII

 

DEFEASANCE OR COVENANT DEFEASANCE

 

Section 1201.          The Company’s Option to Effect Defeasance or Covenant Defeasance .  The Company may, concurrently (and not separately) at its option, at any time, elect to have terminated the obligations of the Company with respect to Outstanding Notes and to have terminated all of the obligations of the Subsidiary Guarantors with respect to the Subsidiary Guarantees, in each case, as set forth in this Article XII , and elect to have either Section 1202 or Section 1203 be applied to all of the Outstanding Notes (the “ Defeased Notes ”), upon compliance with the conditions set forth below in Section 1204 .  Either Section 1202 or Section 1203 may be applied to the Defeased Notes to any Redemption Date or the Stated Maturity of the Notes.

 

Section 1202.          Defeasance and Discharge .  Upon the Company’s exercise under Section 1201 of the option applicable to this Section 1202 , the Company shall be deemed to have been released and discharged from its obligations with respect to the Defeased Notes on the date the relevant conditions set forth in Section 1204 below are satisfied (hereinafter, “ Defeasance ”).  For this purpose, such Defeasance means that the Company shall be deemed to have paid and discharged the entire Indebtedness represented by the Defeased Notes, which shall thereafter be deemed to be “Outstanding” only for the purposes of Section 1205 and the other Sections of this Indenture referred to in clauses (a) and (b) below, and the Company and each of the Subsidiary Guarantors shall be deemed to have satisfied all other obligations under such Notes and this Indenture insofar as such Notes are concerned (and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging the same), except for the following, which shall survive until otherwise terminated or discharged hereunder:  ( a ) the rights of Holders of Defeased Notes to receive, solely from the trust fund described in Section 1204 and as more fully set forth in such Section, payments in respect of the principal of and premium, if any, and interest on such Notes when such payments are due, ( b ) the Company’s obligations with respect to such Defeased Notes under Sections 304 , 305 , 306 , 402 and 403 , ( c ) the rights, powers, trusts, duties and immunities of the Trustee hereunder, including the Trustee’s rights under Section 707 , and ( d ) this Article XII .  If the Company exercises its option under this Section 1202 , payment of the Notes may not be accelerated because of an Event of Default with respect thereto.  Subject to

 

116



 

compliance with this Article XII , the Company may, at its option and at any time, exercise its option under this Section 1202 notwithstanding the prior exercise of its option under Section 1203 with respect to the Notes.

 

Section 1203.          Covenant Defeasance .  Upon the Company’s exercise under Section 1201 of the option applicable to this Section 1203 , ( a ) the Company and the Subsidiary Guarantors shall be released from their respective obligations under any covenant or provision contained in Section 405 and Sections 407 through 415 and the provisions of clauses (iii), (iv) and (v) of Section 501(a) shall not apply, and ( b ) the occurrence of any event specified in clause (iv), (v) (with respect to Section 405 and Sections 407 through 415 , inclusive), (vi), (vii), (viii) (with respect to Subsidiaries), (ix) (with respect to Subsidiaries), (x) or (xi) of Section 601 shall be deemed not to be or result in an Event of Default, in each case with respect to the Defeased Notes on and after the date the conditions set forth below are satisfied (hereinafter, “ Covenant Defeasance ”), and the Notes shall thereafter be deemed not to be “Outstanding” for the purposes of any direction, waiver, consent or declaration or Act of Holders (and the consequences of any thereof) in connection with such covenants or provisions, but shall continue to be deemed “Outstanding” for all other purposes hereunder.  For this purpose, such Covenant Defeasance means that, with respect to the Outstanding Notes, the Company and the Subsidiary Guarantors may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such covenant or provision, whether directly or indirectly, by reason of any reference elsewhere herein to any such covenant or provision or by reason of any reference in any such covenant or provision to any other provision herein or in any other document and such omission to comply shall not constitute a Default or an Event of Default under Section 601 , but, except as specified above, the remainder of this Indenture and such Outstanding Notes shall be unaffected thereby.

 

Section 1204.          Conditions to Defeasance or Covenant Defeasance .  The following shall be the conditions to application of either Section 1202 or Section 1203 to the Outstanding Notes:

 

(1)            The Company shall have irrevocably deposited or caused to be deposited with the Trustee, in trust, money or U.S. Government Obligations, or a combination thereof in amounts as will be sufficient (without reinvestment), to pay and discharge the principal of, and premium, if any, and interest on the Defeased Notes to the Stated Maturity or relevant Redemption Date in accordance with the terms of this Indenture and the Notes ( provided that if such redemption is made pursuant to Section 1001(c) , (x) the amount of money or U.S. Government Obligations or a combination thereof that the Company must irrevocably deposit or cause to be deposited will be determined using an assumed Applicable Premium calculated as of the date of such deposit, as calculated by the Company, and (y) the Company must irrevocably deposit or cause to be deposited additional money in trust on the Redemption Date, as required by Section 1006 , as necessary to pay the Applicable Premium as determined on such date);

 

117



 

(2)            No Default or Event of Default shall have occurred and be continuing on the date of such deposit;

 

(3)            Such deposit shall not result in a breach or violation of, or constitute a Default or Event of Default under, this Indenture or any other material agreement or instrument to which the Company is a party or by which it is bound;

 

(4)            In the case of an election under Section 1202 , the Company shall have delivered to the Trustee an Opinion of Counsel from Jenner & Block LLP or other counsel in the United States to the effect that ( x ) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or ( y ) since the Issue Date, there has been a change in the applicable Federal income tax law, in either case to the effect that, and based thereon such opinion shall confirm to the effect that, the Holders of the Outstanding Notes will not recognize income, gain or loss for Federal income tax purposes as a result of such Defeasance and will be subject to Federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Defeasance had not occurred; provided that such Opinion of Counsel need not be delivered if all Notes theretofore authenticated and delivered (other than ( i ) Notes that have been destroyed, lost or stolen and that have been replaced or paid as provided in Section 306 , and ( ii ) Notes for whose payment money has theretofore been deposited in trust or segregated and held in trust by the Company and thereafter repaid to the Company or discharged from such trust, as provided in Section 403 ) not theretofore delivered to the Trustee for cancellation have become due and payable, will become due and payable at their Stated Maturity within one year, or are to be called for redemption within one year under arrangements reasonably satisfactory to the Trustee in the name, and at the expense, of the Company;

 

(5)            In the case of an election under Section 1203 , the Company shall have delivered to the Trustee an Opinion of Counsel from Jenner & Block LLP or other counsel in the United States to the effect that the Holders of the Outstanding Notes will not recognize income, gain or loss for Federal income tax purposes as a result of such Covenant Defeasance and will be subject to Federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred; and

 

(6)            The Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each to the effect that all conditions precedent provided for in this Section 1204 relating to either the Defeasance under Section 1202 or the Covenant Defeasance under Section 1203 , as the case may be, have been complied with.  In rendering such Opinion of Counsel, counsel may rely on an Officer’s Certificate as to compliance with the foregoing clauses (1), (2) and (3) of this Section 1204 or as to any matters of fact.

 

Section 1205.          Deposited Money and U.S. Government Obligations to Be Held in Trust; Other Miscellaneous Provisions .  Subject to the provisions of the last paragraph of

 

118



 

Section 403 , all money and U.S. Government Obligations (including the proceeds thereof) deposited with the Trustee (or such other Person that would qualify to act as successor trustee under Article VII , collectively and solely for purposes of this Section 1205 , the “ Trustee ”) pursuant to Section 1204 in respect of the Defeased Notes shall be held in trust and applied by the Trustee, in accordance with the provisions of such Notes and this Indenture, to the payment, either directly or through any Paying Agent as the Trustee may determine, to the Holders of such Notes of all sums due and to become due thereon in respect of principal, premium, if any, and interest, but such money need not be segregated from other funds except to the extent required by law.

 

The Company shall pay and indemnify the Trustee and its agents and hold them harmless against any tax, fee or other charge imposed on or assessed against the U.S. Government Obligations deposited pursuant to Section 1204 , or the principal, premium, if any, and interest received in respect thereof, other than any such tax, fee or other charge that by law is for the account of the Holders of the Defeased Notes.

 

Anything in this Article XII to the contrary notwithstanding, the Trustee shall deliver to the Company from time to time, upon Company Request, any money or U.S. Government Obligations held by it as provided in Section 1204 that, in the opinion of a nationally recognized accounting or investment banking firm expressed in a written certification thereof to the Trustee, are in excess of the amount thereof that would then be required to be deposited to effect an equivalent Defeasance or Covenant Defeasance.  Subject to Article VII , the Trustee shall not incur any liability to any Person by relying on such opinion.

 

Section 1206.          Reinstatement .  If the Trustee or Paying Agent is unable to apply any money or U.S. Government Obligations in accordance with Section 1202 or 1203 , as the case may be, by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, then the obligations of the Company and each of the Subsidiary Guarantors under this Indenture, the Notes and the Subsidiary Guarantees shall be revived and reinstated as though no deposit had occurred pursuant to Section 1202 or 1203 , as the case may be, until such time as the Trustee or Paying Agent is permitted to apply all such money and U.S. Government Obligations in accordance with Section 1202 or 1203 , as the case may be; provided , however , that if the Company or any Subsidiary Guarantor makes any payment of principal, premium, if any, or interest on any Note following the reinstatement of its obligations, the Company or Subsidiary Guarantor, as the case may be, shall be subrogated to the rights of the Holders of such Notes to receive such payment from the money and U.S. Government Obligations held by the Trustee or Paying Agent.

 

Section 1207.          Repayment to the Company .  The Trustee shall pay to the Company upon Company Request any money held by it for the payment of principal or interest that remains unclaimed for two years.  After payment to the Company, Holders entitled to money must look to the Company for payment as general creditors unless an applicable abandoned property law designates another Person and all liability of the Trustee or Paying Agent with respect to such money shall thereupon cease.

 

119



 

ARTICLE XIII

 

SUBSIDIARY GUARANTEES

 

Section 1301.          Guarantees Generally .

 

(a)            Guarantee of Each Subsidiary Guarantor .  Each Subsidiary Guarantor, as primary obligor and not merely as surety, will jointly and severally, irrevocably and fully and unconditionally Guarantee, on an unsecured senior basis, the punctual payment when due, whether at Stated Maturity, by acceleration or otherwise, of all monetary obligations of the Company under this Indenture and the Notes, whether for principal of or interest on the Notes, expenses, indemnification or otherwise (all such obligations guaranteed by such Subsidiary Guarantors being herein called the “ Subsidiary Guaranteed Obligations ”).

 

The obligations of each Subsidiary Guarantor will be limited to the maximum amount as will, after giving effect to all other contingent and fixed liabilities of such Subsidiary Guarantor (including but not limited to any Guarantee by it of any Credit Facility Indebtedness), and after giving effect to any collections from or payments made by or on behalf of any other Subsidiary Guarantor in respect of the obligations of such other Subsidiary Guarantor under its Subsidiary Guarantee or pursuant to its contribution obligations under this Indenture, result in the obligations of such Subsidiary Guarantor under the Subsidiary Guarantee not constituting a fraudulent conveyance or fraudulent transfer under applicable law, or being void or unenforceable under any law relating to insolvency of debtors.

 

(b)    Further Agreements of Each Subsidiary Guarantor .  (i)  Each Subsidiary Guarantor hereby agrees that (to the fullest extent permitted by law) its obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of this Indenture, the Notes or the obligations of the Company or any other Subsidiary Guarantor to the Holders or the Trustee hereunder or thereunder, the absence of any action to enforce the same, any waiver or consent by any Holder with respect to any provisions hereof or thereof, any release of any other Subsidiary Guarantor, the recovery of any judgment against the Company, any action to enforce the same, whether or not a notation concerning its Subsidiary Guarantee is made on any particular Note, or any other circumstance that might otherwise constitute a legal or equitable discharge or defense of a Subsidiary Guarantor.

 

(ii)            Each Subsidiary Guarantor hereby waives (to the fullest extent permitted by law) the benefit of diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and covenants that (except as otherwise provided in Section 1303 ) its Subsidiary Guarantee will not be discharged except by complete performance of the obligations contained in the Notes, this Indenture and this Subsidiary Guarantee.  Such Subsidiary Guarantee is a guarantee of payment and not of collection.  Each Subsidiary Guarantor further agrees (to the fullest extent permitted by law) that, as between it, on the one hand, and the Holders of Notes and the Trustee, on the other hand, subject to this Article XIII , ( 1 ) the maturity

 

120



 

of the obligations guaranteed by its Subsidiary Guarantee may be accelerated as and to the extent provided in Article VI for the purposes of such Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed by such Subsidiary Guarantee, and ( 2 ) in the event of any acceleration of such obligations as provided in Article VI , such obligations (whether or not due and payable) shall forthwith become due and payable by such Subsidiary Guarantor in accordance with the terms of this Section 1301 for the purpose of such Subsidiary Guarantee.  Neither the Trustee nor any other Person shall have any obligation to enforce or exhaust any rights or remedies or to take any other steps under any security for the Subsidiary Guaranteed Obligations or against the Company or any other Person or any property of the Company or any other Person before the Trustee is entitled to demand payment and performance by any or all Subsidiary Guarantors of their obligations under their respective Subsidiary Guarantees or under this Indenture.

 

(iii)           Until terminated in accordance with Section 1303 , each Subsidiary Guarantee shall remain in full force and effect and continue to be effective should any petition be filed by or against the Company for liquidation or reorganization, should the Company become insolvent or make an assignment for the benefit of creditors or should a receiver or trustee be appointed for all or any significant part of the Company’s assets, and shall, to the fullest extent permitted by law, continue to be effective or be reinstated, as the case may be, if at any time payment and performance of the Notes are, pursuant to applicable law, rescinded or reduced in amount, or must otherwise be restored or returned by any obligee on such Notes, whether as a “voidable preference,” “fraudulent transfer” or otherwise, all as though such payment or performance had not been made.  In the event that any payment, or any part thereof, is rescinded, reduced, restored or returned, the Notes shall, to the fullest extent permitted by law, be reinstated and deemed reduced only by such amount paid and not so rescinded, reduced, restored or returned.

 

(c)    Each Subsidiary Guarantor that makes a payment or distribution under its Subsidiary Guarantee shall have the right to seek contribution from the Company or any non-paying Subsidiary Guarantor that has also Guaranteed the relevant Subsidiary Guaranteed Obligations in respect of which such payment or distribution is made, so long as the exercise of such right does not impair the rights of the Holders under the Subsidiary Guarantees.

 

(d)    Each Subsidiary Guarantor acknowledges that it will receive direct and indirect benefits from the financing arrangements contemplated by this Indenture and that its Subsidiary Guarantee, and the waiver set forth in Section 1305 , are knowingly made in contemplation of such benefits.

 

(e)    Each Subsidiary Guarantor, pursuant to its Subsidiary Guarantee, also hereby agrees to pay any and all reasonable out-of-pocket expenses (including reasonable counsel fees and expenses) incurred by the Trustee or the Holders in enforcing any rights under its Subsidiary Guarantee.

 

121



 

Section 1302.          Continuing Guarantees .  (a)  Each Subsidiary Guarantee shall be a continuing Guarantee and shall ( i ) subject to Section 1303 , remain in full force and effect until payment in full of the principal amount of all Outstanding Notes (whether by payment at maturity, purchase, redemption, defeasance, retirement or other acquisition) and all other Subsidiary Guaranteed Obligations of the Subsidiary Guarantor then due and owing, ( ii ) be binding upon such Subsidiary Guarantor and ( iii ) inure to the benefit of and be enforceable by the Trustee, the Holders and their permitted successors, transferees and assigns.

 

(b)            The obligations of each Subsidiary Guarantor hereunder shall continue to be effective or shall be reinstated, as the case may be, if at any time any payment which would otherwise have reduced or terminated the obligations of any Subsidiary Guarantor hereunder and under its Subsidiary Guarantee (whether such payment shall have been made by or on behalf of the Company or by or on behalf of a Subsidiary Guarantor) is rescinded or reclaimed from any of the Holders upon the insolvency, bankruptcy, liquidation or reorganization of the Company or any Subsidiary Guarantor or otherwise, all as though such payment had not been made.

 

Section 1303.          Release of Subsidiary Guarantees .  Notwithstanding the provisions of Section 1302 , Subsidiary Guarantees will be subject to termination and discharge under the circumstances described in this Section 1303 .  Any Subsidiary Guarantor will automatically and unconditionally be released from all obligations under its Subsidiary Guarantee, and such Subsidiary Guarantee shall thereupon terminate and be discharged and of no further force or effect, ( i ) concurrently with any direct or indirect sale or disposition (by merger or otherwise) of any Subsidiary Guarantor or any interest therein in accordance with the terms of this Indenture (including Section 411 and Section 501 ) by the Company or a Restricted Subsidiary, following which such Subsidiary Guarantor is no longer a Restricted Subsidiary of the Company, ( ii ) at any time that such Subsidiary Guarantor is released from all of its obligations under all of its Guarantees of payment by the Company of any Indebtedness of the Company under the Senior Credit Facilities and any Refinancing Credit Facility (it being understood that a release subject to contingent reinstatement is still a release, and that if any such Guarantee is so reinstated, such Subsidiary Guarantee shall also be reinstated to the extent that such Subsidiary Guarantor would then be required to provide a Subsidiary Guarantee pursuant to Section 414 ), ( iii ) upon the merger or consolidation of any Subsidiary Guarantor with and into the Company or another Subsidiary Guarantor that is the surviving Person in such merger or consolidation, or upon the liquidation of such Subsidiary Guarantor following the transfer of all of its assets to the Company or another Subsidiary Guarantor ( iv ) concurrently with any Subsidiary Guarantor becoming an Unrestricted Subsidiary, ( v ) at any time after the Termination Date, upon the merger or consolidation of any Subsidiary Guarantor with and into another Subsidiary that is not a Guarantor with such non-Guarantor being the surviving Person in such merger or consolidation, or upon liquidation of such Subsidiary Guarantor following the transfer of all its assets to a non-Guarantor Subsidiary, ( vi ) with respect to HERC, at the option of the Company at any time when no Event of Default has occurred and is continuing, ( vii ) upon legal or covenant defeasance of the Company’s obligations, or satisfaction and discharge of this Indenture, or ( viii ) subject to Section 1302(b) , upon payment in full of the aggregate principal amount of all Notes then Outstanding and all other Subsidiary Guaranteed Obligations then due and owing.  In addition, the Company will have the right, upon

 

122



 

30 days’ written notice to the Trustee, to cause any Subsidiary Guarantor that has not guaranteed payment by the Company of any Indebtedness of the Company under the Senior Credit Facilities to be unconditionally released from all obligations under its Subsidiary Guarantee, and such Subsidiary Guarantee shall thereupon terminate and be discharged and of no further force or effect.

 

Upon any such occurrence specified in this Section 1303 , the Trustee shall execute any documents reasonably requested by the Company in order to evidence such release, discharge and termination in respect of the applicable Subsidiary Guarantee.

 

Section 1304.          [Reserved] .

 

Section 1305.          Waiver of Subrogation .  Each Subsidiary Guarantor hereby irrevocably waives any claim or other rights that it may now or hereafter acquire against the Company that arise from the existence, payment, performance or enforcement of the Company’s obligations under the Notes and this Indenture or such Subsidiary Guarantor’s obligations under its Subsidiary Guarantee and this Indenture, including any right of subrogation, reimbursement, exoneration, indemnification, and any right to participate in any claim or remedy of any Holder of Notes against the Company, whether or not such claim, remedy or right arises in equity, or under contract, statute or common law, until this Indenture is discharged and all of the Notes are discharged and paid in full.  If any amount shall be paid to any Subsidiary Guarantor in violation of the preceding sentence and the Notes shall not have been paid in full, such amount shall be deemed to have been paid to such Subsidiary Guarantor for the benefit of, and held in trust for the benefit of, the Holders of the Notes, and shall forthwith be paid to the Trustee for the benefit of such Holders to be credited and applied upon the Notes, whether matured or unmatured, in accordance with the terms of this Indenture.

 

Section 1306.          Notation Not Required .  Neither the Company nor any Subsidiary Guarantor shall be required to make a notation on the Notes to reflect any Subsidiary Guarantee or any release, termination or discharge thereof.

 

Section 1307.          Successors and Assigns of Subsidiary Guarantors .  All covenants and agreements in this Indenture by each Subsidiary Guarantor shall bind its respective successors and assigns, whether so expressed or not.

 

Section 1308.          Execution and Delivery of Subsidiary Guarantees .  The Company shall cause each Restricted Subsidiary that is required to become a Subsidiary Guarantor pursuant to Section 414 , and each Subsidiary of the Company that the Company causes to become a Subsidiary Guarantor pursuant to Section 414 , to promptly execute and deliver to the Trustee a supplemental indenture substantially in the form set forth in Exhibit E to this Indenture, or otherwise in form and substance reasonably satisfactory to the Trustee, evidencing its Subsidiary Guarantee on substantially the terms set forth in this Article XIII .  Concurrently therewith, the Company shall deliver to the Trustee an Opinion of Counsel in form and substance reasonably satisfactory to the Trustee to the effect that such supplemental indenture has been duly authorized, executed and delivered by such Restricted Subsidiary and that, subject to applicable bankruptcy, insolvency, fraudulent transfer, fraudulent conveyance, reorganization,

 

123



 

moratorium and other laws now or hereafter in effect affecting creditors’ rights or remedies generally and to general principles of equity (including standards of materiality, good faith, fair dealing and reasonableness), whether considered in a proceeding at law or at equity, such supplemental indenture is a valid and binding agreement of such Restricted Subsidiary, enforceable against such Restricted Subsidiary in accordance with its terms.

 

Section 1309.          Notices .  Notice to any Subsidiary Guarantor shall be sufficient if addressed to such Subsidiary Guarantor care of the Company at the address, place and manner provided in Section 109 .

 

124



 

IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed, all as of the date first written above.

 

 

THE HERTZ CORPORATION

 

 

 

 

 

By:

/s/ R. Scott Massengill

 

Name: R. Scott Massengill

 

Title: Vice President and Treasurer

 

 

 

 

 

WELLS FARGO BANK

 

NATIONAL ASSOCIATION, as Trustee

 

 

 

 

 

By:

/s/ Martin Reed

 

Name: Martin Reed

 

Title: Vice President

 

S-1



 

 

SUBSIDIARY GUARANTORS

 

 

 

 

Brae Holding Corp.

 

 

Hertz Claim Management Corporation

 

 

HCM Marketing Corporation

 

 

Hertz Equipment Rental Corporation

 

 

Hertz Local Edition Corp.

 

 

Hertz Local Edition Transporting, Inc.

 

 

Hertz Global Services Corporation

 

 

Hertz System, Inc.

 

 

Hertz Technologies, Inc.

 

 

Hertz Transporting, Inc.

 

 

Smartz Vehicle Rental Corporation

 

 

Simply Wheelz LLC

 

 

 

 

 

By:

/s/ R. Scott Massengill

 

 

 

Name: R. Scott Massengill

 

 

 

Title: Treasurer

 

S-2


 

EXHIBIT A

 

Form of Initial Note(1)

(FACE OF NOTE)

 

THE HERTZ CORPORATION

 

7.375% Senior Notes due 2021

 

CUSIP No. 428040 CE7(2)/U42804 AG6(3)
No.                          $                       

 

The Hertz Corporation, a corporation duly organized and existing under the laws of the State of Delaware (and its successors and assigns, the “ Company ”), promises to pay to                                                 , or registered assigns, the principal sum of $                                 ([                                ] United States Dollars) [(or such lesser or greater amount as shall be outstanding hereunder from time to time in accordance with Sections 312 and 313 of the Indenture referred to on the reverse hereof)](4) (the “ Principal Amount ”) on January 15, 2021.  The Company promises to pay interest semi-annually in arrears on January 15 and July 15 in each year, commencing July 15, 2011, at the rate of 7.375% per annum (subject to adjustment as provided below), until the Principal Amount is paid or made available for payment. [Interest on this Note will accrue from the most recent date to which interest on this Note or any of its Predecessor Notes has been paid or duly provided for or, if no interest has been paid, from the Issue Date.](5)  [Interest on this Note will accrue (or will be deemed to have accrued) from the most recent date to which interest on this Note or any of its Predecessor Notes has been paid or duly provided for or, if no such interest has been paid, from                 ,         (6).](7)  Interest on the Notes shall be computed on the basis of a 360-day year of twelve 30-day months.  The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided in such Indenture, be paid to the Person in whose name this Note (or one or more Predecessor Notes) is registered at the close of business on the Regular Record Date for such interest, which shall be the January 1 or July 1 (whether or not a Business Day), as the case may be, next preceding such Interest Payment Date.  Any such interest not so punctually paid or duly provided for will forthwith cease to be payable to the Holder on such Regular Record Date and may either be paid to the Person in whose name this Note (or one or more Predecessor Notes) is

 


(1)          Insert any applicable legends from Article II.

(2)          Insert for Rule 144A Note only

(3)          Insert for Regulation S Note only

(4)          Include only if the Note is issued in global form.

(5)          Include only for Original Notes.

(6)          Insert the Interest Payment Date immediately preceding the date of issuance of the applicable Additional Notes, or if the date of issuance of such Additional Notes is an Interest Payment Date, such date of issuance, or, if no Interest Payment Date has occurred, the Issue Date.

(7)          Include only for Additional Notes.

 



 

registered at the close of business on a Special Record Date for the payment of such Defaulted Interest to be fixed by the Trustee, notice whereof shall be given to Holders of Notes not more than 15 days nor less than 10 days prior to such Special Record Date, or be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Notes may be listed, and upon such notice as may be required by such exchange, all as more fully provided in said Indenture.

 

The Holder of this Note is entitled to the benefits of the Exchange and Registration Rights Agreement, dated as of December 20, 2010, among the Company and the initial purchasers named therein (the “ Registration Rights Agreement ”).  Until ( i ) this Note has been exchanged for an Exchange Security (as defined in the Registration Rights Agreement) in an Exchange Offer (as defined in the Registration Rights Agreement); ( ii ) a Shelf Registration Statement (as defined in the Registration Rights Agreement) registering this Note under the Securities Act has been declared or becomes effective and this Note has been sold or otherwise transferred by the holder thereof pursuant to and in a manner contemplated by such effective Shelf Registration Statement; ( iii ) this Note is sold pursuant to Rule 144 under circumstances in which any legend borne by this Note relating to restrictions on transferability thereof, under the Securities Act or otherwise, is removed or deemed removed by the Company or pursuant to the Indenture referred to on the reverse hereof; ( iv ) on or following the earliest date that is no less than 545 days after the date of the Indenture and on which this Note would be saleable (if it were held by a non-affiliate of the Company) pursuant to Rule 144 without restrictions on volume or manner of sale; or ( v ) this Note shall cease to be outstanding:  From and including the date on which a Registration Default (as defined below) shall occur to but excluding the date on which such Registration Default has been cured, additional interest will accrue on this Note until such time as all Registration Defaults have been cured at the rate of ( a ) prior to the 91 st  day of such period (for so long as such period is continuing), 0.25% per annum and ( b ) thereafter (so long as such period is continuing), 0.50% per annum.  Any such additional interest shall not exceed such respective rates for such respective periods, and shall not in any event exceed 0.50% per annum in the aggregate, regardless of the number of Registration Defaults that shall have occurred and be continuing.  Any such additional interest shall be paid in the same manner and on the same dates as interest payments in respect of this Note.  Immediately following the cure of all Registration Defaults, the accrual of such additional interest will cease.  A Registration Default under clause (iii) or (iv) below will be deemed cured upon consummation of the Exchange Offer in the case of a Shelf Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time period.  For purposes of the foregoing, each of the following events, as more particularly defined in the Registration Rights Agreement, is a “ Registration Default ”:  ( i ) the Exchange Registration Statement has not become effective or been declared effective by the SEC on or before 365 days following the Issue Date; ( ii ) the Exchange Offer has not been consummated within 395 days after the Issue Date; ( iii ) if a Shelf Registration Statement required by the Registration Rights Agreement is not declared effective by the SEC within 365 days following the date on which the obligation to file the Shelf Registration Statement arises or ( i v ) if any Shelf Registration Statement required by the Registration Rights Agreement is filed and declared effective, and during the period the Company is required to use its commercially reasonable efforts to cause the Shelf Registration

 

2



 

Statement to remain effective, ( 1 ) the Company shall have suspended the Shelf Registration Statement for more than 60 days in the aggregate in any consecutive twelve-month period and be continuing to suspend the availability of the Shelf Registration Statement, or ( 2 ) the Shelf Registration Statement shall cease to be effective (other than by action of the Company) without being replaced within 90 days by a Shelf Registration Statement that is filed and declared effective.

 

Payment of the principal of (and premium, if any) and interest on this Note will be made at the office of the applicable Paying Agent, or such other office or agency of the Company maintained for that purpose; provided , however , that at the option of the Company payment of interest may be made by wire transfer of immediately available funds to the account designated to the Company by the Person entitled thereto or by check mailed to the address of the Person entitled thereto as such address shall appear in the Note Register.

 

Reference is hereby made to the further provisions of this Note set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.

 

Unless the certificate of authentication hereon has been executed by the Trustee referred to on the reverse hereof by manual signature, this Note shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.

 

3



 

IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.

 

 

 

THE HERTZ CORPORATION

 

 

 

 

 

 

 

By

 

 

 

Name:

 

 

Title:

 

4



 

This is one of the Notes referred to in the within-mentioned Indenture.

 

 

WELLS FARGO BANK,

 

NATIONAL ASSOCIATION

 

As Trustee

 

 

 

 

 

 

By

 

 

Authorized Signatory

Dated:

 

 

5



 

(REVERSE OF NOTE)

 

This Note is one of the duly authorized issue of 7.375% Senior Notes due 2021 of the Company (herein called the “ Notes ”), issued under an Indenture, dated as of December 20, 2010 (herein called the “ Indenture ,” which term shall have the meanings assigned to it in such instrument), among the Company, as issuer, the Subsidiary Guarantors from time to time parties thereto, and Wells Fargo Bank, National Association, as Trustee (herein called the “ Trustee, ” which term includes any successor trustee under the Indenture), and reference is hereby made to the Indenture for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Company, any other obligor upon this Note, the Trustee and the Holders of the Notes and of the terms upon which the Notes are, and are to be, authenticated and delivered.  The terms of the Notes include those stated in the Indenture and those made a part of the Indenture by reference to the Trust Indenture Act of 1939, as amended, as in effect from time to time (the “ TIA ”).  The Notes are subject to all such terms, and Holders are referred to the Indenture and the TIA for a statement of such terms.  Additional Notes may be issued under the Indenture which will vote (or consent) as a single class with the Notes and otherwise be treated as Notes for purposes of the Indenture.

 

All terms used in this Note that are defined in the Indenture shall have the meanings assigned to them in the Indenture.

 

This Note may hereafter be entitled to certain other senior Subsidiary Guarantees made for the benefit of the Holders.  Reference is made to Article XIII of the Indenture for terms relating to such Subsidiary Guarantees, including the release, termination and discharge thereof.  Neither the Company nor any Subsidiary Guarantor shall be required to make any notation on this Note to reflect any Subsidiary Guarantee or any such release, termination or discharge.

 

The Notes will be redeemable, at the Company’s option, in whole or in part, at any time and from time to time on and after January 15, 2016 and prior to maturity at the applicable redemption price set forth below. Such redemption may be made upon notice mailed by first-class mail to each Holder’s registered address in accordance with the Indenture.  The Company may provide in such notice that payment of the redemption price and the performance of the Company’s obligations with respect to such redemption may be performed by another Person.  Any such redemption and notice may, in the Company’s discretion, be subject to the satisfaction of one or more conditions precedent, including but not limited to the occurrence of a Change of Control.  The Notes will be so redeemable at the following redemption prices (expressed as a percentage of principal amount), plus accrued and unpaid interest, if any, to the relevant Redemption Date (subject to the right of Holders of record on the relevant Regular Record Date to receive interest due on the relevant Interest Payment Date), if redeemed during the 12-month period commencing on January 15 of the years set forth below:

 

Period

 

Redemption Price

 

2016

 

103.688

%

2017

 

102.458

%

2018

 

101.229

%

2019 and thereafter

 

100.000

%

 

6



 

In addition, at any time and from time to time on or prior to January 15, 2014, the Company at its option may redeem Notes in an aggregate principal amount equal to up to 35% of the original aggregate principal amount of Notes (including the principal amount of any Additional Notes), with funds in an equal aggregate amount not exceeding the aggregate proceeds of one or more Equity Offerings, at a redemption price (expressed as a percentage of principal amount thereof) of 107.375% plus accrued and unpaid interest, if any, to the Redemption Date (subject to the right of Holders of record on the relevant Record Date to receive interest due on the relevant Interest Payment Date); provided , however , that an aggregate principal amount of Notes equal to at least 65% of the original aggregate principal amount of Notes (including the principal amount of any Additional Notes) must remain outstanding after each such redemption.  The Company may make such redemption upon notice mailed by first-class mail to each Holder’s registered address in accordance with the Indenture (but in no event more than 180 days after the completion of the related Equity Offering).  The Company may provide in such notice that payment of the redemption price and performance of the Company’s obligations with respect to such redemption may be performed by another Person.  Any such notice may be given prior to the completion of the related Equity Offering, and any such redemption or notice may, at the Company’s discretion, be subject to the satisfaction of one or more conditions precedent, including the completion of the related Equity Offering.

 

At any time prior to January 15, 2016, Notes may also be redeemed or purchased (by the Company or any other Person) in whole or in part, at the Company’s option, at a price equal to 100% of the principal amount thereof plus the Applicable Premium as of, and accrued but unpaid interest, if any, to, the Redemption Date (subject to the right of Holders of record on the relevant record date to receive interest due on the relevant interest payment date). Such redemption or purchase may be made upon notice mailed by first-class mail to each Holder’s registered address in accordance with the Indenture.  The Company may provide in such notice that payment of the Redemption Price and performance of the Company’s obligations with respect to such redemption or purchase may be performed by another Person.  Any such redemption, purchase or notice may, at the Company’s discretion, be subject to the satisfaction of one or more conditions precedent, including but not limited to the occurrence of a Change of Control.

 

The Indenture provides that, upon the occurrence after the Issue Date of a Change of Control, each Holder will have the right to require that the Company repurchase all or any part of such Holder’s Notes at a purchase price in cash equal to 101% of the principal amount thereof plus accrued and unpaid interest, if any, to the date of such repurchase (subject to the right of Holders of record on the relevant record date to receive interest due on the relevant interest payment date); provided , however , that the Company shall not be obligated to repurchase Notes in the event it has exercised its right to redeem all the Notes as described above.

 

The Notes will not be entitled to the benefit of a sinking fund.

 

7



 

The Indenture contains provisions for defeasance at any time of the entire Indebtedness of this Note or certain restrictive covenants and certain Events of Default with respect to this Note, in each case upon compliance with certain conditions set forth in the Indenture.

 

If an Event of Default with respect to the Notes shall occur and be continuing, the principal of and accrued but unpaid interest on the Notes may be declared due and payable in the manner and with the effect provided in the Indenture.

 

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 Notes to be effected under the Indenture at any time by the Company and the Trustee with the consent of the Holders of at least a majority in principal amount of the Notes at the time Outstanding to be affected.  The Indenture also contains provisions permitting the Holders of specified percentages in principal amount of the Notes at the time Outstanding, on behalf of the Holders of all Notes, to waive compliance by the Company with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences.  Any such consent or waiver by the Holder of this Note shall be conclusive and binding upon such Holder and upon all future Holders of this Note and of any Note issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Note.

 

As provided in and subject to the provisions of the Indenture, the Holder of this Note shall not have the right to institute any proceeding with respect to the Indenture or for the appointment of a receiver or trustee or for any other remedy thereunder, unless such Holder shall have previously given the Trustee written notice of a continuing Event of Default with respect to the Notes, the Holders of not less than 30% in principal amount of the Notes at the time Outstanding shall have made written request to the Trustee to pursue such remedy in respect of such Event of Default as Trustee and offered the Trustee security or indemnity reasonably satisfactory to it against any loss, liability or expense, and the Trustee shall not have received from the Holders of a majority in principal amount of Notes at the time Outstanding a direction inconsistent with such request, and shall have failed to institute any such proceeding, for 60 days after receipt of such notice, request and offer of security or indemnity.  The foregoing shall not apply to any suit instituted by the Holder of this Note for the enforcement of any payment of principal hereof or any premium or interest hereon on or after the respective due dates expressed herein.

 

No reference herein to the Indenture and no provision of this 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 any premium and interest on this Note at the times, place and rate, and in the coin or currency, herein prescribed.

 

As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Note is registrable in the Note Register, upon surrender of this Note for registration of transfer at the office or agency of the Company in a Place of Payment, duly

 

8



 

endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Company and the Note Registrar duly executed by, the Holder hereof or such Holder’s attorney duly authorized in writing, and thereupon one or more new Notes of like tenor, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees.

 

The Notes are issuable only in fully registered form without coupons in minimum denominations of $2,000 and any integral multiple of $1,000 in excess thereof.  As provided in the Indenture and subject to certain limitations therein set forth, the Notes are exchangeable for a like aggregate principal amount of Notes of like tenor of a different authorized denomination, as requested by the Holder surrendering the same.

 

No service charge shall be made for any such registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any transfer tax or other governmental charge payable in connection therewith.

 

Prior to due presentment of this Note for registration of transfer, the Company,  any other obligor in respect of this Note, the Trustee and any agent of the Company, such other obligor or the Trustee may treat the Person in whose name this Note is registered as the owner hereof for all purposes, whether or not this Note be overdue, and none of the Company, any other obligor upon this Note, the Trustee nor any such agent shall be affected by notice to the contrary.

 

No director, officer, employee, incorporator or stockholder, as such, of the Company, any Subsidiary Guarantor or any Subsidiary of any thereof shall have any liability for any obligation of the Company, or any Subsidiary Guarantor under the Indenture, the Notes or any Subsidiary Guarantee, or for any claim based on, in respect of, or by reason of, any such obligation or its creation.  Each Holder, by accepting this Note, hereby waives and releases all such liability.  The waiver and release are part of the consideration for issuance of the Notes.

 

THE INDENTURE AND THE NOTES 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 THE INDENTURE, THE NOTES OR THE SUBSIDIARY GUARANTEES.

 

9



 

[FORM OF CERTIFICATE OF TRANSFER]

 

FOR VALUE RECEIVED the undersigned holder hereby sell(s), assign(s) and transfer(s) unto

 

Insert Taxpayer Identification No.

 

(Please print or typewrite name and address including zip code of assignee)

 

 

 

 

 

 

the within Note and all rights thereunder, hereby irrevocably constituting and appointing

 

 

 

 

attorney to transfer such Note on the books of the Company with full power of substitution in the premises.

 

Check One

 

o (a)                   this Note is being transferred in compliance with the exemption from registration under the Securities Act of 1933, as amended, provided by Rule 144A thereunder.

 

or

 

o (b)                  this Note is being transferred other than in accordance with (a) above and documents are being furnished which comply with the conditions of transfer set forth in this Note and the Indenture.

 

If neither of the foregoing boxes is checked, the Trustee or other Note Registrar shall not be obligated to register this Note in the name of any Person other than the Holder hereof unless and until the conditions to any such transfer of registration set forth herein and in Section 313 of the Indenture shall have been satisfied.

 

Date:

 

 

 

 

 

 

 

10



 

 

NOTICE: The signature to this assignment must correspond with the name as written upon the face of the within-mentioned instrument in every particular, without alteration or any change whatsoever.

 

 

Signature Guarantee:

 

 

 

Signatures must be guaranteed by an “eligible guarantor institution” meeting the requirements of the Note Registrar, which requirements include membership or participation in the Security Transfer Agent Medallion Program (“ STAMP ”) or such other “signature guarantee program” as may be determined by the Note Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended.

 

11



 

TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED.

 

The undersigned represents and warrants that it is purchasing this Note 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 “qualified institutional buyer” within the meaning of Rule 144A under the Securities Act of 1933, as amended, 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 the Company as the undersigned 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 the undersigned’s foregoing representations in order to claim the exemption from registration provided by Rule 144A.

 

Dated:

 

 

 

 

NOTICE:  To be executed by an executive officer

 

12


 

OPTION OF HOLDER TO ELECT PURCHASE

 

If you wish to have this Note purchased by the Company pursuant to Section 411 or 415 of the Indenture, check the box:  o .

 

If you wish to have a portion of this Note purchased by the Company pursuant to Section 411 or 415 of the Indenture, state the amount (in principal amount) below:

 

$                             

 

 

Date:

 

 

 

 

Your Signature:

 

 

 

 

(Sign exactly as your name appears on the other side of this Note)

 

 

 

Signature Guarantee:

 

 

 

Signatures must be guaranteed by an “eligible guarantor institution” meeting the requirements of the Note Registrar, which requirements include membership or participation in the Security Transfer Agent Medallion Program (“ STAMP ”) or such other “signature guarantee program” as may be determined by the Note Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended.

 

13



 

SCHEDULE OF INCREASES OR DECREASES IN GLOBAL NOTE

 

The following increases or decreases in this Global Note have been made:

 

 

 

Amount of decreases in
Principal

 

Amount of increases in
Principal

 

Principal amount
of this Global Note

 

Signature
of authorized signatory of

 

Date of

 

Amount of this

 

Amount of this Global

 

following such decreases or

 

Trustee or Notes

 

Exchange

 

Global Note

 

Note

 

increases

 

Custodian

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

14



 

EXHIBIT B

 

Form of Exchange Note(8)

(FACE OF NOTE)

 

THE HERTZ CORPORATION

 

7.375% Senior Notes due 2021

 

CUSIP No. [           ]
No.                                          $                             

 

The Hertz Corporation, a corporation duly organized and existing under the laws of the State of Delaware (and its successors and assigns, the “ Company ”), promises to pay to                                                 , or registered assigns, the principal sum of $                                 ([                                ] United States Dollars) [(or such lesser or greater amount as shall be outstanding hereunder from time to time in accordance with Sections 312 and 313 of the Indenture referred to on the reverse hereof)](9) (the “ Principal Amount ”) on January 15, 2021.  The Company promises to pay interest semi-annually in arrears on January 15 and July 15 in each year, commencing July 15, 2011, at the rate of 7.375% per annum, except that interest accrued on this Note for periods prior to the date on which the Initial Note was surrendered in exchange for this Note will accrue at the rate or rates borne by such Initial Note from time to time during such periods, until the Principal Amount is paid or made available for payment. [Interest on this Note will accrue from the most recent date to which interest on this Note or any of its Predecessor Notes has been paid or duly provided for or, if no interest has been paid, from the Issue Date.](10)  [Interest on this Note will accrue (or will be deemed to have accrued) from the most recent date to which interest on this Note or any of its Predecessor Notes has been paid or duly provided for or, if no such interest has been paid, from                 ,         (11).](12)  Interest on the Notes shall be computed on the basis of a 360-day year of twelve 30-day months.  The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided in such Indenture, be paid to the Person in whose name this Note (or one or more Predecessor Notes) is registered at the close of business on the Regular Record Date for such interest, which shall be the January 1 or July 1 (whether or not a Business Day), as the case may be, next preceding such Interest Payment Date.  Any such interest not so punctually paid or duly provided for will forthwith cease to be payable to the Holder on such Regular Record Date and may either be paid to the Person in whose name this Note (or one or more Predecessor Notes) is registered at the close of business on a Special Record Date for the payment of such Defaulted Interest to be fixed by the Trustee, notice whereof shall be given to Holders of Notes not more

 


(8)                    Insert any applicable legends from Article II.

(9)                    Include only if the Note is issued in global form.

(10)              Include only for Original Notes.

(11)              Insert the Interest Payment Date immediately preceding the date of issuance of the applicable Additional Notes, or if the date of issuance of such Additional Notes is an Interest Payment Date, such date of issuance, or, if no Interest Payment Date has occurred, the Issue Date.

(12)              Include only for Exchange Notes issued in the exchange for Additional Notes.

 



 

than 15 days nor less than 10 days prior to such Special Record Date, or be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Notes may be listed, and upon such notice as may be required by such exchange, all as more fully provided in said Indenture.

 

Payment of the principal of (and premium, if any) and interest on this Note will be made at the office of the applicable Paying Agent, or such other office or agency of the Company maintained for that purpose; provided , however , that at the option of the Company payment of interest may be made by wire transfer of immediately available funds to the account designated to the Company by the Person entitled thereto or by check mailed to the address of the Person entitled thereto as such address shall appear in the Note Register.

 

Reference is hereby made to the further provisions of this Note set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.

 

Unless the certificate of authentication hereon has been executed by the Trustee referred to on the reverse hereof by manual signature, this Note shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.

 

2



 

IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.

 

 

 

THE HERTZ CORPORATION

 

 

 

 

 

 

 

By

 

 

 

Name:

 

 

Title:

 

3



 

This is one of the Notes referred to in the within-mentioned Indenture.

 

 

WELLS FARGO BANK,

 

NATIONAL ASSOCIATION

 

As Trustee

 

 

 

 

 

By

 

 

 

Authorized Signatory

 

 

Dated:

 

 

4



 

(REVERSE OF NOTE)

 

This Note is one of the duly authorized issue of 7.375% Senior Notes due 2021 of the Company (herein called the “ Notes ”), issued under an Indenture, dated as of December 20, 2010 (herein called the “ Indenture ,” which term shall have the meanings assigned to it in such instrument), among the Company, as issuer, the Subsidiary Guarantors from time to time parties thereto, and Wells Fargo Bank, National Association, as Trustee (herein called the “ Trustee ,” which term includes any successor trustee under the Indenture), and reference is hereby made to the Indenture for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Company, any other obligor upon this Note, the Trustee and the Holders of the Notes and of the terms upon which the Notes are, and are to be, authenticated and delivered.  The terms of the Notes include those stated in the Indenture and those made a part of the Indenture by reference to the Trust Indenture Act of 1939, as amended, as in effect from time to time (the “ TIA ”).  The Notes are subject to all such terms, and Holders are referred to the Indenture and the TIA for a statement of such terms.  Additional Notes may be issued under the Indenture which will vote (or consent) as a single class with the Notes and otherwise be treated as Notes for purposes of the Indenture.

 

All terms used in this Note that are defined in the Indenture shall have the meanings assigned to them in the Indenture.

 

This Note may hereafter be entitled to certain other senior Subsidiary Guarantees made for the benefit of the Holders.  Reference is made to Article XIII of the Indenture for terms relating to such Subsidiary Guarantees, including the release, termination and discharge thereof.  Neither the Company nor any Subsidiary Guarantor shall be required to make any notation on this Note to reflect any Subsidiary Guarantee or any such release, termination or discharge.

 

The Notes will be redeemable, at the Company’s option, in whole or in part, at any time and from time to time on and after January 15, 2016 and prior to maturity at the applicable redemption price set forth below. Such redemption may be made upon notice mailed by first-class mail to each Holder’s registered address in accordance with the Indenture.  The Company may provide in such notice that payment of the redemption price and the performance of the Company’s obligations with respect to such redemption may be performed by another Person.  Any such redemption and notice may, in the Company’s discretion, be subject to the satisfaction of one or more conditions precedent, including but not limited to the occurrence of a Change of Control.  The Notes will be so redeemable at the following redemption prices (expressed as a percentage of principal amount), plus accrued and unpaid interest, if any, to the relevant Redemption Date (subject to the right of Holders of record on the relevant Regular Record Date to receive interest due on the relevant Interest Payment Date), if redeemed during the 12-month period commencing on January 15 of the years set forth below:

 

Period

 

Redemption Price

 

2016

 

103.688

%

2017

 

102.458

%

2018

 

101.229

%

2019 and thereafter

 

100.000

%

 

5



 

In addition, at any time and from time to time on or prior to January 15, 2014 the Company at its option may redeem Notes in an aggregate principal amount equal to up to 35% of the original aggregate principal amount of Notes (including the principal amount of any Additional Notes), with funds in an equal aggregate amount not exceeding the aggregate proceeds of one or more Equity Offerings, at a redemption price (expressed as a percentage of principal amount thereof) of 107.375% plus accrued and unpaid interest, if any, to the Redemption Date (subject to the right of Holders of record on the relevant Record Date to receive interest due on the relevant Interest Payment Date); provided , however , that an aggregate principal amount of Notes equal to at least 65% of the original aggregate principal amount of Notes (including the principal amount of any Additional Notes) must remain outstanding after each such redemption.  The Company may make such redemption upon notice mailed by first-class mail to each Holder’s registered address in accordance with the Indenture (but in no event more than 180 days after the completion of the related Equity Offering).  The Company may provide in such notice that payment of the redemption price and performance of the Company’s obligations with respect to such redemption may be performed by another Person.  Any such notice may be given prior to the completion of the related Equity Offering, and any such redemption or notice may, at the Company’s discretion, be subject to the satisfaction of one or more conditions precedent, including the completion of the related Equity Offering.

 

At any time prior to January 15, 2016, Notes may also be redeemed or purchased (by the Company or any other Person) in whole or in part, at the Company’s option, at a price equal to 100% of the principal amount thereof plus the Applicable Premium as of, and accrued but unpaid interest, if any, to, the Redemption Date (subject to the right of Holders of record on the relevant record date to receive interest due on the relevant interest payment date). Such redemption or purchase may be made upon notice mailed by first-class mail to each Holder’s registered address in accordance with the Indenture.  The Company may provide in such notice that payment of the Redemption Price and performance of the Company’s obligations with respect to such redemption or purchase may be performed by another Person.  Any such redemption, purchase or notice may, at the Company’s discretion, be subject to the satisfaction of one or more conditions precedent, including but not limited to the occurrence of a Change of Control.

 

The Indenture provides that, upon the occurrence after the Issue Date of a Change of Control, each Holder will have the right to require that the Company repurchase all or any part of such Holder’s Notes at a purchase price in cash equal to 101% of the principal amount thereof plus accrued and unpaid interest, if any, to the date of such repurchase (subject to the right of Holders of record on the relevant record date to receive interest due on the relevant interest payment date); provided , however , that the Company shall not be obligated to repurchase Notes in the event it has exercised its right to redeem all the Notes as described above.

 

The Notes will not be entitled to the benefit of a sinking fund.

 

6



 

The Indenture contains provisions for defeasance at any time of the entire indebtedness of this Note or certain restrictive covenants and certain Events of Default with respect to this Note, in each case upon compliance with certain conditions set forth in the Indenture.

 

If an Event of Default with respect to the Notes shall occur and be continuing, the principal of and accrued but unpaid interest on the Notes may be declared due and payable in the manner and with the effect provided in the Indenture.

 

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 Notes to be effected under the Indenture at any time by the Company and the Trustee with the consent of the Holders of at least a majority in principal amount of the Notes at the time Outstanding to be affected.  The Indenture also contains provisions permitting the Holders of specified percentages in principal amount of the Notes at the time Outstanding, on behalf of the Holders of all Notes, to waive compliance by the Company with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences.  Any such consent or waiver by the Holder of this Note shall be conclusive and binding upon such Holder and upon all future Holders of this Note and of any Note issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Note.

 

As provided in and subject to the provisions of the Indenture, the Holder of this Note shall not have the right to institute any proceeding with respect to the Indenture or for the appointment of a receiver or trustee or for any other remedy thereunder, unless such Holder shall have previously given the Trustee written notice of a continuing Event of Default with respect to the Notes, the Holders of not less than 30% in principal amount of the Notes at the time Outstanding shall have made written request to the Trustee to pursue such remedy in respect of such Event of Default as Trustee and offered the Trustee security or indemnity reasonably satisfactory to it against any loss, liability or expense, and the Trustee shall not have received from the Holders of a majority in principal amount of Notes at the time Outstanding a direction inconsistent with such request, and shall have failed to institute any such proceeding, for 60 days after receipt of such notice, request and offer of security or indemnity.  The foregoing shall not apply to any suit instituted by the Holder of this Note for the enforcement of any payment of principal hereof or any premium or interest hereon on or after the respective due dates expressed herein.

 

No reference herein to the Indenture and no provision of this 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 any premium and interest on this Note at the times, place and rate, and in the coin or currency, herein prescribed.

 

As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Note is registrable in the Note Register, upon surrender of this Note for registration of transfer at the office or agency of the Company in a Place of Payment, duly

 

7



 

endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Company and the Note Registrar duly executed by, the Holder hereof or such Holder’s attorney duly authorized in writing, and thereupon one or more new Notes of like tenor, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees.

 

The Notes are issuable only in fully registered form without coupons in minimum denominations of $2,000 and any integral multiple of $1,000 in excess thereof.  As provided in the Indenture and subject to certain limitations therein set forth, the Notes are exchangeable for a like aggregate principal amount of Notes of like tenor of a different authorized denomination, as requested by the Holder surrendering the same.

 

No service charge shall be made for any such registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any transfer tax or other governmental charge payable in connection therewith.

 

Prior to due presentment of this Note for registration of transfer, the Company,  any other obligor in respect of this Note, the Trustee and any agent of the Company, such other obligor or the Trustee may treat the Person in whose name this Note is registered as the owner hereof for all purposes, whether or not this Note be overdue, and none of the Company, any other obligor upon this Note, the Trustee nor any such agent shall be affected by notice to the contrary.

 

No director, officer, employee, incorporator or stockholder, as such, of the Company, any Subsidiary Guarantor or any Subsidiary of any thereof shall have any liability for any obligation of the Company, or any Subsidiary Guarantor under the Indenture, the Notes or any Subsidiary Guarantee, or for any claim based on, in respect of, or by reason of, any such obligation or its creation.  Each Holder, by accepting this Note, hereby waives and releases all such liability.  The waiver and release are part of the consideration for issuance of the Notes.

 

THE INDENTURE AND THE NOTES 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 THE INDENTURE, THE NOTES OR THE SUBSIDIARY GUARANTEES.

 

8


 

[FORM OF CERTIFICATE OF TRANSFER]

 

FOR VALUE RECEIVED the undersigned holder hereby sell(s), assign(s) and transfer(s) unto

 

 

Insert Taxpayer Identification No.

 

 

(Please print or typewrite name and address including zip code of assignee)

 

 

 

 

 

 

the within Note and all rights thereunder, hereby irrevocably constituting and appointing

 

 

 

 

attorney to transfer such Note on the books of the Company with full power of substitution in the premises.

 

 

NOTICE: The signature to this assignment must correspond with the name as written upon the face of the within-mentioned instrument in every particular, without alteration or any change whatsoever.

 

 

Signature Guarantee:

 

 

 

 

Signatures must be guaranteed by an “eligible guarantor institution” meeting the requirements of the Note Registrar, which requirements include membership or participation in the Security Transfer Agent Medallion Program (“ STAMP ”) or such other “signature guarantee program” as may be determined by the Note Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended.

 

9



 

OPTION OF HOLDER TO ELECT PURCHASE

 

If you wish to have this Note purchased by the Company pursuant to Section 411 or 415 of the Indenture, check the box:  o .

 

If you wish to have a portion of this Note purchased by the Company pursuant to Section 411 or 415 of the Indenture, state the amount (in principal amount) below:

 

 

$

 

 

Date:

 

 

 

 

Your Signature:

 

 

 

(Sign exactly as your name appears on the other side of this Note)

 

Signature Guarantee:

 

 

 

 

Signatures must be guaranteed by an “eligible guarantor institution” meeting the requirements of the Note Registrar, which requirements include membership or participation in the Security Transfer Agent Medallion Program (“ STAMP ”) or such other “signature guarantee program” as may be determined by the Note Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended.

 

10



 

SCHEDULE OF INCREASES OR DECREASES IN GLOBAL NOTE

 

The following increases or decreases in this Global Note have been made:

 

 

Date of
Exchange

 

Amount of decreases in
Principal
Amount of this
Global Note

 

Amount of increases in
Principal
Amount of this Global
Note

 

Principal amount 
of this Global Note 
following such decreases or
increases

 

Signature 
of authorized signatory of
Trustee or Notes 
Custodian

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

11



 

EXHIBIT C

 

Form of Certificate of Beneficial Ownership

 

On or after [                    ], 20[  ]

 

WELLS FARGO BANK, NATIONAL ASSOCIATION

Wells Fargo Bank, National Association,

as Trustee and Note Registrar — DAPS Reorg

MAC N9303-121

608 2 nd  Avenue South

Minneapolis, MN 55479

Telephone No.:  (877) 872-4605

Fax No.:  (866) 969-1290

Email:  DAPSReorg@wellsfargo.com

 

Re:

The Hertz Corporation (the “ Company ”)

 

 

 

7.375% Senior Notes due 2021 (the “Notes”)

 

Ladies and Gentlemen:

 

This letter relates to $                 principal amount of Notes represented by the offshore [temporary] global note certificate (the “[ Temporary] Regulation S Global Note ”).  Pursuant to Section 313(3) of the Indenture dated as of December 20, 2010 relating to the Notes (the “ Indenture ”), we hereby certify that ( 1 ) we are the beneficial owner of such principal amount of Notes represented by the [Temporary] Regulation S Global Note and ( 2 ) we are either ( i ) a Non-U.S. Person to whom the Notes could be transferred in accordance with Rule 903 or 904 of Regulation S (“ Regulation S ”) promulgated under the Securities Act of 1933, as amended (the “ Act ”) or ( ii ) a U.S. Person who purchased securities in a transaction that did not require registration under the Act.

 

You, the Company and counsel for the Company are entitled to rely upon this letter and are irrevocably authorized to produce this letter or a copy hereof to any interested party in any administrative or legal proceedings or official inquiry with respect to the matters covered hereby.  Terms used in this certificate have the meanings set forth in Regulation S.

 

 

Very truly yours,

 

 

 

[Name of Holder]

 

 

 

 

By:

 

 

 

Authorized Signature

 



 

EXHIBIT D

 

Form of Regulation S Certificate

 

Regulation S Certificate

 

WELLS FARGO BANK, NATIONAL ASSOCIATION

Wells Fargo Bank, National Association,

as Trustee and Note Registrar — DAPS Reorg

MAC N9303-121

608 2 nd  Avenue South

Minneapolis, MN 55479

Telephone No.:  (877) 872-4605

Fax No.:  (866) 969-1290

Email:  DAPSReorg@wellsfargo.com

 

Re:

The Hertz Corporation (the “ Company ”)

 

 

 

7.375% Senior Notes due 2021 (the “Notes”)

 

Ladies and Gentlemen:

 

In connection with our proposed sale of $           aggregate principal amount of Notes, we confirm that such sale has been effected pursuant to and in accordance with Regulation S (“ Regulation S ”) under the Securities Act of 1933, as amended (the “ Securities Act ”), and accordingly, we hereby certify as follows:

 

1.  The offer of the Notes was not made to a person in the United States (unless such person or the account held by it for which it is acting is excluded from the definition of “U.S. person” pursuant to Rule 902(k) of Regulation S under the circumstances described in Rule 902(h)(3) of Regulation S) or specifically targeted at an identifiable group of U.S. citizens abroad.

 

2.  Either ( a ) at the time the buy order was originated, the buyer was outside the United States or we and any person acting on our behalf reasonably believed that the buyer was outside the United States or ( b ) the transaction was executed in, on or through the facilities of a designated offshore securities market, and neither we nor any person acting on our behalf knows that the transaction was pre-arranged with a buyer in the United States.

 

3.  No directed selling efforts have been made in the United States in contravention of the requirements of Rule 903(a)(2) or Rule 904(a)(2) of Regulation S, as applicable.

 

4.  The proposed transfer of Notes is not part of a plan or scheme to evade the registration requirements of the Securities Act.

 



 

5.  If we are a dealer or a person receiving a selling concession or other fee or remuneration in respect of the Notes, and the proposed transfer takes place before end of the distribution compliance period under Regulation S, or we are an officer or director of the Company or a distributor, we certify that the proposed transfer is being made in accordance with the provisions of Rules 903 and 904 of Regulation S.

 

6.  If the proposed transfer takes place before the end of the distribution compliance period under Regulation S, the beneficial interest in the Notes so transferred will be held immediately thereafter through Euroclear (as defined in such Indenture) or Clearstream (as defined in such Indenture).

 

7.  We have advised the transferee of the transfer restrictions applicable to the Notes.

 

You, the Company and counsel for the Company are entitled to rely upon this Certificate and are irrevocably authorized to produce this Certificate or a copy hereof to any interested party in any administrative or legal proceeding or official inquiry with respect to the matters covered hereby.  Terms used in this certificate have the meanings set forth in Regulation S.

 

 

Very truly yours,

 

 

 

[NAME OF SELLER]

 

 

 

 

 

 

 

By:

 

 

 

Name:

 

 

Title:

 

 

Address:

 

Date of this Certificate:                                    , 20

 

2



 

EXHIBIT E

 

Form of Supplemental Indenture in Respect of Subsidiary Guarantee

 

SUPPLEMENTAL INDENTURE, dated as of [                  ] (this “ Supplemental Indenture ”), among [name of Guarantor(s)] (the “ Subsidiary Guarantor(s) ”), The Hertz Corporation, a corporation duly organized and existing under the laws of the State of Delaware (together with its respective successors and assigns, the “ Company ”), and each other then existing Subsidiary Guarantor under the Indenture referred to below (the “ Existing Guarantors ”), 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, any Existing Guarantors and the Trustee have heretofore become parties to an Indenture, dated as of December 20, 2010 (as amended, supplemented, waived or otherwise modified, the “ Indenture ”), providing for the issuance of 7.375% Senior Notes due 2021 of the Company (the “ Notes ”);

 

WHEREAS, Section 1308 of the Indenture provides that the Company is required to cause the Subsidiary Guarantors to execute and deliver to the Trustee a supplemental indenture pursuant to which the Subsidiary Guarantors shall guarantee the Company’s Subsidiary Guaranteed Obligations under the Notes pursuant to a Subsidiary Guarantee on the terms and conditions set forth herein and in Article XIII of the Indenture;

 

WHEREAS, each Subsidiary Guarantor desires to enter into such supplemental indenture for good and valuable consideration, including substantial economic benefit in that the financial performance and condition of such Subsidiary Guarantor is dependent on the financial performance and condition of the Company, the obligations hereunder of which such Subsidiary Guarantor has guaranteed, and on such Subsidiary Guarantor’s access to working capital through the Company’s access to revolving credit borrowings under the Senior Credit Agreements; and

 

WHEREAS, pursuant to Section 901 of the Indenture, the parties hereto are authorized to execute and deliver this Supplemental Indenture to amend the Indenture, without 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 Subsidiary Guarantors, the Company, the Existing Guarantors 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.  Agreement to Guarantee .  [The] [Each] Subsidiary Guarantor hereby agrees, jointly and severally with [all] [any] other Subsidiary Guarantors and fully and unconditionally,

 



 

to guarantee the Subsidiary Guaranteed Obligations under the Indenture and the Notes on the terms and subject to the conditions set forth in Article XIII of the Indenture and to be bound by (and shall be entitled to the benefits of) all other applicable provisions of the Indenture as a Subsidiary Guarantor.

 

3.  Termination, Release and Discharge .  [The] [Each] Subsidiary Guarantor’s Subsidiary Guarantee shall terminate and be of no further force or effect, and [the] [each] Subsidiary Guarantor shall be released and discharged from all obligations in respect of such Subsidiary Guarantee, as and when provided in Section 1303 of the Indenture.

 

4.  Parties .  Nothing in this Supplemental Indenture is intended or shall be construed to give any Person, other than the Holders and the Trustee, any legal or equitable right, remedy or claim under or in respect of [the] [each] Subsidiary Guarantor’s Subsidiary Guarantee or any provision contained herein or in Article XIII of the Indenture.

 

5.  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.

 

6.  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.

 

7.  Counterparts .  The parties hereto may sign one or more copies of this Supplemental Indenture in counterparts, all of which together shall constitute one and the same agreement.

 

8.  Headings .  The Section headings herein are for convenience of reference only and shall not be deemed to alter or affect the meaning or interpretation of any provisions hereof.

 

2



 

IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed as of the date first above written.

 

 

[NAME OF SUBSIDIARY GUARANTOR(S)],

 

as Subsidiary Guarantor

 

 

 

 

 

By:

 

 

 

Name:

 

 

Title:

 

 

 

 

 

 

 

THE HERTZ CORPORATION

 

 

 

 

 

 

 

By:

 

 

 

Name:

 

 

Title:

 

 

 

 

 

 

 

WELLS FARGO BANK, NATIONAL
ASSOCIATION, as Trustee

 

 

 

 

 

 

 

By:

 

 

 

Name:

 

 

Title:

 

3



 

EXHIBIT F

 

[Form of Certificate from Acquiring Institutional Accredited Investors]

 

Certificate from Acquiring Institutional Accredited Investor

 

WELLS FARGO BANK, NATIONAL ASSOCIATION

Wells Fargo Bank, National Association,

as Trustee and Note Registrar — DAPS Reorg

MAC N9303-121

608 2 nd  Avenue South

Minneapolis, MN 55479

Telephone No.:  (877) 872-4605

Fax No.:  (866) 969-1290

Email:  DAPSReorg@wellsfargo.com

 

Re:

The Hertz Corporation (the “ Company ”)

 

 

 

7.375% Senior Notes due 2021 (the “Notes”)

 

Ladies and Gentlemen:

 

In connection with our proposed sale of $           aggregate principal amount of Notes, we confirm that:

 

1.             We understand that any subsequent transfer of the Notes is subject to certain restrictions and conditions set forth in the Indenture dated as of December 20, 2010 relating to the Notes (the “ Indenture ”) and the undersigned agrees to be bound by, and not to resell, pledge or otherwise transfer the Notes except in compliance with, such restrictions and conditions and the Securities Act of 1933, as amended (the “ Securities Act ”).

 

2.             We understand that the Notes have not been registered under the Securities Act or any other applicable securities law, and that the Notes may not be offered, sold or otherwise transferred except as permitted in the following sentence.  We agree, on our own behalf and on behalf of any accounts for which we are acting as hereinafter stated, that if we should offer, sell, transfer, pledge, hypothecate or otherwise dispose of any Notes within two years after the original issuance of the Notes, we will do so only ( A ) to the Company, ( B ) inside the United States to a “qualified institutional buyer” in compliance with Rule 144A under the Securities Act, ( C ) inside the United States to an institutional “accredited investor” (as defined below) that, prior to such transfer, furnishes to you a signed letter substantially in the form of this letter, ( D ) outside the United States to a foreign person in compliance with Rule 904 of Regulation S under the Securities Act, ( E ) pursuant to the exemption from registration provided by Rule 144 under the Securities Act (if available), or ( F ) pursuant to an effective registration statement under the Securities Act, and we further agree to provide to any person purchasing any of the Notes from us a notice advising such purchaser that resales of the Notes are restricted as stated herein and in the Indenture.

 



 

3.             We understand that, on any proposed transfer of any Notes prior to the later of the original issue date of the Notes and the last date the Notes were held by an affiliate of the Company pursuant to paragraphs 2(C), 2(D) and 2(E) above, we will be required to furnish to you and the Company such certifications, legal opinions and other information as you and the Company may reasonably require to confirm that the proposed transfer complies with the foregoing restrictions.  We further understand that the Notes purchased by us will bear a legend to the foregoing effect.

 

4.             We are an institutional “accredited investor” (as defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Act) and have such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of our investment in the Notes, and we and any accounts for which we are acting are acquiring the Notes for investment purposes and not with a view to, or offer or sale in connection with, any distribution in violation of the Securities Act, and we are each able to bear the economic risk of our or its investment.

 

5.             We are acquiring the Notes purchased by us for our own account or for one or more accounts (each of which is an institutional “ accredited investor ”) as to each of which we exercise sole investment discretion.

 

You and the Company are entitled to rely upon this letter and are irrevocably authorized to produce this letter or a copy hereof to any interested party in any administrative or legal proceedings or official inquiry with respect to the matters covered hereby.

 

 

Very truly yours,

 

 

 

(Name of Transferee)

 

 

 

 

 

By:

 

 

 

Authorized Signature

 

2




Exhibit 4.3.2

 

EXECUTION VERSION

 

The Hertz Corporation

 

$500,000,000 7.375% Senior Notes due 2021

 

Exchange and Registration Rights Agreement

 

December 20, 2010

 

J.P. Morgan Securities LLC

383 Madison Avenue, 3 rd  Floor

New York, New York 10179

 

As representative of the Initial Purchasers

 

Ladies and Gentlemen:

 

The Hertz Corporation, a Delaware corporation (the “ Company ”), proposes to issue and sell upon the terms set forth in the Purchase Agreement (as defined herein) to the initial purchasers named in Schedule I to the Purchase Agreement (collectively, the “ Initial Purchasers ”) for whom J.P. Morgan Securities LLC (the “ Representative ”) is acting as representative, an aggregate of $500 million principal amount of the Company’s 7.375% Senior Notes due 2021 (the “ Notes ”). The Notes will be guaranteed (the “ Guarantees ”) at the Closing Date (as defined below) on a senior unsecured basis by each domestic subsidiary of the Company named in Schedule II to the Purchase Agreement (the “ Guarantors ”). As an inducement to the Initial Purchasers to enter into the Purchase Agreement and in satisfaction of a condition to the obligations of the Initial Purchasers thereunder, the Company agrees with the Initial Purchasers for the benefit of holders (as defined herein) from time to time of the Registrable Securities (as defined herein) as follows:

 

1.                                    Certain Definitions .  For purposes of this Exchange and Registration Rights Agreement, the following terms shall have the following respective meanings:

 

Base Interest ” shall mean the interest that would otherwise accrue on the Securities under the terms thereof and the Indenture, without giving effect to the provisions of this Exchange and Registration Rights Agreement.

 

The term “ broker-dealer ” shall mean any broker or dealer registered with the Commission under the Exchange Act.

 

Closing Date ” shall mean the date on which the Securities are initially issued.

 

Commission ” shall mean the United States Securities and Exchange Commission, or any other federal agency at the time administering the Exchange Act or the Securities Act, whichever is the relevant statute for the particular purpose.

 

Effective Time ,” in the case of (i) an Exchange Registration, shall mean the time and date as of which the Commission declares the Exchange Registration Statement effective or as of which the Exchange Registration Statement otherwise becomes effective and (ii) a Shelf Registration, shall mean the time and date as of which the Commission declares the Shelf Registration Statement effective or as of which the Shelf Registration Statement otherwise becomes effective.

 

Electing Holder ” shall mean any holder of Registrable Securities that has returned a completed and signed Notice and Questionnaire to the Company in accordance with Section 3(d)(ii) or 3(d)(iii) hereof.

 

Exchange Act ” shall mean the Securities Exchange Act of 1934, or any successor thereto, as the same shall be amended from time to time.

 

Exchange Offer ” shall have the meaning assigned thereto in Section 2(a) hereof.

 



 

Exchange Registration ” shall have the meaning assigned thereto in Section 3(c) hereof.

 

Exchange Registration Statement ” shall have the meaning assigned thereto in Section 2(a) hereof

 

Exchange Securities ” shall have the meaning assigned thereto in Section 2(a) hereof.

 

The term “ holder ” shall mean each of the Initial Purchasers and other persons who acquire Registrable Securities from time to time (including any successors or assigns), in each case for so long as such person owns any Registrable Securities.

 

Indenture ” shall mean the Indenture, dated as of the Closing Date, among the Company, the Guarantors and Wells Fargo Bank, National Association, as Trustee, governing the Notes as the same shall be amended or supplemented from time to time.

 

Notice and Questionnaire ” means a Notice of Registration Statement and Selling Securityholder Questionnaire substantially in the form of Exhibit A hereto, with such changes thereto as the Company may reasonably determine.

 

The term “ person ” shall mean a corporation, association, partnership, organization, business, individual, government or political subdivision thereof or governmental agency.

 

Purchase Agreement ” shall mean the Purchase Agreement, dated as of December 6, 2010, by and between the Representative, on behalf of the Initial Purchasers, and the Company relating to the Notes.

 

Registrable Securities ” shall mean the Securities; provided, however , that a Security shall cease to be a Registrable Security when (i) the Security has been exchanged for an Exchange Security in an Exchange Offer as contemplated in Section 2(a) hereof ( provided that any Exchange Security that, pursuant to the last two sentences of Section 2(a), is included in a prospectus for use in connection with resales by broker-dealers shall be deemed to be a Registrable Security with respect to Sections 5 and 8 until resale of such Registrable Security has been effected within the up to 90-day period referred to in Section 2(a)); (ii) a Shelf Registration Statement registering such Security under the Securities Act has been declared or becomes effective and such Security has been sold or otherwise transferred by the holder thereof pursuant to and in a manner contemplated by such effective Shelf Registration Statement; (iii) such Security is sold pursuant to Rule 144 under circumstances in which any legend borne by such Security relating to restrictions on transferability thereof, under the Securities Act or otherwise, is removed or deemed removed by the Company or pursuant to the Indenture; (iv) on or following the earliest date that is no less than 545 days after the date of the Indenture and on which such Security would be saleable (if it were held by a non-affiliate of the Company) pursuant to Rule 144 without restrictions on volume or manner of sale or (v) such Security shall cease to be outstanding.

 

Registration Default ” shall have the meaning assigned thereto in Section 2(c) hereof.

 

Registration Expenses ” shall have the meaning assigned thereto in Section 4 hereof.

 

Resale Period ” shall have the meaning assigned thereto in Section 2(a) hereof.

 

Restricted Holder ” shall mean a holder that (i) is an “affiliate,” as defined in Rule 405, of the Company, (ii) acquires Exchange Securities outside the ordinary course of such holder’s business, (iii) has an arrangement or understanding with any person to participate in the distribution of the Securities or the Exchange Securities, (iv) is a broker-dealer, but only with respect to Exchange Securities received by such broker-dealer pursuant to an Exchange Offer in exchange for Registrable Securities acquired by the broker-dealer directly from the Company, (v) is not a broker-dealer and is engaged in, or intends to engage in, the distribution of the Exchange Securities and (vi) is acting on behalf of any person who could not truthfully make the representations in the second paragraph of Section 2(a) hereof.

 

2



 

Rule 144 ,” “ Rule 405 ”, “ Rule 415 ” and “ Rule 158 ” shall mean, in each case, such rule promulgated under the Securities Act (or any successor provision), as the same shall be amended from time to time.

 

Securities ” shall mean the Notes to be issued and sold to the Initial Purchasers, and securities issued in exchange therefor or in lieu thereof pursuant to the Indenture. Each Security is entitled to the benefit of the Guarantees, if any, provided for in the Indenture and, unless the context otherwise requires, any reference herein to a “Security,” an “Exchange Security” or a “Registrable Security” shall include a reference to the related Guarantees, if any.

 

Securities Act ” shall mean the Securities Act of 1933, or any successor thereto, as the same shall be amended from time to time.

 

Shelf Registration ” shall have the meaning assigned thereto in Section 2(b) hereof.

 

Shelf Registration Statement ” shall have the meaning assigned thereto in Section 2(b) hereof.

 

Special Interest ” shall have the meaning assigned thereto in Section 2(c) hereof.

 

Trust Indenture Act ” shall mean the Trust Indenture Act of 1939, or any successor thereto, and the rules, regulations and forms promulgated thereunder, all as the same shall be amended from time to time.

 

Unless the context otherwise requires, any reference herein to a “Section” or “clause” refers to a Section or clause, as the case may be, of this Exchange and Registration Rights Agreement, and the words “herein,” “hereof’ and “hereunder” and other words of similar import refer to this Exchange and Registration Rights Agreement as a whole and not to any particular Section or other subdivision.

 

2.                                        Registration Under the Securities Act .

 

(a)                                   Except as set forth in Section 2(b) below, the Company agrees to use its commercially reasonable efforts to file under the Securities Act a registration statement relating to an offer to exchange (such registration statement, the “ Exchange Registration Statement ” and such offer, the “ Exchange Offer ”) any and all of the Securities for a like aggregate principal amount of debt securities issued by the Company and guaranteed by the Guarantors, which debt securities and guarantees are substantially identical to the Securities (and are entitled to the benefits of a trust indenture which is substantially identical to the Indenture or is the Indenture and which has been qualified under the Trust Indenture Act), except that they have been registered pursuant to an effective registration statement under the Securities Act, do not contain restrictions on transfer, do not contain provisions for the additional interest contemplated in Section 2(c) below, do not contain provisions for the liquidated damages provided in Section 2(d) below, will bear a different CUSIP or ISIN number from the Notes, will not entitle their holders to registration rights, and will be subject to terms relating to book-entry procedures and administrative terms relating to transfers that differ from those of the Notes (such new debt securities hereinafter called “ Exchange Securities ”). The Company agrees to use its commercially reasonable efforts to cause the Exchange Registration Statement to become effective under the Securities Act within 365 days following the Closing Date. The Exchange Offer will be registered under the Securities Act on the appropriate form and will comply with all applicable tender offer rules and regulations under the Exchange Act. The Company further agrees to use its commercially reasonable efforts to commence the Exchange Offer promptly after the Exchange Registration Statement becomes effective, hold the Exchange Offer open for the period required by applicable law (including pursuant to any applicable interpretation by the staff of the Commission), but in any event for at least 10 business days, and exchange the Exchange Securities for all Securities that have been validly tendered and not withdrawn on or prior to the expiration of the Exchange Offer. If the Company commences the Exchange Offer, the Company will be entitled to close the Exchange Offer 30 days after the commencement thereof (or at the end of such shorter period permitted by applicable law; provided that such period shall not, in any case, be less than 10 business days), provided that the Company has accepted all the Securities validly tendered in accordance with the terms of the Exchange Offer. The Company agrees (x) to include in the Exchange Registration Statement a prospectus for use in any resales by any holder of Exchange Securities that is a broker-dealer and (y) to keep such Exchange Registration Statement effective for a period (the “ Resale Period ”) beginning when Exchange Securities are first issued in the Exchange Offer and ending upon the earlier of the expiration of the 90th day after the Exchange Offer has been completed and such time as such broker-dealers no longer own any Registrable Securities.

 

3



 

Each holder participating in the Exchange Offer shall be required to represent to the Company that (i) any Exchange Securities received by such holder will be acquired in the ordinary course of business, (ii) such holder has no arrangement or understanding with any person to participate in the distribution of the Securities or the Exchange Securities, (iii) such holder is not an “affiliate,” as defined in Rule 405, of the Company, (iv) if such holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities, (v) if such holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Securities that were acquired as a result of market making activities or other trading activities and, that it will deliver a prospectus in connection with any resale of such Exchange Securities and (vi) such holder is not acting on behalf of any person who could not truthfully make the foregoing representations.

 

(b)                                  If (i) on or prior to the time the Exchange Offer is consummated existing Commission interpretations are changed such that the Exchange Securities received by holders other than Restricted Holders in the Exchange Offer for Registrable Securities are not or would not be, upon receipt, transferable by each such holder without restriction under the Securities Act, (ii) the Exchange Offer has not been completed within 395 days following the Closing Date, (iii) any Initial Purchaser so requests with respect to Registrable Securities not eligible to be exchanged for Exchange Securities in the Exchange Offer and held by it following consummation of the Exchange Offer or (iv) any holder (other than an Initial Purchaser) shall be, and shall notify the Company that such holder is, prohibited by law or Commission policy from participating in the Exchange Offer or such holder may not resell the Exchange Securities acquired in the Exchange Offer to the public without delivering a prospectus and the prospectus contained in the Exchange Registration Statement is not available for such resales by such holder (other than in either case (x) due solely to the status of such holder as an affiliate of the Company within the meaning of Rule 405 or (y) due to such holder’s inability to make the representations set forth in the second paragraph of Section 2(a) hereof) and any such holder so requests, the Company shall, in lieu of (or, in the case of clauses (iii) and (iv), in addition to) conducting the Exchange Offer contemplated by Section 2(a), use its commercially reasonable efforts to file under the Securities Act as promptly as reasonably practicable, a “shelf” registration statement providing for the registration of, and the sale on a continuous or delayed basis by the holders of, all of the Registrable Securities (or, in the case of clause (iii), the Registrable Securities held by the Initial Purchasers, or, in the case of clause (iv), by the holders referred to in clause (iv), as the case may be), pursuant to Rule 415 or any similar rule that may be adopted by the Commission (such filing, the “ Shelf Registration ” and such registration statement, the “ Shelf Registration Statement ”). The Company agrees to use its commercially reasonable efforts (x) to cause the Shelf Registration Statement to become effective within 365 days after the date on which the obligation to file such Shelf Registration Statement arises and to use its commercially reasonable efforts to cause such Shelf Registration Statement to remain effective for a period ending on the earlier of 365 days following the Effective Time or such shorter period that will terminate when all the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement or are distributed to the public pursuant to Rule 144 or, after the 90th day following the Effective Time, would be eligible for resale (if held by a non-affiliate of the Company) pursuant to Rule 144 without restriction on volume or manner of sale, if any; provided, however , that no holder shall be entitled to be named as a selling securityholder in the Shelf Registration Statement or to use the prospectus forming a part thereof for resales of Registrable Securities unless such holder is an Electing Holder, and (y) after the Effective Time of the Shelf Registration Statement, promptly upon the request of any holder of Registrable Securities that is not then an Electing Holder, to take any action reasonably necessary to enable such holder to use the prospectus forming a part thereof for resales of Registrable Securities, including, without limitation, any action necessary to identify such holder as a selling securityholder in the Shelf Registration Statement; provided, however , that nothing in this clause (y) shall relieve any such holder of the obligation to return a completed and signed Notice and Questionnaire to the Company in accordance with Section 3(d)(iii) hereof. The Company further agrees to supplement or make amendments to the Shelf Registration Statement, as and when required by the rules, regulations or instructions applicable to the registration form used by the Company for such Shelf Registration Statement or by the Securities Act or rules and regulations thereunder for shelf registration, and the Company agrees to furnish to each Electing Holder copies of any such supplement or amendment promptly following its filing with the Commission.

 

Notwithstanding the foregoing, the Company may suspend the availability of any Shelf Registration Statement (x) for up to an aggregate of 60 days in any consecutive 12 month period if (i) such action is required by applicable law or (ii) such action is taken by the Company in good faith and for valid business reasons (not including avoidance of the Company’s obligations hereunder), including the acquisition or divestiture of assets, or (y) with respect to a Shelf Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time period, if such action occurs following the consummation of the Exchange Offer.

 

4



 

(c)                                   In the event that (i) the Exchange Registration Statement has not become effective or been declared effective by the Commission on or before 365 days following the Closing Date, or (ii) the Exchange Offer has not been consummated within 395 days after the Closing Date, or (iii) if a Shelf Registration Statement required to be filed under Section 2(b) hereof is not declared effective within 365 days following the date on which the obligation to file the Shelf Registration Statement arises, or (iv) if any Shelf Registration Statement required by Section 2(b) hereof is filed and declared effective, and during the period the Company is required to use its commercially reasonable efforts to cause the Shelf Registration Statement to remain effective, (x) the Company shall have suspended the Shelf Registration Statement pursuant to Section 2(b) hereof for more than 60 days in the aggregate in any consecutive 12 month period and be continuing to suspend the availability of the Shelf Registration Statement or (y) the Shelf Registration Statement shall cease to be effective (other than by action of the Company pursuant to the second paragraph of Section 2(b) hereof) without being replaced within 90 days by a shelf registration statement that is filed and declared effective (each such event referred to in clauses (i) through (iv), a “ Registration Default ” and each period during which a Registration Default has occurred and is continuing, a “ Registration Default Period ”), then, as liquidated damages for such Registration Default, subject to the provisions of Section 8(b), special interest (“ Special Interest ”), in addition to the Base Interest, shall accrue on the respective Registrable Securities for the Registration Default Period (but only with respect to one Registration Default at any particular time) until such time as all Registration Defaults have been cured at a per annum rate of 0.25% for the first 90 days of the Registration Default Period, which rate shall increase by an additional 0.25% during each subsequent 90-day period, up to a maximum of 0.50% regardless of the number of Registration Defaults that shall have occurred and be continuing. Immediately following the cure of all Registration Defaults, the accrual of Special Interest will cease. A Registration Default under clause (iii) or (iv) will be deemed cured upon consummation of the Exchange Offer in the case of a Shelf Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time period.

 

(d)                                  If during the Resale Period the Exchange Offer Registration Statement is suspended by the Company or ceases to be effective such that any broker-dealer that (i) receives Exchange Securities in the Exchange Offer and (ii) is subject to prospectus delivery requirements cannot fulfill such requirements, the Company shall, during the respective Resale Period, pay liquidated damages to such broker-dealers in an amount calculated in a manner consistent with that specified above with respect to Registration Defaults.

 

(e)                                   The Company shall take all actions reasonably necessary or advisable to be taken by it to ensure that the transactions contemplated herein are effected as so contemplated, including all actions necessary or desirable to register the Guarantees (if any) under the registration statement contemplated in Section 2(a) or 2(b) hereof, as applicable.

 

(f)                                     Any reference herein to a registration statement as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time and any reference herein to any post-effective amendment to a registration statement as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time.

 

3.                                        Registration Procedures .

 

If the Company files a registration statement pursuant to Section 2(a) or Section 2(b), the following provisions shall apply:

 

(a)                                   At or before the Effective Time of the Exchange Offer or the Shelf Registration, as the case may be, the Company shall qualify the Indenture under the Trust Indenture Act.

 

(b)                                  In the event that such qualification would require the appointment of a new trustee under the Indenture, the Company shall appoint a new trustee thereunder pursuant to the applicable provisions of the Indenture.

 

(c)                                   In connection with the Company’s obligations with respect to the registration of Exchange Securities as contemplated by Section 2(a) (the “ Exchange Registration ”), if applicable, the Company shall:

 

(i)                                      use its commercially reasonable efforts to prepare and file with the Commission an Exchange Registration Statement on any form which may be utilized by the Company and which shall permit the Exchange Offer and resales of Exchange Securities by broker-dealers during the Resale Period to be effected as contemplated

 

5



 

by Section 2(a), and use its commercially reasonable efforts to cause such Exchange Registration Statement to become effective within 365 days following the Closing Date;

 

(ii)                                   prepare and file with the Commission such amendments and supplements to such Exchange Registration Statement and the prospectus included therein as may be necessary to effect and maintain the effectiveness of such Exchange Registration Statement for the periods and purposes contemplated in Section 2(a) hereof and as may be required by the applicable rules and regulations of the Commission and the instructions applicable to the form of such Exchange Registration Statement, and promptly provide each broker-dealer holding Exchange Securities with such number of copies of the prospectus included therein (as then amended or supplemented), in conformity in all material respects with the requirements of the Securities Act and the rules and regulations of the Commission thereunder, as such broker-dealer reasonably may request prior to the expiration of the Resale Period, for use in connection with resales of Exchange Securities;

 

(iii)                                promptly notify each broker-dealer that has requested or received copies of the prospectus included in such registration statement, and confirm such advice in writing, (A) when such Exchange Registration Statement or the prospectus included therein or any prospectus amendment or supplement or post-effective amendment has been filed, and, with respect to such Exchange Registration Statement or any post-effective amendment, when the same has become effective, (B) of any request by the Commission for amendments or supplements to such Exchange Registration Statement or prospectus or for additional information, (C) of the issuance by the Commission of any stop order suspending the effectiveness of such Exchange Registration Statement or the initiation of any proceedings for that purpose, (D) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Exchange Securities for sale in any jurisdiction or the initiation of any proceeding for such purpose, or (E) at any time during the Resale Period when a prospectus is required to be delivered under the Securities Act, that such Exchange Registration Statement, prospectus, prospectus amendment or supplement or post-effective amendment does not conform in all material respects to the applicable requirements of the Securities Act and the rules and regulations of the Commission thereunder or contains an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances then existing;

 

(iv)                               in the event that the Company would be required, pursuant to Section 3(c)(iii)(E) above, to notify any broker-dealers holding Exchange Securities, use its commercially reasonable efforts to prepare and furnish as soon as practicable to each such broker-dealer a reasonable number of copies of a prospectus supplemented or amended so that, as thereafter delivered to purchasers of such Exchange Securities during the Resale Period, such prospectus shall conform in all material respects to the applicable requirements of the Securities Act and the rules and regulations of the Commission thereunder and shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances then existing;

 

(v)                                  use its commercially reasonable efforts to obtain the withdrawal of any order suspending the effectiveness of such Exchange Registration Statement or any post-effective amendment thereto at the earliest practicable date;

 

(vi)                               use its commercially reasonable efforts to (A) register or qualify the Exchange Securities under the state securities laws or blue sky laws of such U.S. jurisdictions as any participating holder of the Registrable Securities reasonably requests in writing no later than the commencement of the Exchange Offer, (B) keep such registrations or qualifications in effect and comply with such laws so as to permit the continuance of offers, sales and dealings therein in such jurisdictions until the expiration of the Resale Period and (C) take any and all other actions as may be reasonably necessary to enable each broker-dealer holding Exchange Securities to consummate the disposition thereof in such jurisdictions; provided, however , that the Company shall not be required for any such purpose to (1) qualify as a foreign corporation or other entity or as a dealer in securities in any jurisdiction wherein it would not otherwise be required to qualify but for the requirements of this Section 3(c)(vi), (2) consent to general service of process in any such jurisdiction, (3) subject itself to taxation in any such jurisdiction if it is not so subject or (4) make any changes to its certificate of incorporation, by-laws or other organizational document, or any agreement between it and any of its equityholders;

 

6



 

(vii)                            provide a CUSIP number for all Exchange Securities, not later than the consummation of the Exchange Offer; and

 

(viii)                         comply in all material respects with all applicable rules and regulations of the Commission, and make generally available to its securityholders as soon as practicable but no later than 18 months after the effective date of such Exchange Registration Statement, an earning statement of the Company and its subsidiaries complying with Section 11(a) of the Securities Act (including, at the option of the Company, Rule 158).

 

(d)                                  In connection with the Company’s obligations with respect to the Shelf Registration, if applicable, the Company shall:

 

(i)                                      use its commercially reasonable efforts to prepare and file with the Commission, as promptly as reasonably practicable, a Shelf Registration Statement on any form which may be utilized by the Company and which shall register all of the Registrable Securities (or, in the case of a Shelf Registration Statement filed pursuant to Section 2(b)(iii), the Registrable Securities held by the Initial Purchasers or, in the case of a Shelf Registration Statement filed pursuant to Section 2(b)(iv), the Registrable Securities held by the holders specified in Section 2(b)(iv)) for resale by the holders thereof in accordance with such method or methods of disposition as may be specified in the applicable Notice and Questionnaire by such of the holders as, from time to time, may be Electing Holders and use its commercially reasonable efforts to cause such Shelf Registration Statement to become effective within the time periods specified in Section 2(b);

 

(ii)                                   not less than 15 calendar days prior to the Effective Time of the Shelf Registration Statement, mail the Notice and Questionnaire to the holders of Registrable Securities; no holder shall be entitled to be named as a selling securityholder in the Shelf Registration Statement as of the Effective Time, and no holder shall be entitled to use the prospectus forming a part thereof for resales of Registrable Securities at any time, unless such holder has returned a completed and signed Notice and Questionnaire to the Company by the deadline for response set forth therein; provided, however , holders of Registrable Securities shall have at least 13 calendar days from the date on which the Notice and Questionnaire is first mailed to such holders to return a completed and signed Notice and Questionnaire to the Company;

 

(iii)                                after the Effective Time of the Shelf Registration Statement, upon the request of any holder of Registrable Securities that is not then an Electing Holder, promptly send a Notice and Questionnaire to such holder; provided that the Company shall not be required to take any action to name such holder as a selling securityholder in the Shelf Registration Statement or to enable such holder to use the prospectus forming a part thereof for resales of Registrable Securities until such holder has returned a completed and signed Notice and Questionnaire to the Company;

 

(iv)                               as soon as practicable, prepare and file with the Commission such amendments and supplements to such Shelf Registration Statement and the prospectus included therein as may be necessary to effect and maintain the effectiveness of such Shelf Registration Statement for the period specified in Section 2(b) hereof and as may be required by the applicable rules and regulations of the Commission and the instructions applicable to the form of such Shelf Registration Statement, and furnish to the Electing Holders copies of any such supplement or amendment as soon as practicable following its filing with the Commission. Notwithstanding the foregoing, the Company may suspend the availability of any Shelf Registration Statement (x) for up to an aggregate of 60 days in any consecutive 12 month period if (i) such action is required by applicable law or, (ii) such action is taken by the Company in good faith and for valid business reasons (not including avoidance of the Company’s obligations hereunder), including the acquisition or divestiture of assets, or (y) with respect to a Shelf Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time period, if such action occurs following the consummation of the Exchange Offer;

 

(v)                                  comply in all material respects with the provisions of the Securities Act with respect to the disposition of all of the Registrable Securities covered by such Shelf Registration Statement in accordance with the intended methods of disposition by the Electing Holders provided for in such Shelf Registration Statement;

 

(vi)                               for a reasonable period prior to the filing of such Shelf Registration Statement, and throughout the period specified in Section 2(b), make reasonably available at reasonable times at the Company’s principal place of

 

7



 

business or such other reasonable place for inspection by a representative of, and not more than one counsel acting for, Electing Holders holding at least a majority in aggregate principal amount of the Registrable Securities at the time outstanding (the “ Majority Electing Holders ”) and any underwriter participating in the distribution of the Registrable Securities being sold (including any person who may be deemed an underwriter within the meaning of Section 2(a)(ii) of the Securities Act) such relevant financial and other pertinent information and books and records of the Company, and use its commercially reasonable efforts to cause the officers, employees, counsel and independent certified public accountants of the Company to respond to such inquiries, as shall be reasonably necessary to conduct a reasonable investigation within the meaning of Section 11 of the Securities Act; provided, however , that the foregoing investigation and information gathering shall be coordinated on behalf of all such parties by one counsel designated by and on behalf of all such parties and provided, further , that each such party shall be required (pursuant to an agreement in form and substance reasonably satisfactory to the Company) to maintain in confidence and not to disclose to any other person any information or records reasonably designated by the Company as being confidential, until such time as (A) such information becomes a matter of public record (whether by virtue of its inclusion in such registration statement or otherwise except as a result of a breach of this or any other obligation of confidentiality to the Company known to such party), or (B) such person shall be required so to disclose such information pursuant to a subpoena or order of any court or other governmental agency or body having jurisdiction over the matter (subject to the requirements of such order, and only after such person shall have given the Company prompt prior written notice of such requirement so that the Company, at its expense, may undertake appropriate action to prevent disclosure of such information or records), or (C) such information is required to be set forth in such Shelf Registration Statement or the prospectus included therein or in an amendment to such Shelf Registration Statement or an amendment or supplement to such prospectus in order that such Shelf Registration Statement, prospectus, amendment or supplement, as the case may be, complies with applicable requirements of the federal securities laws and the rules and regulations of the Commission and does not contain an untrue statement of a material fact or omit to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances then existing;

 

(vii)                            promptly notify each of the Electing Holders and any managing underwriter thereof and confirm such advice in writing, (A) when such Shelf Registration Statement or the prospectus included therein or any prospectus amendment or supplement or post-effective amendment has been filed, and, with respect to such Shelf Registration Statement or any post-effective amendment, when the same has become effective, (B) of any request by the Commission for amendments or supplements to such Shelf Registration Statement or prospectus or for additional information, (C) of the issuance by the Commission of any stop order suspending the effectiveness of such Shelf Registration Statement or the initiation of any proceedings for that purpose, (D) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction or the initiation of any proceeding for such purpose or (E) if at any time when a prospectus is required to be delivered under the Securities Act, that such Shelf Registration Statement, prospectus, prospectus amendment or supplement or post-effective amendment does not conform in all material respects to the applicable requirements of the Securities Act and the rules and regulations of the Commission thereunder or contains an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances then existing;

 

(viii)                         use its commercially reasonable efforts to obtain the withdrawal of any order suspending the effectiveness of such registration statement or any post-effective amendment thereto at the earliest practicable date;

 

(ix)                                 if requested by any managing underwriter or the Majority Electing Holders, promptly incorporate in a prospectus supplement or post-effective amendment such information as is required by the applicable rules and regulations of the Commission and as such managing underwriter or such Majority Electing Holders shall specify should be included therein relating to the terms of the sale of such Registrable Securities, including information with respect to the principal amount of Registrable Securities being sold by such Majority Electing Holders or to any underwriters, the names and descriptions of such Majority Electing Holders or underwriters, the offering price of such Registrable Securities and any discount, commission or other compensation payable in respect thereof, the purchase price being paid therefor by such underwriters and with respect to any other terms of the offering of the Registrable Securities to be sold by such Majority Electing Holders or to such underwriters; and make all required filings of such prospectus supplement or post-effective amendment as soon as practicable after notification of the matters to be incorporated in such prospectus supplement or post-effective amendment;

 

8



 

(x)                                    furnish to each Electing Holder, and each underwriter, if any, thereof such number of copies of such Shelf Registration Statement (excluding exhibits thereto and documents incorporated by reference therein) and of the prospectus included in such Shelf Registration Statement (including each preliminary prospectus), in conformity in all material respects with the applicable requirements of the Securities Act and the rules and regulations of the Commission thereunder, as such Electing Holder and underwriter, if any, may reasonably request in order to facilitate the offering and disposition of the Registrable Securities owned by such Electing Holder or underwritten by such underwriter and to permit such Electing Holder and underwriter, if any, to satisfy the prospectus delivery requirements of the Securities Act; and the Company hereby consents to the use of such prospectus (including such preliminary prospectus) and any amendment or supplement thereto by each such Electing Holder and by any such underwriter, in each case in the form most recently provided to such person by the Company, in connection with the offering and sale of the Registrable Securities covered by the prospectus (including such preliminary prospectus) or any supplement or amendment thereto;

 

(xi)                                 use its commercially reasonable efforts to (A) register or qualify the Registrable Securities to be included in such Shelf Registration Statement under such state securities laws or blue sky laws of such U.S. jurisdictions as any Electing Holder and managing underwriter, if any, thereof shall reasonably request, (B) keep such registrations or qualifications in effect and comply with such laws so as to permit the continuance of offers, sales and dealings therein in such jurisdictions during the period the Shelf Registration is required to remain effective under Section 2(b) above and for so long as may be necessary to enable any such Electing Holder or underwriter to complete its distribution of Securities pursuant to such Shelf Registration Statement and (C) take any and all other actions as may be reasonably necessary to enable each such Electing Holder and underwriter, if any, to consummate the disposition in such jurisdictions of such Registrable Securities; provided, however , that the Company shall not be required for any such purpose to (1) qualify as a foreign corporation or other entity or as a dealer in securities in any jurisdiction wherein it would not otherwise be required to qualify but for the requirements of this Section 3(d)(xi), (2) consent to general service of process in any such jurisdiction, (3) subject itself to taxation in any such jurisdiction if it is not so subject or (4) make any changes to its certificate of incorporation, by-laws or other organizational document, or any agreement between it and any of its equityholders;

 

(xii)                              unless any Registrable Securities shall be in book-entry only form, cooperate with the Electing Holders and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold, which certificates shall not bear any restrictive legends; and, in the case of an underwritten offering, enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriter may request a reasonable amount of time prior to any sale of the Registrable Securities;

 

(xiii)                           provide a CUSIP number for all Registrable Securities, not later than the applicable Effective Time;

 

(xiv)                          enter into one or more underwriting agreements in customary form, including customary provisions relating to indemnification and contribution, and use its commercially reasonable efforts to take such other actions, if any, in connection therewith as any Electing Holders aggregating at least 20% in aggregate principal amount of the Registrable Securities at the time outstanding shall reasonably request in order to expedite or facilitate the disposition of such Registrable Securities;

 

(xv)                             if requested by the Majority Electing Holders or if the offering contemplated by the Shelf Registration is an underwritten offering, use its commercially reasonable efforts to (A) make such representations and warranties to the Electing Holders and the underwriters, if any, thereof in form, substance and scope as are customarily made in connection with an offering of debt securities pursuant to any underwriting agreement; (B) obtain an opinion of counsel to the Company in customary form subject to customary limitations, assumptions and exclusions and covering such matters, of the type customarily covered by such an opinion, as the managing underwriters, if any, or as any Electing Holders of at least 20% in aggregate principal amount of the Registrable Securities at the time outstanding may reasonably request, addressed to the Electing Holders and the underwriters, if any, thereof and dated the effective date of such Shelf Registration Statement (and if such Shelf Registration Statement contemplates an underwritten offering of a part or all of the Registrable Securities, dated the date of the closing under the underwriting agreement relating thereto); (C) obtain a “cold comfort” letter or letters from the independent certified public accountants of the Company addressed to the selling Electing Holders or the

 

9



 

underwriters, if any, thereof, dated (i) the effective date of such Shelf Registration Statement and (ii) if such Shelf Registration Statement contemplates an underwritten offering, dated the date of the closing under the underwriting agreement relating thereto, such letter or letters to be in customary form and covering such matters of the type customarily covered by letters of such type, subject to receipt of appropriate documentation as contemplated, and only if permitted, by Statement of Auditing Standards No. 72; and (D) deliver such customary documents and certificates, including officers’ certificates, as may be reasonably requested by the Majority Electing Holders and the managing underwriters, if any, thereof,

 

(xvi)                          notify in writing each holder of Registrable Securities of any proposal by the Company to amend or waive any provision of this Exchange and Registration Rights Agreement pursuant to Section 8(h) hereof and of any amendment or waiver effected pursuant thereto, each of which notices shall contain the text of the amendment or waiver proposed or effected, as the case may be;

 

(xvii)                       in the event that any broker-dealer registered under the Exchange Act shall underwrite any Registrable Securities or participate as a member of an underwriting syndicate (within the meaning of the Conduct Rules (the “ Conduct Rules ”) of the Financial Industry Regulatory Authority, Inc. (“ FINRA ”) or any successor thereto, as amended from time to time) thereof as an underwriter, use commercially reasonable efforts to provide information to assist such broker-dealer in complying with the requirements of such Conduct Rules; and

 

(xviii)                    comply in all material respects with all applicable rules and regulations of the Commission, and make generally available to its securityholders as soon as practicable but in any event not later than 18 months after the effective date of such Shelf Registration Statement, an earning statement of the Company and its subsidiaries complying with Section 11(a) of the Securities Act (including, at the option of the Company, Rule 158).

 

(e)                                   In the event that the Company would be required, pursuant to Section 3(d)(vii)(E) above, to notify the Electing Holders and the managing underwriters, if any, thereof, the Company shall as soon as practicable prepare and furnish to each of the Electing Holders and to each such underwriter, if any, a reasonable number of copies of a prospectus supplemented or amended so that, as thereafter delivered to purchasers of Registrable Securities, such prospectus shall conform in all material respects to the applicable requirements of the Securities Act and the rules and regulations of the Commission thereunder and shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances then existing. Each broker-dealer and Electing Holder agrees that upon receipt of any notice from the Company pursuant to Section 3(c)(iii)(E) or Section 3(d)(vii)(E) hereof, such broker-dealer or Electing Holder shall forthwith discontinue the disposition of Registrable Securities pursuant to the Exchange Registration Statement or Shelf Registration Statement applicable to such Registrable Securities until such broker-dealer or Electing Holder shall have received copies of such amended or supplemented prospectus, and if so directed by the Company, such broker-dealer or Electing Holder shall deliver to the Company (at the Company’s expense) all copies, other than permanent file copies, then in such broker-dealer’s or Electing Holder’s possession of the prospectus covering such Registrable Securities at the time of receipt of such notice.

 

(f)                                     In the event of a Shelf Registration, in addition to the information required to be provided by each Electing Holder in its Notice and Questionnaire, the Company may require such Electing Holder to furnish to the Company such additional information regarding such Electing Holder and such Electing Holder’s intended method of distribution of Registrable Securities as may be required in order to comply with the Securities Act. Each such Electing Holder agrees to notify the Company as promptly as practicable of any inaccuracy or change in information previously furnished by such Electing Holder to the Company or of the occurrence of any event in either case as a result of which any prospectus relating to such Shelf Registration contains or would contain an untrue statement of a material fact regarding such Electing Holder or such Electing Holder’s intended method of disposition of such Registrable Securities or omits to state any material fact regarding such Electing Holder or such Electing Holder’s intended method of disposition of such Registrable Securities required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances then existing, and promptly to furnish to the Company any additional information required to correct and update any previously furnished information or required so that such prospectus shall not contain, with respect to such Electing Holder or the disposition of such Registrable Securities, an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances then existing.

 

10



 

4.                                        Registration Expenses .

 

The Company agrees to bear and to pay or cause to be paid promptly all expenses incident to the Company’s performance of or compliance with this Exchange and Registration Rights Agreement, including (a) all Commission and any FINRA registration, filing and review fees and expenses including the reasonable fees and disbursements of counsel for the underwriters, if any, in connection with such registration, filing and review, (b) all fees and expenses in connection with the qualification of the Securities for offering and sale under the state securities laws and the blue sky laws referred to in Section 3(d)(xi) hereof and determination of their eligibility for investment under the laws of such jurisdictions as any managing underwriters or the Electing Holders may reasonably designate, including the reasonable fees and disbursements of counsel for the Electing Holders or underwriters in connection with such qualification and determination, (c) all expenses relating to the preparation, printing, production, distribution and reproduction of each registration statement required to be filed hereunder, each prospectus included therein or prepared for distribution pursuant hereto, each amendment or supplement to the foregoing, the expenses of preparing the Securities for delivery and the expenses of printing or producing any underwriting agreements, selling agreements and blue sky or legal investment memoranda and all other documents in connection with the offering, sale or delivery of Securities to be disposed of (including certificates representing the Securities), (d) messenger, telephone and delivery expenses relating to the offering, sale or delivery of Securities and the preparation of documents referred in clause (c) above, (e) reasonable fees and expenses of the Trustee under the Indenture, any agent of the Trustee and any counsel for the Trustee and of any collateral agent or custodian, (f) internal expenses (including all salaries and expenses of the Company’s officers and employees performing legal or accounting duties), (g) fees, disbursements and expenses of counsel of the Company and independent certified public accountants of the Company (including the expenses of any opinions or “cold comfort” letters required by or incident to such performance and compliance), (h) reasonable fees, disbursements and expenses of any “qualified independent underwriter” engaged pursuant to Section 3(d)(xvii) hereof, (i) the reasonable fees, disbursements and expenses of one counsel for the Electing Holders retained in connection with a Shelf Registration, as selected by the Electing Holders of at least a majority in aggregate principal amount of the Registrable Securities held by Electing Holders (which counsel shall be reasonably satisfactory to the Company), (j) any fees charged by securities rating services for rating the Securities, and (k) fees, expenses and disbursements of any other persons, including special experts, retained by the Company in connection with such registration (collectively, the “ Registration Expenses ”). To the extent that any Registration Expenses are incurred, assumed or paid by any holder of Registrable Securities or any placement or sales agent therefor or underwriter thereof, the Company shall reimburse such person for the full amount of the Registration Expenses so incurred, assumed or paid promptly after receipt of a request therefore, which shall be accompanied by written evidence of the expenses so incurred. Notwithstanding the foregoing, the holders of the Registrable Securities being registered shall pay all agency fees and commissions and underwriting discounts and commissions attributable to the sale of such Registrable Securities and the fees and disbursements of any counsel or other advisors or experts retained by such holders (severally or jointly), other than the counsel and experts specifically referred to above.

 

5.                                        Indemnification .

 

(a)                                   Indemnification by the Company . The Company will indemnify and hold harmless (x) each of the broker-dealers whose Registrable Securities are included in an Exchange Registration Statement and each of the Electing Holders of Registrable Securities included in a Shelf Registration Statement against any losses, claims, damages or liabilities, joint or several, to which such broker-dealer or Electing Holder may become subject under the Securities Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in any Exchange Registration Statement or Shelf Registration Statement, as the case may be, under which such Registrable Securities were registered under the Securities Act, or any preliminary, final or summary prospectus contained therein or furnished by the Company to any such broker-dealer or Electing Holder, or any amendment or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and will reimburse such broker-dealer or Electing Holder for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such action or claim as such expenses are incurred; provided, however , that (i) the Company shall not be liable to any such person in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such registration statement, or preliminary, final or summary prospectus, or amendment or supplement thereto, in reliance upon and in conformity with written information furnished to the Company by such person expressly for use therein and (ii) with respect to any untrue statement or alleged untrue statement or omission or alleged omission made in any Exchange Registration Statement or Shelf Registration Statement or prospectus or in any amendment or supplement thereto or in any

 

11



 

preliminary prospectus relating to such Exchange Registration Statement or Shelf Registration Statement, the indemnity agreement contained in this Section 5(a) will not inure to the benefit of any broker-dealer or Electing Holder from whom the person asserting any such loss, claim, damage or liability purchased the Registrable Securities to the extent that at the time of such purchase such broker-dealer or Electing Holder had received timely written advice from the Company prior to such purchase that the use of such prospectus, amendment, supplement or preliminary prospectus was suspended as provided in Section 3(e) hereof.

 

(b)                                  Indemnification by the Electing Holders . The Company may require, as a condition to including any Registrable Securities in any registration statement filed pursuant to Section 2(b) hereof, that the Company shall have received an undertaking reasonably satisfactory to it from the Electing Holder of such Registrable Securities, severally and not jointly, to (i) indemnify and hold harmless the Company and all other holders of Registrable Securities, against any losses, claims, damages or liabilities to which the Company or such other holders of Registrable Securities may become subject, under the Securities Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in such registration statement, or any preliminary, final or summary prospectus contained therein or furnished by the Company to any such Electing Holder, or any amendment or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in reliance upon and in conformity with written information furnished to the Company by such Electing Holder expressly for use therein, and (ii) reimburse the Company for any legal or other expenses reasonably incurred by the Company in connection with investigating or defending any such action or claim as such expenses are incurred; provided, however , that no such Electing Holder shall be required to undertake liability to any person under this Section 5(b) for any amounts in excess of the dollar amount of the proceeds to be received by such Electing Holder from the sale of such Electing Holder’s Registrable Securities pursuant to such registration.

 

(c)                                   Notices of Claims, Etc . Promptly after receipt by an indemnified party under Section 5(a) or 5(b) above of written notice of the commencement of any action, such indemnified party shall, if a claim in respect thereof is to be made against an indemnifying party pursuant to the indemnification provisions of or contemplated by this Section 5, notify such indemnifying party in writing of the commencement of such action; but the omission so to notify the indemnifying party shall not relieve it from any liability which it may have to any indemnified party otherwise than under the indemnification provisions of or contemplated by Section 5(a) or 5(b) hereof. In case any such action shall be brought against any indemnified party and it shall notify an indemnifying party of the commencement thereof, such indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and, after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, such indemnifying party shall not be liable to such indemnified party for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. No indemnifying party shall, without the written consent of the indemnified party, effect the settlement or compromise of, or consent to the entry of any judgment with respect to, any pending or threatened action or claim in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified party is an actual or potential party to such action or claim) unless such settlement, compromise or judgment (i) includes an unconditional release of the indemnified party from all liability arising out of such action or claim and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act by or on behalf of any indemnified party.

 

(d)                                  Contribution . If for any reason the indemnification provisions contemplated by Section 5(a) or Section 5(b) hereof are unavailable to or insufficient to hold harmless an indemnified party in respect of any losses, claims, damages or liabilities (or actions in respect thereof) referred to therein, then each indemnifying party shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages or liabilities (or actions in respect thereof) in such proportion as is appropriate to reflect the relative fault of the indemnifying party and the indemnified party in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities (or actions in respect thereof), as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified party shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by such indemnifying party or by such indemnified party, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The parties hereto agree that it would not be just and equitable if contributions

 

12


 

pursuant to this Section 5(d) were determined by pro rata allocation (even if the holders or any agents or underwriters or all of them were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to in this Section 5(d). The amount paid or payable by an indemnified party as a result of the losses, claims, damages, or liabilities (or actions in respect thereof) referred to above shall be deemed to include any legal or other fees or expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 5(d), no holder shall be required to contribute any amount in excess of the amount by which the dollar amount of the proceeds received by such holder from the sale of any Registrable Securities (after deducting any fees, discounts and commissions applicable thereto) exceeds the amount of any damages which such holder has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The holders’ and any underwriters’ obligations in this Section 5(d) to contribute shall be several in proportion to the principal amount of Registrable Securities registered or underwritten, as the case may be, by them and not joint.

 

(e)                                   The obligations of the Company under this Section 5 shall be in addition to any liability which the Company may otherwise have and shall extend, upon the same terms and conditions, to each officer, director and partner of each holder and each person, if any, who controls any holder within the meaning of the Securities Act; and the obligations of the holders contemplated by this Section 5 shall be in addition to any liability which the respective holder may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of the Company (including any person who, with his consent, is named in any registration statement as about to become a director of the Company) and to each person, if any, who controls the Company within the meaning of the Securities Act.

 

6.                                        Underwritten Offerings .

 

(a)                                   Selection of Underwriters . If any of the Registrable Securities covered by the Shelf Registration are to be sold pursuant to an underwritten offering, the managing underwriter or underwriters thereof shall be designated by the Company, subject to the consent of the Electing Holders holding at least a majority in aggregate principal amount of the Registrable Securities to be included in such offering (which shall not be unreasonably withheld or delayed) and such Electing Holders shall be responsible for all underwriting discounts and commissions in connection therewith.

 

(b)                                  Participation by Holders . Each holder of Registrable Securities hereby agrees with each other such holder that no such holder may participate in any underwritten offering hereunder unless such holder (i) agrees to sell such holder’s Registrable Securities on the basis provided in any underwriting arrangements approved by the persons entitled hereunder to approve such arrangements and (ii) completes and executes all questionnaires, powers of attorney, indemnities, underwriting agreements and other documents reasonably required under the terms of such underwriting arrangements.

 

7.                                        Rule 144 .

 

The Company covenants to the holders of Registrable Securities that to the extent it shall be required to do so under the Exchange Act, the Company shall timely file the reports required to be filed by it under the Exchange Act or the Securities Act (including the reports under Section 13 and 15(d) of the Exchange Act referred to in subparagraph (c)(1) of Rule 144 adopted by the Commission under the Securities Act) and the rules and regulations adopted by the Commission thereunder, and shall take such further action as any holder of Registrable Securities may reasonably request, all to the extent required from time to time to enable such holder to sell Registrable Securities without registration under the Securities Act within the limitations of the exemption provided by Rule 144. Upon the request of any holder of Registrable Securities in connection with that holder’s sale pursuant to Rule 144, the Company shall deliver to such holder a written statement as to whether it has complied with such requirements. The Company will be deemed to have satisfied the foregoing requirements if any of the Company’s parents file such reports and take such actions of the types otherwise so required, in each case within the applicable time periods.

 

8.                                        Miscellaneous .

 

(a)                                   No Inconsistent Agreements . The Company represents warrants, covenants and agrees that it has not granted, and shall not grant, registration rights with respect to Registrable Securities or any other securities which would be inconsistent with the terms contained in this Exchange and Registration Rights Agreement.

 

13



 

(b)                                  Specific Performance . The parties hereto acknowledge that there would be no adequate remedy at law if the Company fails to perform any of its obligations hereunder and that the Initial Purchasers and the holders from time to time of the Registrable Securities may be irreparably harmed by any such failure, and accordingly agree that the Initial Purchasers and such holders, in addition to any other remedy to which they may be entitled at law or in equity, shall be entitled to compel specific performance of the obligations of the Company under this Exchange and Registration Rights Agreement in accordance with the terms and conditions of this Exchange and Registration Rights Agreement, in any court of the United States or any state thereof having jurisdiction.

 

(c)                                   Notices . All notices, requests, claims, demands, waivers and other communications hereunder shall be in writing and shall be deemed to have been duly given when delivered by hand, if delivered personally or by courier, or three days after being deposited in the mail (registered or certified mail, postage prepaid, return receipt requested) as follows: (i) if to the Company, to it at 225 Brae Boulevard, Park Ridge, New Jersey 07656, Attention: Richard J. Frecker, Assistant General Counsel and Assistant Secretary, with a copy to Thomas Monson, Esq. and Donald Batterson, Esq., Jenner & Block LLP, 353 N. Clark Street, Chicago, Illinois 60654, (ii) if to a holder, to the address of such holder set forth in the security register or other records of the Company or to such other address as the Company or any such holder may have furnished to the other in writing in accordance herewith, except that notices of change of address shall be effective only upon receipt, and (iii) if to the Initial Purchasers, c/o J.P. Morgan Securities LLC, 383 Madison Avenue, New York, New York 10179, Attention: Peter Nolan, with a copy to Kirk A. Davenport II, Esq., Latham & Watkins LLP, 885 Third Avenue, New York, New York 10022.

 

(d)                                  Parties in Interest . All the terms and provisions of this Exchange and Registration Rights Agreement shall be binding upon, shall inure to the benefit of and shall be enforceable by the parties hereto and the holders from time to time of the Registrable Securities and the respective successors and assigns of the parties hereto and such holders. In the event that any transferee of any holder of Registrable Securities shall acquire Registrable Securities, in any manner, whether by gift, bequest, purchase, operation of law or otherwise, such transferee shall, without any further writing or action of any kind, be deemed a beneficiary hereof for all purposes and such Registrable Securities shall be held subject to all of the terms of this Exchange and Registration Rights Agreement, and by taking and holding such Registrable Securities such transferee shall be entitled to receive the benefits of, and be conclusively deemed to have agreed to be bound by all of the applicable terms and provisions of this Exchange and Registration Rights Agreement. If the Company shall so request, any such successor, assign or transferee shall agree in writing to acquire and hold the Registrable Securities subject to all of the applicable terms hereof.

 

(e)                                   Survival . The respective indemnities, agreements, representations, warranties and each other provision set forth in this Exchange and Registration Rights Agreement or made pursuant hereto shall remain in full force and effect regardless of any investigation (or statement as to the results thereof) made by or on behalf of any holder of Registrable Securities, any director, officer or partner of such holder, any agent or underwriter or any director, officer or partner thereof, or any controlling person of any of the foregoing, and shall survive delivery of and payment for the Registrable Securities pursuant to the Purchase Agreement and the transfer and registration of Registrable Securities by such holder and the consummation of an Exchange Offer.

 

(f)                                     Governing Law . This Exchange and Registration Rights Agreement shall be governed by and construed in accordance with the laws of the State of New York.

 

(g)                                  Headings . The descriptive headings of the several Sections and paragraphs of this Exchange and Registration Rights Agreement are inserted for convenience only, do not constitute a part of this Exchange and Registration Rights Agreement and shall not affect in any way the meaning or interpretation of this Exchange and Registration Rights Agreement.

 

(h)                                  Entire Agreement; Amendments . This Exchange and Registration Rights Agreement and the other writings referred to herein (including the Indenture and the form of Securities) or delivered pursuant hereto which form a part hereof contain the entire understanding of the parties with respect to its subject matter. This Exchange and Registration Rights Agreement supersedes all prior agreements and understandings between the parties with respect to its subject matter. This Exchange and Registration Rights Agreement may be amended and the observance of any term of this Exchange and Registration Rights Agreement may be waived (either generally or in a particular instance and either retroactively or prospectively) only by a written instrument duly executed by the Company and the holders of at least a majority in aggregate principal amount of the Registrable Securities at the time outstanding. Each holder of any Registrable Securities at the time or

 

14



 

thereafter outstanding shall be bound by any amendment or waiver effected pursuant to this Section 8(h), whether or not any notice, writing or marking indicating such amendment or waiver appears on such Registrable Securities or is delivered to such holder.

 

(i)                                      Counterparts . This Exchange and Registration Rights Agreement may be executed by the parties in counterparts, each of which shall be deemed to be an original, but all such respective counterparts shall together constitute one and the same instrument.

 

If the foregoing is in accordance with your understanding, please sign and return to us seven (7) counterparts hereof, and upon the acceptance hereof by you, on behalf of each of the Initial Purchasers, this letter and such acceptance hereof shall constitute a binding agreement between each of the Initial Purchasers and the Company.

 

[Signature Pages Follow]

 

15



 

 

Very truly yours,

 

 

 

The Hertz Corporation

 

 

 

By:

/s/ R. Scott Massengill

 

 

Name: R. Scott Massengill

 

 

Title: Vice President and Treasurer

 

 

 

 

 

Brae Holding Corp.

 

Hertz Claim Management Corporation

 

HCM Marketing Corporation

 

Hertz Equipment Rental Corporation

 

Hertz Local Edition Corp.

 

Hertz Local Edition Transporting, Inc.

 

Hertz Global Services Corporation

 

Hertz System, Inc.

 

Hertz Technologies, Inc.

 

Hertz Transporting, Inc.

 

Smartz Vehicle Rental Corporation

 

Simply Wheelz LLC

 

 

 

By:

/s/ R. Scott Massengill

 

 

Name: R. Scott Massengill

 

 

Title: Treasurer

 

[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]

 



 

Accepted as of the date hereof for itself and as Representative of the several Initial Purchasers named in Schedule I to the Purchase Agreement:

 

 

 

 

 

J.P. MORGAN SECURITIES LLC

 

 

 

By:

/s/ Stathis Karanikolaidis

 

 

Name: Stathis Karanikolaidis

 

 

Title: Executive Director

 

 

[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]

 



 

Exhibit A

 

The Hertz Corporation

 

INSTRUCTION TO DTC PARTICIPANTS

 

(Date of Mailing)

 

URGENT - IMMEDIATE ATTENTION REQUESTED

 

DEADLINE FOR RESPONSE:  [DATE] (1)

 

The Depository Trust Company (“ DTC ”) has identified you as a DTC Participant through which beneficial interests in The Hertz Corporation (the “ Company ”) 7.375% Senior Notes due 2021 (the “ Securities ”) are held.

 

The Company is in the process of registering the Securities under the Securities Act of 1933, as amended, for resale by the beneficial owners thereof. In order to have their Securities included in the registration statement, beneficial owners must complete and return the enclosed Notice of Registration Statement and Selling Securityholder Questionnaire.

 

It is important that beneficial owners of the Securities receive a copy of the enclosed materials as soon as possible as their rights to have the Securities included in the registration statement depend upon their returning the Notice and Questionnaire by [Deadline For Response]. Please forward a copy of the enclosed documents to each beneficial owner that holds interests in the Securities through you. If you require more copies of the enclosed materials or have any questions pertaining to this matter, please contact The Hertz Corporation, 225 Brae Boulevard, Park Ridge, New Jersey, 07656, Attention: Richard J. Frecker, Assistant General Counsel and Assistant Secretary, (201) 307-2000.

 


(1)                                   Not less than 28 calendar days from date of mailing.

 



 

The Hertz Corporation

 

Notice of Registration Statement
and
Selling Securityholder Questionnaire

 

([Date])

 

Reference is hereby made to the Exchange and Registration Rights Agreement (the “ Exchange and Registration Rights Agreement ”) between The Hertz Corporation (the “ Company ”) and the Initial Purchasers named therein. Pursuant to the Exchange and Registration Rights Agreement, the Company has filed with the United States Securities and Exchange Commission (the “ Commission ”) a registration statement on Form [      ] (the “ Shelf Registration Statement ”) for the registration and resale under Rule 415 of the Securities Act of 1933, as amended (the “ Securities Act ”), of the Company’s 7.375% Senior Notes due 2021 (the “ Securities ”). A copy of the Exchange and Registration Rights Agreement is attached hereto. All capitalized terms not otherwise defined herein shall have the meanings ascribed thereto in the Exchange and Registration Rights Agreement.

 

Each beneficial owner of Registrable Securities is entitled to have the Registrable Securities beneficially owned by it included in the Shelf Registration Statement. In order to have Registrable Securities included in the Shelf Registration Statement, this Notice of Registration Statement and Selling Securityholder Questionnaire (“ Notice and Questionnaire ”) must be completed, executed and delivered to the Company’s counsel at the address set forth herein for receipt ON OR BEFORE [Deadline for Response]. Beneficial owners of Registrable Securities who do not complete, execute and return this Notice and Questionnaire by such date (i) will not be named as selling securityholders in the Shelf Registration Statement and (ii) may not use the prospectus forming a part thereof for resales of Registrable Securities.

 

Certain legal consequences arise from being named as a selling securityholder in the Shelf Registration Statement and related prospectus. Accordingly, holders and beneficial owners of Registrable Securities are advised to consult their own securities law counsel regarding the consequences of being named or not being named as a selling securityholder in the Shelf Registration Statement and related prospectus.

 



 

ELECTION

 

The undersigned holder (the “ Selling Securityholder ”) of Registrable Securities hereby elects to include in the Shelf Registration Statement the Registrable Securities beneficially owned by it and listed below in Item (3). The Selling Securityholder, by signing and returning this Notice and Questionnaire, agrees to be bound with respect to such Registrable Securities by the terms and conditions of this Notice and Questionnaire and the Exchange and Registration Rights Agreement, including, without limitation, Sections 3(e) and 5 of the Exchange and Registration Rights Agreement, as if the Selling Securityholder were an original party thereto.

 

Upon any sale of Registrable Securities pursuant to the Shelf Registration Statement, the Selling Securityholder will be required to deliver to the Company and Trustee the Notice of Transfer set forth in the prospectus and as Exhibit B to the Exchange and Registration Rights Agreement.

 

The Selling Securityholder hereby provides the following information to the Company and represents and warrants that such information is accurate and complete:

 

QUESTIONNAIRE

 

1.                                        Names:

 

(a)                                   Full Legal Name of Selling Securityholder

 

(b)                                  Full Legal Name of Registered Holder (if not the same as in (a) above) of Registrable Securities Listed in Item (3) below:

 

(c)                                   Full Legal Name of DTC Participant (if applicable and if not the same as (b) above) Through Which Registrable Securities Listed in Item (3) below are Held:

 

2.                                        Address for Notices to Selling Securityholder:

 

 

 

 

Telephone:

 

Fax:

 

Contact
Person:

 

3.                                        Beneficial Ownership of Securities:

 

Except as set forth below in this Item (3), the undersigned does not beneficially own any Securities.

 

(a)                                   Principal amount of Registrable Securities beneficially owned:
CUSIP No(s). of such Registrable Securities:

 

(b)                                  Principal amount of Securities other than Registrable Securities beneficially owned:
CUSIP No(s). of such other Securities:

 



 

(c)                                   Principal amount of Registrable Securities which the undersigned wishes to be included in the Shelf Registration Statement:
CUSIP No(s). of such Registrable Securities to be included in the Shelf Registration Statement:

 

4.                                        Beneficial Ownership of Other Securities of the Company:

 

Except as set forth below in this Item (4), the undersigned Selling Securityholder is not the beneficial or registered owner of any other securities of the Company, other than the Securities listed above in Item (3).

 

State any exceptions here:

 

5.                                        Relationships with the Company:

 

Except as set forth below, neither the Selling Securityholder nor any of its affiliates, officers, directors or principal equity holders (5% or more) has held any position or office or has had any other material relationship with the Company (or its predecessors or affiliates) during the past three years.

 

State any exceptions here:

 

6.                                        Plan of Distribution:

 

Except as set forth below, the undersigned Selling Securityholder intends to distribute the Registrable Securities listed above in Item (3) only as follows (if at all):  such Registrable Securities may be sold from time to time directly by the undersigned Selling Securityholder or, alternatively, through underwriters, broker-dealers or agents. Such Registrable Securities may be sold in one or more transactions at fixed prices, at prevailing market prices at the time of sale, at varying prices determined at the time of sale, or at negotiated prices. Such sales may be effected in transactions (which may involve crosses or block transactions) (i) on any national securities exchange or quotation service on which the Registered Securities may be listed or quoted at the time of sale, (ii) in the over-the-counter market, (iii) in transactions otherwise than on such exchanges or services or in the over-the-counter market, or (iv) through the writing of options. In connection with sales of the Registrable Securities or otherwise, the Selling Securityholder may enter into hedging transactions with broker-dealers, which may in turn engage in short sales of the Registrable Securities in the course of hedging the positions they assume. The Selling Securityholder may also sell Registrable Securities short and deliver Registrable Securities to close out such short positions, or loan or pledge Registrable Securities to broker-dealers that in turn may sell such securities.

 

State any exceptions here:

 

By signing below, the Selling Securityholder acknowledges that it understands its obligation to comply, and agrees that it will comply, with the provisions of the Exchange Act and the rules and regulations thereunder, particularly Regulation M.

 

In the event that the Selling Securityholder transfers all or any portion of the Registrable Securities listed in Item (3) above after the date on which such information is provided to the Company, the Selling Securityholder agrees to notify the transferee(s) at the time of the transfer of its rights and obligations under this Notice and Questionnaire and the Exchange and Registration Rights Agreement.

 

By signing below, the Selling Securityholder consents to the disclosure of the information contained herein in its answers to Items (1) through (6) above and the inclusion of such information in the Shelf Registration Statement and related prospectus. The Selling Securityholder understands that such information will be relied upon by the Company in connection with the preparation of the Shelf Registration Statement and related prospectus.

 

In accordance with the Selling Securityholder’s obligation under Section 3(d) of the Exchange and Registration Rights Agreement to provide such information as may be required by law for inclusion in the Shelf Registration Statement, the Selling Securityholder agrees to promptly notify the Company of any inaccuracies or changes in the information provided herein which may occur subsequent to the date hereof at any time while the Shelf Registration Statement remains in effect.

 



 

All notices hereunder and pursuant to the Exchange and Registration Rights Agreement shall be made in writing, by hand delivery, first-class mail, or air courier guaranteeing overnight delivery as follows:

 

(i)                                      To the Company:

 

The Hertz Corporation
225 Brae Boulevard
Park Ridge, New Jersey 07656-0713
Attention: Assistant General Counsel and Assistant Secretary

 

(ii)                                   With a copy to:

 

Thomas Monson and Donald Batterson

Jenner & Block LLP

353 N. Clark Street

Chicago, IL 60654

 

Once this Notice and Questionnaire is executed by the Selling Securityholder and received by the Company’s counsel, the terms of this Notice and Questionnaire, and the representations and warranties contained herein, shall be binding on, shall inure to the benefit of and shall be enforceable by the respective successors, heirs, personal representatives, and assigns of the Company and the Selling Securityholder (with respect to the Registrable Securities beneficially owned by such Selling Securityholder and listed in Item (3) above). This agreement shall be governed in all respects by the laws of the State of New York.

 

IN WITNESS WHEREOF, the undersigned, by authority duly given, has caused this Notice and Questionnaire to be executed and delivered either in person or by its duly authorized agent.

 

Dated:

 

 

 

 

 

 

Selling Securityholder

 

(Print/type full legal name of beneficial owner of Registrable Securities)

 

 

 

By:

 

 

 

Name:

 

 

Title:

 



 

PLEASE RETURN THE COMPLETED AND EXECUTED NOTICE AND QUESTIONNAIRE FOR RECEIPT ON OR BEFORE [DEADLINE FOR RESPONSE] TO THE COMPANY’S COUNSEL AT:

 

Thomas Monson and Donald Batterson

Jenner & Block LLP

353 N. Clark Street

Chicago, IL 60654

 



 

Exhibit B

 

NOTICE OF TRANSFER PURSUANT TO REGISTRATION STATEMENT

 

Wells Fargo Bank, National Association
The Hertz Corporation
c/o Wells Fargo Bank, National Association
45 Broadway, 14th floor
New York, NY 10006

 

Attention:  Corporate Trust Services

 

Re:                                The Hertz Corporation (the “ Company ”)
7.375% Senior Notes due 2021 (the “ Notes ”)

 

Dear Sirs:

 

Please be advised that                    has transferred $             aggregate principal amount of the above-referenced Notes pursuant to an effective Registration Statement on Form [             ] (File No. 333-[         ]) filed by the Company.

 

We hereby certify that the prospectus delivery requirements, if any, of the Securities Act of 1933, as amended, have been satisfied and that the above-named beneficial owner of the Notes is named as a “Selling Securityholder” in the prospectus dated              or in supplements thereto, and that the aggregate principal amount of the Notes transferred is listed in such prospectus opposite such owner’s name.

 

Dated:

 

 

 

 

Very truly yours,

 

 

 

 

 

(Name)

 

 

 

 

 

By:

 

 

 

(Authorized Signature)

 




Exhibit 4.4.1

 

EXECUTION VERSION

 

THE HERTZ CORPORATION

as Issuer

 

and

 

the Subsidiary Guarantors from time to time parties hereto

 

and

 

WELLS FARGO BANK, NATIONAL ASSOCIATION
as Trustee

 


 

INDENTURE

 

DATED AS OF FEBRUARY 8, 2011

 


 

6.75% SENIOR NOTES DUE 2019

 



 

TABLE OF CONTENTS

 

 

 

Page

 

 

 

ARTICLE I

 

DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION

 

Section 101.

Definitions

1

Section 102.

Other Definitions

46

Section 103.

Rules of Construction

47

Section 104.

Incorporation by Reference of TIA

48

Section 105.

Conflict with TIA

49

Section 106.

Compliance Certificates and Opinions

49

Section 107.

Form of Documents Delivered to Trustee

49

Section 108.

Acts of Noteholders; Record Dates

50

Section 109.

Notices, etc., to Trustee and Company

53

Section 110.

Notices to Holders; Waiver

53

Section 111.

Effect of Headings and Table of Contents

54

Section 112.

Successors and Assigns

54

Section 113.

Separability Clause

54

Section 114.

Benefits of Indenture

54

Section 115.

Governing Law; Waiver of Jury Trial

54

Section 116.

Legal Holidays

54

Section 117.

No Personal Liability of Directors, Officers, Employees, Incorporators and Stockholders

54

Section 118.

Exhibits and Schedules

55

Section 119.

Counterparts

55

Section 120.

U.S.A. Patriot Act

55

 

 

 

ARTICLE II

 

NOTE FORMS

 

Section 201.

Forms Generally

55

Section 202.

Form of Trustee’s Certificate of Authentication

57

Section 203.

Restrictive and Global Note Legends

58

 

 

 

ARTICLE III

 

THE NOTES

 

Section 301.

Title and Terms

60

Section 302.

Denominations

61

Section 303.

Execution, Authentication and Delivery and Dating

61

 

i



 

Table of Contents

(continued)

 

 

 

Page

 

 

 

Section 304.

Temporary Notes

62

Section 305.

Registrar and Paying Agent

62

Section 306.

Mutilated, Destroyed, Lost and Stolen Notes

63

Section 307.

Payment of Interest Rights Preserved

64

Section 308.

Persons Deemed Owners

65

Section 309.

Cancellation

65

Section 310.

Computation of Interest

65

Section 311.

CUSIP Numbers, ISINs, Etc.

66

Section 312.

Book-Entry Provisions for Global Notes

66

Section 313.

Special Transfer Provisions

68

Section 314.

Payment of Additional Interest

71

 

 

 

ARTICLE IV

 

COVENANTS

 

 

 

Section 401.

Payment of Principal, Premium and Interest

71

Section 402.

Maintenance of Office or Agency

71

Section 403.

Money for Payments to Be Held in Trust

72

Section 404.

[Reserved.]

73

Section 405.

SEC Reports

73

Section 406.

Statement as to Default

74

Section 407.

Limitation on Indebtedness

74

Section 408.

[Reserved]

78

Section 409.

Limitation on Restricted Payments

78

Section 410.

Limitation on Restrictions on Distributions from Restricted Subsidiaries

82

Section 411.

Limitation on Sales of Assets and Subsidiary Stock

84

Section 412.

Limitation on Transactions with Affiliates

87

Section 413.

Limitation on Liens

89

Section 414.

Future Subsidiary Guarantors

89

Section 415.

Purchase of Notes Upon a Change of Control

89

Section 416.

Termination of Covenants on Achievement of Investment Grade Rating

91

 

 

 

ARTICLE V

 

SUCCESSORS

 

 

 

Section 501.

When the Company May Merge, etc.

91

Section 502.

Successor Company Substituted

93

 

 

 

ARTICLE VI

 

REMEDIES

 

 

 

Section 601.

Events of Default

93

 

ii



 

Table of Contents

(continued)

 

 

 

Page

 

 

 

Section 602.

Acceleration of Maturity; Rescission and Annulment

95

Section 603.

Other Remedies; Collection Suit by Trustee

96

Section 604.

Trustee May File Proofs of Claim

96

Section 605.

Trustee May Enforce Claims Without Possession of Notes

96

Section 606.

Application of Money Collected

97

Section 607.

Limitation on Suits

97

Section 608.

Unconditional Right of Holders to Receive Principal and Interest

97

Section 609.

Restoration of Rights and Remedies

98

Section 610.

Rights and Remedies Cumulative

98

Section 611.

Delay or Omission Not Waiver

98

Section 612.

Control by Holders

98

Section 613.

Waiver of Past Defaults

99

Section 614.

Undertaking for Costs

99

Section 615.

Waiver of Stay, Extension or Usury Laws

99

 

 

 

ARTICLE VII

 

THE TRUSTEE

 

 

 

Section 701.

Certain Duties and Responsibilities

100

Section 702.

Notice of Defaults

101

Section 703.

Certain Rights of Trustee

101

Section 704.

Not Responsible for Recitals or Issuance of Notes

102

Section 705.

May Hold Notes

102

Section 706.

Money Held in Trust

102

Section 707.

Compensation and Reimbursement

103

Section 708.

Conflicting Interests

103

Section 709.

Corporate Trustee Required; Eligibility

103

Section 710.

Resignation and Removal; Appointment of Successor

104

Section 711.

Acceptance of Appointment by Successor

105

Section 712.

Merger, Conversion, Consolidation or Succession to Business

105

Section 713.

Preferential Collection of Claims Against the Company

105

Section 714.

Appointment of Authenticating Agent

106

 

 

 

ARTICLE VIII

 

HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND THE COMPANY

 

Section 801.

The Company to Furnish Trustee Names and Addresses of Holders

106

Section 802.

Preservation of Information; Communications to Holders

106

Section 803.

Reports by Trustee

107

 

iii



 

Table of Contents

(continued)

 

 

 

Page

 

 

 

ARTICLE IX

 

AMENDMENT, SUPPLEMENT OR WAIVER

 

 

 

Section 901.

Without Consent of Holders

107

Section 902.

With Consent of Holders

108

Section 903.

Execution of Amendments, Supplements or Waivers

109

Section 904.

Revocation and Effect of Consents

109

Section 905.

Conformity with TIA

110

Section 906.

Notation on or Exchange of Notes

110

 

 

 

ARTICLE X

 

REDEMPTION OF NOTES

 

 

 

Section 1001.

Right of Redemption

110

Section 1002.

Applicability of Article

112

Section 1003.

Election to Redeem; Notice to Trustee

112

Section 1004.

Selection by Trustee of Notes to Be Redeemed

112

Section 1005.

Notice of Redemption

112

Section 1006.

Deposit of Redemption Price

113

Section 1007.

Notes Payable on Redemption Date

114

Section 1008.

Notes Redeemed in Part

114

 

 

 

ARTICLE XI

 

SATISFACTION AND DISCHARGE

 

 

 

Section 1101.

Satisfaction and Discharge of Indenture

114

Section 1102.

Application of Trust Money

116

 

 

 

ARTICLE XII

 

DEFEASANCE OR COVENANT DEFEASANCE

 

 

 

Section 1201.

The Company’s Option to Effect Defeasance or Covenant Defeasance

116

Section 1202.

Defeasance and Discharge

116

Section 1203.

Covenant Defeasance

117

Section 1204.

Conditions to Defeasance or Covenant Defeasance

117

Section 1205.

Deposited Money and U.S. Government Obligations to Be Held in Trust; Other Miscellaneous Provisions

118

Section 1206.

Reinstatement

119

Section 1207.

Repayment to the Company

119

 

iv



 

Table of Contents

(continued)

 

 

 

Page

 

 

 

ARTICLE XIII

 

SUBSIDIARY GUARANTEES

 

 

 

Section 1301.

Guarantees Generally

120

Section 1302.

Continuing Guarantees

122

Section 1303.

Release of Subsidiary Guarantees

122

Section 1304.

[Reserved]

123

Section 1305.

Waiver of Subrogation

123

Section 1306.

Notation Not Required

123

Section 1307.

Successors and Assigns of Subsidiary Guarantors

123

Section 1308.

Execution and Delivery of Subsidiary Guarantees

123

Section 1309.

Notices

124

 

Exhibit A

Form of Initial Note

Exhibit B

Form of Exchange Note

Exhibit C

Form of Certificate of Beneficial Ownership

Exhibit D

Form of Regulation S Certificate

Exhibit E

Form of Supplemental Indenture in Respect of Subsidiary Guarantee

Exhibit F

Form of Certificate from Acquiring Institutional Accredited Investors

 

v



 

Certain Sections of this Indenture relating to Sections 310 through 318

inclusive of the Trust Indenture Act of 1939:

 

Trust Indenture Act Section

 

Indenture Section

 

 

 

 

§ 310

(a)(1)

 

709

 

(a)(2)

 

709

 

(a)(3)

 

Not Applicable

 

(a)(4)

 

Not Applicable

 

(a)(5)

 

709

 

(b)

 

708

§ 311

(a)

 

713

 

(b)

 

713

§ 312

(a)

 

801

 

 

 

802

 

(b)

 

802

 

(c)

 

802

§ 313

(a)

 

803

 

(b)

 

803

 

(c)

 

803

 

(d)

 

803

§ 314

(a)

 

405

 

(a)(4)

 

406

 

(b)

 

Not Applicable

 

(c)(1)

 

106

 

(c)(2)

 

106

 

(c)(3)

 

Not Applicable

 

(d)

 

Not Applicable

 

(e)

 

106

§ 315

(a)

 

701

 

(b)

 

702

 

 

 

803

 

(c)

 

701

 

(d)

 

701

 

(e)

 

614

 

vii



 

Trust Indenture Act Section

 

Indenture Section

 

 

 

 

§ 316

(a)

 

612

 

 

 

613

 

(a)(1)(A)

 

602

 

 

 

612

 

(a)(1)(B)

 

613

 

(a)(2)

 

Not Applicable

 

(b)

 

608

 

(c)

 

108

§ 317

(a)(1)

 

603

 

(a)(2)

 

604

 

(b)

 

403

§ 318

(a)

 

105

 


This cross-reference table shall not for any purpose be deemed to be part of this Indenture.

 

viii



 

INDENTURE, dated as of February 8, 2011 (as amended, supplemented or otherwise modified from time to time, this “ Indenture ”), among The Hertz Corporation, a corporation organized under the laws of the state of Delaware, as issuer, the Subsidiary Guarantors from time to time parties hereto and Wells Fargo Bank, National Association, a national banking association, as Trustee.

 

RECITALS OF THE COMPANY

 

The Company has duly authorized the execution and delivery of this Indenture to provide for the issuance of the Notes.

 

All things necessary to make the Original Notes, when executed and delivered by the Company and authenticated and delivered by the Trustee hereunder and duly issued by the Company, the valid several obligations of the Company, and to make this Indenture a valid agreement of the Company in accordance with the terms of the Original Notes and this Indenture, have been done.

 

NOW, THEREFORE, THIS INDENTURE WITNESSETH:

 

For and in consideration of the premises and the purchase of the Notes by the Holders thereof, it is mutually agreed, for the benefit of all Holders of the Notes, as follows:

 

ARTICLE I

 

DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION

 

Section 101.           Definitions .

 

2005 Senior Indenture ” means the indenture, dated as of December 21, 2005, among the Company (as successor to CCMG Acquisition Corporation), the subsidiary guarantors party thereto and Wells Fargo Bank, National Association, as Trustee, governing the U.S. Dollar 8.875% Senior Notes due 2014 and the Euro 7.875% Senior Notes due 2014 of the Company, as the same may be amended, supplemented, waived or otherwise modified from time to time.

 

Acquired Indebtedness ” means Indebtedness of a Person ( i ) existing at the time such Person becomes a Subsidiary or ( ii ) assumed in connection with the acquisition of assets from such Person, in each case other than Indebtedness Incurred in connection with, or in contemplation of, such Person becoming a Subsidiary or such acquisition. Acquired Indebtedness shall be deemed to be Incurred on the date of the related acquisition of assets from any Person or the date the acquired Person becomes a Subsidiary.

 



 

Additional Assets ” means ( i ) any property or assets that replace the property or assets that are the subject of an Asset Disposition; ( ii ) any property or assets (other than Indebtedness and Capital Stock) used or to be used by the Company or a Restricted Subsidiary or otherwise useful in a Related Business (including any capital expenditures on any property or assets already so used); ( iii ) the Capital Stock of a Person that is engaged in a Related Business and becomes a Restricted Subsidiary as a result of the acquisition of such Capital Stock by the Company or another Restricted Subsidiary; or ( iv ) Capital Stock of any Person that at such time is a Restricted Subsidiary acquired from a third party.

 

Additional Notes ” means any notes issued under this Indenture in addition to the Original Notes (other than any Notes issued pursuant to Section 304 , 305 , 306 , 312(c ), 312(d)  or 1008 ).

 

Affiliate ” of any specified Person means any other Person, directly or indirectly, controlling or controlled by or under direct or indirect common control with such specified Person. For the purposes of this definition, “control” when used with respect to any Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled” have meanings correlative to the foregoing.

 

Asset Disposition ” means any sale, lease, transfer or other disposition of shares of Capital Stock of a Restricted Subsidiary (other than directors’ qualifying shares, or (in the case of a Foreign Subsidiary) to the extent required by applicable law), property or other assets (each referred to for the purposes of this definition as a “disposition”) by the Company or any of its Restricted Subsidiaries (including any disposition by means of a merger, consolidation or similar transaction), other than ( i ) a disposition to the Company or a Restricted Subsidiary, ( ii ) a disposition in the ordinary course of business, ( iii ) a disposition of Cash Equivalents or Temporary Cash Investments, ( iv ) the sale or discount (with or without recourse, and on customary or commercially reasonable terms) of accounts receivable or notes receivable arising in the ordinary course of business, or the conversion or exchange of accounts receivable for notes receivable, ( v ) any Restricted Payment Transaction, ( vi ) a disposition that is governed by Article V, ( vii ) any Financing Disposition, ( viii ) any “fee in lieu” or other disposition of assets to any governmental authority or agency that continue in use by the Company or any Restricted Subsidiary, so long as the Company or any Restricted Subsidiary may obtain title to such assets upon reasonable notice by paying a nominal fee, ( ix ) any exchange of property pursuant to or intended to qualify under Section 1031 (or any successor section) of the Code, or any exchange of equipment to be leased, rented or otherwise used in a Related Business, ( x ) any financing transaction with respect to property built or acquired by the Company or any Restricted Subsidiary after the Issue Date, including without limitation any sale/leaseback transaction or asset securitization, ( xi ) any disposition arising from foreclosure, condemnation or similar action with respect to any property or other assets, or exercise of termination rights under any lease, license, concession or other agreement or pursuant to buy/sell arrangements under any joint venture or similar agreement or arrangement, ( xii ) any disposition of Capital Stock, Indebtedness or other securities of an Unrestricted Subsidiary, ( xiii ) a disposition of Capital Stock of a

 

2


 

Restricted Subsidiary pursuant to an agreement or other obligation with or to a Person (other than the Company or a Restricted Subsidiary) from whom such Restricted Subsidiary was acquired, or from whom such Restricted Subsidiary acquired its business and assets (having been newly formed in connection with such acquisition), entered into in connection with such acquisition, ( xiv ) a disposition of not more than 5% of the outstanding Capital Stock of a Foreign Subsidiary that has been approved by the Board of Directors, ( xv ) any disposition or series of related dispositions for aggregate consideration not to exceed $50.0 million, ( xvi ) any disposition of all or any part of the Capital Stock or business or assets of ( a ) Car Rental System do Brasil Locação de Veículos Ltda or any successor in interest thereto or ( b ) any other Subsidiary engaged in, or Special Purpose Entity otherwise supporting or relating to, the business of leasing or renting Vehicles in Brazil, ( xvii ) the abandonment or other disposition of trademarks, copyrights, patents or other intellectual property that are, in the good faith determination of the Company, no longer economically practicable to maintain or useful in the conduct of the business of the Company and its subsidiaries taken as a whole, ( xviii ) any HERC Disposition or ( xix ) any license, sublicense or other grant of right-of-use of any trademark, copyright, patent or other intellectual property, any lease or sublease of real or other property, or any disposition for Fair Market Value, to any Franchisee or any Franchise Special Purpose Entity.

 

Authenticating Agent ” means any Person authorized by the Trustee pursuant to Section 714 to act on behalf of the Trustee to authenticate Notes of one or more series.

 

Average Book Value ” means, for any period, the amount equal to ( x ) the sum of the respective book values of Rental Car Vehicles of the Company and its Restricted Subsidiaries as of the end of each of the most recent thirteen fiscal months of the Company that have ended at or prior to the end of such period, divided by ( y ) 13.

 

Average Interest Rate ” means, for any period, the amount equal to ( x ) the total interest expense of the Company and its Restricted Subsidiaries for such period (excluding any interest expense on any Indebtedness of any Special Purpose Subsidiary that is a Restricted Subsidiary directly or indirectly Incurred to finance or refinance the acquisition of, or secured by, Rental Car Vehicles and/or related rights and/or assets), divided by ( y ) the Average Principal Amount of Indebtedness of the Company and its Restricted Subsidiaries for such period (excluding any Indebtedness of any Special Purpose Subsidiary that is a Restricted Subsidiary directly or indirectly Incurred to finance or refinance the acquisition of, or secured by, Rental Car Vehicles and/or related rights and/or assets).

 

Average Principal Amount ” means, for any period, the amount equal to ( x ) the sum of the respective aggregate outstanding principal amounts of the applicable Indebtedness as of the end of each of the most recent thirteen fiscal months of the Company that have ended at or prior to the end of such period, divided by ( y ) 13.

 

Board of Directors ” means, for any Person, the board of directors or other governing body of such Person or, if such Person is owned or managed by a single entity, the board of directors or other governing body of such entity, or, in either case, any committee

 

3



 

thereof duly authorized to act on behalf of such board or governing body. Unless otherwise provided, “Board of Directors” means the Board of Directors of the Company.

 

Borrowing Base ” means the sum of ( 1 ) 60% of the book value of Inventory (excluding Equipment) of the Company and its Domestic Subsidiaries, ( 2 ) 85% of the book value of Receivables of the Company and its Domestic Subsidiaries, ( 3 ) 90% of the book value of Equipment of the Company and its Domestic Subsidiaries and ( 4 ) cash, Cash Equivalents and Temporary Cash Investments of the Company and its Domestic Subsidiaries (in each case, determined as of the end of the most recently ended fiscal month of the Company for which internal consolidated financial statements of the Company are available, and, in the case of any determination relating to any Incurrence of Indebtedness, on a pro forma basis including ( x ) any property or assets of a type described above acquired since the end of such fiscal month and ( y ) any property or assets of a type described above being acquired in connection therewith). The Borrowing Base, as of any date of determination, shall not include Inventory and Equipment the acquisition of which shall have been financed or refinanced by the Incurrence of Purchase Money Obligations pursuant to Section 407(b)(iv) , to the extent such Purchase Money Obligations (or any Refinancing Indebtedness in respect thereof) shall then remain outstanding pursuant to such clause (on a pro forma basis after giving effect to any Incurrence of Indebtedness and the application of proceeds therefrom).

 

Business Day ” means a day other than a Saturday, Sunday or other day on which commercial banking institutions are authorized or required by law to close in New York City (or any other city in which a Paying Agent maintains its office).

 

Capital Stock ” of any Person means any and all shares of, rights to purchase, warrants or options for, or other equivalents of or interests in (however designated) equity of such Person, including any Preferred Stock, but excluding any debt securities convertible into such equity.

 

Capitalized Lease Obligation ” means an obligation that is required to be classified and accounted for as a capitalized lease for financial reporting purposes in accordance with GAAP. The Stated Maturity of any Capitalized Lease Obligation shall be the date of the last payment of rent or any other amount due under the related lease.

 

Carlyle ” means TC Group L.L.C. (which operates under the trade name The Carlyle Group).

 

Carlyle Investors ” means, collectively, ( i ) Carlyle Partners IV, L.P., a Delaware limited partnership, or any successor thereto, ( ii ) CEP II Participations S.àr.l., a Luxembourg limited liability company, or any successor thereto, ( iii ) CP IV Co-investment, L.P., a Delaware limited partnership, or any successor thereto, ( iv ) CEP II U.S. Investments, L.P., a Delaware limited partnership, or any successor thereto, ( v ) CMC-Hertz Partners, L.P., a Delaware limited partnership, or any successor thereto, ( vi ) any Affiliate of any thereof, and ( vii ) any successor in interest to any thereof.

 

4



 

Cash Equivalents ” means any of the following: (a )   money, ( b ) securities issued or fully guaranteed or insured by the United States of America or a member state of the European Union or any agency or instrumentality of any thereof, ( c ) time deposits, certificates of deposit or bankers’ acceptances of ( i ) any lender under a Senior Credit Agreement or any affiliate thereof or ( ii ) any commercial bank having capital and surplus in excess of $500,000,000 (or the foreign currency equivalent thereof as of the date of such investment) and the commercial paper of the holding company of which is rated at least A-1 or the equivalent thereof by S&P or at least P-1 or the equivalent thereof by Moody’s (or if at such time neither is issuing ratings, then a comparable rating of another nationally recognized rating agency), ( d ) repurchase obligations with a term of not more than seven days for underlying securities of the types described in clauses (b) and (c) above entered into with any financial institution meeting the qualifications specified in clause (c) above, ( e ) money market instruments, commercial paper or other short-term obligations rated at least A-1 or the equivalent thereof by S&P or at least P-1 or the equivalent thereof by Moody’s (or if at such time neither is issuing ratings, then a comparable rating of another nationally recognized rating agency), ( f ) investments in money market funds subject to the risk limiting conditions of Rule 2a-7 or any successor rule of the SEC under the Investment Company Act of 1940, as amended and ( g ) investments similar to any of the foregoing denominated in foreign currencies approved by the Board of Directors.

 

CDR ” means Clayton, Dubilier & Rice, LLC and any successor in interest thereto, and any successor to its investment management business.

 

CDR Investors ” means, collectively, ( i ) Clayton, Dubilier & Rice Fund VII, L.P., a Cayman Islands exempted limited partnership, or any successor thereto, ( ii ) CDR CCMG Co-Investor L.P., a Cayman Islands exempted limited partnership, or any successor thereto, ( iii ) CD&R Parallel Fund VII, L.P., a Cayman Islands exempted limited partnership, or any successor thereto, ( iv ) any Affiliate of any thereof, and ( v ) any successor in interest to any thereof.

 

Change of Control ” means:

 

(i)            any “person” (as such term is used in Sections 13(d) and 14(d) of the Exchange Act), other than one or more Permitted Holders or a Parent, becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act), directly or indirectly, of more than 50% of the total voting power of the Voting Stock of the Company, provided that ( x ) so long as the Company is a Subsidiary of any Parent, no “person” shall be deemed to be or become a “beneficial owner” of more than 50% of the total voting power of the Voting Stock of the Company unless such “person” shall be or become a “beneficial owner” of more than 50% of the total voting power of the Voting Stock of such Parent and ( y ) any Voting Stock of which any Permitted Holder is the “beneficial owner” shall not in any case be included in any Voting Stock of which any such “person” is the “beneficial owner”;

 

5



 

(ii)           the Company merges or consolidates with or into, or sells or transfers (in one or a series of related transactions) all or substantially all of the assets of the Company and its Restricted Subsidiaries to, another Person (other than one or more Permitted Holders) and any “person” (as defined in clause (i) above), other than one or more Permitted Holders or any Parent, is or becomes the “beneficial owner” (as so defined), directly or indirectly, of more than 50% of the total voting power of the Voting Stock of the surviving Person in such merger or consolidation, or the transferee Person in such sale or transfer of assets, as the case may be, provided that ( x ) so long as such surviving or transferee Person is a Subsidiary of a parent Person, no “person” shall be deemed to be or become a “beneficial owner” of more than 50% of the total voting power of the Voting Stock of such surviving or transferee Person unless such “person” shall be or become a “beneficial owner” of more than 50% of the total voting power of the Voting Stock of such parent Person and ( y ) any Voting Stock of which any Permitted Holder is the “beneficial owner” shall not in any case be included in any Voting Stock of which any such “person” is the beneficial owner; or

 

(iii)          during any period of two consecutive years (during which period the Company has been a party to this Indenture), individuals who at the beginning of such period were members of the board of directors of the Company (together with any new members thereof whose election by such board of directors or whose nomination for election by holders of Capital Stock of the Company was approved by one or more Permitted Holders or by a vote of a majority of the members of such board of directors then still in office who were either members thereof at the beginning of such period or whose election or nomination for election was previously so approved) cease for any reason to constitute a majority of such board of directors then in office.

 

For the purpose of this definition, the Reorganization Assets (whether individually or in the aggregate) shall not be deemed at any time to constitute all or substantially all of the assets of the Company and its Restricted Subsidiaries, and any sale or transfer of all or any part of the Reorganization Assets (whether directly or indirectly, whether by sale or transfer of any such assets, or of any Capital Stock or other interest in any Person holding such assets, or of any combination thereof, and whether in one or more transactions, or otherwise) shall not be deemed at any time to constitute a sale or transfer of all or substantially all of the assets of the Company and its Restricted Subsidiaries.

 

Clearstream ” means Clearstream Banking, société anonyme, or any successor securities clearing agency.

 

Code ” means the Internal Revenue Code of 1986, as amended.

 

Commodities Agreement ” means, in respect of a Person, any commodity futures contract, forward contract, option or similar agreement or arrangement (including derivative agreements or arrangements), as to which such Person is a party or beneficiary.

 

6



 

Company ” means The Hertz Corporation, a Delaware corporation, and any successor in interest thereto.

 

Company Request ,” “ Company Order ” and “ Company Consent ” mean, respectively, a written request, order or consent signed in the name of the Company by an Officer of the Company.

 

Consolidated Coverage Ratio ” as of any date of determination means the ratio of ( i ) the aggregate amount of Consolidated EBITDA for the period of the most recent four consecutive fiscal quarters ending prior to the date of such determination for which consolidated financial statements of the Company are available to ( ii ) Consolidated Interest Expense for such four fiscal quarters; provided , that

 

(1)           if since the beginning of such period the Company or any Restricted Subsidiary has Incurred any Indebtedness that remains outstanding on such date of determination or if the transaction giving rise to the need to calculate the Consolidated Coverage Ratio is an Incurrence of Indebtedness, Consolidated EBITDA and Consolidated Interest Expense for such period shall be calculated after giving effect on a pro forma basis to such Indebtedness as if such Indebtedness had been Incurred on the first day of such period (except that in making such computation, the amount of Indebtedness under any revolving credit facility outstanding on the date of such calculation shall be computed based on (A)  the average daily balance of such Indebtedness during such four fiscal quarters or such shorter period for which such facility was outstanding or (B)  if such facility was created after the end of such four fiscal quarters, the average daily balance of such Indebtedness during the period from the date of creation of such facility to the date of such calculation),

 

(2)           if since the beginning of such period the Company or any Restricted Subsidiary has repaid, repurchased, redeemed, defeased or otherwise acquired, retired or discharged any Indebtedness that is no longer outstanding on such date of determination (each, a “ Discharge ”) or if the transaction giving rise to the need to calculate the Consolidated Coverage Ratio involves a Discharge of Indebtedness (in each case other than Indebtedness Incurred under any revolving credit facility unless such Indebtedness has been permanently repaid), Consolidated EBITDA and Consolidated Interest Expense for such period shall be calculated after giving effect on a pro forma basis to such Discharge of such Indebtedness, including with the proceeds of such new Indebtedness, as if such Discharge had occurred on the first day of such period,

 

(3)           if since the beginning of such period the Company or any Restricted Subsidiary shall have disposed of any company, any business or any group of assets constituting an operating unit of a business (any such disposition, a “ Sale ”), the Consolidated EBITDA for such period shall be reduced by an amount equal to the Consolidated EBITDA (if positive) attributable to the assets that are the subject of such Sale for such period or increased by an amount equal to the Consolidated EBITDA (if negative) attributable thereto for such period and Consolidated Interest Expense for such

 

7



 

period shall be reduced by an amount equal to ( A ) the Consolidated Interest Expense attributable to any Indebtedness of the Company or any Restricted Subsidiary repaid, repurchased, redeemed, defeased or otherwise acquired, retired or discharged with respect to the Company and its continuing Restricted Subsidiaries in connection with such Sale for such period (including but not limited to through the assumption of such Indebtedness by another Person) plus ( B ) if the Capital Stock of any Restricted Subsidiary is sold, the Consolidated Interest Expense for such period attributable to the Indebtedness of such Restricted Subsidiary to the extent the Company and its continuing Restricted Subsidiaries are no longer liable for such Indebtedness after such Sale,

 

(4)           if since the beginning of such period the Company or any Restricted Subsidiary (by merger, consolidation or otherwise) shall have made an Investment in any Person that thereby becomes a Restricted Subsidiary, or otherwise acquired any company, any business or any group of assets constituting an operating unit of a business, including any such Investment or acquisition occurring in connection with a transaction causing a calculation to be made hereunder (any such Investment or acquisition, a “ Purchase ”), Consolidated EBITDA and Consolidated Interest Expense for such period shall be calculated after giving pro forma effect thereto (including the Incurrence of any related Indebtedness) as if such Purchase occurred on the first day of such period, and

 

(5)           if since the beginning of such period any Person became a Restricted Subsidiary or was merged or consolidated with or into the Company or any Restricted Subsidiary, and since the beginning of such period such Person shall have Discharged any Indebtedness or made any Sale or Purchase that would have required an adjustment pursuant to clause (2), (3) or (4) above if made by the Company or a Restricted Subsidiary since the beginning of such period, Consolidated EBITDA and Consolidated Interest Expense for such period shall be calculated after giving pro forma effect thereto as if such Discharge, Sale or Purchase occurred on the first day of such period.

 

For purposes of this definition, whenever pro forma effect is to be given to any Sale, Purchase or other transaction, or the amount of income or earnings relating thereto and the amount of Consolidated Interest Expense associated with any Indebtedness Incurred or repaid, repurchased, redeemed, defeased or otherwise acquired, retired or discharged in connection therewith, the pro forma calculations in respect thereof (including without limitation in respect of anticipated cost savings or synergies relating to any such Sale, Purchase or other transaction) shall be as determined in good faith by the Chief Financial Officer or an authorized Officer of the Company. If any Indebtedness bears a floating rate of interest and is being given pro forma effect, the interest expense on such Indebtedness shall be calculated as if the rate in effect on the date of determination had been the applicable rate for the entire period (taking into account any Interest Rate Agreement applicable to such Indebtedness). If any Indebtedness bears, at the option of the Company or a Restricted Subsidiary, a rate of interest based on a prime or similar rate, a eurocurrency interbank offered rate or other fixed or floating rate, and such Indebtedness is being given pro forma effect, the interest expense on such Indebtedness shall be calculated by applying such optional rate as the Company or such Restricted Subsidiary may designate. If any

 

8



 

Indebtedness that is being given pro forma effect was Incurred under a revolving credit facility, the interest expense on such Indebtedness shall be computed based upon the average daily balance of such Indebtedness during the applicable period. Interest on a Capitalized Lease Obligation shall be deemed to accrue at an interest rate determined in good faith by a responsible financial or accounting officer of the Company to be the rate of interest implicit in such Capitalized Lease Obligation in accordance with GAAP.

 

Consolidated EBITDA ” means, for any period, the Consolidated Net Income for such period, plus the following to the extent deducted in calculating such Consolidated Net Income, without duplication: ( i ) provision for all taxes (whether or not paid, estimated or accrued) based on income, profits or capital, ( ii ) Consolidated Interest Expense and any Special Purpose Financing Fees, ( iii ) depreciation (excluding Consolidated Vehicle Depreciation), amortization (including but not limited to amortization of goodwill and intangibles and amortization and write-off of financing costs) and all other noncash charges or noncash losses, ( iv ) any expenses or charges related to any Equity Offering, Investment or Indebtedness permitted by this Indenture (whether or not consummated or incurred, and including any offering or sale of Capital Stock to the extent the proceeds thereof were intended to be contributed to the equity capital of the Company or its Restricted Subsidiaries), ( v ) the amount of any minority interest expense and ( vi ) any management, monitoring, consulting and advisory fees and related expenses paid to any of Carlyle, CDR or ML and their respective Affiliates.

 

Consolidated Interest Expense ” means, for any period, ( i ) the total interest expense of the Company and its Restricted Subsidiaries to the extent deducted in calculating Consolidated Net Income, net of any interest income of the Company and its Restricted Subsidiaries, including without limitation any such interest expense consisting of ( a ) interest expense attributable to Capitalized Lease Obligations, ( b ) amortization of debt discount, ( c ) interest in respect of Indebtedness of any other Person that has been Guaranteed by the Company or any Restricted Subsidiary, but only to the extent that such interest is actually paid by the Company or any Restricted Subsidiary, ( d ) noncash interest expense, ( e ) the interest portion of any deferred payment obligation and ( f ) commissions, discounts and other fees and charges owed with respect to letters of credit and bankers’ acceptance financing, plus ( ii ) Preferred Stock dividends paid in cash in respect of Disqualified Stock of the Company held by Persons other than the Company or a Restricted Subsidiary and minus ( iii ) to the extent otherwise included in such interest expense referred to in clause (i) above, ( x ) Consolidated Vehicle Interest Expense and ( y ) amortization or write-off of financing costs, in each case under clauses (i) through (iii) as determined on a Consolidated basis in accordance with GAAP (to the extent applicable, in the case of Consolidated Vehicle Interest Expense); provided , that gross interest expense shall be determined after giving effect to any net payments made or received by the Company and its Restricted Subsidiaries with respect to Interest Rate Agreements.

 

Consolidated Net Income ” means, for any period, the net income (loss) of the Company and its Restricted Subsidiaries, determined on a Consolidated basis in accordance with GAAP and before any reduction in respect of Preferred Stock dividends; provided , that there shall not be included in such Consolidated Net Income:

 

9



 

(i)            any net income (loss) of any Person if such Person is not a Restricted Subsidiary, except that ( A ) the Company’s equity in the net income of any such Person for such period shall be included in such Consolidated Net Income up to the aggregate amount actually distributed by such Person during such period to the Company or a Restricted Subsidiary as a dividend or other distribution (subject, in the case of a dividend or other distribution to a Restricted Subsidiary, to the limitations contained in clause (ii) below) and ( B ) the Company’s equity in the net loss of such Person shall be included to the extent of the aggregate Investment of the Company or any of its Restricted Subsidiaries in such Person,

 

(ii)           solely for purposes of determining the amount available for Restricted Payments under Section 409 (a)(3)(A) , any net income (loss) of any Restricted Subsidiary that is not a Subsidiary Guarantor if such Restricted Subsidiary is subject to restrictions, directly or indirectly, on the payment of dividends or the making of similar distributions by such Restricted Subsidiary, directly or indirectly, to the Company by operation of the terms of such Restricted Subsidiary’s charter or any agreement, instrument, judgment, decree, order, statute or governmental rule or regulation applicable to such Restricted Subsidiary or its stockholders (other than ( x ) restrictions that have been waived or otherwise released, ( y ) restrictions pursuant to the Notes or this Indenture and ( z ) restrictions in effect on the Issue Date with respect to a Restricted Subsidiary and other restrictions with respect to such Restricted Subsidiary that taken as a whole are not materially less favorable to the Noteholders than such restrictions in effect on the Issue Date), except that ( A ) the Company’s equity in the net income of any such Restricted Subsidiary for such period shall be included in such Consolidated Net Income up to the aggregate amount of any dividend or distribution that was or that could have been made by such Restricted Subsidiary during such period to the Company or another Restricted Subsidiary (subject, in the case of a dividend that could have been made to another Restricted Subsidiary, to the limitation contained in this clause) and ( B ) the net loss of such Restricted Subsidiary shall be included to the extent of the aggregate Investment of the Company or any of its other Restricted Subsidiaries in such Restricted Subsidiary,

 

(iii)          any gain or loss realized upon the sale or other disposition of any asset of the Company or any Restricted Subsidiary (including pursuant to any sale/leaseback transaction) that is not sold or otherwise disposed of in the ordinary course of business (as determined in good faith by the Board of Directors),

 

(iv)          any item classified as an extraordinary, unusual or nonrecurring gain, loss or charge (including fees, expenses and charges associated with the Transactions and any acquisition, merger or consolidation after the Issue Date),

 

(v)           the cumulative effect of a change in accounting principles,

 

(vi)          all deferred financing costs written off and premiums paid in connection with any early extinguishment of Indebtedness,

 

10



 

(vii)         any unrealized gains or losses in respect of Currency Agreements,

 

(viii)        any unrealized foreign currency transaction gains or losses in respect of Indebtedness of any Person denominated in a currency other than the functional currency of such Person,

 

(ix)           any noncash compensation charge arising from any grant of stock, stock options or other equity based awards,

 

(x)            to the extent otherwise included in Consolidated Net Income, any unrealized foreign currency translation or transaction gains or losses in respect of Indebtedness or other obligations of the Company or any Restricted Subsidiary owing to the Company or any Restricted Subsidiary, and

 

(xi)           any noncash charge, expense or other impact attributable to application of the purchase method of accounting (including the total amount of depreciation and amortization, cost of sales or other noncash expense resulting from the write-up of assets to the extent resulting from such purchase accounting adjustments).

 

In the case of any unusual or nonrecurring gain, loss or charge not included in Consolidated Net Income pursuant to clause (iv) above in any determination thereof, the Company will deliver an Officer’s Certificate to the Trustee promptly after the date on which Consolidated Net Income is so determined, setting forth the nature and amount of such unusual or nonrecurring gain, loss or charge. Notwithstanding the foregoing, for the purpose of Section 409 (a)(3)(A)  only, there shall be excluded from Consolidated Net Income, without duplication, any income consisting of dividends, repayments of loans or advances or other transfers of assets from Unrestricted Subsidiaries to the Company or a Restricted Subsidiary, and any income consisting of return of capital, repayment or other proceeds from dispositions or repayments of Investments consisting of Restricted Payments, in each case to the extent such income would be included in Consolidated Net Income and such related dividends, repayments, transfers, return of capital or other proceeds are applied by the Company to increase the amount of Restricted Payments permitted under Section 409 (a)(3)(C)  or( D ).

 

Consolidated Quarterly Tangible Assets ” means, as of any date of determination, the total assets less the sum of the goodwill, net, and other intangible assets, net, in each case reflected on the consolidated balance sheet of the Company and its Restricted Subsidiaries as at the end of any fiscal quarter of the Company for which such a balance sheet is available, determined on a Consolidated basis in accordance with GAAP (and, in the case of any determination relating to any Incurrence of Indebtedness or any Investment, on a pro forma basis including any property or assets being acquired in connection therewith).

 

Consolidated Secured Indebtedness ” means, as of any date of determination, an amount equal to the Consolidated Total Indebtedness as of such date that in each case is then secured by Liens on property or assets of the Company and its Restricted Subsidiaries (other than

 

11



 

property or assets held in a defeasance or similar trust or arrangement for the benefit of the Indebtedness secured thereby).

 

Consolidated Secured Leverage Ratio ” means, as of any date of determination, the ratio of ( x ) Consolidated Secured Indebtedness as at such date (after giving effect to any Incurrence or Discharge of Indebtedness on such date) to ( y ) the aggregate amount of Consolidated EBITDA for the period of the most recent four consecutive fiscal quarters ending prior to the date of such determination for which consolidated financial statements of the Company are available, provided , that:

 

(1)           if since the beginning of such period the Company or any Restricted Subsidiary shall have made a Sale, the Consolidated EBITDA for such period shall be reduced by an amount equal to the Consolidated EBITDA (if positive) attributable to the assets that are the subject of such Sale for such period or increased by an amount equal to the Consolidated EBITDA (if negative) attributable thereto for such period;

 

(2)           if since the beginning of such period the Company or any Restricted Subsidiary (by merger, consolidation or otherwise) shall have made a Purchase (including any Purchase occurring in connection with a transaction causing a calculation to be made hereunder), Consolidated EBITDA for such period shall be calculated after giving pro forma effect thereto as if such Purchase occurred on the first day of such period; and

 

(3)           if since the beginning of such period any Person became a Restricted Subsidiary or was merged or consolidated with or into the Company or any Restricted Subsidiary, and since the beginning of such period such Person shall have made any Sale or Purchase that would have required an adjustment pursuant to clause (1) or (2) above if made by the Company or a Restricted Subsidiary since the beginning of such period, Consolidated EBITDA for such period shall be calculated after giving pro forma effect thereto as if such Sale or Purchase occurred on the first day of such period.

 

For purposes of this definition, whenever pro forma effect is to be given to any Sale, Purchase or other transaction, or the amount of income or earnings relating thereto, the pro forma calculations in respect thereof (including without limitation in respect of anticipated cost savings or synergies relating to any such Sale, Purchase or other transaction) shall be as determined in good faith by a responsible financial or accounting Officer of the Company.

 

Consolidated Tangible Assets ” means, as of any date of determination, the amount equal to ( x ) the sum of Consolidated Quarterly Tangible Assets as at the end of each of the most recently ended four fiscal quarters of the Company for which a calculation thereof is available, divided by ( y ) four; provided that for purposes of Section 407 (b)  , Section 409(b) , Section 411 and the definition of “Permitted Investment,” Consolidated Tangible Assets shall not be less than $14,426.0 million.

 

Consolidated Total Indebtedness ” means, as of any date of determination, an amount equal to ( 1 ) the aggregate principal amount of outstanding Indebtedness of the Company

 

12


 

and its Restricted Subsidiaries (other than Notes) as of such date consisting of (without duplication) Indebtedness for borrowed money (including Purchase Money Obligations and unreimbursed outstanding drawn amounts under funded letters of credit); Capitalized Lease Obligations; debt obligations evidenced by bonds, debentures, notes or similar instruments; Disqualified Stock; and (in the case of any Restricted Subsidiary that is not a Subsidiary Guarantor) Preferred Stock, determined on a Consolidated basis in accordance with GAAP (excluding items eliminated in Consolidation, and for the avoidance of doubt, excluding Hedging Obligations), minus ( 2 ) the amount of such Indebtedness consisting of Indebtedness of a type referred to in, or Incurred pursuant to, Section 407 (b)(ix)  to the extent not Incurred to finance or refinance the acquisition of Rental Car Vehicles, and minus ( 3 ) the Consolidated Vehicle Indebtedness as of such date.

 

Consolidated Vehicle Depreciation ” means, for any period, depreciation on all Rental Car Vehicles (after adjustments thereto), to the extent deducted in calculating Consolidated Net Income for such period.

 

Consolidated Vehicle Indebtedness ” means, as of any date of determination, the amount equal to either ( a ) the sum of ( x ) the aggregate principal amount of then outstanding Indebtedness of any Special Purpose Subsidiary that is a Restricted Subsidiary directly or indirectly Incurred to finance or refinance the acquisition of, or secured by, Rental Car Vehicles and/or related rights and/or assets plus ( y ) the aggregate principal amount of other then outstanding Indebtedness of the Company and its Restricted Subsidiaries that is attributable to the financing or refinancing of Rental Car Vehicles and /or related rights and/or assets, as determined in good faith by the Chief Financial Officer or an authorized Officer of the Company (which determination shall be conclusive) or, at the Company’s option, ( b ) 90% of the book value of Rental Car Vehicles of the Company and its Restricted Subsidiaries (such book value being determined as of the end of the most recently ended fiscal month of the Company for which internal consolidated financial statements of the Company are available, on a pro forma basis including ( x ) any Rental Car Vehicles acquired by the Company or any Restricted Subsidiary since the end of such fiscal month and ( y ) in the case of any determination relating to any Incurrence of Indebtedness, any Rental Car Vehicles being acquired by the Company or any Restricted Subsidiary in connection therewith).

 

Consolidated Vehicle Interest Expense ” means, for any period, the sum of ( a ) the aggregate interest expense for such period on any Indebtedness of any Special Purpose Subsidiary that is a Restricted Subsidiary directly or indirectly Incurred to finance or refinance the acquisition of, or secured by, Rental Car Vehicles and/or related rights and/or assets plus ( b ) either ( x ) the aggregate interest expense for such period on other Indebtedness of the Company and its Restricted Subsidiaries that is attributable to the financing or refinancing of Rental Car Vehicles and/or any related rights and/or assets, as determined in good faith by the Chief Financial Officer or an authorized Officer of the Company (which determination shall be conclusive) or, at the Company’s option, ( y ) an amount of the total interest expense of the Company and its Restricted Subsidiaries for such period equal to ( i ) the Average Interest Rate for such period multiplied by ( ii ) the amount equal to ( 1 ) 90% of the Average Book Value for

 

13



 

such period of Rental Car Vehicles of the Company and its Restricted Subsidiaries minus ( 2 ) the Average Principal Amount for such period of any Indebtedness of any Special Purpose Subsidiary that is a Restricted Subsidiary directly or indirectly Incurred to finance or refinance the acquisition of, or secured by, Rental Car Vehicles and/or related rights and/or assets.

 

Consolidation ” means the consolidation of the accounts of each of the Restricted Subsidiaries with those of the Company in accordance with GAAP; provided that “Consolidation” will not include consolidation of the accounts of any Unrestricted Subsidiary, but the interest of the Company or any Restricted Subsidiary in any Unrestricted Subsidiary will be accounted for as an investment. The term “Consolidated” has a correlative meaning.

 

Contribution Amounts ” means the aggregate amount of capital contributions applied by the Company to permit the Incurrence of Contribution Indebtedness pursuant to Section 407(b)(xii) .

 

Contribution Indebtedness ” means Indebtedness of the Company or any Restricted Subsidiary in an aggregate principal amount not greater than twice the aggregate amount of cash contributions (other than Excluded Contributions) made to the capital of the Company or such Restricted Subsidiary after the Issue Date (whether through the issuance or sale of Capital Stock or otherwise); provided that such Contribution Indebtedness (a)  is incurred within 180 days after the making of the related cash contribution and (b)  is so designated as Contribution Indebtedness pursuant to an Officer’s Certificate on the date of Incurrence thereof.

 

Corporate Trust Office ” means the office of the Trustee at which at any particular time its corporate trust business shall be administered, which office on the Issue Date is located at 45 Broadway, 14 th  Floor, New York, NY 10006, Attention:  Corporate Trust Services — Administrator for The Hertz Corporation.

 

Credit Facilities ” means one or more of ( i ) the Senior Term Facility, ( ii ) the Senior ABL Facility, and ( iii ) any other facilities or arrangements designated by the Company, in each case with one or more banks or other lenders or institutions providing for revolving credit loans, term loans, receivables or fleet financings (including without limitation through the sale of receivables or fleet assets to such institutions or to special purpose entities formed to borrow from such institutions against such receivables or fleet assets or the creation of any Liens in respect of such receivables or fleet assets in favor of such institutions), letters of credit or other Indebtedness, in each case, including all agreements, instruments and documents executed and delivered pursuant to or in connection with any of the foregoing, including but not limited to any notes and letters of credit issued pursuant thereto and any guarantee and collateral agreement, patent and trademark security agreement, mortgages or letter of credit applications and other guarantees, pledge agreements, security agreements and collateral documents, in each case as the same may be amended, supplemented, waived or otherwise modified from time to time, or refunded, refinanced, restructured, replaced, renewed, repaid, increased or extended from time to time (whether in whole or in part, whether with the original banks, lenders or institutions or other banks, lenders or institutions or otherwise, and whether provided under any original Credit Facility or one or more other credit agreements, indentures, financing agreements or other Credit

 

14



 

Facilities or otherwise). Without limiting the generality of the foregoing, the term “Credit Facility” shall include any agreement ( i ) changing the maturity of any Indebtedness Incurred thereunder or contemplated thereby, ( ii ) adding Subsidiaries as additional borrowers or guarantors thereunder, ( iii ) increasing the amount of Indebtedness Incurred thereunder or available to be borrowed thereunder or ( iv ) otherwise altering the terms and conditions thereof.

 

Credit Facility Indebtedness ” means any and all amounts, whether outstanding on the Issue Date or thereafter incurred, payable under or in respect of any Credit Facility, including without limitation principal, premium (if any), interest (including interest accruing on or after the filing of any petition in bankruptcy or for reorganization relating to the Company or any Restricted Subsidiary whether or not a claim for post-filing interest is allowed in such proceedings), fees, charges, expenses, reimbursement obligations, guarantees, other monetary obligations of any nature and all other amounts payable thereunder or in respect thereof.

 

Currency Agreement ” means, in respect of a Person, any foreign exchange contract, currency swap agreement or other similar agreement or arrangements (including derivative agreements or arrangements), as to which such Person is a party or a beneficiary.

 

Default ” means any event or condition that is, or after notice or passage of time or both would be, an Event of Default.

 

Depositary ” means The Depository Trust Company, its nominees and successors.

 

Designated Noncash Consideration ” means the Fair Market Value of noncash consideration received by the Company or one of its Restricted Subsidiaries in connection with an Asset Disposition that is so designated as Designated Noncash Consideration pursuant to an Officer’s Certificate, setting forth the basis of such valuation.

 

Designated Senior Indebtedness ” means, with respect to a Person, ( i ) the Credit Facility Indebtedness under or in respect of the Senior Credit Facilities and ( ii ) any other Senior Indebtedness of such Person that, at the date of determination, has an aggregate principal amount equal to or under which, at the date of determination, the holders thereof are committed to lend up to, at least $25.0 million and is specifically designated by such Person in an agreement or instrument evidencing or governing such Senior Indebtedness as “Designated Senior Indebtedness” for purposes of this Indenture.

 

Disinterested Directors ” means, with respect to any Affiliate Transaction, one or more members of the Board of Directors of the Company, or one or more members of the Board of Directors of a Parent, having no material direct or indirect financial interest in or with respect to such Affiliate Transaction. A member of any such Board of Directors shall not be deemed to have such a financial interest by reason of such member’s holding Capital Stock of the Company or any Parent or any options, warrants or other rights in respect of such Capital Stock.

 

15



 

Disqualified Stock ” means, with respect to any Person, any Capital Stock (other than Management Stock) that by its terms (or by the terms of any security into which it is convertible or for which it is exchangeable or exercisable) or upon the happening of any event (other than following the occurrence of a Change of Control or other similar event described under such terms as a “change of control,” or an Asset Disposition) ( i ) matures or is mandatorily redeemable pursuant to a sinking fund obligation or otherwise, ( ii ) is convertible or exchangeable for Indebtedness or Disqualified Stock or ( iii ) is redeemable at the option of the holder thereof (other than following the occurrence of a Change of Control or other similar event described under such terms as a “change of control,” or an Asset Disposition), in whole or in part, in each case on or prior to the final Stated Maturity of the Notes; provided that Capital Stock issued to any employee benefit plan, or by any such plan to any employees of the Company or any Subsidiary, shall not constitute Disqualified Stock solely because it may be required to be repurchased or otherwise acquired or retired in order to satisfy applicable statutory or regulatory obligations.

 

Dollars ” or “ $ ” means dollars in lawful currency of the United States of America.

 

Domestic Subsidiary ” means any Restricted Subsidiary of the Company other than a Foreign Subsidiary.

 

Equipment ” means ( a ) any Vehicles and ( b ) any equipment owned by or leased to the Company or any of its Subsidiaries that is revenue earning equipment, or is classified as “revenue earning equipment” in the consolidated financial statements of the Company, including any such equipment consisting of ( i ) construction, industrial, commercial and office equipment, ( ii ) earthmoving, material handling, compaction, aerial and electrical equipment, ( iii ) air compressors, pumps and small tools, and ( iv ) other personal property.

 

Equity Offering ” means a sale of Capital Stock ( x ) that is a sale of Capital Stock of the Company (other than Disqualified Stock), or ( y ) proceeds of which in an amount equal to or exceeding the Redemption Amount are contributed to the equity capital of the Company or any of its Restricted Subsidiaries.

 

Euroclear ” means Euroclear Bank S.A./N.V., as operator of the Euroclear System, or any successor securities clearing agency.

 

Exchange Act ” means the Securities Exchange Act of 1934, as amended.

 

Exchange Notes ” means the Company’s 6.75% Senior Notes due 2019, containing terms substantially identical to the Initial Notes or any Initial Additional Notes (except that ( i ) such Exchange Notes may omit terms with respect to transfer restrictions and may be registered under the Securities Act, and ( ii ) certain provisions relating to an increase in the stated rate of interest thereon may be eliminated), that are issued and exchanged for ( a ) the Initial Notes, as provided for in a registration rights agreement relating to such Initial Notes and this Indenture, or ( b ) such Initial Additional Notes as may be provided in any registration rights

 

16



 

agreement relating to such Additional Notes and this Indenture (including any amendment or supplement hereto).

 

Excluded Contribution ” means Net Cash Proceeds, or the Fair Market Value of property or assets, received by the Company as capital contributions to the Company after December 21, 2005, or from the issuance or sale (other than to a Restricted Subsidiary) of Capital Stock (other than Disqualified Stock) of the Company, in each case to the extent designated as an Excluded Contribution pursuant to an Officer’s Certificate of the Company and not previously included in the calculation set forth in Section 409 (a)(3)(B)(x)  for purposes of determining whether a Restricted Payment may be made.

 

Fair Market Value ” means, with respect to any asset or property, the fair market value of such asset or property as determined in good faith by the Board of Directors, whose determination will be conclusive.

 

Financing Disposition ” means any sale, transfer, conveyance or other disposition of, or creation or incurrence of any Lien on, property or assets by the Company or any Subsidiary thereof to or in favor of any Special Purpose Entity, or by any Special Purpose Subsidiary, in each case in connection with the Incurrence by a Special Purpose Entity of Indebtedness, or obligations to make payments to the obligor on Indebtedness, which may be secured by a Lien in respect of such property or assets.

 

Fixed GAAP Date ” means December 21, 2005, provided that at any time after the Issue Date, the Company may by written notice to the Trustee elect to change the Fixed GAAP Date to be the date specified in such notice, and upon such notice, the Fixed GAAP Date shall be such date for all periods beginning on and after the date specified in such notice.

 

Fixed GAAP Terms ” means ( a ) the definitions of the terms “Borrowing Base,” “Capitalized Lease Obligation,” “Consolidated Coverage Ratio,” “Consolidated EBITDA,” “Consolidated Interest Expense,” “Consolidated Net Income,” “Consolidated Quarterly Tangible Assets,” “Consolidated Secured Indebtedness,” “Consolidated Secured Leverage Ratio,” “Consolidated Tangible Assets,” “Consolidated Total Indebtedness,” “Consolidated Vehicle Depreciation,” “Consolidated Vehicle Indebtedness,” “Consolidated Vehicle Interest Expense,” “Foreign Borrowing Base,” “Inventory,” and “Receivable,” ( b ) all defined terms in this Indenture to the extent used in or relating to any of the foregoing definitions, and all ratios and computations based on any of the foregoing definitions, and ( c ) any other term or provision of this Indenture or the Notes that, at the Company’s election, may be specified by the Company by written notice to the Trustee from time to time.

 

Foreign Borrowing Base ” means the sum of ( 1)  60% of the book value of Inventory (excluding Equipment) of Foreign Subsidiaries, ( 2 ) 85% of the book value of Receivables of Foreign Subsidiaries, ( 3 ) 90% of the book value of Equipment of Foreign Subsidiaries and ( 4 ) cash, Cash Equivalents and Temporary Cash Investments of Foreign Subsidiaries (in each case, determined as of the end of the most recently ended fiscal month of the Company for which internal consolidated financial statements of the Company are available,

 

17



 

and, in the case of any determination relating to any Incurrence of Indebtedness, on a pro forma basis including ( x ) any property or assets of a type described above acquired since the end of such fiscal month and ( y ) any property or assets of a type described above being acquired in connection therewith). The Foreign Borrowing Base, as of any date of determination, shall not include Inventory and Equipment the acquisition of which shall have been financed or refinanced by the Incurrence of Purchase Money Obligations pursuant to Section 407 (b)(iv) , to the extent such Purchase Money Obligations (or any Refinancing Indebtedness in respect thereof) shall then remain outstanding pursuant to such clause (on a pro forma basis after giving effect to any Incurrence of Indebtedness and the application of proceeds therefrom).

 

Foreign Subsidiary ” means ( a ) any Restricted Subsidiary of the Company that is not organized under the laws of the United States of America or any state thereof or the District of Columbia and ( b ) any Restricted Subsidiary of the Company that has no material assets other than securities or Indebtedness of one or more Foreign Subsidiaries (or Subsidiaries thereof), intellectual property relating to such Foreign Subsidiaries (or Subsidiaries thereof) and other assets relating to an ownership interest in any such securities, Indebtedness, intellectual property or Subsidiaries.

 

Franchise Equipment ” means ( a ) any Franchise Vehicles and ( b ) any equipment owned by or leased to any Franchisee that is revenue earning equipment, or is of a type that would be classified as “revenue earning equipment” in the consolidated financial statements of the Company, including any such equipment consisting of ( i ) construction, industrial, commercial and office equipment, ( ii ) earthmoving, material handling, compaction, aerial and electrical equipment, ( iii ) air compressors, pumps and small tools, and ( iv ) other personal property.

 

Franchise Financing Disposition ” means any sale, transfer, conveyance or other disposition of, or creation or incurrence of any Lien on, property or assets by the Company or any Subsidiary thereof to or in favor of any Franchise Special Purpose Entity, in connection with the Incurrence by a Franchise Special Purpose Entity of Indebtedness, or obligations to make payments to the obligor on Indebtedness, which may be secured by a Lien in respect of such property or assets.

 

Franchise Lease Obligation ” means any Capitalized Lease Obligation, and any other lease, of any Franchisee relating to any property used, occupied or held for use or occupation by any Franchisee in connection with any of its Franchise Equipment operations.

 

Franchise Rental Car Vehicles ” means all passenger Franchise Vehicles owned by or leased to any Franchisee or any Franchise Special Purpose Entity that are or have been offered for lease or rental by any Franchisee in its car rental operations, including any such Franchise Vehicles being held for sale.

 

Franchise SPE Fleet Amount ” as of any date of determination means, with respect to any Indebtedness or Investment, an amount equal to 90% of the aggregate book value of Franchise Rental Car Vehicles and/or other Franchise Equipment of any Franchise Special

 

18



 

Purpose Entity (such book value being determined as of the end of the most recently ended fiscal month of such Franchise Special Purpose Entity for which internal financial statements (or other requisite borrowing base or financial information) are available to the Company, and (at the Company’s option) on a pro forma basis including any Franchise Rental Car Vehicles and/or other Franchise Equipment acquired by such Franchise Special Purpose Entity since the end of such fiscal month or being acquired by such Franchise Special Purpose Entity in connection with its Incurrence of such Indebtedness or the making of such Investment).

 

Franchise Special Purpose Entity ” means any Person ( a ) that is engaged in the business of ( i ) acquiring, selling, collecting, financing or refinancing Receivables, accounts (as defined in the Uniform Commercial Code as in effect in any jurisdiction from time to time), other accounts and/or other receivables, and/or related assets, and/or ( ii ) acquiring, selling, leasing, financing or refinancing Franchise Rental Car Vehicles and/or other Franchise Equipment, and/or related rights (including under leases, manufacturer warranties and buy-back programs, and insurance policies) and/or assets (including managing, exercising and disposing of any such rights and/or assets), and ( b ) is designated as a “Franchise Special Purpose Entity” by the Company.

 

Franchise Vehicle Indebtedness ” as of any date of determination means ( a ) Indebtedness of any Franchise Special Purpose Entity directly or indirectly Incurred to finance or refinance the acquisition of, or secured by, Franchise Rental Car Vehicles and/or other Franchise Equipment and/or related rights and/or assets, in an aggregate principal amount (as to such Franchise Special Purpose Entity, and taken together with the aggregate amount of Investments then outstanding pursuant to clause (xix)(1) of the definition of “Permitted Investments”) not exceeding the Franchise SPE Fleet Amount, ( b ) Indebtedness of any Franchisee or any Affiliate thereof that is attributable to the financing or refinancing of Franchise Rental Car Vehicles and/or other Franchise Equipment and/or related rights and/or assets, as determined in good faith by the Chief Financial Officer or an authorized Officer of the Company (which determination shall be conclusive), in an aggregate principal amount (as to such Franchisee and all Affiliates thereof, and taken together with the aggregate amount of Investments then outstanding pursuant to clause (xix)(2) of the definition of “Permitted Investments”) not exceeding the Franchisee Asset Value Amount and ( c ) Indebtedness of any Franchisee in an aggregate principal amount (as to all such Franchisees, and taken together with the aggregate amount of Investments then outstanding pursuant to clause (xix)(3) of the definition of “Permitted Investments”) not exceeding the Franchisee Revenue Amount.

 

Franchise Vehicles ” means vehicles owned or operated by, or leased or rented to or by, any Franchisee, including automobiles, trucks, tractors, trailers, vans, sport utility vehicles, buses, campers, motor homes, motorcycles and other motor vehicles.

 

Franchisee ” means any Person that is a franchisee of the Company or any of its Subsidiaries (or of any other Franchisee), or any Affiliate of such Person.

 

Franchisee Asset Value Amount ” as of any date of determination means, with respect to any Indebtedness or Investment, an amount equal to 80% of the aggregate fair market

 

19



 

value of Franchise Rental Car Vehicles and/or other Franchise Equipment of any Franchisee or any Affiliate (such fair market value being as determined in good faith by the Chief Financial Officer or an authorized Officer of the Company (which determination shall be conclusive) as of the end of the most recently ended fiscal month of the Company for which internal consolidated financial statements of the Company are available, and (at the Company’s option) on a pro forma basis including any Franchise Rental Car Vehicles and/or other Franchise Equipment acquired by such Franchisee or any Affiliate thereof since the end of such fiscal month or being acquired by such Franchisee or any Affiliate thereof in connection with its Incurrence of such Indebtedness or the making of such Investment).

 

Franchisee Revenue Amount ” as of any date of determination means, with respect to any Indebtedness or Investment, an amount equal to 10% of the aggregate revenues of all Franchisees for the period of the most recent four consecutive fiscal quarters ending prior to such date for which consolidated financial statements of the Company are available (such amount being as determined in good faith by the Chief Financial Officer or an authorized Officer of the Company, which determination shall be conclusive).

 

GAAP ” means generally accepted accounting principles in the United States of America as in effect on the Fixed GAAP Date (for purposes of the Fixed GAAP Terms) and as in effect from time to time (for all other purposes of this Indenture), including those set forth in the opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or in such other statements by such other entity as approved by a significant segment of the accounting profession, and subject to the following:  If at any time the SEC permits or requires U.S.-domiciled companies subject to the reporting requirements of the Exchange Act to use IFRS in lieu of GAAP for financial reporting purposes, the Company may elect by written notice to the Trustee to so use IFRS in lieu of GAAP and, upon any such notice, references herein to GAAP shall thereafter be construed to mean ( a ) for periods beginning on and after the date specified in such notice, IFRS as in effect on the date specified in such notice (for purposes of the Fixed GAAP Terms) and as in effect from time to time (for all other purposes of this Indenture) and ( b ) for prior periods, GAAP as defined in the first sentence of this definition.  All ratios and computations based on GAAP contained in this Indenture shall be computed in conformity with GAAP.

 

Guarantee ” means any obligation, contingent or otherwise, of any Person directly or indirectly guaranteeing any Indebtedness or other obligation of any other Person; provided that the term “Guarantee” shall not include endorsements for collection or deposit in the ordinary course of business. The term “Guarantee” used as a verb has a corresponding meaning.

 

Guarantor Subordinated Obligations ” means, with respect to a Subsidiary Guarantor, any Indebtedness of such Subsidiary Guarantor (whether outstanding on the Issue Date or thereafter Incurred) that is expressly subordinated in right of payment to the obligations of such Subsidiary Guarantor under its Subsidiary Guarantee pursuant to a written agreement.

 

20



 

Hedging Obligations ” of any Person means the obligations of such Person pursuant to any Interest Rate Agreement, Currency Agreement or Commodities Agreement.

 

HERC ” means Hertz Equipment Rental Corporation, a Delaware corporation, and any successor in interest thereto, and any of the Company’s other Subsidiaries and successors in interest thereto to the extent any of such Subsidiaries form part of the HERC Business.

 

HERC Assets ” means the assets of HERC that relate to or form part of the HERC Business.

 

HERC Business ” means the industrial, construction and material handling equipment rental business of the Company and its Subsidiaries including, without limitation, the business of renting earthmoving equipment, material handling equipment, aerial and electrical equipment, air compressors, generators, pumps, small tools, compaction equipment and construction related trucks and the selling of new equipment and consumables.

 

HERC Disposition ” means (i)  any sale or other disposition of Capital Stock of HERC (whether by issuance or sale of Capital Stock, merger, or otherwise) or any Subsidiary thereof to one or more Persons (other than the Company or a Restricted Subsidiary) in any transaction or series of related transactions following the consummation of which HERC or such Subsidiary is no longer a Restricted Subsidiary of the Company (excluding any HERC Offering) or (ii)  any sale or other disposition of all or substantially all of the assets of HERC and/or one or more of its Subsidiaries to one or more Persons (other than the Company or a Restricted Subsidiary) in any transaction or series of related transactions.

 

HERC Offering ” means a public offering of Capital Stock of HERC pursuant to a registration statement filed with the SEC.

 

Hertz Investors ” means Hertz Investors, Inc., a Delaware corporation, and any successor in interest thereto.

 

Holder ” or “ Noteholder ” means the Person in whose name a Note is registered in the Note Register.

 

Holding ” means Hertz Global Holdings, Inc., a Delaware corporation, and any successor in interest thereto.

 

IFRS ” means International Financial Reporting Standards and applicable accounting requirements set by the International Accounting Standards Board or any successor thereto (or the Financial Accounting Standards Board, the Accounting Principles Board of the American Institute of Certified Public Accountants, or any successor to either such Board, or the SEC, as the case may be), as in effect from time to time.

 

21



 

Incur ” means issue, assume, enter into any Guarantee of, incur or otherwise become liable for; and the terms “Incurs,” “Incurred” and “Incurrence” shall have a correlative meaning; provided , that any Indebtedness or Capital Stock of a Person existing at the time such Person becomes a Subsidiary (whether by merger, consolidation, acquisition or otherwise) shall be deemed to be Incurred by such Subsidiary at the time it becomes a Subsidiary. Accrual of interest, the accretion of accreted value, the payment of interest in the form of additional Indebtedness, and the payment of dividends on Capital Stock constituting Indebtedness in the form of additional shares of the same class of Capital Stock, will not be deemed to be an Incurrence of Indebtedness. Any Indebtedness issued at a discount (including Indebtedness on which interest is payable through the issuance of additional Indebtedness) shall be deemed Incurred at the time of original issuance of the Indebtedness at the initial accreted amount thereof.

 

Indebtedness ” means, with respect to any Person on any date of determination (without duplication):

 

(i)            the principal of indebtedness of such Person for borrowed money,

 

(ii)           the principal of obligations of such Person evidenced by bonds, debentures, notes or other similar instruments,

 

(iii)          all reimbursement obligations of such Person in respect of letters of credit, bankers’ acceptances or other similar instruments (the amount of such obligations being equal at any time to the aggregate then undrawn and unexpired amount of such letters of credit, bankers’ acceptances or other instruments plus the aggregate amount of drawings thereunder that have not then been reimbursed),

 

(iv)          all obligations of such Person to pay the deferred and unpaid purchase price of property (except Trade Payables), which purchase price is due more than one year after the date of placing such property in final service or taking final delivery and title thereto,

 

(v)           all Capitalized Lease Obligations of such Person,

 

(vi)          the redemption, repayment or other repurchase amount of such Person with respect to any Disqualified Stock of such Person or (if such Person is a Subsidiary of the Company other than a Subsidiary Guarantor) any Preferred Stock of such Subsidiary, but excluding, in each case, any accrued dividends (the amount of such obligation to be equal at any time to the maximum fixed involuntary redemption, repayment or repurchase price for such Capital Stock, or if less (or if such Capital Stock has no such fixed price), to the involuntary redemption, repayment or repurchase price therefor calculated in accordance with the terms thereof as if then redeemed, repaid or repurchased, and if such price is based upon or measured by the fair market value of such Capital Stock, such fair market value shall be as determined in good faith by the Board of

 

22


 

Directors or the board of directors or other governing body of the issuer of such Capital Stock),

 

(vii)         all Indebtedness of other Persons secured by a Lien on any asset of such Person, whether or not such Indebtedness is assumed by such Person; provided that the amount of Indebtedness of such Person shall be the lesser of (A) the fair market value of such asset at such date of determination (as determined in good faith by the Company) and (B) the amount of such Indebtedness of such other Persons,

 

(viii)        all Guarantees by such Person of Indebtedness of other Persons, to the extent so Guaranteed by such Person, and

 

(ix)           to the extent not otherwise included in this definition, net Hedging Obligations of such Person (the amount of any such obligation to be equal at any time to the termination value of such agreement or arrangement giving rise to such Hedging Obligation that would be payable by such Person at such time).

 

The amount of Indebtedness of any Person at any date shall be determined as set forth above or otherwise provided in this Indenture, or otherwise shall equal the amount thereof that would appear as a liability on a balance sheet of such Person (excluding any notes thereto) prepared in accordance with GAAP.

 

Initial Additional Notes ” means Additional Notes issued in an offering not registered under the Securities Act (and any Notes issued in respect thereof pursuant to Section 304 , 305 , 306 , 312(c) , 312(d)  or 1008 ).

 

Initial Notes ” means the Company’s 6.75% Senior Notes due 2019 issued on the Issue Date in an aggregate principal amount of $500 million (and any Notes issued in respect thereof pursuant to Section 304 , 305 , 306 , 312(c) , 312(d)  or 1008 ).

 

interest ,” with respect to the Notes, means interest on the Notes and, except for purposes of Article IX , additional or special interest pursuant to the terms of any Note.

 

Interest Payment Date ” means, when used with respect to any Note and any installment of interest thereon, the date specified in such Note as the fixed date on which such installment of interest is due and payable, as set forth in such Note.

 

Interest Rate Agreement ” means, with respect to any Person, any interest rate protection agreement, future agreement, option agreement, swap agreement, cap agreement, collar agreement, hedge agreement or other similar agreement or arrangement (including derivative agreements or arrangements), as to which such Person is party or a beneficiary.

 

Inventory ” means goods held for sale, lease or use by a Person in the ordinary course of business, net of any reserve for goods that have been segregated by such Person to be returned to the applicable vendor for credit, as determined in accordance with GAAP.

 

23



 

Investment ” in any Person by any other Person means any direct or indirect advance, loan or other extension of credit (other than to customers, dealers, licensees, franchisees, suppliers, directors, officers or employees of any Person in the ordinary course of business) or capital contribution (by means of any transfer of cash or other property to others or any payment for property or services for the account or use of others) to, or any purchase or acquisition of Capital Stock, Indebtedness or other similar instruments issued by, such Person. For purposes of the definition of “Unrestricted Subsidiary” and Section 409 only, ( i ) “Investment” shall include the portion (proportionate to the Company’s equity interest in such Subsidiary) of the Fair Market Value of the net assets of any Subsidiary of the Company at the time that such Subsidiary is designated an Unrestricted Subsidiary, provided that upon a redesignation of such Subsidiary as a Restricted Subsidiary, the Company shall be deemed to continue to have a permanent “Investment” in an Unrestricted Subsidiary in an amount (if positive) equal to ( x ) the Company’s “Investment” in such Subsidiary at the time of such redesignation less ( y ) the portion (proportionate to the Company’s equity interest in such Subsidiary) of the Fair Market Value of the net assets of such Subsidiary at the time of such redesignation, and ( ii ) any property transferred to or from an Unrestricted Subsidiary shall be valued at its Fair Market Value at the time of such transfer. Guarantees shall not be deemed to be Investments. The amount of any Investment outstanding at any time shall be the original cost of such Investment, reduced (at the Company’s option) by any dividend, distribution, interest payment, return of capital, repayment or other amount or value received in respect of such Investment; provided , that to the extent that the amount of Restricted Payments outstanding at any time is so reduced by any portion of any such amount or value that would otherwise be included in the calculation of Consolidated Net Income, such portion of such amount or value shall not be so included for purposes of calculating the amount of Restricted Payments that may be made pursuant to Section 409(a) .

 

Investment Grade Rating ” means a rating of Baa3 or better by Moody’s and BBB- or better by S&P (or, in either case, the equivalent of such rating by such organization), or an equivalent rating by any other Rating Agency.

 

Investors ” means ( i ) the CDR Investors, Carlyle Investors and Merrill Lynch Investors, ( ii ) any Person that acquired Voting Stock of Holding on or prior to December 21, 2005, and any Affiliate of such Person, and ( iii ) any of their respective successors in interest.

 

Issue Date ” means the first date on which Initial Notes are issued.

 

Lien ” means any mortgage, pledge, security interest, encumbrance, lien or charge of any kind (including any conditional sale or other title retention agreement or lease in the nature thereof).

 

Management Advances ” means ( 1 ) loans or advances made to directors, officers, employees or consultants of any Parent, the Company or any Restricted Subsidiary ( x ) in respect of travel, entertainment or moving-related expenses incurred in the ordinary course of business, ( y ) in respect of moving-related expenses incurred in connection with any closing or consolidation of any facility, or ( z ) in the ordinary course of business and (in the case of this

 

24



 

clause (z)) not exceeding $15.0 million in the aggregate outstanding at any time, ( 2 ) promissory notes of Management Investors acquired in connection with the issuance of Management Stock to such Management Investors, ( 3 ) Management Guarantees, or ( 4 ) other Guarantees of borrowings by Management Investors in connection with the purchase of Management Stock, which Guarantees are permitted under Section 407 .

 

Management Agreements ” means, collectively, ( i ) the Stock Subscription Agreements, each dated as of December 21, 2005, between Holding and each of the Investors party thereto, ( ii ) the Consulting Agreements, each dated as of December 21, 2005, among Holding and The Hertz Corporation and each of CDR, TC Group IV, L.L.C. and Merrill Lynch Global Partners, Inc., or Affiliates thereof, respectively, ( iii ) the Indemnification Agreements, each dated as of December 21, 2005, among Holding and The Hertz Corporation and each of ( a ) CDR and each CDR Investor, ( b ) TC Group IV, L.L.C. and each Carlyle Investor and ( c ) ML and each Merrill Lynch Investor, or Affiliates thereof, respectively, ( iv ) the Registration Rights Agreement, dated as of December 21, 2005, among Holding and the Investors party thereto and any other Person party thereto from time to time, ( v ) the Stockholders Agreement, dated as of December 21, 2005, by and among Holding and the Investors party thereto and any other Person party thereto from time to time, and ( vi ) the Stock Subscription Agreements, each dated May 19, 2009, between Holding and each of Clayton, Dubilier & Rice Fund VII, L.P., CD&R Parallel Fund VII, L.P., Carlyle Partners IV, L.P., and CP IV Coinvestment, L.P., in each case in clauses (i) through (vi) as the same may be amended, supplemented, waived or otherwise modified from time to time in accordance with the terms thereof and of this Indenture.

 

Management Guarantees ” means guarantees ( x ) of up to an aggregate principal amount outstanding at any time of $20.0 million of borrowings by Management Investors in connection with their purchase of Management Stock or ( y ) made on behalf of, or in respect of loans or advances made to, directors, officers or employees of any Parent, the Company or any Restricted Subsidiary ( 1 ) in respect of travel, entertainment and moving-related expenses incurred in the ordinary course of business, or ( 2 ) in the ordinary course of business and (in the case of this clause (2)) not exceeding $15.0 million in the aggregate outstanding at any time.

 

Management Investors ” means the officers, directors, employees and other members of the management of any Parent, the Company or any of their respective Subsidiaries, or family members or relatives thereof ( provided that, solely for purposes of the definition of “Permitted Holders,” such relatives shall include only those Persons who are or become Management Investors in connection with estate planning for or inheritance from other Management Investors, as determined in good faith by the Company, which determination shall be conclusive), or trusts, partnerships or limited liability companies for the benefit of any of the foregoing, or any of their heirs, executors, successors and legal representatives, who at any date beneficially own or have the right to acquire, directly or indirectly, Capital Stock of the Company or any Parent.

 

25



 

Management Stock ” means Capital Stock of the Company or any Parent (including any options, warrants or other rights in respect thereof) held by any of the Management Investors.

 

Merrill Lynch Investors ” means, collectively, ( i ) ML Global Private Equity Fund, L.P., a Cayman Islands exempted limited partnership, or any successor thereto, ( ii ) Merrill Lynch Ventures L.P. 2001, a Delaware limited partnership, or any successor thereto, ( iii ) CMC-Hertz Partners, L.P., a Delaware limited partnership, or any successor thereto, ( iv ) ML Hertz Co-Investor, L.P., a Delaware limited partnership, or any successor thereto, ( v ) any Affiliate of any thereof, and ( vi ) any successor in interest to any thereof.

 

ML ” means Merrill Lynch Global Private Equity, Inc. (formerly known as Merrill Lynch Global Partners, Inc.), or any successor thereto.

 

Moody’s ” means Moody’s Investors Service, Inc., and its successors.

 

Net Available Cash ” from an Asset Disposition means cash payments received (including any cash payments received by way of deferred payment of principal pursuant to a note or installment receivable or otherwise, but only as and when received, but excluding any other consideration received in the form of assumption by the acquiring person of Indebtedness or other obligations relating to the properties or assets that are the subject of such Asset Disposition or received in any other noncash form) therefrom, in each case net of ( i ) all legal, title and recording tax expenses, commissions and other fees and expenses incurred, and all Federal, state, provincial, foreign and local taxes required to be paid or to be accrued as a liability under GAAP, as a consequence of such Asset Disposition (including as a consequence of any transfer of funds in connection with the application thereof in accordance with Section 411 ), ( ii ) all payments made, and all installment payments required to be made, on any Indebtedness that is secured by any assets subject to such Asset Disposition, in accordance with the terms of any Lien upon such assets, or that must by its terms, or in order to obtain a necessary consent to such Asset Disposition, or by applicable law, be repaid out of the proceeds from such Asset Disposition, including but not limited to any payments required to be made to increase borrowing availability under any revolving credit facility, ( iii ) all distributions and other payments required to be made to minority interest holders in Subsidiaries or joint ventures as a result of such Asset Disposition, or to any other Person (other than the Company or a Restricted Subsidiary) owning a beneficial interest in the assets disposed of in such Asset Disposition, ( iv ) any liabilities or obligations associated with the assets disposed of in such Asset Disposition and retained, indemnified or issued by the Company or any Restricted Subsidiary after such Asset Disposition, including without limitation pension and other post-employment benefit liabilities, liabilities related to environmental matters, and liabilities relating to any indemnification obligations associated with such Asset Disposition, and ( v ) the amount of any purchase price or similar adjustment ( x ) claimed by any Person to be owed by the Company or any Restricted Subsidiary, until such time as such claim shall have been settled or otherwise finally resolved, or ( y ) paid or payable by the Company or any Restricted Subsidiary, in either case in respect of such Asset Disposition.

 

26



 

Net Cash Proceeds ,” with respect to any issuance or sale of any securities of the Company or any Subsidiary by the Company or any Subsidiary, or any capital contribution, means the cash proceeds of such issuance, sale or contribution net of attorneys’ fees, accountants’ fees, underwriters’ or placement agents’ fees, discounts or commissions and brokerage, consultant and other fees actually incurred in connection with such issuance, sale or contribution and net of taxes paid or payable as a result thereof.

 

Non-Recourse Indebtedness ” means Indebtedness of HERC:

 

(a)           as to which neither the Company nor any of its Restricted Subsidiaries (other than HERC and its Subsidiaries) ( a ) provides any Guarantee or credit support of any kind (including any undertaking, guarantee, indemnity, Lien, agreement or instrument that would constitute Indebtedness) or ( b ) is directly or indirectly liable (as a guarantor or otherwise);

 

(b)           no default with respect to which would permit, upon notice, lapse of time or both any holder of any other Indebtedness of the Company or any of its Restricted Subsidiaries (other than Indebtedness outstanding on, or otherwise committed as of, the Issue Date) to declare a default on such other Indebtedness or cause the payment of the Indebtedness to be accelerated or payable prior to its Stated Maturity; and

 

(c)           the explicit terms of which provide there is no recourse against any of the assets of the Company or its Restricted Subsidiaries (other than HERC and its Subsidiaries and Capital Stock of HERC or any of its Subsidiaries).

 

Non-U.S. Person ” means a Person who is not a U.S. person, as defined in Regulation S.

 

Notes ” means the Initial Notes, any Additional Notes, the Exchange Notes and any notes issued in respect thereof pursuant to Section 304 , 305 , 306 , 312(c) , 312(d)  or 1008 .

 

Obligations ” means, with respect to any Indebtedness, any principal, premium (if any), interest (including interest accruing on or after the filing of any petition in bankruptcy or for reorganization relating to the Company or any Restricted Subsidiary whether or not a claim for post-filing interest is allowed in such proceedings), fees, charges, expenses, reimbursement obligations, Guarantees of such Indebtedness (or of Obligations in respect thereof), other monetary obligations of any nature and all other amounts payable thereunder or in respect thereof.

 

Offering Memorandum ” means the confidential Offering Memorandum of the Company, dated January 25, 2011, relating to the offering of the Notes.

 

Officer ” means, with respect to the Company or any other obligor upon the Notes, the Chairman of the Board, the President, the Chief Executive Officer, the Chief Financial Officer, any Vice President, the Controller, the Treasurer or the Secretary ( a ) of such Person or

 

27



 

( b ) if such Person is owned or managed by a single entity, of such entity (or any other individual designated as an “Officer” for the purposes of this Indenture by the Board of Directors).

 

Officer’s Certificate ” means, with respect to the Company or any other obligor upon the Notes, a certificate signed by one Officer of such Person.

 

Opinion of Counsel ” means a written opinion from legal counsel who is reasonably acceptable to the Trustee. The counsel may be an employee of or counsel to the Company or the Trustee.

 

Original Notes ” means the Initial Notes and any Exchange Notes issued in exchange therefor.

 

Outstanding ,” when used with respect to Notes means, as of the date of determination, all Notes theretofore authenticated and delivered under this Indenture, except :

 

(i)            Notes theretofore cancelled by the Trustee or delivered to the Trustee for cancellation;

 

(ii)           Notes for whose payment or redemption money in the necessary amount has been theretofore deposited with the Trustee or any Paying Agent in trust for the Holders of such Notes, provided that, if such Notes are to be redeemed, notice of such redemption has been duly given pursuant to this Indenture or provision therefor reasonably satisfactory to the Trustee has been made; and

 

(iii)          Notes paid pursuant to Section 306 in exchange for or in lieu of which other Notes have been authenticated and delivered pursuant to this Indenture.

 

A Note does not cease to be Outstanding because the Company or any Affiliate of the Company holds the Note, provided that in determining whether the Holders of the requisite amount of Outstanding Notes have given any request, demand, authorization, direction, notice, consent or waiver hereunder, Notes owned by the Company or any Affiliate of the Company shall be disregarded and deemed not to be Outstanding, except that, for the purpose of determining whether the Trustee shall be protected in relying on any such request, demand, authorization, direction, notice, consent or waiver, only Notes which the Trustee actually knows are so owned shall be so disregarded.  Notes so owned that have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the reasonable satisfaction of the Trustee the pledgee’s right to act with respect to such Notes and that the pledgee is not the Company or an Affiliate of the Company.

 

Parent ” means any of Holding, Hertz Investors and any Other Parent and any other Person that is a Subsidiary of Holding, Hertz Investors or any Other Parent and of which the Company is a Subsidiary. As used herein, “Other Parent” means a Person of which the Company becomes a Subsidiary after the Issue Date, provided that either ( x ) immediately after the Company first becomes a Subsidiary of such Person, more than 50% of the Voting Stock of

 

28



 

such Person shall be held by one or more Persons that held more than 50% of the Voting Stock of a Parent of the Company immediately prior to the Company first becoming such Subsidiary or ( y ) such Person shall be deemed not to be an Other Parent for the purpose of determining whether a Change of Control shall have occurred by reason of the Company first becoming a Subsidiary of such Person.

 

Parent Expenses ” means ( i ) costs (including all professional fees and expenses) incurred by any Parent in connection with maintaining its existence or in connection with its reporting obligations under, or in connection with compliance with, applicable laws or applicable rules of any governmental, regulatory or self-regulatory body or stock exchange, this Indenture or any other agreement or instrument relating to Indebtedness of the Company or any Restricted Subsidiary, including in respect of any reports filed with respect to the Securities Act, Exchange Act or the respective rules and regulations promulgated thereunder, ( ii ) expenses incurred by any Parent in connection with the acquisition, development, maintenance, ownership, prosecution, protection and defense of its intellectual property and associated rights (including but not limited to trademarks, service marks, trade names, trade dress, patents, copyrights and similar rights, including registrations and registration or renewal applications in respect thereof; inventions, processes, designs, formulae, trade secrets, know-how, confidential information, computer software, data and documentation, and any other intellectual property rights; and licenses of any of the foregoing) to the extent such intellectual property and associated rights relate to the business or businesses of the Company or any Subsidiary thereof, ( iii ) indemnification obligations of any Parent owing to directors, officers, employees or other Persons under its charter or by-laws or pursuant to written agreements with or for the benefit of any such Person, or obligations in respect of director and officer insurance (including premiums therefor), ( iv ) other administrative and operational expenses of any Parent incurred in the ordinary course of business, and ( v ) fees and expenses incurred by any Parent in connection with any offering of Capital Stock or Indebtedness, ( w ) which offering is not completed, or ( x ) where the net proceeds of such offering are intended to be received by or contributed or loaned to the Company or a Restricted Subsidiary, or ( y ) in a prorated amount of such expenses in proportion to the amount of such net proceeds intended to be so received, contributed or loaned, or ( z ) otherwise on an interim basis prior to completion of such offering so long as any Parent shall cause the amount of such expenses to be repaid to the Company or the relevant Restricted Subsidiary out of the proceeds of such offering promptly if completed.

 

Paying Agent ” means any Person authorized by the Company to pay the principal of (and premium, if any) or interest on any Notes on behalf of the Company; provided that neither the Company nor any of its Affiliates shall act as Paying Agent for purposes of Section 1102 or Section 1205 .

 

Permitted Holder ” means any of the following: ( i ) any of the Investors; ( ii ) any of the Management Investors, CDR, Carlyle, ML and their respective Affiliates; ( iii ) any investment fund or vehicle managed, sponsored or advised by CDR, Carlyle, ML or any Affiliate thereof, and any Affiliate of or successor to any such investment fund or vehicle; ( iv ) any limited or general partners of, or other investors in, any CDR Investor, Carlyle Investor or Merrill Lynch

 

29



 

Investor or any Affiliate thereof, or any such investment fund or vehicle; and ( v ) any Person acting in the capacity of an underwriter in connection with a public or private offering of Capital Stock of any Parent or the Company. In addition, any “person” (as such term is used in Sections 13(d) and 14(d) of the Exchange Act) whose status as a “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act) constitutes or results in a Change of Control in respect of which a Change of Control Offer is made in accordance with the requirements of this Indenture, together with its Affiliates, shall thereafter constitute Permitted Holders.

 

Permitted Investment ” means an Investment by the Company or any Restricted Subsidiary in, or consisting of, any of the following:

 

(i)            a Restricted Subsidiary, the Company, or a Person that will, upon the making of such Investment, become a Restricted Subsidiary (and any Investment held by such Person that was not acquired by such Person in contemplation of so becoming a Restricted Subsidiary);

 

(ii)           another Person if as a result of such Investment such other Person is merged or consolidated with or into, or transfers or conveys all or substantially all its assets to, or is liquidated into, the Company or a Restricted Subsidiary (and, in any case, any Investment held by such Person that was not acquired by such Person in contemplation of such merger, consolidation or transfer);

 

(iii)          Temporary Cash Investments or Cash Equivalents;

 

(iv)          receivables owing to the Company or any Restricted Subsidiary, if created or acquired in the ordinary course of business;

 

(v)           any securities or other Investments received as consideration in, or retained in connection with, sales or other dispositions of property or assets, including Asset Dispositions made in compliance with Section 411 ;

 

(vi)          securities or other Investments received in settlement of debts created in the ordinary course of business and owing to, or of other claims asserted by, the Company or any Restricted Subsidiary, or as a result of foreclosure, perfection or enforcement of any Lien, or in satisfaction of judgments, including in connection with any bankruptcy proceeding or other reorganization of another Person;

 

(vii)         Investments in existence or made pursuant to legally binding written commitments in existence on the Issue Date;

 

(viii)        Currency Agreements, Interest Rate Agreements, Commodities Agreements and related Hedging Obligations, which obligations are Incurred in compliance with Section 407 ;

 

30



 

(ix)           pledges or deposits (x) with respect to leases or utilities provided to third parties in the ordinary course of business or (y) otherwise described in the definition of “Permitted Liens” or made in connection with Liens permitted under Section 413 ;

 

(x)            (1) Investments in or by any Special Purpose Subsidiary, or in connection with a Financing Disposition by or to or in favor of any Special Purpose Entity, including Investments of funds held in accounts permitted or required by the arrangements governing such Financing Disposition or any related Indebtedness, or (2) any promissory note issued by the Company, or any Parent, provided that if such Parent receives cash from the relevant Special Purpose Entity in exchange for such note, an equal cash amount is contributed by any Parent to the Company;

 

(xi)           bonds secured by assets leased to and operated by the Company or any Restricted Subsidiary that were issued in connection with the financing of such assets so long as the Company or any Restricted Subsidiary may obtain title to such assets at any time by paying a nominal fee, canceling such bonds and terminating the transaction;

 

(xii)          Notes;

 

(xiii)         any Investment to the extent made using Capital Stock of the Company (other than Disqualified Stock), or Capital Stock of any Parent, as consideration;

 

(xiv)        Management Advances;

 

(xv)         Investments consisting of, or arising out of or related to, Vehicle Rental Concession Rights, including any Investments referred to in the definition of the term “Vehicle Rental Concession Rights”, and any Investments in Franchisees arising as a result of the Company or any Restricted Subsidiary being party to any Vehicle Rental Concession or any related agreement jointly with any Franchisee, or leasing or subleasing any part of a Public Facility or other property to any Franchisee, or guaranteeing any obligation of any Franchisee in respect of any Vehicle Rental Concession or any related agreement;

 

(xvi)        Investments in Related Businesses in an aggregate amount outstanding at any time not to exceed 3% of Consolidated Tangible Assets;

 

(xvii)       any transaction to the extent it constitutes an Investment that is permitted by and made in accordance with the provisions of Section 412(b)  (except transactions described in clauses (i), (v) and (vi) of such paragraph), including any Investment pursuant to any transaction described in Section 412(b)(ii)  (whether or not any Person party thereto is at any time an Affiliate of the Company);

 

(xviii)      other Investments in an aggregate amount outstanding at any time not to exceed 1.0% of Consolidated Tangible Assets; and

 

31



 

(xix)         ( 1 ) Investments in Franchise Special Purpose Entities directly or indirectly to finance or refinance the acquisition of Franchise Rental Car Vehicles and/or other Franchise Equipment and/or related rights and/or assets, in an aggregate amount outstanding at any time (as to all such Franchise Special Purpose Entities, and taken together with the then outstanding aggregate principal amount of Indebtedness classified by the Company under clause (a) of the definition of “Franchise Vehicle Indebtedness”) not exceeding the Franchise SPE Fleet Amount, ( 2 ) Investments in Franchisees attributable to the financing or refinancing of Franchise Rental Car Vehicles and/or other Franchise Equipment and/or related rights and/or assets, as determined in good faith by the Chief Financial Officer or an authorized Officer of the Company (which determination shall be conclusive), in an aggregate amount outstanding at any time (as to all such Franchisees, and taken together with the then outstanding aggregate principal amount of Indebtedness classified by the Company under clause (b) of the definition of “Franchise Vehicle Indebtedness”) not exceeding the Franchise Asset Value Amount, ( 3 ) Investments in Franchisees in an aggregate amount outstanding at any time (as to all such Franchisees, and taken together with the then outstanding aggregate principal amount of Indebtedness classified by the Company under clause (c) of the definition of “Franchise Vehicle Indebtedness”) not exceeding the Franchisee Revenue Amount, ( 4 ) Investments in Capital Stock of Franchisees and Franchise Special Purpose Entities (including pursuant to capital contributions), and ( 5 ) Investments in Franchisees arising as the result of Guarantees of Franchise Vehicle Indebtedness or Franchise Lease Obligations.

 

If any Investment pursuant to clause (xvi), (xviii) or (xix) above, or Section 409(b)(vii) , as applicable, is made in any Person that is not a Restricted Subsidiary and such Person thereafter ( A ) becomes a Restricted Subsidiary or ( B ) is merged or consolidated into, or transfers or conveys all or substantially all its assets to, or is liquidated into, the Company or a Restricted Subsidiary, then such Investment shall thereafter be deemed to have been made pursuant to clause (i) or (ii) above, respectively, and not clause (xvi), (xviii) or (xix) above, or Section 409(b)(vii) , as applicable (and, in the case of the foregoing clause (A), for so long as such Person continues to be a Restricted Subsidiary unless and until such Person is merged or consolidated into, or transfers or conveys all or substantially all its assets to, or is liquidated into, the Company or a Restricted Subsidiary).

 

Permitted Liens ” means:

 

(a)           Liens for taxes, assessments or other governmental charges not yet delinquent or the nonpayment of which in the aggregate would not reasonably be expected to have a material adverse effect on the Company and its Restricted Subsidiaries or that are being contested in good faith and by appropriate proceedings if adequate reserves with respect thereto are maintained on the books of the Company or a Subsidiary thereof, as the case may be, in accordance with GAAP;

 

32


 

(b)           Liens with respect to outstanding motor vehicle fines and carriers’, warehousemen’s, mechanics’, landlords’, materialmen’s, repairmen’s or other like Liens arising in the ordinary course of business in respect of obligations that are not overdue for a period of more than 60 days or that are bonded or that are being contested in good faith and by appropriate proceedings;

 

(c)           pledges, deposits or Liens in connection with workers’ compensation, unemployment insurance and other social security and other similar legislation or other insurance-related obligations (including, without limitation, pledges or deposits securing liability to insurance carriers under insurance or self-insurance arrangements);

 

(d)           pledges, deposits or Liens to secure the performance of bids, tenders, trade, government or other contracts (other than for borrowed money), obligations for utilities, leases, licenses, statutory obligations, completion guarantees, surety, judgment, appeal or performance bonds, other similar bonds, instruments or obligations, and other obligations of a like nature incurred in the ordinary course of business;

 

(e)           easements (including reciprocal easement agreements), rights-of-way, building, zoning and similar restrictions, utility agreements, covenants, reservations, restrictions, encroachments, charges, and other similar encumbrances or title defects incurred, or leases or subleases granted to others, in the ordinary course of business, which do not in the aggregate materially interfere with the ordinary conduct of the business of the Company and its Subsidiaries, taken as a whole;

 

(f)            Liens existing on, or provided for under written arrangements existing on, the Issue Date, or (in the case of any such Liens securing Indebtedness of the Company or any of its Subsidiaries existing or arising under written arrangements existing on the Issue Date) securing any Refinancing Indebtedness in respect of such Indebtedness so long as the Lien securing such Refinancing Indebtedness is limited to all or part of the same property or assets (plus improvements, accessions, proceeds or dividends or distributions in respect thereof) that secured (or under such written arrangements could secure) the original Indebtedness;

 

(g)           (i) mortgages, liens, security interests, restrictions, encumbrances or any other matters of record that have been placed by any developer, landlord or other third party on property over which the Company or any Restricted Subsidiary of the Company has easement rights or on any leased property and subordination or similar agreements relating thereto and (ii) any condemnation or eminent domain proceedings affecting any real property;

 

(h)           Liens securing Indebtedness (including Liens securing any Obligations in respect thereof) consisting of Hedging Obligations, Purchase Money Obligations or Capitalized Lease Obligations Incurred in compliance with Section 407 ;

 

33



 

(i)            Liens arising out of judgments, decrees, orders or awards in respect of which the Company or any Restricted Subsidiary shall in good faith be prosecuting an appeal or proceedings for review, which appeal or proceedings shall not have been finally terminated, or if the period within which such appeal or proceedings may be initiated shall not have expired;

 

(j)            leases, subleases, licenses or sublicenses to third parties;

 

(k)           Liens securing Indebtedness (including Liens securing any Obligations in respect thereof) consisting of ( A )( 1 ) Indebtedness Incurred in compliance with Section 407(b)(i) , Section 407(b)(iv) , Section 407(b)(v) , Section 407(b)(vii) , Section 407(b)(viii) , Section 407(b)(ix)  or Section 407(b)(xi) , or Section 407(b)(iii)  (other than Refinancing Indebtedness Incurred in respect of Indebtedness described in Section 407(a) ), (2) Credit Facility Indebtedness Incurred in compliance with Section 407(b) , (3) the Notes, (4) Indebtedness of any Restricted Subsidiary that is not a Subsidiary Guarantor, (5) Indebtedness or other obligations of any Special Purpose Entity or (6) obligations in respect of Management Advances or Management Guarantees; in each case under the foregoing clauses (1) through (6) including Liens securing any Guarantee of any thereof, or (B)  Non-Recourse Indebtedness of HERC to the extent such Liens do not extend to property or assets other than HERC Assets;

 

(l)            Liens existing on property or assets of a Person at the time such Person becomes a Subsidiary of the Company (or at the time the Company or a Restricted Subsidiary acquires such property or assets, including any acquisition by means of a merger or consolidation with or into the Company or any Restricted Subsidiary); provided, however, that such Liens are not created in connection with, or in contemplation of, such other Person becoming such a Subsidiary (or such acquisition of such property or assets), and that such Liens are limited to all or part of the same property or assets (plus improvements, accessions, proceeds or dividends or distributions in respect thereof) that secured (or, under the written arrangements under which such Liens arose, could secure) the obligations to which such Liens relate; provided further, that for purposes of this clause (l), if a Person other than the Company is the Successor Company with respect thereto, any Subsidiary thereof shall be deemed to become a Subsidiary of the Company, and any property or assets of such Person or any such Subsidiary shall be deemed acquired by the Company or a Restricted Subsidiary, as the case may be, when such Person becomes such Successor Company;

 

(m)          Liens on Capital Stock, Indebtedness or other securities of an Unrestricted Subsidiary that secure Indebtedness or other obligations of such Unrestricted Subsidiary;

 

(n)           any encumbrance or restriction (including, but not limited to, pursuant to put and call agreements or buy/sell arrangements) with respect to Capital Stock of any joint venture or similar arrangement pursuant to any joint venture or similar agreement;

 

34



 

(o)           Liens securing Indebtedness (including Liens securing any Obligations in respect thereof) consisting of Refinancing Indebtedness Incurred in respect of any Indebtedness secured by, or securing any refinancing, refunding, extension, renewal or replacement (in whole or in part) of any other obligation secured by, any other Permitted Liens, provided that any such new Lien is limited to all or part of the same property or assets (plus improvements, accessions, proceeds or dividends or distributions in respect thereof) that secured (or, under the written arrangements under which the original Lien arose, could secure) the obligations to which such Liens relate;

 

(p)           Liens ( 1 ) arising by operation of law (or by agreement to the same effect) in the ordinary course of business, ( 2 ) on property or assets under construction (and related rights) in favor of a contractor or developer or arising from progress or partial payments by a third party relating to such property or assets, ( 3 ) on receivables (including related rights), ( 4 ) on cash set aside at the time of the Incurrence of any Indebtedness or government securities purchased with such cash, in either case to the extent that such cash or government securities prefund the payment of interest on such Indebtedness and are held in an escrow account or similar arrangement to be applied for such purpose, ( 5 ) securing or arising by reason of any netting or set-off arrangement entered into in the ordinary course of banking or other trading activities (including in connection with purchase orders and other agreements with customers), ( 6 ) in favor of the Company or any Subsidiary (other than Liens on property or assets of the Company or any Subsidiary Guarantor in favor of any Subsidiary that is not a Subsidiary Guarantor), ( 7 ) arising out of conditional sale, title retention, consignment or similar arrangements for the sale of goods entered into in the ordinary course of business, ( 8 ) on inventory or goods and proceeds securing the obligations in respect of bankers’ acceptances issued or created to facilitate the purchase, shipment or storage of such inventory or other goods, ( 9 ) relating to pooled deposit or sweep accounts to permit satisfaction of overdraft, cash pooling or similar obligations incurred in the ordinary course of business, ( 10 ) attaching to commodity trading or other brokerage accounts incurred in the ordinary course of business, ( 11 ) arising in connection with repurchase agreements permitted under Section 407 , on assets that are the subject of such repurchase agreements, ( 12 ) in favor of any Special Purpose Entity in connection with any Financing Disposition or ( 13 ) in favor of any Franchise Special Purpose Entity in connection with any Franchise Financing Disposition;

 

(q)           Liens on or under, or arising out of or relating to, any Vehicle Rental Concession Rights;

 

(r)            other Liens securing obligations incurred in the ordinary course of business, which obligations do not exceed $50.0 million at any time outstanding; and

 

(s)           Liens securing Indebtedness (including Liens securing any Obligations in respect thereof) consisting of Indebtedness Incurred in compliance with Section 407 , provided that on the date of the Incurrence of such Indebtedness after giving effect to

 

35



 

such Incurrence (or on the date of the initial borrowing of such Indebtedness after giving pro forma effect to the Incurrence of the entire committed amount of such Indebtedness), the Consolidated Secured Leverage Ratio shall not exceed 4.0 to 1.0.

 

Person ” means any individual, corporation, partnership, joint venture, association, joint-stock company, limited liability company, trust, unincorporated organization, government or any agency or political subdivision thereof or any other entity.

 

Place of Payment ” means a city or any political subdivision thereof in which any Paying Agent appointed pursuant to Article III is located.

 

Predecessor Notes ” of any particular Note means every previous Note evidencing all or a portion of the same debt as that evidenced by such particular Note; and, for the purposes of this definition, any Note authenticated and delivered under Section 306 in lieu of a mutilated, lost, destroyed or stolen Note shall be deemed to evidence the same debt as the mutilated, lost, destroyed or stolen Note.

 

Preferred Stock ” as applied to the Capital Stock of any corporation means Capital Stock of any class or classes (however designated) that by its terms is preferred as to the payment of dividends, or as to the distribution of assets upon any voluntary or involuntary liquidation or dissolution of such corporation, over shares of Capital Stock of any other class of such corporation.

 

Public Facility ” means ( i ) any airport; marine port; rail, subway, bus or other transit stop, station or terminal; stadium; convention center; or military camp, fort, post or base or ( ii ) any other facility owned or operated by any nation or government or political subdivision thereof, or agency, authority or other instrumentality of any thereof, or other entity exercising regulatory, administrative or other functions of or pertaining to government, or any organization of nations (including the United Nations, the European Union and the North Atlantic Treaty Organization).

 

Public Facility Operator ” means a Person that grants or has the power to grant a Vehicle Rental Concession.

 

Purchase Money Obligations ” means any Indebtedness Incurred to finance or refinance the acquisition, leasing, construction or improvement of property (real or personal) or assets, and whether acquired through the direct acquisition of such property or assets or the acquisition of the Capital Stock of any Person owning such property or assets, or otherwise; provided that for purposes of Section 407(b)(iv) , the term “Purchase Money Obligations” shall not include Indebtedness to the extent Incurred to finance or refinance the direct acquisition of Inventory or Equipment (not acquired through the acquisition of Capital Stock of any Person owning property or assets, or through the acquisition of property or assets, that include Inventory or Equipment).

 

36



 

QIB ” or “ Qualified Institutional Buyer ” means a “qualified institutional buyer,” as that term is defined in Rule 144A.

 

Rating Agency ” means Moody’s or S&P or, if Moody’s or S&P or both shall not make a rating on the Notes publicly available, a nationally recognized statistical rating agency or agencies, as the case may be, selected by the Company which shall be substituted for Moody’s or S&P or both, as the case may be.

 

Receivable ” means a right to receive payment pursuant to an arrangement with another Person pursuant to which such other Person is obligated to pay, as determined in accordance with GAAP.

 

Redemption Date ,” when used with respect to any Note to be redeemed or purchased, means the date fixed for such redemption or purchase by or pursuant to this Indenture and the Notes.

 

refinance ” means refinance, refund, replace, renew, repay, modify, restate, defer, substitute, supplement, reissue, resell or extend (including pursuant to any defeasance or discharge mechanism); and the terms “refinances,” “refinanced” and “refinancing” as used for any purpose in this Indenture shall have a correlative meaning.

 

Refinancing Credit Facility ” means any syndicated Credit Facility under which the Company incurs Indebtedness to refinance all or any portion of its Indebtedness under the Senior Credit Facilities.

 

Refinancing Indebtedness ” means Indebtedness that is Incurred to refinance any Indebtedness existing on the date of this Indenture or Incurred in compliance with this Indenture (including Indebtedness of the Company that refinances Indebtedness of any Restricted Subsidiary (to the extent permitted in this Indenture) and Indebtedness of any Restricted Subsidiary that refinances Indebtedness of another Restricted Subsidiary) including Indebtedness that refinances Refinancing Indebtedness; provided, that ( 1 ) if the Indebtedness being refinanced is Subordinated Obligations or Guarantor Subordinated Obligations, the Refinancing Indebtedness has a final Stated Maturity at the time such Refinancing Indebtedness is Incurred that is equal to or greater than the final Stated Maturity of the Indebtedness being refinanced (or if shorter, the Notes), ( 2 ) such Refinancing Indebtedness is Incurred in an aggregate principal amount (or if issued with original issue discount, an aggregate issue price) that is equal to or less than the sum of ( x ) the aggregate principal amount (or if issued with original issue discount, the aggregate accreted value) then outstanding of the Indebtedness being refinanced, plus ( y ) fees, underwriting discounts, premiums and other costs and expenses incurred in connection with such Refinancing Indebtedness and ( 3 ) Refinancing Indebtedness shall not include ( x ) Indebtedness of a Restricted Subsidiary that is not a Subsidiary Guarantor that refinances Indebtedness of the Company or a Subsidiary Guarantor that could not have been initially Incurred by such Restricted Subsidiary pursuant to Section 407 or ( y ) Indebtedness of the Company or a Restricted Subsidiary that refinances Indebtedness of an Unrestricted Subsidiary.

 

37



 

Regular Record Date ” for the interest payable on any Interest Payment Date means the date specified for that purpose in Section 301 .

 

Regulation S ” means Regulation S under the Securities Act.

 

Regulation S Certificate ” means a certificate substantially in the form attached hereto as Exhibit D .

 

Related Business ” means those businesses in which the Company or any of its Subsidiaries is engaged on the date of this Indenture, or that are related, complementary, incidental or ancillary thereto or extensions, developments or expansions thereof.

 

Related Taxes ” means any taxes, charges or assessments, including but not limited to sales, use, transfer, rental, ad valorem, value-added, stamp, property, consumption, franchise, license, capital, net worth, gross receipts, excise, occupancy, intangibles or similar taxes, charges or assessments (other than federal, state or local taxes measured by income and federal, state or local withholding imposed by any government or other taxing authority on payments made by any Parent other than to another Parent), required to be paid by any Parent by virtue of its being incorporated or having Capital Stock outstanding (but not by virtue of owning stock or other equity interests of any corporation or other entity other than the Company, any of its Subsidiaries or any Parent), or being a holding company parent of the Company, any of its Subsidiaries or any Parent or receiving dividends from or other distributions in respect of the Capital Stock of the Company, any of its Subsidiaries or any Parent, or having guaranteed any obligations of the Company or any Subsidiary thereof, or having made any payment in respect of any of the items for which the Company or any of its Subsidiaries is permitted to make payments to any Parent pursuant to Section 409 , or acquiring, developing, maintaining, owning, prosecuting, protecting or defending its intellectual property and associated rights (including but not limited to receiving or paying royalties for the use thereof) relating to the business or businesses of the Company or any Subsidiary thereof, or any other federal, state, foreign, provincial or local taxes measured by income for which any Parent is liable up to an amount not to exceed, with respect to federal taxes, the amount of any such taxes that the Company and its Subsidiaries would have been required to pay on a separate company basis, or on a consolidated basis as if the Company had filed a consolidated return on behalf of an affiliated group (as defined in Section 1504 of the Code) of which it were the common parent, or with respect to state and local taxes, the amount of any such taxes that the Company and its Subsidiaries would have been required to pay on a separate company basis, or on a consolidated, combined, unitary or affiliated basis as if the Company had filed a consolidated, combined, unitary or affiliated return on behalf of an affiliated group (as defined in the applicable state or local tax laws for filing such return) consisting only of the Company and its Subsidiaries.  Taxes include all interest, penalties and additions relating thereto.

 

Rental Car Vehicles ” means all passenger Vehicles owned by or leased to the Company or a Restricted Subsidiary that are classified as “revenue earning equipment” in the consolidated financial statements of the Company and are or have been offered for lease or rental by any of the Company and its Restricted Subsidiaries in their car rental operations (and not, for

 

38



 

the avoidance of doubt, in connection with any business or operations involving the leasing or renting of other types of Equipment), including any such Vehicles being held for sale.

 

Reorganization Assets ” means HERC Assets and any assets sold, leased, transferred or otherwise disposed of to any Franchisee or any Franchise Special Purpose Entity.

 

Resale Restriction Termination Date ” means, with respect to any Note, the date that is one year (or such other period as may hereafter be provided under Rule 144 under the Securities Act or any successor provision thereto as permitting the resale by non-affiliates of Restricted Securities without restriction) after the later of the original issue date in respect of such Note and the last date on which the Company or any Affiliate of the Company was the owner of such Note (or any Predecessor Note thereto).

 

Responsible Officer ” when used with respect to the Trustee means any vice president or assistant vice president, any trust officer or assistant trust officer, or any other officer of the Trustee customarily performing functions similar to those performed by any of the above designated officers and also means, with respect to a particular corporate trust matter, any other officer to whom such matter is referred because of his knowledge of and familiarity with the particular subject.

 

Restricted Payment Transaction ” means any Restricted Payment permitted pursuant to Section 409 , any Permitted Payment, any Permitted Investment, or any transaction specifically excluded from the definition of the term “Restricted Payment” (including pursuant to the exception contained in clause (i) and the parenthetical exclusions contained in clauses (ii) and (iii) of such definition).

 

Restricted Security ” has the meaning assigned to such term in Rule 144(a)(3) under the Securities Act; provided , however , that the Trustee shall be entitled to receive, at its request, and conclusively rely on an Opinion of Counsel with respect to whether any Note constitutes a Restricted Security.

 

Restricted Subsidiary ” means any Subsidiary of the Company other than an Unrestricted Subsidiary.

 

Rule 144A ” means Rule 144A under the Securities Act.

 

S&P ” means Standard & Poor’s Ratings Group, a division of The McGraw-Hill Companies, Inc., and its successors.

 

SEC ” means the Securities and Exchange Commission.

 

Securities Act ” means the Securities Act of 1933, as amended.

 

Senior ABL Agreement ” means the Credit Agreement, dated as of December 21, 2005, among HERC; the Company; the Canadian borrowers party thereto; Deutsche Bank AG,

 

39



 

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; the lenders party thereto from time to time; Deutsche Bank Securities Inc., Lehman Brothers Inc. and Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated, as joint lead arrangers; BNP Paribas, The Royal Bank of Scotland plc and Calyon, as co-arrangers; and Deutsche Bank Securities Inc., Lehman Brothers Inc., Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated, Goldman Sachs Credit Partners L.P. and JPMorgan Chase Bank, N.A., as joint bookrunning managers, as such agreement may be amended, supplemented, waived or otherwise modified from time to time or refunded, refinanced, restructured, replaced, renewed, repaid, increased or extended from time to time (whether in whole or in part, whether with the original administrative agent and lenders or other agents and lenders or otherwise, and whether provided under the original Senior ABL Agreement or other credit agreements or otherwise, unless such agreement, instrument or document expressly provides that it is not intended to be and is not a Senior ABL Agreement).

 

Senior ABL Facility ” means the collective reference to the Senior ABL Agreement, any Loan Documents (as defined therein), any notes and letters of credit issued pursuant thereto and any guarantee and collateral agreement, patent and trademark security agreement, mortgages, letter of credit applications and other guarantees, pledge agreements, security agreements and collateral documents, and other instruments and documents, executed and delivered pursuant to or in connection with any of the foregoing, in each case as the same may be amended, supplemented, waived or otherwise modified from time to time, or refunded, refinanced, restructured, replaced, renewed, repaid, increased or extended from time to time (whether in whole or in part, whether with the original agent and lenders or other agents and lenders or otherwise, and whether provided under the original Senior ABL Agreement or one or more other credit agreements, indentures (including this Indenture) or financing agreements or otherwise, unless such agreement, instrument or document expressly provides that it is not intended to be and is not a Senior ABL Facility). Without limiting the generality of the foregoing, the term “Senior ABL Facility” shall include any agreement ( i ) changing the maturity of any Indebtedness Incurred thereunder or contemplated thereby, ( ii ) adding Subsidiaries of the Company or HERC as additional borrowers or guarantors thereunder, ( iii ) increasing the amount of Indebtedness Incurred thereunder or available to be borrowed thereunder or ( iv ) otherwise altering the terms and conditions thereof.

 

Senior Credit Agreements ” means, collectively, the Senior ABL Agreement and the Senior Term Agreement.

 

Senior Credit Facilities ” means, collectively, the Senior ABL Facility and the Senior Term Facility.

 

Senior Indebtedness ” means any Indebtedness of the Company or any Restricted Subsidiary other than, in the case of the Company, Subordinated Obligations and, in the case of any Subsidiary Guarantor, Guarantor Subordinated Obligations.

 

40



 

Senior Term Agreement ” means the Credit Agreement, dated as of December 21, 2005, among the Company; any other borrowers party thereto from time to time; 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; the lenders party thereto from time to time; Deutsche Bank Securities Inc., Lehman Brothers Inc. and Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated, as joint lead arrangers; BNP Paribas, The Royal Bank of Scotland plc and Calyon, as co-arrangers; and Deutsche Bank Securities Inc., Lehman Brothers Inc., Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated, Goldman Sachs Credit Partners L.P. and JPMorgan Chase Bank, N.A., as joint bookrunning managers, as such agreement may be amended, supplemented, waived or otherwise modified from time to time or refunded, refinanced, restructured, replaced, renewed, repaid, increased or extended from time to time (whether in whole or in part, whether with the original administrative agent and lenders or other agents and lenders or otherwise, and whether provided under the original Senior Term Agreement or other credit agreements or otherwise, unless such agreement, instrument or document expressly provides that it is not intended to be and is not a Senior Term Agreement).

 

Senior Term Facility ” means the collective reference to the Senior Term Agreement, any Loan Documents (as defined therein), any notes and letters of credit issued pursuant thereto and any guarantee and collateral agreement, patent and trademark security agreement, mortgages, letter of credit applications and other guarantees, pledge agreements, security agreements and collateral documents, and other instruments and documents, executed and delivered pursuant to or in connection with any of the foregoing, in each case as the same may be amended, supplemented, waived or otherwise modified from time to time, or refunded, refinanced, restructured, replaced, renewed, repaid, increased or extended from time to time (whether in whole or in part, whether with the original agent and lenders or other agents and lenders or otherwise, and whether provided under the original Senior Term Agreement or one or more other credit agreements, indentures (including this Indenture) or financing agreements or otherwise, unless such agreement, instrument or document expressly provides that it is not intended to be and is not a Senior Term Facility). Without limiting the generality of the foregoing, the term “Senior Term Facility” shall include any agreement ( i ) changing the maturity of any Indebtedness Incurred thereunder or contemplated thereby, ( ii ) adding Subsidiaries of the Company as additional borrowers or guarantors thereunder, ( iii ) increasing the amount of Indebtedness Incurred thereunder or available to be borrowed thereunder or ( iv ) otherwise altering the terms and conditions thereof.

 

Significant Subsidiary ” means any Restricted Subsidiary that would be a “significant subsidiary” of the Company within the meaning of Rule 1-02 under Regulation S-X promulgated by the SEC, as such Regulation is in effect on the Issue Date.

 

Special Purpose Entity ” means ( x ) any Special Purpose Subsidiary or ( y ) any other Person that is engaged in the business of ( i ) acquiring, selling, collecting, financing or refinancing Receivables, accounts (as defined in the Uniform Commercial Code as in effect in any jurisdiction from time to time), other accounts and/or other receivables, and/or related assets,

 

41



 

and/or ( ii ) acquiring, selling, leasing, financing or refinancing Vehicles and/or other Equipment, and/or related rights (including under leases, manufacturer warranties and buy-back programs, and insurance policies) and/or assets (including managing, exercising and disposing of any such rights and/or assets).

 

Special Purpose Financing ” means any financing or refinancing of assets consisting of or including Receivables, Vehicles and/or other Equipment of the Company or any Restricted Subsidiary that have been transferred to a Special Purpose Entity or made subject to a Lien in a Financing Disposition.

 

Special Purpose Financing Fees ” means distributions or payments made directly or by means of discounts with respect to any participation interest issued or sold in connection with, and other fees paid to a Person that is not a Restricted Subsidiary in connection with, any Special Purpose Financing.

 

Special Purpose Financing Undertakings ” means representations, warranties, covenants, indemnities, guarantees of performance and (subject to clause (y) of the proviso below) other agreements and undertakings entered into or provided by the Company or any of its Restricted Subsidiaries that the Company determines in good faith (which determination shall be conclusive) are customary or otherwise necessary or advisable in connection with a Special Purpose Financing or a Financing Disposition; provided that ( x ) it is understood that Special Purpose Financing Undertakings may consist of or include ( i ) reimbursement and other obligations in respect of notes, letters of credit, surety bonds and similar instruments provided for credit enhancement purposes or ( ii ) Hedging Obligations, or other obligations relating to Interest Rate Agreements, Currency Agreements or Commodities Agreements entered into by the Company or any Restricted Subsidiary, in respect of any Special Purpose Financing or Financing Disposition, and ( y ) subject to the preceding clause (x), any such other agreements and undertakings shall not include any Guarantee of Indebtedness of a Special Purpose Subsidiary by the Company or a Restricted Subsidiary that is not a Special Purpose Subsidiary.

 

Special Purpose Subsidiary ” means a Subsidiary of the Company that ( a ) is engaged solely in ( x ) the business of ( i ) acquiring, selling, collecting, financing or refinancing Receivables, accounts (as defined in the Uniform Commercial Code as in effect in any jurisdiction from time to time) and other accounts and receivables (including any thereof constituting or evidenced by chattel paper, instruments or general intangibles), all proceeds thereof and all rights (contractual and other), collateral and other assets relating thereto, and/or ( ii ) acquiring, selling, leasing, financing or refinancing Vehicles and/or other Equipment, and/or related rights (including under leases, manufacturer warranties and buy-back programs, and insurance policies) and /or assets (including managing, exercising and disposing of any such rights and/or assets), all proceeds thereof and all rights (contractual and other), collateral and other assets relating thereto, and ( y ) any business or activities incidental or related to such business, and ( b ) is designated as a “Special Purpose Subsidiary” by the Company.

 

Special Record Date ” for the payment of any Defaulted Interest means a date fixed by the Trustee pursuant to Section 307 .

 

42


 

Stated Maturity ” means, with respect to any Indebtedness, the date specified in such Indebtedness as the fixed date on which the payment of principal of such Indebtedness is due and payable, including pursuant to any mandatory redemption provision (but excluding any provision providing for the repurchase or repayment of such Indebtedness at the option of the holder thereof upon the happening of any contingency).

 

Subordinated Obligations ” means any Indebtedness of the Company (whether outstanding on the date of this Indenture or thereafter Incurred) that is expressly subordinated in right of payment to the Notes pursuant to a written agreement.

 

Subsidiary ” of any Person means any corporation, association, partnership or other business entity of which more than 50% of the total voting power of shares of Capital Stock or other equity interests (including partnership interests) entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof is at the time owned or controlled, directly or indirectly, by ( i ) such Person or ( ii ) one or more Subsidiaries of such Person.

 

Subsidiary Guarantee ” means any guarantee of the Notes that may from time to time be entered into by a Restricted Subsidiary of the Company on or after the Issue Date pursuant to Section 414 .

 

Subsidiary Guarantor ” means any Restricted Subsidiary of the Company that enters into a Subsidiary Guarantee.

 

Successor Company ” shall have the meaning assigned thereto in Section 501 .

 

Tax Sharing Agreement ” means the Tax Sharing Agreement, dated as of December 21, 2005, among the Company, Holding and Hertz Investors, as the same may be amended, supplemented, waived or otherwise modified from time to time in accordance with the terms thereof and of this Indenture.

 

Temporary Cash Investments ” means any of the following: ( i ) any investment in ( x ) direct obligations of the United States of America, a member state of the European Union or any country in whose currency funds are being held pending their application in the making of an investment or capital expenditure by the Company or a Restricted Subsidiary in that country or with such funds, or any agency or instrumentality of any thereof or obligations Guaranteed by the United States of America or a member state of the European Union or any country in whose currency funds are being held pending their application in the making of an investment or capital expenditure by the Company or a Restricted Subsidiary in that country or with such funds, or any agency or instrumentality of any of the foregoing, or obligations guaranteed by any of the foregoing or ( y ) direct obligations of any foreign country recognized by the United States of America rated at least “A” by S&P or “A-1” by Moody’s (or, in either case, the equivalent of such rating by such organization or, if no rating of S&P or Moody’s then exists, the equivalent of such rating by any nationally recognized rating organization), ( ii ) overnight bank deposits, and investments in time deposit accounts, certificates of deposit, bankers’ acceptances and money

 

43



 

market deposits (or, with respect to foreign banks, similar instruments) maturing not more than one year after the date of acquisition thereof issued by ( x ) any bank or other institutional lender under a Credit Facility or any affiliate thereof or ( y ) a bank or trust company that is organized under the laws of the United States of America, any state thereof or any foreign country recognized by the United States of America having capital and surplus aggregating in excess of $250.0 million (or the foreign currency equivalent thereof) and whose long term debt is rated at least “A” by S&P or “A-1” by Moody’s (or, in either case, the equivalent of such rating by such organization or, if no rating of S&P or Moody’s then exists, the equivalent of such rating by any nationally recognized rating organization) at the time such Investment is made, ( iii ) repurchase obligations with a term of not more than 30 days for underlying securities or instruments of the types described in clause (i) or (ii) above entered into with a bank meeting the qualifications described in clause (ii) above, ( iv ) Investments in commercial paper, maturing not more than 270 days after the date of acquisition, issued by a Person (other than that of the Company or any of its Subsidiaries), with a rating at the time as of which any Investment therein is made of “P-2” (or higher) according to Moody’s or “A-2” (or higher) according to S&P (or, in either case, the equivalent of such rating by such organization or, if no rating of S&P or Moody’s then exists, the equivalent of such rating by any nationally recognized rating organization), ( v ) Investments in securities maturing not more than one year after the date of acquisition issued or fully guaranteed by any state, commonwealth or territory of the United States of America, or by any political subdivision or taxing authority thereof, and rated at least “A” by S&P or “A” by Moody’s (or, in either case, the equivalent of such rating by such organization or, if no rating of S&P or Moody’s then exists, the equivalent of such rating by any nationally recognized rating organization), ( vi ) Preferred Stock (other than of the Company or any of its Subsidiaries) having a rating of “A” or higher by S&P or “A2” or higher by Moody’s (or, in either case, the equivalent of such rating by such organization or, if no rating of S&P or Moody’s then exists, the equivalent of such rating by any nationally recognized rating organization), ( vii ) investment funds investing 95% of their assets in securities of the type described in clauses (i)-(vi) above (which funds may also hold reasonable amounts of cash pending investment and/or distribution), ( viii ) any money market deposit accounts issued or offered by a domestic commercial bank or a commercial bank organized and located in a country recognized by the United States of America, in each case, having capital and surplus in excess of $250.0 million (or the foreign currency equivalent thereof), or investments in money market funds subject to the risk limiting conditions of Rule 2a-7 (or any successor rule) of the SEC under the Investment Company Act of 1940, as amended, and ( ix ) similar investments approved by the Board of Directors in the ordinary course of business.

 

TIA ” means the Trust Indenture Act of 1939 (15 U.S.C. §§ 77aaa-7bbbb) as in effect on the date of this Indenture, except as otherwise provided herein.

 

Trade Payables ” means, with respect to any Person, any accounts payable or any indebtedness or monetary obligation to trade creditors created, assumed or guaranteed by such Person arising in the ordinary course of business in connection with the acquisition of goods or services.

 

44



 

Transactions ” means, collectively, any or all of the following (whether or not consummated): the entry into this Indenture, the offer of the Notes, the issuance of the Notes and all other transactions relating to any of the foregoing (including payment of fees and expenses related to any of the foregoing).

 

Trustee ” means the party named as such in the first paragraph of this Indenture until a successor replaces it and, thereafter, means the successor.

 

Unrestricted Subsidiary ” means ( i ) any Subsidiary of the Company that at the time of determination is an Unrestricted Subsidiary, as designated by the Board of Directors in the manner provided below, and ( ii ) any Subsidiary of an Unrestricted Subsidiary. The Board of Directors may designate any Subsidiary of the Company (including any newly acquired or newly formed Subsidiary of the Company) to be an Unrestricted Subsidiary unless such Subsidiary or any of its Subsidiaries owns any Capital Stock or Indebtedness of, or owns or holds any Lien on any property of, the Company or any other Restricted Subsidiary of the Company that is not a Subsidiary of the Subsidiary to be so designated; provided, that ( A ) such designation was made at or prior to the Issue Date, or ( B ) the Subsidiary to be so designated has total consolidated assets of $1,000 or less or ( C ) if such Subsidiary has consolidated assets greater than $1,000, then such designation would be permitted under Section 409 . The Board of Directors may designate any Unrestricted Subsidiary to be a Restricted Subsidiary; provided, that immediately after giving effect to such designation ( x ) the Company could Incur at least $1.00 of additional Indebtedness under Section 407(a)  or ( y ) the Consolidated Coverage Ratio would be greater than it was immediately prior to giving effect to such designation or ( z ) such Subsidiary shall be a Special Purpose Subsidiary with no Indebtedness outstanding other than Indebtedness that can be Incurred (and upon such designation shall be deemed to be Incurred and outstanding) pursuant to Section 407(a) . Any such designation by the Board of Directors shall be evidenced to the Trustee by promptly filing with the Trustee a copy of the resolution of the Company’s Board of Directors giving effect to such designation and an Officer’s Certificate of the Company certifying that such designation complied with the foregoing provisions.

 

U.S. Government Obligation ” means ( x ) any security that is ( i ) a direct obligation of the United States of America for the payment of which the full faith and credit of the United States of America is pledged or ( ii ) an obligation of a Person controlled or supervised by and acting as an agency or instrumentality of the United States of America the payment of which is unconditionally guaranteed as a full faith and credit obligation by the United States of America, which, in either case under the preceding clause (i) or (ii), is not callable or redeemable at the option of the issuer thereof, and ( y ) any depositary receipt issued by a bank (as defined in Section 3(a)(2) of the Securities Act) as custodian with respect to any U.S. Government Obligation that is specified in clause (x) above and held by such bank for the account of the holder of such depositary receipt, or with respect to any specific payment of principal of or interest on any U.S. Government Obligation that is so specified and held, provided that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depositary receipt from any amount received by the custodian in

 

45



 

respect of the U.S. Government Obligation or the specific payment of principal or interest evidenced by such depositary receipt.

 

Vehicle Rental Concession ” means any right, whether or not exclusive, to conduct a Vehicle rental business at a Public Facility, or to pick up or discharge persons or otherwise to possess or use all or part of a Public Facility in connection with such a business, and any related rights or interests.

 

Vehicle Rental Concession Rights ” means any or all of the following: ( a ) any Vehicle Rental Concession, ( b ) any rights of the Company, any Restricted Subsidiary or any Franchisee under or relating to ( i ) any law, regulation, license, permit, request for proposals, invitation to bid, lease, agreement or understanding with a Public Facility Operator in connection with which a Vehicle Rental Concession has been or may be granted to the Company, any Restricted Subsidiary or any Franchisee and ( ii ) any agreement with, or Investment or other interest or participation in, any Person, property or asset required ( x ) by any such law, ordinance, regulation, license, permit, request for proposals, invitation to bid, lease, agreement or understanding or ( y ) by any Public Facility Operator as a condition to obtaining or maintaining a Vehicle Rental Concession, and ( c ) any liabilities or obligations relating to or arising in connection with any of the foregoing.

 

Vehicles ” means vehicles owned or operated by, or leased or rented to or by, the Company or any of its Subsidiaries, including automobiles, trucks, tractors, trailers, vans, sport utility vehicles, buses, campers, motor homes, motorcycles and other motor vehicles.

 

Vice President ”, when used with respect to any Person, means any vice president of such Person, whether or not designated by a number or a word or words added before or after the title “vice president.”

 

Voting Stock ” of an entity means all classes of Capital Stock of such entity then outstanding and normally entitled to vote in the election of directors or all interests in such entity with the ability to control the management or actions of such entity.

 

Section 102.           Other Definitions .

 

Term

 

Defined in
Section

 

 

 

 

 

“Act”

 

108

 

“Affiliate Transaction”

 

412

 

“Agent Members”

 

312

 

“Amendment”

 

410

 

“Applicable Premium”

 

1001

 

“Authentication Order”

 

303

 

“Bankruptcy Law”

 

601

 

“Certificate of Beneficial Ownership”

 

313

 

 

46



 

Term

 

Defined in
Section

 

 

 

 

 

“Change of Control Offer”

 

415

 

“Covenant Defeasance”

 

1203

 

“Custodian”

 

601

 

“Defaulted Interest”

 

307

 

“Defeasance”

 

1202

 

“Defeased Notes”

 

1201

 

“Distribution Compliance Period”

 

201

 

“Event of Default”

 

601

 

“Excess Proceeds”

 

411

 

“Expiration Date”

 

108

 

“Global Notes”

 

201

 

“Initial Agreement”

 

410

 

“Initial Lien”

 

413

 

“Minimum Denomination”

 

302

 

“Note Register” and “Note Registrar”

 

305

 

“Notice of Default”

 

601

 

“Offer”

 

411

 

“Paying Agent”

 

305

 

“Permanent Regulation S Global Note”

 

201

 

“Permitted Payment”

 

409

 

“Physical Notes”

 

201

 

“Private Placement Legend”

 

203

 

“Redemption Amount”

 

1001

 

“Redemption Price”

 

1001

 

“Refinancing Agreement”

 

410

 

“Regular Record Date”

 

301

 

“Regulation S Global Notes”

 

201

 

“Regulation S Note Exchange Date”

 

313

 

“Regulation S Physical Notes”

 

201

 

“Reporting Date”

 

405

 

“Restricted Payment”

 

409

 

“Rule 144A Global Note”

 

201

 

“Rule 144A Physical Notes”

 

201

 

“Subsidiary Guaranteed Obligations”

 

1301

 

“Successor Company”

 

501

 

“Temporary Regulation S Global Note”

 

201

 

“Termination Date”

 

416

 

“Treasury Rate”

 

1001

 

 

Section 103.           Rules of Construction .  For all purposes of this Indenture, except as otherwise expressly provided or unless the context otherwise requires:

 

47



 

(1)           the terms defined in this Indenture have the meanings assigned to them in this Indenture;

 

(2)           “ or ” is not exclusive;

 

(3)           all accounting terms not otherwise defined herein have the meanings assigned to them in accordance with GAAP;

 

(4)           the words “ herein ,” “ hereof ” and “ hereunder ” and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or other subdivision;

 

(5)           all references to “ $ ” or “ dollars ” shall refer to the lawful currency of the United States of America;

 

(6)           the words “ include ,” “ included ” and “ including ,” as used herein, shall be deemed in each case to be followed by the phrase “ without limitation ,” if not expressly followed by such phrase or the phrase “ but not limited to ”;

 

(7)           words in the singular include the plural, and words in the plural include the singular;

 

(8)           references to sections of, or rules under, the Securities Act shall be deemed to include substitute, replacement or successor sections or rules adopted by the SEC from time to time; and

 

(9)           any reference to a Section, Article or clause refers to such Section, Article or clause of this Indenture.

 

Section 104.           Incorporation by Reference of TIA .  Whenever this Indenture refers to a provision of the TIA, the provision is incorporated by reference in and made a part of this Indenture.  This Indenture is subject to the mandatory provisions of the TIA, which are incorporated by reference in and made a part of this Indenture.  Any terms incorporated by reference in this Indenture that are defined by the TIA, defined by any TIA reference to another statute or defined by SEC rule under the TIA, have the meanings so assigned to them therein.  The following TIA terms have the following meanings:

 

indenture securities ” means the Notes.

 

indenture security holder ” means a Noteholder.

 

indenture to be qualified ” means this Indenture.

 

indenture trustee ” or “ institutional trustee ” means the Trustee.

 

48



 

obligor ” on the indenture securities means the Company, any Subsidiary Guarantor, and any successor or other obligor on the indenture securities.

 

Section 105.           Conflict with TIA .  If any provision hereof limits, qualifies or conflicts with a provision of the TIA that is required under the TIA to be a part of and govern this Indenture, the latter provision shall control.  If any provision of this Indenture modifies or excludes any provision of the TIA that may be so modified or excluded, the latter provision shall be deemed ( i ) to apply to this Indenture as so modified or ( ii ) to be excluded, as the case may be.

 

Section 106.           Compliance Certificates and Opinions .  Upon any application or request by the Company or by any other obligor upon the Notes (including any Subsidiary Guarantor) to the Trustee to take any action under any provision of this Indenture, the Company or such other obligor (including any Subsidiary Guarantor), as the case may be, shall furnish to the Trustee such certificates and opinions as may be required under the TIA.  Each such certificate or opinion shall be given in the form of one or more Officer’s Certificates, if to be given by an Officer, or an Opinion of Counsel, if to be given by counsel, and shall comply with the requirements of the TIA and any other requirements set forth in this Indenture.  Notwithstanding the foregoing, in the case of any such request or application as to which the furnishing of any Officer’s Certificate or Opinion of Counsel is specifically required by any provision of this Indenture relating to such particular request or application, no additional certificate or opinion need be furnished.

 

Every certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture (except for certificates provided for in Section 406 ) shall include:

 

(1)           a statement that the individual signing such certificate or opinion has read such covenant or condition and the definitions herein relating thereto;

 

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

 

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

 

(4)           a statement as to whether, in the opinion of such individual, such condition or covenant has been complied with.

 

Section 107.           Form of Documents Delivered to Trustee .  In any case where several matters are required to be certified by, or covered by an opinion of, any specified Person, it is not necessary that all such matters be certified by, or covered by the opinion of, only one such Person, or that they be so certified or covered by only one document, but one such Person may certify or give an opinion with respect to some matters and one or more other such Persons

 

49



 

as to other matters, and any such Person may certify or give an opinion as to such matters in one or several documents.

 

Any certificate or opinion of an Officer may be based, insofar as it relates to legal matters, upon a certificate or opinion of, or representations by, counsel, unless such Officer knows that the certificate or opinion or representations with respect to the matters upon which his certificate or opinion is based are erroneous.  Any such certificate or opinion of counsel may be based, insofar as it relates to factual matters, upon a certificate or opinion of, or representations by, an Officer or Officers to the effect that the information with respect to such factual matters is in the possession of the Company, unless such counsel knows that the certificate or opinion or representations with respect to such matters are erroneous.

 

Where any Person is required to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or other instruments under this Indenture, they may, but need not, be consolidated and form one instrument.

 

Section 108.           Acts of Noteholders; Record Dates .  (a)  Any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given or taken by Holders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders in person or by agent duly appointed in writing; and, except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments are delivered to the Trustee, and, where it is hereby expressly required, to the Company, as the case may be.  Such instrument or instruments (and the action embodied therein and evidenced thereby) are herein sometimes referred to as the “ Act ” of the Holders signing such instrument or instruments.  Proof of execution of any such instrument or of a writing appointing any such agent shall be sufficient for any purpose of this Indenture and (subject to Section 701 ) conclusive in favor of the Trustee, the Company and any other obligor upon the Notes, if made in the manner provided in this Section 108 .

 

(b)   The fact and date of the execution by any Person of any such instrument or writing may be proved by the affidavit of a witness of such execution or by the certificate of any notary public or other officer authorized by law to take acknowledgments of deeds, certifying that the individual signing such instrument or writing acknowledged to him the execution thereof.  Where such execution is by an officer of a corporation or a member of a partnership or other legal entity other than an individual, on behalf of such corporation or partnership or entity, such certificate or affidavit shall also constitute sufficient proof of such Person’s authority.  The fact and date of the execution of any such instrument or writing, or the authority of the person executing the same, may also be proved in any other manner that the Trustee deems sufficient.

 

(c)   The ownership of Notes shall be proved by the Note Register.

 

(d)   Any request, demand, authorization, direction, notice, consent, waiver or other action by the Holder of any Note shall bind the Holder of every Note issued upon the transfer thereof or in exchange therefor or in lieu thereof, in respect of anything done, suffered or omitted

 

50



 

to be done by the Trustee, the Company or any other obligor upon the Notes in reliance thereon, whether or not notation of such action is made upon such Note.

 

(e)   (i)    The Company may set any day as a record date for the purpose of determining the Holders of Outstanding Notes entitled to give, make or take any request, demand, authorization, direction, notice, consent, waiver or other action provided or permitted by this Indenture to be given, made or taken by Holders of Notes, provided that the Company may not set a record date for, and the provisions of this paragraph shall not apply with respect to, the giving or making of any notice, declaration, request or direction referred to in the next paragraph.  If any record date is set pursuant to this paragraph, the Holders of Outstanding Notes on such record date (or their duly designated proxies), and no other Holders, shall be entitled to take the relevant action, whether or not such Persons remain Holders after such record date; provided that no such action shall be effective hereunder unless taken on or prior to the applicable Expiration Date by Holders of the requisite principal amount of Outstanding Notes on such record date.  Nothing in this paragraph shall be construed to prevent the Company from setting a new record date for any action for which a record date has previously been set pursuant to this paragraph (whereupon the record date previously set shall automatically and with no action by any Person be cancelled and of no effect), and nothing in this paragraph shall be construed to render ineffective any action taken by Holders of the requisite principal amount of Outstanding Notes on the date such action is taken.  Promptly after any record date is set pursuant to this paragraph, the Company, at its expense,  shall cause notice of such record date, the proposed action by Holders and the applicable Expiration Date to be given to the Trustee in writing and to each Holder of Notes in the manner set forth in Section 110 .

 

(ii)           The Trustee may set any day as a record date for the purpose of determining the Holders of Outstanding Notes entitled to join in the giving or making of ( A ) any Notice of Default, ( B ) any declaration of acceleration referred to in Section 602 , ( C ) any request to institute proceedings referred to in Section 607(ii)  or ( D ) any direction referred to in Section 612 , in each case with respect to Notes.  If any record date is set pursuant to this paragraph, the Holders of Outstanding Notes on such record date, and no other Holders, shall be entitled to join in such notice, declaration, request or direction, whether or not such Holders remain Holders after such record date; provided that no such action shall be effective hereunder unless taken on or prior to the applicable Expiration Date by Holders of the requisite principal amount of Outstanding Notes on such record date.  Nothing in this paragraph shall be construed to prevent the Trustee from setting a new record date for any action for which a record date has previously been set pursuant to this paragraph (whereupon the record date previously set shall automatically and with no action by any Person be cancelled and of no effect), and nothing in this paragraph shall be construed to render ineffective any action taken by Holders of the requisite principal amount of Outstanding Notes on the date such action is taken.  Promptly after any record date is set pursuant to this paragraph, the Trustee, at the Company’s expense, shall cause notice of such record date, the proposed action by Holders and the applicable Expiration

 

51



 

Date to be given to the Company in writing and to each Holder of Notes in the manner set forth in Section 110 .

 

(iii)          With respect to any record date set pursuant to this Section 108 , the party hereto that sets such record dates may designate any day as the “ Expiration Date ” and from time to time may change the Expiration Date to any earlier or later day; provided that no such change shall be effective unless notice of the proposed new Expiration Date is given to the Company or the Trustee, whichever such party is not setting a record date pursuant to this Section 108(e)  in writing, and to each Holder of Notes in the manner set forth in Section 110 , on or prior to the existing Expiration Date.  If an Expiration Date is not designated with respect to any record date set pursuant to this Section 108 , the party hereto that set such record date shall be deemed to have initially designated the 180th day after such record date as the Expiration Date with respect thereto, subject to its right to change the Expiration Date as provided in this paragraph.  Notwithstanding the foregoing, no Expiration Date shall be later than the 180th day after the applicable record date.

 

(iv)          Without limiting the foregoing, a Holder entitled hereunder to take any action hereunder with regard to any particular Note may do so with regard to all or any part of the principal amount of such Note or by one or more duly appointed agents each of which may do so pursuant to such appointment with regard to all or any part of such principal amount.

 

(v)           Without limiting the generality of the foregoing, a Holder, including the Depositary, that is the Holder of a Global Note, may make, give or take, by a proxy or proxies duly appointed in writing, any request, demand, authorization, direction, notice, consent, waiver or other action provided in this Indenture to be made, given or taken by Holders, and the Depositary, as the Holder of a Global Note, may provide its proxy or proxies to the beneficial owners of interest in any such Global Note through such depositary’s standing instructions and customary practices.

 

(vi)          The Company may fix a record date for the purpose of determining the persons who are beneficial owners of interests in any Global Note held by the Depositary entitled under the procedures of such depositary to make, give or take, by a proxy or proxies duly appointed in writing, any request, demand, authorization, direction, notice, consent, waiver or other action provided in this Indenture to be made, given or taken by Holders.  If such a record date is fixed, the Holders on such record date or their duly appointed proxy or proxies, and only such persons, shall be entitled to make, give or take such request, demand, authorization direction, notice consent, waiver or other action, whether or not such Holders remain Holders after such record date.  No such request, demand, authorization, direction, notice, consent, waiver or other action shall be valid or effective if made, given or taken more than 90 days after such record date.

 

52


 

Section 109.           Notices, etc., to Trustee and Company .  Any request, demand, authorization, direction, notice, consent, waiver or Act of Holders or other document provided or permitted by this Indenture to be made upon, given or furnished to, or filed with,

 

(1)           the Trustee by any Holder or by the Company or by any other obligor upon the Notes shall be sufficient for every purpose hereunder if made, given, furnished or filed in writing to or with the Trustee at 45 Broadway, 14 th  Floor, New York, NY 10006, Attention:  Corporate Trust Services Administrator for The Hertz Corporation (telephone:  (212) 515-5244; telecopier:  (212) 515-1589) or at any other address furnished in writing to the Company by the Trustee, or

 

(2)           the Company by the Trustee or by any Holder shall be sufficient for every purpose hereunder if in writing and mailed, first-class postage prepaid, to the Company at The Hertz Corporation, 225 Brae Boulevard, Park Ridge, New Jersey 07656, Attention: Richard J. Frecker, Assistant General Counsel;  with copies to Jenner & Block LLP, 353 N. Clark Street, Chicago, Illinois 60654, Attention:  Thomas A. Monson, Esq. (telephone:  (312) 840-8611; telecopier: (312) 840-8711) and Donald E. Batterson, Esq. (telephone: (312) 923-2607; telecopier: (312) 923-2707), or at any other address previously furnished in writing to the Trustee by the Company.

 

(3)           The Issuer or the Trustee, by notice to the other, may designate additional or different addresses for subsequent notices or communications.

 

Section 110.           Notices to Holders; Waiver .  Where this Indenture provides for notice to Holders of any event, such notice shall be sufficiently given (unless otherwise herein expressly provided) if in writing and mailed, first-class postage prepaid, or by overnight air courier guaranteeing next day delivery, to each Holder affected by such event, at such Holder’s address as it appears in the Note Register, not later than the latest date, and not earlier than the earliest date, prescribed for the giving of such notice.  In any case where notice to Holders is given by mail, neither the failure to mail such notice, nor any defect in any notice so mailed, to any particular Holder shall affect the sufficiency of such notice with respect to other Holders.

 

Where this Indenture provides for notice in any manner, such notice may be waived in writing by the 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 Holders 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 case, by reason of the suspension of regular mail service, or by reason of any other cause, it shall be impossible to mail notice of any event as required by any provision of this Indenture, then such notification as shall be made with the approval of the Trustee (such approval not to be unreasonably withheld) shall constitute a sufficient notification for every purpose hereunder.

 

53



 

Section 111.           Effect of Headings and Table of Contents .  The Article and Section headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof.

 

Section 112.           Successors and Assigns .  All covenants and agreements in this Indenture by the Company shall bind its respective successors and assigns, whether so expressed or not.  All agreements of the Trustee in this Indenture shall bind its successors.

 

Section 113.           Separability Clause .  In case any provision in this Indenture or in the 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 114.           Benefits of Indenture .  Nothing in this Indenture or in the Notes, express or implied, shall give to any Person, other than the parties hereto and their successors hereunder, any Paying Agent and the Holders, any benefit or any legal or equitable right, remedy or claim under this Indenture.

 

Section 115.           GOVERNING LAW; WAIVER OF JURY TRIAL .  THIS INDENTURE AND THE NOTES 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 INDENTURE OR THE NOTES.  EACH OF THE COMPANY AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE NOTES OR THE TRANSACTION CONTEMPLATED HEREBY.

 

Section 116.           Legal Holidays .  In any case where any Interest Payment Date, Redemption Date or Stated Maturity of any Note shall not be a Business Day at any Place of Payment, then (notwithstanding any other provision of this Indenture or of the Notes) payment of interest or principal and premium (if any) need not be made at such Place of Payment on such date, but may be made on the next succeeding Business Day at such Place of Payment with the same force and effect as if made on the Interest Payment Date or Redemption Date, or at the Stated Maturity, and no interest shall accrue on such payment for the intervening period.

 

Section 117.           No Personal Liability of Directors, Officers, Employees, Incorporators and Stockholders .  No director, officer, employee, incorporator or stockholder of the Company, any Subsidiary Guarantor or any Subsidiary of any thereof shall have any liability for any obligation of the Company or any Subsidiary Guarantor under this Indenture, the Notes or any Subsidiary Guarantee, or for any claim based on, in respect of, or by reason of, any such

 

54



 

obligation or its creation.  Each Noteholder, by accepting the Notes, waives and releases all such liability.  The waiver and release are part of the consideration for issuance of the Notes.

 

Section 118.           Exhibits and Schedules .  All exhibits and schedules attached hereto are by this reference made a part hereof with the same effect as if herein set forth in full.

 

Section 119.           Counterparts .  This 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 Indenture and of signature pages by facsimile or PDF transmission shall constitute effective execution and delivery of this Indenture as to the parties hereto and may be used in lieu of the original 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.

 

Section 120.           U.S.A. Patriot Act .  The parties hereto acknowledge that in accordance with Section 326 of the U.S.A. Patriot Act, the Trustee, like all financial institutions and in order to help fight the funding of terrorism and money laundering, is required to obtain, verify, and record information that identifies each person or legal entity that establishes a relationship or opens an account with the Trustee.  The parties to this Indenture agree that they will provide the Trustee with such information as it may request in order for the Trustee to satisfy the requirements of the U.S.A. Patriot Act.

 

ARTICLE II

 

NOTE FORMS

 

Section 201.           Forms Generally .  ( a) The Initial Notes and Initial Additional Notes that are not Exchange Notes and the Trustee’s certificate of authentication relating thereto shall be in substantially the forms set forth, or referenced, in this Article II and Exhibit A annexed hereto.  The Exchange Notes and any Additional Notes that are not Initial Additional Notes, or that are issued in a registered offering pursuant to the Securities Act, and the Trustee’s certificate of authentication relating thereto shall be in substantially the forms set forth, or referenced, in this Article II and Exhibit B annexed hereto.  Each of Exhibits A and B is hereby incorporated in and expressly made a part of this Indenture.  The Notes may have such appropriate insertions, omissions, substitutions, notations, legends, endorsements, identifications and other variations as are required or permitted by law, stock exchange rule or depositary rule or usage, agreements to which the Company is subject, if any, or other customary usage, or as may consistently herewith be determined by the Officers of the Company executing such Notes, as evidenced by such execution ( provided always that any such notation, legend, endorsement, identification or variation is in a form acceptable to the Company).  Each Note shall be dated the date of its authentication.  The terms of the Notes set forth in Exhibits A and B are part of the terms of this Indenture.  Any portion of the text of any Note may be set forth on the reverse thereof, with an appropriate reference thereto on the face of the Note.

 

55



 

Initial Notes and any Initial Additional Notes offered and sold in reliance on Rule 144A shall, unless the Company otherwise notifies the Trustee in writing, be issued in the form of one or more permanent global Notes in substantially the form set forth in Exhibit A hereto, except as otherwise permitted herein. Such Global Notes shall be referred to collectively herein as the “ Rule 144A Global Note .”  The Rule 144A Global Note shall be deposited with the Trustee, as custodian for the Depositary or its nominee, in each case for credit to an account of an Agent Member, and shall be duly executed by the Company and authenticated by the Trustee as hereinafter provided.  The aggregate principal amount of a Rule 144A Global Note may from time to time be increased or decreased by adjustments made on the records of the Trustee as hereinafter provided.

 

Initial Notes and any Initial Additional Notes offered and sold in offshore transactions in reliance on Regulation S under the Securities Act shall, unless the Company otherwise notifies the Trustee in writing, be issued in the form of one or more temporary global Notes in substantially the form set forth in Exhibit A hereto, except as otherwise permitted herein.  Such Global Notes will be referred to collectively herein as the “ Temporary Regulation S Global Note .”  The Temporary Regulation S Global Note shall be deposited with the Trustee, as custodian for the Depositary or its nominee for the accounts of designated Agent Members holding on behalf of Euroclear or Clearstream and shall be duly executed by the Company and authenticated by the Trustee as hereinafter provided.  The aggregate principal amount of a Regulation S Global Note may from time to time be increased or increased by adjustments made on the records of the Trustee as hereinafter provided.

 

Following the expiration of the distribution compliance period set forth in Regulation S (the “ Distribution Compliance Period ”) with respect to any Temporary Regulation S Global Note, beneficial interests in such Temporary Regulation S Global Note shall be exchanged as provided in Sections 312 and 313 for beneficial interests in one or more permanent global Notes in substantially the form set forth in Exhibit A hereto, except as otherwise permitted herein.  Such Global Notes will be referred to collectively herein as the “ Permanent Regulation S Global Note .”  The Permanent Regulation S Global Notes and the Temporary Regulation S Global Notes shall be referred to collectively herein as the “ Regulation S Global Notes .”  The Permanent Regulation S Global Note shall be deposited with the Trustee, as custodian for the Depositary or its nominee for credit to the account of an Agent Member and shall be duly executed by the Company and authenticated by the Trustee as hereinafter provided.  Simultaneously with the authentication of a Permanent Regulation S Global Note, the Trustee shall cancel the related Temporary Regulation S Global Note.

 

Subject to the limitations on the issuance of certificated Notes set forth in Sections 312 and 313 , Initial Notes and any Initial Additional Notes issued pursuant to Section 305 in exchange for or upon transfer of beneficial interests ( x ) in a Rule 144A Global Note shall be in the form of permanent certificated Notes substantially in the form set forth in Exhibit A hereto (the “ Rule 144A Physical Notes ”) or ( y ) in a Regulation S Global Note (if any), on or after the Regulation S Note Exchange Date with respect to such Regulation S Global Note,

 

56



 

shall be in the form of permanent certificated Notes substantially in the form set forth in Exhibit A hereto (the “ Regulation S Physical Notes ”) as hereinafter provided.

 

The Rule 144A Physical Notes and Regulation S Physical Notes shall be construed to include any certificated Notes issued in respect thereof pursuant to Section 304 , 305 , 306 or 1008 , and the Rule 144A Global Notes and Regulation S Global Notes shall be construed to include any global Notes issued in respect thereof pursuant to Section 304 , 305 , 306 or 1008 .  The Rule 144A Physical Notes and the Regulation S Physical Notes, together with any other certificated Notes issued and authenticated pursuant to this Indenture, are sometimes collectively herein referred to as the “ Physical Notes .”  The Rule 144A Global Notes and the Regulation S Global Notes, together with any other global Notes that are issued and authenticated pursuant to this Indenture, are sometimes collectively referred to as the “ Global Notes .”

 

Exchange Notes shall be issued substantially in the form set forth in Exhibit B hereto and, subject to Section 312(b) , shall be in the form of one or more Global Notes.

 

Section 202.           Form of Trustee’s Certificate of Authentication .  The Notes will have endorsed thereon a Trustee’s certificate of authentication in substantially the following form:

 

This is one of the Notes referred to in the within-mentioned Indenture.

 

 

 

as Trustee

 

 

 

 

By:

 

 

 

Authorized Signatory

Dated:

 

 

 

If an appointment of an Authenticating Agent is made pursuant to Section 714 , the Notes may have endorsed thereon, in lieu of the Trustee’s certificate of authentication, an alternative certificate of authentication in substantially the following form:

 

57



 

This is one of the Notes referred to in the within-mentioned Indenture.

 

 

WELLS FARGO BANK,

 

NATIONAL ASSOCIATION

 

as Trustee

 

 

 

 

By:

 

 

 

As Authenticating Agent

 

 

 

 

By:

 

 

 

Authorized Signatory

Dated:

 

 

 

Section 203.           Restrictive and Global Note Legends .  Each Global Note and Physical Note (and all Notes issued in exchange therefor or substitution thereof) shall bear the following legend set forth below (the “ Private Placement Legend ”) on the face thereof until the Private Placement Legend is removed or not required in accordance with Section 313(4) :

 

“THIS NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “ SECURITIES ACT ”), OR UNDER THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS EXCEPT AS SET FORTH BELOW. EACH PURCHASER OF THIS NOTE IS HEREBY NOTIFIED THAT THE SELLER OF THIS NOTE MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER OR ANOTHER EXEMPTION UNDER THE SECURITIES ACT.

 

BY ITS ACCEPTANCE HEREOF, THE HOLDER OF THIS NOTE ( 1 ) REPRESENTS THAT ( A ) IT IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT), ( B ) IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS NOTE IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT OR ( C ) IT IS AN “INSTITUTIONAL” ACCREDITED INVESTOR (AS DEFINED IN RULE 501(a)(1), (2), (3), OR (7) UNDER REGULATION D PROMULGATED UNDER THE SECURITIES ACT (AN “ ACCREDITED INVESTOR ”)) AND ( 2 ) AGREES THAT IT WILL NOT WITHIN [ONE YEAR— FOR NOTES ISSUED PURSUANT TO RULE 144A ][40 DAYS— FOR NOTES ISSUED IN OFFSHORE TRANSACTIONS PURSUANT TO REGULATION S ] AFTER THE LATER OF THE DATE OF THE ORIGINAL ISSUANCE OF THIS NOTE AND THE DATE ON WHICH THE COMPANY OR ANY OF ITS AFFILIATES OWNED SUCH NOTE, OFFER, RESELL OR OTHERWISE TRANSFER THIS NOTE EXCEPT ( A ) ( I ) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, ( II ) FOR SO LONG AS THIS NOTE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT INSIDE THE UNITED STATES TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A

 

58



 

QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, ( III ) INSIDE THE UNITED STATES TO AN ACCREDITED INVESTOR THAT IS ACQUIRING THE NOTES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF SUCH AN ACCREDITED INVESTOR, IN EACH CASE IN A MINIMUM PRINCIPAL AMOUNT OF THE NOTES OF $250,000, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO OR FOR THE OFFER OR SALE IN CONNECTION WITH ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, AND THAT PRIOR TO SUCH TRANSFER, FURNISHES (OR HAS FURNISHED ON ITS BEHALF BY A U.S. BROKER-DEALER) TO THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER OF THIS NOTE (THE FORM OF WHICH LETTER CAN BE OBTAINED FROM THE TRUSTEE FOR THIS NOTE), ( IV ) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT (IF AVAILABLE), ( V ) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), ( VI ) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, OR ( VII ) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND ( B ) IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES OF THE UNITED STATES AND OTHER JURISDICTIONS. THE HOLDER OF THIS NOTE FURTHER AGREES THAT IT WILL GIVE TO EACH PERSON TO WHOM THIS NOTE IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN CONNECTION WITH ANY TRANSFER OF THIS NOTE PURSUANT TO SUBCLAUSES (III) TO (VI) OF CLAUSE (A) ABOVE, THE HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE TRUSTEE AND THE COMPANY SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS EITHER OF THEM MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. AS USED HEREIN, THE TERMS “OFFSHORE TRANSACTION,” “UNITED STATES” AND “U.S. PERSON” HAVE THE MEANING GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT.”

 

Each Global Note, whether or not an Initial Note, shall also bear the following legend on the face thereof:

 

UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“ DTC ”) TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE 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

 

59



 

REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.

 

TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN SECTIONS 312 AND 313 OF THE INDENTURE (AS DEFINED HEREIN).

 

Each Temporary Regulation S Global Note shall also bear the following legend on the face thereof:

 

EXCEPT AS SPECIFIED IN THE INDENTURE, BENEFICIAL OWNERSHIP INTERESTS IN THIS TEMPORARY REGULATION S GLOBAL NOTE WILL NOT BE EXCHANGEABLE FOR INTERESTS IN THE PERMANENT REGULATION S GLOBAL NOTE OR ANY OTHER NOTE REPRESENTING AN INTEREST IN THE NOTES REPRESENTED HEREBY WHICH DO NOT CONTAIN A LEGEND CONTAINING RESTRICTIONS ON TRANSFER, UNTIL THE EXPIRATION OF THE “40 DAY DISTRIBUTION COMPLIANCE PERIOD” (WITHIN THE MEANING OF RULE 903(b)(2) OF REGULATION S UNDER THE SECURITIES ACT).  DURING SUCH 40 DAY DISTRIBUTION COMPLIANCE PERIOD, BENEFICIAL OWNERSHIP INTERESTS IN THIS TEMPORARY REGULATION S GLOBAL NOTE MAY ONLY BE SOLD, PLEDGED OR TRANSFERRED THROUGH EUROCLEAR BANK S.A./N.A., AS OPERATOR OF THE EUROCLEAR SYSTEM, OR CLEARSTREAM BANKING, SOCIÉTÉ ANONYME.

 

ARTICLE III

 

THE NOTES

 

Section 301.           Title and Terms .  The aggregate principal amount of Notes that may be authenticated and delivered and Outstanding under this Indenture is not limited.  The Initial Notes will be issued in an aggregate principal amount of $500.0 million.  Additional Notes (including any Exchange Notes issued in exchange therefor) will vote (or consent) as a single class with the other Notes and otherwise be treated as Notes for all purposes of this Indenture.

 

The Notes shall be known and designated as the “6.75% Senior Notes due 2019” of the Company.  The final Stated Maturity of the Notes shall be April 15, 2019.  Interest on the Outstanding principal amount of Notes will accrue at the rate of 6.75% per annum and will be payable, semi-annually in arrears on April 15 and October 15 in each year, commencing on April 15, 2011, to holders of record on the immediately preceding April 1 and October 1, respectively (each such April 1 and October 1, a “ Regular Record Date ”).  Interest on the Original Notes will

 

60



 

accrue from the most recent date to which interest has been paid or duly provided for or, if no interest has been paid, from the date hereof; and interest on any Additional Notes (and Exchange Notes issued in exchange therefor) will accrue (or will be deemed to have accrued) from the most recent date to which interest has been paid or duly provided for or, if no interest has been paid on such Additional Notes, from the Interest Payment Date immediately preceding the date of issuance of such Additional Notes, or if the date of issuance of such Additional Notes is an Interest Payment Date, from such date of issuance; provided that if any Note is surrendered for exchange on or after a record date for an Interest Payment Date that will occur on or after the date of such exchange, interest on the Note received in exchange thereof will accrue from the date of such Interest Payment Date.

 

Section 302.           Denominations .  The Notes shall be issuable only in fully registered form, without coupons, and only in minimum denominations of $2,000 (the “ Minimum Denomination ”) and integral multiples of $1,000 in excess thereof.

 

Section 303.           Execution, Authentication and Delivery and Dating .  The Notes shall be executed on behalf of the Company by one Officer of the Company.  The signature of any such Officer on the Notes may be manual or by facsimile.

 

Notes bearing the manual or facsimile signature of an individual who was at any time an Officer of the Company shall bind the Company, notwithstanding that such individual has ceased to hold such office prior to the authentication and delivery of such Notes or did not hold such office at the date of such Notes.

 

At any time and from time to time after the execution and delivery of this Indenture, the Company may deliver Notes executed by the Company to the Trustee for authentication; and the Trustee shall authenticate and deliver ( i ) Initial Notes for original issue in the aggregate principal amount not to exceed $500.0 million, ( ii ) Additional Notes in one or more series from time to time for original issue in aggregate principal amounts specified by the Company and ( iii ) Exchange Notes from time to time for issue in exchange for a like principal amount of Initial Notes or Initial Additional Notes, in each case specified in clauses (i) through (iii) above, upon a written order of the Company in the form of an Officer’s Certificate of the Company (an “ Authentication Order ”).  Such Officer’s Certificate shall specify the amount of Notes to be authenticated and the date on which the Notes are to be authenticated, the “CUSIP”, “ISIN”, “Common Code” or other similar identification numbers of such Notes, if any, whether the Notes are to be Initial Notes, Additional Notes or Exchange Notes and whether the Notes are to be issued as one or more Global Notes or Physical Notes and such other information as the Company may include or the Trustee may reasonably request.

 

All Notes shall be dated the date of their authentication.

 

No Note shall be entitled to any benefit under this Indenture or be valid or obligatory for any purpose, unless there appears on such Note a certificate of authentication substantially in the form provided for herein executed by the Trustee by manual signature, and

 

61



 

such certificate upon any Note shall be conclusive evidence, and the only evidence, that such Note has been duly authenticated and delivered hereunder.

 

Section 304.           Temporary Notes .  Until definitive Notes are ready for delivery, the Company may prepare and upon receipt of an Authentication Order the Trustee shall authenticate temporary Notes.  Temporary Notes shall be substantially in the form of definitive Notes but may have variations that the Company consider appropriate for temporary Notes.  If temporary Notes are issued, the Company will cause definitive Notes to be prepared without unreasonable delay.  After the preparation of definitive Notes, the temporary Notes shall be exchangeable for definitive Notes upon surrender of the temporary Notes at the office or agency of the Company in a Place of Payment, without charge to the Holder.  Upon surrender for cancellation of any one or more temporary Notes the Company shall execute and upon receipt of an Authentication Order the Trustee shall authenticate and deliver in exchange therefor a like principal amount of definitive Notes of authorized denominations.  Until so exchanged the temporary Notes shall in all respects be entitled to the same benefits under this Indenture as definitive Notes of the same series and tenor.

 

Section 305.           Registrar and Paying Agent .  The Company shall cause to be kept at the Corporate Trust Office of the Trustee a register (the register maintained in such office and in any other office or agency of the Company in a Place of Payment being herein sometimes collectively referred to as the “ Note Register ”) in which, subject to such reasonable regulations as it may prescribe, the Company shall provide for the registration of Notes and of transfers of Notes.  The Company may have one or more co-registrars.  The term “ Note Registrar ” includes any co-registrars.

 

The Company shall also maintain an office or agent within the United States where Notes may be presented for payment (the “ Paying Agent ”); provided , however , that at the option of the Company payment of interest on a Note may be made by wire transfer of immediately available funds to the account designated to the Company by the Person entitled thereto or by check mailed to the address of the Person entitled thereto as such address shall appear in the Note Register.  The Company may have one or more additional paying agents, and the term “ Paying Agent ” includes any additional Paying Agent.

 

The Company initially appoints the Trustee as “Note Registrar” and “Paying Agent” in connection with the Notes until such time it has resigned or a successor has been appointed.  The Company may change the Paying Agent or Note Registrar for any series of Notes without prior notice to the Holders of Notes.  The Company may enter into an appropriate agency agreement with any Note Registrar or Paying Agent not a party to this Indenture.  Any such agency agreement shall implement the provisions of this Indenture that relate to such agent.  The Company shall notify the Trustee in writing of the name and address of any such agent.  If the Company fails to appoint or maintain a Note Registrar or Paying Agent, the Trustee shall act as such and shall be entitled to appropriate compensation therefor pursuant to Section 707 .  The Company or any wholly-owned Domestic Subsidiary of the Company may act as Paying Agent, Note Registrar or transfer agent.

 

62


 

Upon surrender for transfer of any Note at the office or agency of the Company in a Place of Payment, in compliance with all applicable requirements of this Indenture and applicable law, the Company shall execute, and the Trustee shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Notes of the same series, of any authorized denominations and of a like aggregate principal amount.

 

At the option of the Holder, Notes may be exchanged for other Notes of the same series, of any authorized denominations and of a like tenor and aggregate principal amount, upon surrender of the Notes to be exchanged at such office or agency.  Whenever any Notes are so surrendered for exchange, the Company shall execute, and the Trustee shall authenticate and deliver, the Notes that the Holder making the exchange is entitled to receive.

 

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

 

Every Note presented or surrendered for transfer or exchange shall (if so required by the Company or the Trustee) be duly endorsed, or be accompanied by a written instrument of transfer in form satisfactory to the Company and the Note Registrar duly executed, by the Holder thereof or such Holder’s attorney duly authorized in writing.

 

No service charge shall be made for any registration of transfer or exchange of Notes, but the Company may require payment of a sum sufficient to cover any transfer tax or other governmental charge that may be imposed in connection therewith.

 

The Company shall not be required ( i ) to issue, transfer or exchange any Note during a period beginning at the opening of business 15 Business Days before the day of the mailing of a notice of redemption (or purchase) of Notes selected for redemption (or purchase) under Section 1004 and ending at the close of business on the day of such mailing, or ( ii ) to transfer or exchange any Note so selected for redemption (or purchase) in whole or in part.

 

Section 306.           Mutilated, Destroyed, Lost and Stolen Notes .  If a mutilated Note is surrendered to the Note Registrar or if the Holder of a Note claims that the Note has been lost, destroyed or wrongfully taken, the Company shall issue and the Trustee shall authenticate a replacement Note if the requirements of Section 8-405 of the Uniform Commercial Code are met, such that the Holder ( a ) satisfies the Company or the Trustee within a reasonable time after such Holder has notice of such loss, destruction or wrongful taking and the Note Registrar does not register a transfer prior to receiving such notification, ( b ) makes such request to the Company or the Trustee prior to the Note being acquired by a protected purchaser as defined in Section 8-303 of the Uniform Commercial Code (a “protected purchaser”) and ( c ) satisfies any other reasonable requirements of the Trustee.  Such Holder shall furnish an indemnity bond sufficient in the judgment of the Trustee to protect the Company, the Trustee, a Paying Agent and the Note Registrar from any loss that any of them may suffer if a Note is replaced.

 

63



 

In case any such mutilated, destroyed, lost or stolen Note has become or is about to become due and payable, the Company in its discretion may, instead of issuing a new Note, pay such Note.

 

Upon the issuance of any new Note under this Section 306 , the Company may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee) connected therewith.

 

Every new Note issued pursuant to this Section 306 in lieu of any destroyed, lost or stolen Note shall constitute an original additional contractual obligation of the Company, whether or not the destroyed, lost or stolen Note shall be at any time enforceable by anyone, and shall be entitled to all the benefits of this Indenture equally and ratably with any and all other Notes duly issued hereunder.

 

The provisions of this Section 306 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 Notes.

 

Section 307.           Payment of Interest Rights Preserved .  Interest on any Note that is payable, and is punctually paid or duly provided for, on any Interest Payment Date shall be paid to the Person in whose name that Note (or one or more Predecessor Notes) is registered at the close of business on the Regular Record Date for such interest specified in Section 301 .

 

Any interest on any Note that is payable, but is not punctually paid or duly provided for, on any Interest Payment Date (herein called “ Defaulted Interest ”) shall forthwith cease to be payable to the registered Holder on the relevant Regular Record Date by virtue of having been such Holder; and such Defaulted Interest may be paid by the Company, at its election, as provided in clause (1) or clause (2) below:

 

(1)           The Company may elect to make payment of any Defaulted Interest to the Persons in whose names the Notes (or their respective Predecessor Notes) are registered at the close of business on a Special Record Date for the payment of such Defaulted Interest, which shall be fixed in the following manner.  The Company shall notify the Trustee and Paying Agent in writing of the amount of Defaulted Interest proposed to be paid on each Note and the date of the proposed payment, and at the same time the Company shall deposit with the Trustee or Paying Agent an amount of money equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements reasonably satisfactory to the Trustee or Paying Agent for such deposit prior to the date of the proposed payment, such money when deposited to be held in trust for the benefit of the Persons entitled to such Defaulted Interest as provided in this clause (1).  Thereupon the Trustee shall fix a Special Record Date for the payment of such Defaulted Interest which shall be not more than 15 nor less than 10 days prior to the date of the proposed payment and not less than 10 days after the receipt by the Trustee and the Paying Agent of the notice of the proposed payment.  The Trustee shall promptly

 

64



 

notify the Company of such Special Record Date and, in the name and at the expense of the Company, shall cause notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor to be mailed, first class postage prepaid, to each Holder at such Holder’s address as it appears in the Note Register, not less than 10 days prior to such Special Record Date.  Notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor having been so mailed, such Defaulted Interest shall be paid to the Persons in whose names the Notes (or their respective Predecessor Notes) are registered on such Special Record Date and shall no longer be payable pursuant to the following clause (2).

 

(2)           The Company may make payment of any Defaulted Interest in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Notes may be listed, and upon such notice as may be required by such exchange, if, after notice given by the Company to the Trustee and the Paying Agent of the proposed payment pursuant to this clause (2), such payment shall be deemed practicable by the Trustee.

 

Subject to the foregoing provisions of this Section 307 , each Note delivered under this Indenture upon transfer of or in exchange for or in lieu of any other Note of the same series shall carry the rights to interest accrued and unpaid, and to accrue, that were carried by such other Note of such series.

 

Section 308.           Persons Deemed Owners .  The Company, any Subsidiary Guarantor, the Trustee, the Paying Agent and any agent of any of them may treat the Person in whose name any Note is registered as the owner of such Note for the purpose of receiving payment of principal of (and premium, if any), and (subject to Section 307 ) interest on, such Note and for all other purposes whatsoever, whether or not such Note be overdue, and neither the Company, any Subsidiary Guarantor, the Trustee, the Paying Agent nor any agent of any of them shall be affected by notice to the contrary.

 

Section 309.           Cancellation .  All Notes surrendered for payment, redemption, transfer, exchange or conversion shall, if surrendered to any Person other than the Trustee, be delivered to the Trustee and, if not already cancelled, shall be promptly cancelled by it.  The Company may at any time deliver to the Trustee for cancellation any Notes previously authenticated and delivered hereunder that the Company may have acquired in any manner whatsoever, and all Notes so delivered shall be promptly cancelled by the Trustee.  No Notes shall be authenticated in lieu of or in exchange for any Notes cancelled as provided in this Section 309 , except as expressly permitted by this Indenture.  All cancelled Notes held by the Trustee shall be disposed of by the Trustee in accordance with its customary procedures (subject to the record retention requirements of the Exchange Act).

 

Section 310.           Computation of Interest .  Interest on the Notes shall be computed on the basis of a 360-day year of twelve 30-day months.

 

65



 

Section 311.           CUSIP Numbers, ISINs, Etc .  The Company in issuing the Notes may use “CUSIP” numbers, ISINs and “Common Code” numbers (if then generally in use), and if so, the Trustee may use the CUSIP numbers, ISINs and “Common Code” numbers in notices of redemption or exchange as a convenience to Holders; provided , however , that any such notice may state that no representation is made as to the correctness or accuracy of such numbers printed in the notice or on the Notes; that reliance may be placed only on the other identification numbers printed on the Notes; and that any redemption shall not be affected by any defect in or omission of such numbers.  The Company will promptly notify the Trustee of any change in the CUSIP numbers.

 

Section 312.           Book-Entry Provisions for Global Notes .  ( a) Each Global Note initially shall ( i ) be registered in the name of the Depositary for such Global Note or the nominee of such Depositary, in each case for credit to the account of an Agent Member, and ( ii ) be delivered to the Trustee as custodian for such Depositary.  Neither the Company nor any agent of the Company shall have any responsibility or liability for any aspect of the records relating to or payments made on account of beneficial ownership interests of a Global Note, or for maintaining, supervising or reviewing any records relating to such beneficial ownership interests.

 

Members of, or participants in, the Depositary (“ Agent Members ”) shall have no rights under this Indenture with respect to any Global Note held on their behalf by the Depositary, or its custodian, or under such Global Notes.  The Depositary may be treated by the Company, any other obligor upon the Notes, the Trustee and any agent of any of them as the absolute owner of the Global Notes for all purposes whatsoever.  Notwithstanding the foregoing, nothing herein shall prevent the Company, any other obligor upon the Notes, the Trustee or any agent of any of them from giving effect to any written certification, proxy or other authorization furnished by the Depositary or impair, as between the Depositary and its Agent Members, the operation of customary practices governing the exercise of the rights of a beneficial owner of any Note.  The registered holder of a Global Note may grant proxies and otherwise authorize any Person, including Agent Members and Persons that may hold interests through Agent Members, to take any action that a Holder is entitled to take under this Indenture or the Notes.

 

(b)   Transfers of a Global Note shall be limited to transfers of such Global Note in whole, but, subject to the immediately succeeding sentence, not in part, to the Depositary, its successors or their respective nominees.  Interests of beneficial owners in a Global Note may not be transferred or exchanged for Physical Notes unless ( i ) the Company has consented thereto in writing, or such transfer or exchange is made pursuant to the next sentence, and ( ii ) such transfer or exchange is in accordance with the applicable rules and procedures of the Depositary and the provisions of Sections 305 and 313 .  Subject to the limitation on issuance of Physical Notes set forth in Section 313(3) , Physical Notes shall be transferred to all beneficial owners in exchange for their beneficial interests in the relevant Global Note, if ( i ) in the case of a Global Note, the Depositary notifies the Company at any time that it is unwilling or unable to continue as Depositary for the Global Notes and a successor depositary is not appointed within 120 days; ( ii ) in the case of a Global Note, the Depositary ceases to be registered as a “Clearing Agency” under the Securities Exchange Act of 1934 and a successor depositary is not appointed within 120

 

66



 

days; ( iii ) the Company, at its option, notifies the Trustee that it elects to cause the issuance of Physical Notes; or ( iv ) an Event of Default shall have occurred and be continuing with respect to the Notes and the Trustee has received a written request from the Depositary to issue Physical Notes.

 

(c)   In connection with any transfer or exchange of a portion of the beneficial interest in any Global Note to beneficial owners for Physical Notes pursuant to Section 312(b) , the Note Registrar shall record on its books and records the date and a decrease in the principal amount of such Global Note in an amount equal to the beneficial interest in the Global Note being transferred, and the Company shall execute, and the Trustee shall authenticate and deliver, one or more Physical Notes of like tenor and principal amount of authorized denominations.

 

(d)   In connection with a transfer of an entire Global Note to beneficial owners pursuant to Section 312(b) , the applicable Global Note shall be deemed to be surrendered to the Trustee for cancellation, and the Company shall execute, and the Trustee shall authenticate and deliver, to each beneficial owner identified by the Depositary, Euroclear or Clearstream, as the case may be, in exchange for its beneficial interest in the applicable Global Note, an equal aggregate principal amount at maturity of Rule 144A Physical Notes (in the case of any Rule 144A Global Note) or Regulation S Physical Notes (in the case of any Regulation S Global Note), as the case may be, of authorized denominations.

 

(e)   The transfer and exchange of a Global Note or beneficial interests therein shall be effected through the Depositary, in accordance with this Indenture (including applicable restrictions on transfer set forth in Section 313 ) and the procedures therefor of the Depositary, Euroclear or Clearstream, as the case may be.  Any beneficial interest in one of the Global Notes that is transferred to a Person who takes delivery in the form of an interest in a different Global Note will, upon transfer, cease to be an interest in such Global Note and become an interest in the other Global Note and, accordingly, will thereafter be subject to all transfer restrictions, if any, and other procedures applicable to beneficial interests in such other Global Note for as long as it remains such an interest.  A transferor of a beneficial interest in a Global Note shall deliver to the Note Registrar a written order given in accordance with the procedures of the Depositary or of Euroclear or Clearstream, as applicable, containing information regarding the participant account of the Depositary to be credited with a beneficial interest in the relevant Global Note.  Subject to Section 313 , the Note Registrar shall, in accordance with such instructions, instruct the Depositary or Euroclear or Clearstream, as applicable, to credit to the account of the Person specified in such instructions a beneficial interest in such Global Note and to debit the account of the Person making the transfer the beneficial interest in the Global Note being transferred.

 

(f)    Any Physical Note delivered in exchange for an interest in a Global Note pursuant to Section 312(b)  shall, unless such exchange is made on or after the Resale Restriction Termination Date applicable to such Note and except as otherwise provided in Section 203 and Section 313 , bear the Private Placement Legend.

 

(g)   Notwithstanding the foregoing, through the Distribution Compliance Period, a beneficial interest in a Regulation S Global Note may be held only through Euroclear or

 

67



 

Clearstream, or designated Agent Members holding on behalf of Euroclear or Clearstream unless delivery is made in accordance with the applicable provisions of Section 313 .

 

(h)   The Holder of any Global Note may grant proxies and otherwise authorize any Person, including Agent Members and Persons that may hold interests through Agent Members, to take any action which a Holder is entitled to take under this Indenture or the Notes.

 

(i)    Neither the Trustee nor any agent of the Trustee shall have any responsibility or liability for any action taken by, or any failure to act by, the Depositary.

 

Section 313.           Special Transfer Provisions .

 

(1)           Transfers to Non-U.S. Persons .  The following provisions shall apply with respect to the registration of any proposed transfer of a Note that is a Restricted Security to any Non-U.S. Person:  The Note Registrar shall register such transfer if it complies with all other applicable requirements of this Indenture (including Section 305 ) and,

 

(a)           if ( x ) such transfer is after the relevant Resale Restriction Termination Date with respect to such Note or ( y ) the proposed transferor has delivered to the Note Registrar and the Company and the Trustee a Regulation S Certificate and, unless otherwise agreed by the Company and the Trustee, an opinion of counsel, certifications and other information satisfactory to the Company and the Trustee, and

 

(b)           if the proposed transferor is or is acting through an Agent Member holding a beneficial interest in a Global Note, upon receipt by the Note Registrar and the Company and the Trustee of ( x ) the certificate, opinion, certifications and other information, if any, required by clause (a) above and ( y ) written instructions given in accordance with the procedures of the Note Registrar and of the Depositary;

 

whereupon ( i ) the Note Registrar shall reflect on its books and records the date and (if the transfer does not involve a transfer of any Outstanding Physical Note) a decrease in the principal amount of the relevant Global Note in an amount equal to the principal amount of the beneficial interest in the relevant Global Note to be transferred, and ( ii ) either ( A ) if the proposed transferee is or is acting through an Agent Member holding a beneficial interest in a relevant Regulation S Global Note, the Note Registrar shall reflect on its books and records the date and an increase in the principal amount of such Regulation S Global Note in an amount equal to the principal amount of the beneficial interest being so transferred or ( B ) otherwise the Company shall execute and the Trustee shall authenticate and deliver one or more Physical Notes of like tenor and amount.

 

(2)           Transfers to QIBs .  The following provisions shall apply with respect to the registration of any proposed transfer of a Note that is a Restricted Security to a QIB (excluding transfers to Non-U.S. Persons):  The Note Registrar shall register such transfer if it complies with all other applicable requirements of this Indenture (including Section 305 ) and,

 

68



 

(a)           if such transfer is being made by a proposed transferor who has checked the box provided for on the form of such Note stating, or has otherwise certified to the Note Registrar and the Company and the Trustee in writing, that the sale has been made in compliance with the provisions of Rule 144A to a transferee who has signed the certification provided for on the form of such Note stating, or has otherwise certified to Note Registrar and the Company and the Trustee in writing, that it is purchasing such Note 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 within the meaning of Rule 144A, 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 the Company as it 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; and

 

(b)           if the proposed transferee is an Agent Member, and the Note to be transferred consists of a Physical Note that after transfer is to be evidenced by an interest in a Global Note or consists of a beneficial interest in a Global Note that after the transfer is to be evidenced by an interest in a different Global Note, upon receipt by the Note Registrar of written instructions given in accordance with the procedures of the Note Registrar and of the Depositary or Euroclear or Clearstream, as applicable, whereupon the Note Registrar shall reflect on its books and records the date and an increase in the principal amount of the transferee Global Note in an amount equal to the principal amount of the Physical Note or such beneficial interest in such transferor Global Note to be transferred, and the Trustee shall cancel the Physical Note so transferred or reflect on its books and records the date and a decrease in the principal amount of such transferor Global Note, as the case may be.

 

(3)           Limitation on Issuance of Physical Notes .  No Physical Note shall be exchanged for a beneficial interest in any Global Note, except in accordance with Section 312 and this Section 313 .

 

A beneficial owner of an interest a Temporary Regulation S Global Note (and, in the case of any Additional Notes for which no Temporary Regulation S Global Note is issued, any Regulation S Global Note) shall not be permitted to exchange such interest for a Physical Note or (in the case of such interest in a Temporary Regulation S Global Note) an interest in a Permanent Regulation S Global Note until a date, which must be after the expiration of the Distribution Compliance Period, on which the Company receives a certificate of beneficial ownership substantially in the form of Exhibit C from such beneficial owner (a “ Certificate of Beneficial Ownership ”).  Such date, as it relates to a Regulation S Global Note, is herein referred to as the “ Regulation S Note Exchange Date .”

 

(4)           Private Placement Legend .  Upon the transfer, exchange or replacement of Notes not bearing the Private Placement Legend, the Note Registrar shall deliver Notes that do not bear the Private Placement Legend.  Upon the transfer, exchange or replacement of Notes

 

69



 

bearing the Private Placement Legend, the Note Registrar shall deliver only Notes that bear the Private Placement Legend unless ( i ) the requested transfer is after the relevant Resale Restriction Termination Date with respect to such Notes, ( ii ) upon written request of the Company after there is delivered to the Note Registrar an opinion of counsel (which opinion and counsel are satisfactory to the Company and the Trustee) to the effect that neither such legend nor the related restrictions on transfer are required in order to maintain compliance with the provisions of the Securities Act, ( iii ) with respect to a Regulation S Global Note (on or after the Regulation S Note Exchange Date with respect to such Regulation S Global Note) or Regulation S Physical Note, in each case with the agreement of the Company, or ( iv ) such Notes are sold or exchanged pursuant to an effective registration statement under the Securities Act.

 

(5)           Other Transfers .  The Note Registrar shall effect and register, upon receipt of a written request from the Company to do so, a transfer not otherwise permitted by this Section 313 , such registration to be done in accordance with the otherwise applicable provisions of this Section 313 , upon the furnishing by the proposed transferor or transferee of a written opinion of counsel (which opinion and counsel are satisfactory to the Company and the Trustee) to the effect that, and such other certifications or information as the Company or the Trustee may require (including, in the case of a transfer to an Accredited Investor (as defined in Rule 501(a)(1), (2), (3) or (7) under Regulation D promulgated under the Securities Act), a certificate substantially in the form of Exhibit F ) to confirm that, the proposed transfer is being made pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act.

 

A Note that is a Restricted Security may not be transferred other than as provided in this Section 313 .  A beneficial interest in a Global Note that is a Restricted Security may not be exchanged for a beneficial interest in another Global Note other than through a transfer in compliance with this Section 313 .

 

(6)           General .  By its acceptance of any Note bearing the Private Placement Legend, each Holder of such a Note acknowledges the restrictions on transfer of such Note set forth in this Indenture and in the Private Placement Legend and agrees that it will transfer such Note only as provided in this Indenture.

 

The Note Registrar shall retain copies of all letters, notices and other written communications received pursuant to Section 312 or this Section 313 (including all Notes received for transfer pursuant to Section 313 ).  The Company shall have the right to require the Note Registrar to deliver to the Company, at the Company’s expense, copies of all such letters, notices or other written communications at any reasonable time upon the giving of reasonable written notice to the Note Registrar.

 

In connection with any transfer of any Note, the Trustee, the Note Registrar and the Company shall be entitled to receive, shall be under no duty to inquire into, may conclusively presume the correctness of, and shall be fully protected in conclusively relying upon the certificates, opinions and other information referred to herein (or in the forms provided herein, attached hereto or to the Notes, or otherwise) received from any Holder and any transferee of any

 

70



 

Note regarding the validity, legality and due authorization of any such transfer, the eligibility of the transferee to receive such Note and any other facts and circumstances related to such transfer.

 

Section 314.           Payment of Additional Interest .  (a)  Under certain circumstances the Company will be obligated to pay certain additional amounts of interest to the Holders of certain Initial Notes, as more particularly set forth in such Initial Notes.

 

(b)   Under certain circumstances the Company may be obligated to pay certain additional amounts of interest to the Holders of certain Initial Additional Notes, as may be more particularly set forth in such Initial Additional Notes.

 

(c)   Prior to any Interest Payment Date on which any such additional interest is payable, the Company shall give notice to the Trustee of the amount of any additional interest due on such Interest Payment Date.

 

ARTICLE IV

 

COVENANTS

 

Section 401.           Payment of Principal, Premium and Interest .  The Company shall duly and punctually pay the principal of (and premium, if any) and interest on the Notes in accordance with the terms of the Notes and this Indenture.  Principal amount (and premium, if any) and interest on the Notes shall be considered paid on the date due if the Company shall have deposited with the Paying Agent (if other than the Company or a wholly-owned Domestic Subsidiary of the Company) as of 12:00 p.m. New York City time on the due date money in immediately available funds and designated for and sufficient to pay all principal amount (and premium, if any) and interest then due.

 

Section 402.           Maintenance of Office or Agency .  ( a) The Company shall maintain in the United States one or more offices or agencies where Notes may be presented or surrendered for payment, where Notes may be surrendered for transfer or exchange and where notices and demands to or upon the Company in respect of the Notes and this Indenture may be served.  The Company shall give prompt written notice to the Trustee of the location, and of any change in the location, of such office or agency.  If at any time the Company shall fail to maintain such 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 of the Trustee.

 

(b)           The Company 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 purposes and may from time to time rescind such designations.

 

The Company hereby designates the Corporate Trust Office of the Trustee as such office or agency of the Company where Notes may be presented or surrendered for payment or

 

71



 

for transfer or exchange for so long as such Corporate Trust Office remains a Place of Payment in accordance with Section 305 hereof.

 

Section 403.           Money for Payments to Be Held in Trust .  If the Company shall at any time act as its own Paying Agent, it shall, on or before 12:00 p.m., New York City time on each due date of the principal of (and premium, if any) or interest on, any of the Notes, segregate and hold in trust for the benefit of the Persons entitled thereto a sum sufficient to pay the principal (and premium, if any) or interest so becoming due until such sums shall be paid to such Persons or otherwise disposed of as herein provided, and shall promptly notify the Trustee of its action or failure so to act.

 

If the Company is not acting as its own Paying Agent, it shall, on or prior to 12:00 p.m., New York City time on each due date of the principal of (and premium, if any) or interest on, any Notes, deposit with a Paying Agent a sum sufficient to pay the principal (and premium, if any) or interest, so becoming due, such sum to be held in trust for the benefit of the Persons entitled to such principal, premium or interest, and (unless such Paying Agent is the Trustee) the Company shall promptly notify the Trustee of its action or failure so to act.

 

If the Company is not acting as its own Paying Agent, the Company shall cause any 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, subject to the provisions of this Section 403 , that such Paying Agent shall

 

(1)           hold all sums held by it for the payment of principal of (and premium, if any) or interest on 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;

 

(2)           give the Trustee notice of any default by the Company (or any other obligor upon the Notes) in the making of any such payment of principal (and premium, if any) or interest;

 

(3)           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; and

 

(4)           acknowledge, accept and agree to comply in all respects with the provisions of this Indenture and TIA relating to the duties, rights and liabilities of such Paying Agent.

 

The Company may at any time, for the purpose of obtaining the satisfaction and discharge of this Indenture or for any other purpose, pay, or by Company Order direct any Paying Agent to pay, to the Trustee all sums held in trust by the Company or such Paying Agent, such sums to be held by the Trustee upon the same trusts as those upon which such sums were held by the Company or such Paying Agent; and, upon such payment by any Paying Agent to the

 

72


 

Trustee, such Paying Agent shall be released from all further liability with respect to such money.

 

Any money deposited with the Trustee or any Paying Agent, or then held by the Company, in trust for the payment of the principal of (and premium, if any) or interest on any Note and remaining unclaimed for two years after such principal (and premium, if any) or interest has become due and payable shall be paid to the Company on Company Request, or (if then held by the Company) shall be discharged from such trust; and the Holder of such Note shall thereafter, as an unsecured general creditor, look only to the Company for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust money, and all liability of the Company as trustee thereof, shall thereupon cease.

 

Section 404.           [Reserved.]

 

Section 405.           SEC Reports .  Notwithstanding that the Company may not be required to be or remain subject to the reporting requirements of Section 13(a) or 15(d) of the Exchange Act, the Company will file with the SEC (unless such filing is not permitted under the Exchange Act or by the SEC), so long as the Notes are Outstanding, the annual reports, information, documents and other reports that the Company is required to file with the SEC pursuant to such Section 13(a) or 15(d) or would be so required to file if the Company were so subject. The Company will also, within 15 days after the date on which the Company was so required to file or would be so required to file if the Company were so subject, transmit by mail to all Holders (as their names and addresses appear in the Note Register), and to the Trustee (or make available on a Company website) copies of any such information, documents and reports (without exhibits) so required to be filed. 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 Company’s accountants not being “independent” (as defined pursuant to the Exchange Act and the rules and regulations of the SEC thereunder), the Company 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 ( a ) the Company 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 405 (such initial date, the “ Reporting Date ”) and ( b ) if the Company makes such an election and such filing has not been made, or such information, documents and reports have not been transmitted or made available, as the case may be, within 90 days after such Reporting Date, liquidated damages will accrue on the Notes at a rate of 0.50% per annum from the date that is 90 days after such Reporting Date to the earlier of (x)  the date on which such filing has been made, or such information, documents and reports have been transmitted or made available, as the case may be, and (y)  the first anniversary of such Reporting Date (provided that not more than 0.50% per annum in liquidated damages shall be payable for any period regardless of the number of such elections by the Company). The Company will be

 

73



 

deemed to have satisfied the requirements of this Section 405 if any Parent files and provides reports, documents and information of the types otherwise so required, in each case within the applicable time periods, and the Company is not required to file such reports, documents and information separately under the applicable rules and regulations of the SEC (after giving effect to any exemptive relief) because of the filings by such Parent. The Company also will comply with the other provisions of TIA § 314(a).

 

Section 406.           Statement as to Default .  The Company shall deliver to the Trustee, within 120 days after the end of each fiscal year of the Company ending after January 1, 2011, an Officer’s Certificate stating, to the best knowledge of the signer thereof, whether or not any Default shall have occurred during such fiscal year and, if a Default shall have occurred, specifying each such Default and the nature and status thereof of which such signer may have knowledge.  To the extent required by the TIA, each Subsidiary Guarantor shall comply with TIA § 314(a)(4).  The individual signing any certificate given by any Person pursuant to this Section 406 shall be the principal executive, financial or accounting officer of such Person, in compliance with TIA § 314(a)(4).

 

Section 407.           Limitation on Indebtedness .  (a)  The Company will not, and will not permit any Restricted Subsidiary to, Incur any Indebtedness; provided , however , that the Company or any Restricted Subsidiary may Incur Indebtedness if on the date of the Incurrence of such Indebtedness, after giving effect to the Incurrence thereof, the Consolidated Coverage Ratio would be greater than 2.00:1.00.

 

(b)   Notwithstanding the foregoing paragraph (a), the Company and its Restricted Subsidiaries may Incur the following Indebtedness:

 

(i)            Indebtedness Incurred pursuant to any Credit Facility (including but not limited to in respect of letters of credit or bankers’ acceptances issued or created thereunder) and Indebtedness Incurred other than under any Credit Facility, and (without limiting the foregoing), in each case, any Refinancing Indebtedness in respect thereof, in a maximum principal amount at any time outstanding not exceeding in the aggregate the amount equal to ( A ) $2,250.0 million, plus ( B ) the greater of ( x ) $1,600.0 million and ( y ) an amount equal to ( 1 ) the Borrowing Base less ( 2 ) the aggregate principal amount of Indebtedness Incurred by Special Purpose Subsidiaries that are Domestic Subsidiaries and then outstanding pursuant to clause (ix) of this paragraph (b), plus ( C ) in the event of any refinancing of any such Indebtedness, the aggregate amount of fees, underwriting discounts, premiums and other costs and expenses incurred in connection with such refinancing;

 

(ii)           Indebtedness ( A ) of any Restricted Subsidiary to the Company or ( B ) of the Company or any Restricted Subsidiary to any Restricted Subsidiary; provided , that any subsequent issuance or transfer of any Capital Stock of such Restricted Subsidiary to which such Indebtedness is owed, or other event, that results in such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any other subsequent transfer of such Indebtedness (except to the Company or a Restricted Subsidiary) will be deemed, in each

 

74



 

case, an Incurrence of such Indebtedness by the issuer thereof not permitted by this clause (ii);

 

(iii)          Indebtedness represented by the Notes (other than any Additional Notes that are not Exchange Notes), any Indebtedness (other than the Indebtedness described in clause (ii) above) outstanding on the Issue Date (other than any Additional Notes) and any Refinancing Indebtedness Incurred in respect of any Indebtedness described in this clause (iii) or paragraph (a) above;

 

(iv)          Purchase Money Obligations and Capitalized Lease Obligations, and any Refinancing Indebtedness with respect thereto;

 

(v)           Indebtedness consisting of ( w ) accommodation guarantees for the benefit of trade creditors of the Company or any of its Restricted Subsidiaries, ( x ) Guarantees in connection with the construction or improvement of all or any portion of a Public Facility to be used by the Company or any Restricted Subsidiary, ( y ) Guarantees required (in the good faith determination of the Company) in connection with Vehicle Rental Concession Rights or ( z ) any Guarantee in respect of any Franchise Vehicle Indebtedness or Franchise Lease Obligation;

 

(vi)          ( A ) Guarantees by the Company or any Restricted Subsidiary of Indebtedness or any other obligation or liability of the Company or any Restricted Subsidiary (other than any Indebtedness Incurred by the Company or such Restricted Subsidiary, as the case may be, in violation of this Section 407 ), or ( B ) without limiting Section 413 , Indebtedness of the Company or any Restricted Subsidiary arising by reason of any Lien granted by or applicable to such Person securing Indebtedness of the Company or any Restricted Subsidiary (other than any Indebtedness Incurred by the Company or such Restricted Subsidiary, as the case may be, in violation of this Section 407 );

 

(vii)         Indebtedness of the Company or any Restricted Subsidiary ( A ) arising from the honoring of a check, draft or similar instrument of such Person drawn against insufficient funds, provided that such Indebtedness is extinguished within five Business Days of its Incurrence, or ( B ) consisting of guarantees, indemnities, obligations in respect of earnouts or other purchase price adjustments, or similar obligations, Incurred in connection with the acquisition or disposition of any business, assets or Person;

 

(viii)        Indebtedness of the Company or any Restricted Subsidiary in respect of ( A ) letters of credit, bankers’ acceptances or other similar instruments or obligations issued, or relating to liabilities or obligations incurred, in the ordinary course of business (including those issued to governmental entities in connection with self-insurance under applicable workers’ compensation statutes), or ( B ) completion guarantees, surety, judgment, appeal or performance bonds, or other similar bonds, instruments or obligations, provided, or relating to liabilities or obligations incurred, in the ordinary course of business, or ( C ) Hedging Obligations, entered into for bona fide hedging

 

75



 

purposes, or ( D ) Management Guarantees, or ( E ) the financing of insurance premiums in the ordinary course of business, or ( F ) take-or-pay obligations under supply arrangements incurred in the ordinary course of business, or ( G ) netting, overdraft protection and other arrangements arising under standard business terms of any bank at which the Company or any Restricted Subsidiary maintains an overdraft, cash pooling or other similar facility or arrangement;

 

(ix)           Indebtedness ( A ) of a Special Purpose Subsidiary secured by a Lien on all or part of the assets disposed of in, or otherwise Incurred in connection with, a Financing Disposition or ( B ) otherwise Incurred in connection with a Special Purpose Financing; provided that ( 1 ) such Indebtedness is not recourse to the Company or any Restricted Subsidiary that is not a Special Purpose Subsidiary (other than with respect to Special Purpose Financing Undertakings), ( 2 ) in the event such Indebtedness shall become recourse to the Company or any Restricted Subsidiary that is not a Special Purpose Subsidiary (other than with respect to Special Purpose Financing Undertakings), such Indebtedness will be deemed to be, and must be classified by the Company as, Incurred at such time (or at the time initially Incurred) under one or more of the other provisions of this Section 407 for so long as such Indebtedness shall be so recourse; and ( 3 ) in the event that at any time thereafter such Indebtedness shall comply with the provisions of the preceding subclause (1), the Company may classify such Indebtedness in whole or in part as Incurred under this Section 407(b)(ix) ;

 

(x)            Indebtedness of any Person that is assumed by the Company or any Restricted Subsidiary in connection with its acquisition of assets from such Person or any Affiliate thereof or is issued and outstanding on or prior to the date on which such Person was acquired by the Company or any Restricted Subsidiary or merged or consolidated with or into any Restricted Subsidiary (other than Indebtedness Incurred to finance, or otherwise Incurred in connection with, such acquisition), provided that on the date of such acquisition, merger or consolidation, after giving effect thereto, the Company could Incur at least $1.00 of additional Indebtedness pursuant to paragraph (a) above; and any Refinancing Indebtedness with respect to any such Indebtedness;

 

(xi)           Indebtedness of the Company or any Restricted Subsidiary in an aggregate principal amount at any time outstanding not exceeding an amount equal to ( A ) the greater of ( x ) $2,900.0 million and ( y ) an amount equal to ( 1 ) the Foreign Borrowing Base less ( 2 ) the aggregate principal amount of Indebtedness Incurred by Special Purpose Subsidiaries that are Foreign Subsidiaries and then outstanding pursuant to clause (ix) of this paragraph (b) plus ( B ) in the event of any refinancing of any Indebtedness Incurred under this clause (xi), the aggregate amount of fees, underwriting discounts, premiums and other costs and expenses incurred in connection with such refinancing;

 

(xii)          Contribution Indebtedness, and any Refinancing Indebtedness with respect thereto;

 

76



 

(xiii)         Indebtedness issuable upon the conversion or exchange of shares of Disqualified Stock issued in accordance with Section 407(a) , and any Refinancing Indebtedness with respect thereto;

 

(xiv)        Non-Recourse Indebtedness of HERC; and

 

(xv)         Indebtedness of the Company or any Restricted Subsidiary in an aggregate principal amount at any time outstanding not exceeding an amount equal to 3.25% of Consolidated Tangible Assets.

 

(c)   For purposes of determining compliance with, and the outstanding principal amount of any particular Indebtedness Incurred pursuant to and in compliance with, this Section 407 , ( i ) any other obligation of the obligor on such Indebtedness (or of any other Person who could have Incurred such Indebtedness under this Section 407 ) arising under any Guarantee, Lien or letter of credit, bankers’ acceptance or other similar instrument or obligation supporting such Indebtedness shall be disregarded to the extent that such Guarantee, Lien or letter of credit, bankers’ acceptance or other similar instrument or obligation secures the principal amount of such Indebtedness; ( ii ) in the event that Indebtedness meets the criteria of more than one of the types of Indebtedness described in paragraph (b) above, the Company, in its sole discretion, shall classify such item of Indebtedness and may include the amount and type of such Indebtedness in one or more of such clauses (including in part under one such clause and in part under another such clause); and ( iii ) the amount of Indebtedness issued at a price that is less than the principal amount thereof shall be equal to the amount of the liability in respect thereof determined in accordance with GAAP.

 

(d)   For purposes of determining compliance with any Dollar-denominated restriction on the Incurrence of Indebtedness denominated in a foreign currency, the Dollar-equivalent principal amount of such Indebtedness Incurred pursuant thereto shall be calculated based on the relevant currency exchange rate in effect on the date that such Indebtedness was Incurred, in the case of term Indebtedness, or first committed, in the case of revolving credit Indebtedness, provided that ( x ) the Dollar-equivalent principal amount of any such Indebtedness outstanding on the Issue Date shall be calculated based on the relevant currency exchange rate in effect on the Issue Date, ( y ) if such Indebtedness is Incurred to refinance other Indebtedness denominated in a foreign currency (or in a different currency from such Indebtedness so being Incurred), and such refinancing would cause the applicable Dollar-denominated restriction to be exceeded if calculated at the relevant currency exchange rate in effect on the date of such refinancing, such Dollar-denominated restriction shall be deemed not to have been exceeded so long as the principal amount of such refinancing Indebtedness does not exceed ( i ) the outstanding or committed principal amount (whichever is higher) of such Indebtedness being refinanced plus ( ii ) the aggregate amount of fees, underwriting discounts, premiums and other costs and expenses incurred in connection with such refinancing and ( z ) the Dollar-equivalent principal amount of Indebtedness denominated in a foreign currency and Incurred pursuant to a Senior Credit Facility shall be calculated based on the relevant currency exchange rate in effect on, at the Company’s option, ( i ) the Issue Date, ( ii )

 

77



 

any date on which any of the respective commitments under such Senior Credit Facility shall be reallocated between or among facilities or subfacilities thereunder, or on which such rate is otherwise calculated for any purpose thereunder, or ( iii ) the date of such Incurrence. The principal amount of any Indebtedness Incurred to refinance other Indebtedness, if Incurred in a different currency from the Indebtedness being refinanced, shall be calculated based on the currency exchange rate applicable to the currencies in which such respective Indebtedness is denominated that is in effect on the date of such refinancing.

 

Section 408.           [Reserved] .

 

Section 409.           Limitation on Restricted Payments .  (a)  The Company shall not, and shall not permit any Restricted Subsidiary, directly or indirectly, to ( i ) declare or pay any dividend or make any distribution on or in respect of its Capital Stock (including any such payment in connection with any merger or consolidation to which the Company is a party) except ( x ) dividends or distributions payable solely in its Capital Stock (other than Disqualified Stock) and ( y ) dividends or distributions payable to the Company or any Restricted Subsidiary (and, in the case of any such Restricted Subsidiary making such dividend or distribution, to other holders of its Capital Stock on no more than a pro rata basis, measured by value), ( ii ) purchase, redeem, retire or otherwise acquire for value any Capital Stock of the Company held by Persons other than the Company or a Restricted Subsidiary (other than any acquisition of Capital Stock deemed to occur upon the exercise of options if such Capital Stock represents a portion of the exercise price thereof), ( iii ) voluntarily purchase, repurchase, redeem, defease or otherwise voluntarily acquire or retire for value, prior to scheduled maturity, scheduled repayment or scheduled sinking fund payment, any Subordinated Obligations (other than a purchase, repurchase, redemption, defeasance or other acquisition or retirement for value in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case due within one year of the date of such acquisition or retirement) or ( iv ) make any Investment (other than a Permitted Investment) in any Person (any such dividend, distribution, purchase, repurchase, redemption, defeasance, other acquisition or retirement or Investment being herein referred to as a “ Restricted Payment ”), if at the time the Company or such Restricted Subsidiary makes such Restricted Payment and after giving effect thereto:

 

(1)           a Default shall have occurred and be continuing (or would result therefrom);

 

(2)           the Company could not Incur at least an additional $1.00 of Indebtedness pursuant to Section 407(a) ; or

 

(3)           the aggregate amount of such Restricted Payment and all other Restricted Payments (the amount so expended, if other than in cash, to be as determined in good faith by the Board of Directors, whose determination shall be conclusive and evidenced by a resolution of the Board of Directors) declared or made subsequent to the Issue Date and then outstanding would exceed, without duplication, the sum of:

 

78



 

(A)          50% of the Consolidated Net Income accrued during the period (treated as one accounting period) beginning on January 1, 2011 to the end of the most recent fiscal quarter ending prior to the date of such Restricted Payment for which consolidated financial statements of the Company are available (or, in case such Consolidated Net Income shall be a negative number, 100% of such negative number);

 

(B)           the aggregate Net Cash Proceeds and the fair value (as determined in good faith by the Board of Directors) of property or assets received ( x ) by the Company as capital contributions to the Company after the Issue Date or from the issuance or sale (other than to a Restricted Subsidiary) of its Capital Stock (other than Disqualified Stock) after the Issue Date (other than Excluded Contributions and Contribution Amounts) or ( y ) by the Company or any Restricted Subsidiary from the Incurrence by the Company or any Restricted Subsidiary after the Issue Date of Indebtedness that shall have been converted into or exchanged for Capital Stock of the Company (other than Disqualified Stock) or Capital Stock of any Parent, plus the amount of any cash and the fair value (as determined in good faith by the Board of Directors) of any property or assets, received by the Company or any Restricted Subsidiary upon such conversion or exchange;

 

(C)           the aggregate amount equal to the net reduction in Investments in Unrestricted Subsidiaries resulting from ( i ) dividends, distributions, interest payments, return of capital, repayments of Investments or other transfers of assets to the Company or any Restricted Subsidiary from any Unrestricted Subsidiary, including dividends or other distributions related to dividends or other distributions made pursuant to clause (x) of the following paragraph (b), or ( ii ) the redesignation of any Unrestricted Subsidiary as a Restricted Subsidiary (valued in each case as provided in the definition of “ Investment ”), not to exceed in the case of any such Unrestricted Subsidiary the aggregate amount of Investments (other than Permitted Investments) made by the Company or any Restricted Subsidiary in such Unrestricted Subsidiary after the Issue Date;

 

(D)          in the case of any disposition or repayment of any Investment constituting a Restricted Payment (without duplication of any amount deducted in calculating the amount of Investments at any time outstanding included in the amount of Restricted Payments), an amount in the aggregate equal to the lesser of the return of capital, repayment or other proceeds with respect to all such Investments received by the Company or a Restricted Subsidiary and the initial amount of all such Investments constituting Restricted Payments; and

 

(E)           an amount equal to the amount available as of the Issue Date for making Restricted Payments pursuant to Section 409(a)(3)  of the 2005 Senior Indenture.

 

79



 

(b)   The provisions of Section 409(a ) will not prohibit any of the following (each, a “ Permitted Payment ”):

 

(i)            any purchase, redemption, repurchase, defeasance or other acquisition or retirement of Capital Stock of the Company or Subordinated Obligations made by exchange (including any such exchange pursuant to the exercise of a conversion right or privilege in connection with which cash is paid in lieu of the issuance of fractional shares) for, or out of the proceeds of the substantially concurrent issuance or sale of, Capital Stock of the Company (other than Disqualified Stock and other than Capital Stock issued or sold to a Subsidiary) or a substantially concurrent capital contribution to the Company, in each case other than Excluded Contributions and Contribution Amounts; provided, that the Net Cash Proceeds from such issuance, sale or capital contribution shall be excluded in subsequent calculations under Section 409(a)(3)(B) ;

 

(ii)           any purchase, redemption, repurchase, defeasance or other acquisition or retirement of Subordinated Obligations ( w ) made by exchange for, or out of the proceeds of the substantially concurrent Incurrence of, Indebtedness of the Company or Refinancing Indebtedness Incurred in compliance with Section 407 , ( x ) from Net Available Cash to the extent permitted by Section 411 , ( y ) following the occurrence of a Change of Control (or other similar event described therein as a “change of control”), but only if the Company shall have complied with Section 415 and, if required, purchased all Notes tendered pursuant to the offer to repurchase all the Notes required thereby, prior to purchasing or repaying such Subordinated Obligations or ( z ) constituting Acquired Indebtedness;

 

(iii)          any dividend paid within 60 days after the date of declaration thereof if at such date of declaration such dividend would have complied with Section 409(a) ;

 

(iv)          Investments or other Restricted Payments in an aggregate amount outstanding at any time not to exceed the amount of Excluded Contributions;

 

(v)           loans, advances, dividends or distributions by the Company to any Parent to permit any Parent to repurchase or otherwise acquire its Capital Stock (including any options, warrants or other rights in respect thereof), or payments by the Company to repurchase or otherwise acquire Capital Stock of any Parent or the Company (including any options, warrants or other rights in respect thereof), in each case from Management Investors (including any repurchase or acquisition by reason of the Company or any Parent retaining any Capital Stock, option, warrant or other right in respect of tax withholding obligations, and any related payment in respect of any such obligation), such payments, loans, advances, dividends or distributions not to exceed an amount (net of repayments of any such loans or advances) equal to ( x ) ( 1 ) $20.0 million, plus ( 2 ) $5.0 million multiplied by the number of calendar years that have commenced since the Issue Date, plus ( y ) the Net Cash Proceeds received by the Company since the Issue Date from, or as a capital contribution from, the issuance or sale to Management Investors of Capital Stock (including any options, warrants or other rights in respect thereof), to the

 

80



 

extent such Net Cash Proceeds are not included in any calculation under Section 409(a)(3)(B)(x) , plus ( z ) the cash proceeds of key man life insurance policies received by the Company or any Restricted Subsidiary (or by any Parent and contributed to the Company) since the Issue Date to the extent such cash proceeds are not included in any calculation under Section 409(a)(3)(A) ;

 

(vi)          the payment by the Company of, or loans, advances, dividends or distributions by the Company to any Parent to pay, dividends on the common stock or equity of the Company or any Parent following a public offering of such common stock or equity in an amount not to exceed in any fiscal year 6% of the aggregate gross proceeds received by the Company (whether directly, or indirectly through a contribution to common equity capital) in or from such public offering;

 

(vii)         Restricted Payments (including loans or advances) in an aggregate amount outstanding at any time not to exceed an amount (net of repayments of any such loans or advances) equal to 1.0% of Consolidated Tangible Assets;

 

(viii)        loans, advances, dividends or distributions to any Parent or other payments by the Company or any Restricted Subsidiary ( A ) to satisfy or permit any Parent to satisfy obligations under the Management Agreements, ( B ) pursuant to the Tax Sharing Agreement, or ( C ) to pay or permit any Parent to pay any Parent Expenses or any Related Taxes;

 

(ix)           payments by the Company, or loans, advances, dividends or distributions by the Company to any Parent to make payments, to holders of Capital Stock of the Company or any Parent in lieu of issuance of fractional shares of such Capital Stock, not to exceed $5.0 million in the aggregate outstanding at any time;

 

(x)            dividends or other distributions of, or Investments paid for or made with, Capital Stock, Indebtedness or other securities of either ( A ) Unrestricted Subsidiaries or ( B ) HERC;

 

(xi)           any Restricted Payment pursuant to or in connection with the Transactions;

 

(xii)          the declaration and payment of dividends to holders of any class or series of Disqualified Stock, or of any Preferred Stock of a Restricted Subsidiary, Incurred in accordance with the terms of Section 407 ;

 

(xiii)         Restricted Payments in an aggregate amount outstanding at any time not to exceed the amount of ( A ) the Net Cash Proceeds to the Company or any Restricted Subsidiary of any HERC Offering and/or ( B ) the Net Available Cash to the Company or any Restricted Subsidiary from any HERC Disposition; provided that, upon and after giving effect to any such Restricted Payment, no Default or Event of Default shall have

 

81



 

occurred and be continuing and no default or event of default shall have occurred and be continuing under the 2005 Senior Indenture; and

 

(xiv)        loans, advances, dividends or distributions to any Parent or other payments by the Company or any Restricted Subsidiary to pay or permit any Parent to pay principal, interest and premiums, if any, in respect of Holding’s 5.25% convertible senior notes due 2014 in accordance with such notes and the indenture governing such notes.

 

provided , that ( A ) in the case of clauses (iii), (vi),(vii) and (ix), the net amount of any such Permitted Payment shall be included in subsequent calculations of the amount of Restricted Payments, ( B ) in the case of clause (v), at the time of any calculation of the amount of Restricted Payments, the net amount of Permitted Payments that have then actually been made under clause (v) that is in excess of 50% of the total amount of Permitted Payments then permitted under clause (v) shall be included in such calculation of the amount of Restricted Payments, ( C ) in all cases other than pursuant to clauses (A) and (B) immediately above, the net amount of any such Permitted Payment shall be excluded in subsequent calculations of the amount of Restricted Payments and ( D ) solely with respect to clause (vii), no Default or Event of Default shall have occurred and be continuing at the time of any such Permitted Payment after giving effect thereto.

 

(c)           The Company, in its sole discretion, may classify any Investment or other Restricted Payment as being made in part under one of the provisions of this Section 409 (or, in the case of any Investment, the clauses of Permitted Investments) and in part under one or more other such provisions (or, as applicable, clauses).

 

Section 410.           Limitation on Restrictions on Distributions from Restricted Subsidiaries .  The Company will not, and will not permit any Restricted Subsidiary to, create or otherwise cause to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to ( i ) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the Company, ( ii ) make any loans or advances to the Company or ( iii ) transfer any of its property or assets to the Company ( provided that dividend or liquidation priority between classes of Capital Stock, or subordination of any obligation (including the application of any remedy bars thereto) to any other obligation, will not be deemed to constitute such an encumbrance or restriction), except any encumbrance or restriction:

 

(1)           pursuant to an agreement or instrument in effect at or entered into on the Issue Date, any Credit Facility, this Indenture or the Notes;

 

(2)           pursuant to any agreement or instrument of a Person, or relating to Indebtedness or Capital Stock of a Person, which Person is acquired by or merged or consolidated with or into the Company or any Restricted Subsidiary, or which agreement or instrument is assumed by the Company or any Restricted Subsidiary in connection with an acquisition of assets from such Person, as in effect at the time of such acquisition, merger or consolidation (except to the extent that such Indebtedness was incurred to finance, or otherwise in connection with, such acquisition, merger or consolidation);

 

82


 

provided that for purposes of this clause (2), if a Person other than the Company is the Successor Company with respect thereto, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, by the Company or a Restricted Subsidiary, as the case may be, when such Person becomes such Successor Company;

 

(3)            pursuant to an agreement or instrument (a “ Refinancing Agreement ”) effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise extends, renews, refunds, refinances or replaces, an agreement or instrument referred to in clause (1) or (2) of this Section 410 or this clause (3) (an “ Initial Agreement ”) or contained in any amendment, supplement or other modification to an Initial Agreement (an “ Amendment ”); provided , however , that the encumbrances and restrictions contained in any such Refinancing Agreement or Amendment taken as a whole are not materially less favorable to the Holders of the Notes than encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such Refinancing Agreement or Amendment relates (as determined in good faith by the Company);

 

(4)            ( A ) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any lease, license or other contract, ( B ) by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of the Company or any Restricted Subsidiary not otherwise prohibited by this Indenture, ( C ) contained in mortgages, pledges or other security agreements securing Indebtedness of a Restricted Subsidiary to the extent restricting the transfer of the property or assets subject thereto, ( D ) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary, ( E ) pursuant to Purchase Money Obligations that impose encumbrances or restrictions on the property or assets so acquired, ( F ) on cash or other deposits or net worth imposed by customers or suppliers under agreements entered into in the ordinary course of business, ( G ) pursuant to customary provisions contained in agreements and instruments entered into in the ordinary course of business (including but not limited to leases and joint venture and other similar agreements entered into in the ordinary course of business), ( H ) that arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets of the Company or any Restricted Subsidiary in any manner material to the Company or such Restricted Subsidiary, ( I ) pursuant to Hedging Obligations or ( J ) in connection with or relating to any Vehicle Rental Concession Right;

 

(5)            with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition of all or substantially all the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;

 

83



 

(6)            by reason of any applicable law, rule, regulation or order, or required by any regulatory authority having jurisdiction over the Company or any Restricted Subsidiary or any of their businesses; or

 

(7)            pursuant to an agreement or instrument ( A ) relating to any Indebtedness permitted to be Incurred subsequent to the Issue Date pursuant to Section 407 ( i ) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders of the Notes than the encumbrances and restrictions contained in the Initial Agreements (as determined in good faith by the Company), or ( ii ) if such encumbrance or restriction is not materially more disadvantageous to the Holders of the Notes than is customary in comparable financings (as determined in good faith by the Company) and either ( x ) the Company determines in good faith that such encumbrance or restriction will not materially affect the Company’s ability to make principal or interest payments on the Notes or ( y ) such encumbrance or restriction applies only if a default occurs in respect of a payment or financial covenant relating to such Indebtedness, ( B ) relating to any sale of receivables by a Foreign Subsidiary, ( C ) relating to Indebtedness of or a Franchise Financing Disposition by or to or in favor of any Franchisee or Franchise Special Purpose Entity or to any Franchise Lease Obligation or (D) relating to Indebtedness of or a Financing Disposition by or to or in favor of any Special Purpose Entity.

 

Section 411.            Limitation on Sales of Assets and Subsidiary Stock .  (a)  The Company will not, and will not permit any Restricted Subsidiary to, make any Asset Disposition unless

 

(i)             the Company or such Restricted Subsidiary receives consideration (including by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise) at the time of such Asset Disposition at least equal to the fair market value of the shares and assets subject to such Asset Disposition, as such fair market value may be determined (and shall be determined, to the extent such Asset Disposition or any series of related Asset Dispositions involves aggregate consideration in excess of $25.0 million) in good faith by the Board of Directors, whose determination shall be conclusive (including as to the value of all noncash consideration),

 

(ii)            in the case of any Asset Disposition (or series of related Asset Dispositions) having a fair market value of $25.0 million or more, at least 75% of the consideration therefor (excluding, in the case of an Asset Disposition (or series of related Asset Dispositions), any consideration by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, that are not Indebtedness) received by the Company or such Restricted Subsidiary is in the form of cash, and

 

(iii)           an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied by the Company (or any Restricted Subsidiary, as the case may be) as follows:

 

84



 

(A)           first , either ( x ) to the extent the Company elects (or is required by the terms of any Credit Facility Indebtedness, any Senior Indebtedness of the Company or any Subsidiary Guarantor or any Indebtedness of a Restricted Subsidiary that is not a Subsidiary Guarantor), to prepay, repay or purchase any such Indebtedness or (in the case of letters of credit, bankers’ acceptances or other similar instruments) cash collateralize any such Indebtedness (in each case other than Indebtedness owed to the Company or a Restricted Subsidiary) within 365 days after the later of the date of such Asset Disposition and the date of receipt of such Net Available Cash, ( y ) to the extent the Company or such Restricted Subsidiary elects, to invest in Additional Assets (including by means of an investment in Additional Assets by a Restricted Subsidiary with an amount equal to Net Available Cash received by the Company or another Restricted Subsidiary) within 365 days from the later of the date of such Asset Disposition and the date of receipt of such Net Available Cash, or, if such investment in Additional Assets is a project authorized by the Board of Directors that will take longer than such 365 days to complete, the period of time necessary to complete such project or ( z ) in the case of any HERC Offering, to make one or more Restricted Payments pursuant to Section 409(b)(xiii) ;

 

(B)            second , to the extent of the balance of such Net Available Cash after application in accordance with clause (A) above (such balance, the “ Excess Proceeds ”), to make an offer to purchase Notes and (to the extent the Company or such Restricted Subsidiary elects, or is required by the terms thereof) to purchase, redeem or repay any other Senior Indebtedness of the Company or a Restricted Subsidiary, pursuant and subject to Section 411(b)  and Section 411(c)  and the agreements governing such other Indebtedness; and

 

(C)            third , to the extent of the balance of such Net Available Cash after application in accordance with clauses (A) and (B) above, to fund (to the extent consistent with any other applicable provision of this Indenture) any general corporate purpose (including but not limited to the repurchase, repayment or other acquisition or retirement of any Subordinated Obligations);

 

provided , however , that in connection with any prepayment, repayment or purchase of Indebtedness pursuant to clause (A)(x) or (B) above, the Company or such Restricted Subsidiary will retire such Indebtedness and will cause the related loan commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased.

 

Notwithstanding the foregoing provisions of this Section 411 , the Company and the Restricted Subsidiaries shall not be required to apply any Net Available Cash or equivalent amount in accordance with this Section 411 except to the extent that the aggregate Net Available Cash from all Asset Dispositions or equivalent amount that is not applied in accordance with this Section 411 exceeds $50.0 million. If the aggregate principal amount of Notes or other Indebtedness of the Company or a Restricted Subsidiary validly tendered and not withdrawn (or otherwise

 

85



 

subject to purchase, redemption or repayment) in connection with an offer pursuant to clause (B) above exceeds the Excess Proceeds, the Excess Proceeds will be apportioned between such Notes and such other Indebtedness of the Company or a Restricted Subsidiary, with the portion of the Excess Proceeds payable in respect of such Notes to equal the lesser of ( x ) the Excess Proceeds amount multiplied by a fraction, the numerator of which is the outstanding principal amount of such Notes and the denominator of which is the sum of the outstanding principal amount of the Notes and the outstanding principal amount of the relevant other Indebtedness of the Company or a Restricted Subsidiary, and ( y ) the aggregate principal amount of Notes validly tendered and not withdrawn.

 

For the purposes of clause (ii) of paragraph (a) above, the following are deemed to be cash: ( 1 ) Temporary Cash Investments and Cash Equivalents, ( 2 ) the assumption of Indebtedness of the Company (other than Disqualified Stock of the Company) or any Restricted Subsidiary and the release of the Company or such Restricted Subsidiary from all liability on payment of the principal amount of such Indebtedness in connection with such Asset Disposition, ( 3 ) Indebtedness of any Restricted Subsidiary that is no longer a Restricted Subsidiary as a result of such Asset Disposition, to the extent that the Company and each other Restricted Subsidiary are released from any Guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Disposition, ( 4 ) securities received by the Company or any Restricted Subsidiary from the transferee that are converted by the Company or such Restricted Subsidiary into cash within 180 days, ( 5 ) consideration consisting of Indebtedness of the Company or any Restricted Subsidiary, ( 6 ) Additional Assets and ( 7 ) any Designated Noncash Consideration received by the Company or any of its Restricted Subsidiaries in an Asset Disposition having an aggregate Fair Market Value, taken together with all other Designated Noncash Consideration received pursuant to this clause, not to exceed an aggregate amount at any time outstanding equal to 1.25% of Consolidated Tangible Assets (with the Fair Market Value of each item of Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value).

 

(b)    In the event of an Asset Disposition that requires the purchase of Notes pursuant to Section 411(a)(iii)(B ), the Company will be required to purchase Notes tendered pursuant to an offer by the Company for the Notes (the “ Offer ”) at a purchase price of 100% of their principal amount plus accrued and unpaid interest to the date of purchase in accordance with the procedures (including prorating in the event of oversubscription) set forth in Section 411(c) . If the aggregate purchase price of the Notes tendered pursuant to the Offer is less than the Net Available Cash allotted to the purchase of Notes, the remaining Net Available Cash will be available to the Company for use in accordance with Section 411(a)(iii)(B)  (to repay other Indebtedness of the Company or a Restricted Subsidiary) or Section 411(a)(iii)(C) . The Company shall not be required to make an Offer for Notes pursuant to this Section 411 if the Net Available Cash available therefor (after application of the proceeds as provided in Section 411(a)(iii)(A) ) is less than $50.0 million for any particular Asset Disposition (which lesser amounts shall be carried forward for purposes of determining whether an Offer is required with respect to the Net Available Cash from any subsequent Asset Disposition). No Note will be

 

86



 

repurchased in part if less than the Minimum Denomination in original principal amount of such Note would be left outstanding.

 

(c)    The Company shall, not later than 45 days after the Company becomes obligated to make an Offer pursuant to this Section 411 , mail a notice to each Holder with a copy to the Trustee stating:  ( 1 ) that an Asset Disposition that requires the purchase of a portion of the Notes has occurred and that such Holder has the right (subject to the prorating described below) to require the Company to purchase a portion of such Holder’s Notes at a purchase price in cash equal to 100% of the principal amount thereof, plus accrued and unpaid interest, if any, to the date of purchase (subject to Section 307 ); ( 2 ) the repurchase date (which shall be no earlier than 30 days nor later than 60 days from the date such notice is mailed); ( 3 ) the instructions determined by the Company, consistent with this Section 411 , that a Holder must follow in order to have its Notes purchased; and ( 4 ) the amount of the Offer.  If, upon the expiration of the period for which the Offer remains open, the aggregate principal amount of Notes surrendered by Holder exceeds the amount of the Offer, the Company shall select the Notes to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $2,000 or integral multiples of $1,000 in excess thereof shall be purchased).

 

(d)    The Company will comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the repurchase of Notes pursuant to this Section 411 . To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section 411 , the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under this Section 411 by virtue thereof.

 

Section 412.            Limitation on Transactions with Affiliates .  (a)  The Company will not, and will not permit any Restricted Subsidiary to, directly or indirectly, enter into or conduct any transaction or series of related transactions (including the purchase, sale, lease or exchange of any property or the rendering of any service) with any Affiliate of the Company (an “ Affiliate Transaction ”) unless ( i ) the terms of such Affiliate Transaction are not materially less favorable to the Company or such Restricted Subsidiary, as the case may be, than those that could be obtained at the time in a transaction with a Person who is not such an Affiliate and ( ii ) if such Affiliate Transaction involves aggregate consideration in excess of $50.0 million, the terms of such Affiliate Transaction have been approved by a majority of the Disinterested Directors. For purposes of this Section 412(a) , any Affiliate Transaction shall be deemed to have satisfied the requirements set forth in this Section 412(a)  if ( x ) such Affiliate Transaction is approved by a majority of the Disinterested Directors or ( y ) in the event there are no Disinterested Directors, a fairness opinion is provided by a nationally recognized appraisal or investment banking firm with respect to such Affiliate Transaction.

 

(b)    The provisions of Section 412(a ) will not apply to:

 

(i)             any Restricted Payment Transaction,

 

87



 

(ii)            ( 1)  the entering into, maintaining or performance of any employment or consulting contract, collective bargaining agreement, benefit plan, program or arrangement, related trust agreement or any other similar arrangement for or with any current or former employee, officer or director or consultant of or to the Company, any Restricted Subsidiary or any Parent heretofore or hereafter entered into in the ordinary course of business, including vacation, health, insurance, deferred compensation, severance, retirement, savings or other similar plans, programs or arrangements, ( 2 ) payments, compensation, performance of indemnification or contribution obligations, the making or cancellation of loans or any issuance, grant or award of stock, options, other equity-related interests or other securities, to any such employees, officers, directors or consultants in the ordinary course of business, ( 3 ) the payment of reasonable fees to directors of the Company or any of its Subsidiaries or any Parent (as determined in good faith by the Company, such Subsidiary or such Parent), ( 4 ) any transaction with an officer or director of the Company or any of its Subsidiaries or any Parent in the ordinary course of business not involving more than $100,000 in any one case, or (5) Management Advances and payments in respect thereof (or in reimbursement of any expenses referred to in the definition of such term),

 

(iii)           any transaction between or among any of the Company, one or more Restricted Subsidiaries or one or more Special Purpose Entities,

 

(iv)           any transaction arising out of agreements or instruments in existence on the Issue Date (other than any Tax Sharing Agreement or Management Agreement referred to in Section 412(b)(vii) ), and any payments made pursuant thereto,

 

(v)            any transaction in the ordinary course of business on terms that are fair to the Company and its Restricted Subsidiaries in the reasonable determination of the board of directors or senior management of the Company, or are not materially less favorable to the Company or the relevant Restricted Subsidiary than those that could be obtained at the time in a transaction with a Person who is not an Affiliate of the Company,

 

(vi)           any transaction in the ordinary course of business, or approved by a majority of the Board of Directors, between the Company or any Restricted Subsidiary and any Affiliate of the Company controlled by the Company that is a Franchisee, a Franchise Special Purpose Entity, a joint venture or similar entity,

 

(vii)          the execution, delivery and performance of any Tax Sharing Agreement and any Management Agreements, including payment to CDR, Carlyle or ML or any of their respective Affiliates of fees of up to $7.5 million in the aggregate in any fiscal year, and fees in connection with any acquisition, disposition, merger, recapitalization or similar transaction as provided in any such Management Agreement, plus all out-of-pocket expenses incurred by CDR, Carlyle or ML or any such Affiliate in connection with its performance of management consulting, monitoring, financial advisory or other services with respect to the Company and its Restricted Subsidiaries,

 

88



 

(viii)         the Transactions, all transactions in connection therewith (including but not limited to the financing thereof), and all fees and expenses paid or payable in connection with the Transactions, and

 

(ix)            any issuance or sale of Capital Stock (other than Disqualified Stock) of the Company or capital contribution to the Company.

 

Section 413.            Limitation on Liens The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, create or permit to exist any Lien (other than Permitted Liens) on any of its property or assets (including Capital Stock of any other Person), whether owned on the date of this Indenture or thereafter acquired, securing any Indebtedness (the “ Initial Lien ”), unless contemporaneously therewith effective provision is made to secure the Indebtedness due under this Indenture and the Notes or, in respect of Liens on any Restricted Subsidiary’s property or assets, any Subsidiary Guarantee of such Restricted Subsidiary, equally and ratably with (or on a senior basis to, in the case of Subordinated Obligations or Guarantor Subordinated Obligations) such obligation for so long as such obligation is so secured by such Initial Lien. Any such Lien thereby created in favor of the Notes or any such Subsidiary Guarantee will be automatically and unconditionally released and discharged upon ( i ) the release and discharge of the Initial Lien to which it relates, ( ii ) in the case of any such Lien in favor of any such Subsidiary Guarantee, upon the termination and discharge of such Subsidiary Guarantee in accordance with the terms of Section 1303 or ( iii ) any sale, exchange or transfer (other than a transfer constituting a transfer of all or substantially all of the assets of the Company that is governed by the provisions of Section 501 ) to any Person not an Affiliate of the Company of the property or assets secured by such Initial Lien, or of all of the Capital Stock held by the Company or any Restricted Subsidiary in, or all or substantially all the assets of, any Restricted Subsidiary creating such Initial Lien.

 

Section 414.            Future Subsidiary Guarantors .  From and after the Issue Date, the Company will cause each Domestic Subsidiary that guarantees payment by the Company of any Indebtedness of the Company under the Senior Credit Facilities to execute and deliver to the Trustee a supplemental indenture or other instrument pursuant to which such Domestic Subsidiary will guarantee payment of the Notes, whereupon such Domestic Subsidiary will become a Subsidiary Guarantor for all purposes under this Indenture. In addition, the Company may cause any Subsidiary that is not a Subsidiary Guarantor so to guarantee payment of the Notes and become a Subsidiary Guarantor.

 

Section 415.            Purchase of Notes Upon a Change of Control .

 

(a)    Upon the occurrence after the Issue Date of a Change of Control, each Holder of Notes will have the right to require the Company to repurchase all or any part of such Notes at a purchase price in cash equal to 101% of the principal amount thereof, plus accrued and unpaid interest, if any, to the date of repurchase (subject to Section 307 ); provided , however , that the Company shall not be obligated to repurchase Notes pursuant to this Section 415 in the event that it has exercised its right to redeem all of the Notes as provided in Article X .

 

89



 

(b)    In the event that, at the time of such Change of Control, the terms of any Credit Facility Indebtedness constituting Designated Senior Indebtedness restrict or prohibit the repurchase of the Notes pursuant to this Section 415 , then prior to the mailing of the notice to Holders provided for in Section 415(c)  but in any event not later than 30 days following the date the Company obtains actual knowledge of any Change of Control (unless the Company has exercised its right to redeem all the Notes as provided in Article X ), the Company shall, or shall cause one or more of its Subsidiaries to, ( i ) repay in full all such Credit Facility Indebtedness subject to such terms or offer to repay in full all such Credit Facility Indebtedness and repay the Credit Facility Indebtedness of each lender who has accepted such offer or ( ii ) obtain the requisite consent under the agreements governing such Credit Facility Indebtedness to permit the repurchase of the Notes as provided for in Section 415(c) . The Company shall first comply with the provisions of the immediately preceding sentence before it shall be required to repurchase Notes pursuant to the provisions set forth in this Section 415 . The Company’s failure to comply with the provisions of this Section 415(b ) or Section 415(c ) shall constitute an Event of Default described in Section 601(iv ) and not in Section 601(ii ).

 

(c)    Unless the Company has exercised its right to redeem all the Notes as set forth in Article X , the Company shall, not later than 30 days following the date the Company obtains actual knowledge of any Change of Control having occurred, mail a notice (a “ Change of Control Offer ”) to each Holder with a copy to the Trustee stating: ( 1 ) that a Change of Control has occurred or may occur and that such Holder has, or upon such occurrence will have, the right to require the Company to purchase such Holder’s Notes at a purchase price in cash equal to 101% of the principal amount thereof, plus accrued and unpaid interest, if any, to the date of purchase (subject to the right of Holders of record on a record date to receive interest on the relevant interest payment date); ( 2 ) the repurchase date (which shall be no earlier than 30 days nor later than 60 days from the date such notice is mailed); ( 3 ) the instructions determined by the Company, consistent with this Section 415 , that a Holder must follow in order to have its Notes purchased; and ( 4 ) if such notice is mailed prior to the occurrence of a Change of Control, that such offer is conditioned on the occurrence of such Change of Control. No Note will be repurchased in part if less than the Minimum Denomination in original principal amount of such Note would be left outstanding.

 

(d)    The Company will not be required to make a Change of Control Offer upon a Change of Control if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Indenture applicable to a Change of Control Offer made by the Company and purchases all Notes validly tendered and not withdrawn under such Change of Control Offer.

 

(e)    The Company will comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the repurchase of Notes pursuant to this Section 415 . To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section 415 , the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under this Section 415 by virtue thereof.

 

90



 

Section 416.            Termination of Covenants on Achievement of Investment Grade Rating .  If on any day following the Issue Date (a) the Notes have Investment Grade Ratings from both Rating Agencies, and (b) no Default has occurred and is continuing under this Indenture, then, beginning on that day (the “ Termination Date ”) and continuing at all times thereafter regardless of any subsequent changes in the rating of the Notes, Sections 407 , 409 , 410 , 411 , 412 , 414 , and 501(a)(iii)  will cease to be effective and will not be applicable to the Company and its Restricted Subsidiaries.  Following the Termination Date, the Board of Directors may not designate any of its Subsidiaries as Unrestricted Subsidiaries unless such designation would have complied with Section 409 as if such covenant would have been in effect during such period.  At any time after the Termination Date, any reference in the definitions of “Permitted Liens” and “Unrestricted Subsidiary” to Section 407 or any provision thereof shall be construed as if such covenant were in effect.

 

ARTICLE V

 

SUCCESSORS

 

Section 501.            When the Company May Merge, etc .  (a) The Company will not consolidate with or merge with or into, or convey, transfer or lease all or substantially all its assets to, any Person, unless:

 

(i)             the resulting, surviving or transferee Person (the “ Successor Company ”) will be a Person organized and existing under the laws of the United States of America, any State thereof or the District of Columbia and the Successor Company (if not the Company) will expressly assume all the obligations of the Company under the Notes and this Indenture by executing and delivering to the Trustee a supplemental indenture or one or more other documents or instruments in form reasonably satisfactory to the Trustee;

 

(ii)            immediately after giving effect to such transaction (and treating any Indebtedness that becomes an obligation of the Successor Company or any Restricted Subsidiary as a result of such transaction as having been Incurred by the Successor Company or such Restricted Subsidiary at the time of such transaction), no Default will have occurred and be continuing;

 

(iii)           immediately after giving effect to such transaction, either ( A ) the Company (or, if applicable, the Successor Company with respect thereto) could Incur at least $1.00 of additional Indebtedness pursuant to Section 407(a) , or ( B ) the Consolidated Coverage Ratio of the Company (or, if applicable, the Successor Company with respect thereto) would equal or exceed the Consolidated Coverage Ratio of the Company immediately prior to giving effect to such transaction;

 

(iv)           each Subsidiary Guarantor (other than ( x ) any Subsidiary Guarantor that will be released from its obligations under its Subsidiary Guarantee in connection with such transaction and ( y ) any party to any such consolidation or merger) shall have delivered a supplemental indenture or other document or instrument in form reasonably satisfactory to the

 

91



 

Trustee, confirming its Subsidiary Guarantee (other than any Subsidiary Guarantee that will be discharged or terminated in connection with such transaction); and

 

(v)            the Company will have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each to the effect that such consolidation, merger or transfer complies with the provisions described in this paragraph, provided that ( x ) in giving such opinion such counsel may rely on an Officer’s Certificate as to compliance with the foregoing clauses (ii) and (iii) and as to any matters of fact, and ( y ) no Opinion of Counsel will be required for a consolidation, merger or transfer described in Section 501(b) .

 

Any Indebtedness that becomes an obligation of the Successor Company or any Restricted Subsidiary (or that is deemed to be Incurred by any Restricted Subsidiary that becomes a Restricted Subsidiary) as a result of any such transaction undertaken in compliance with this Section 501 , and any Refinancing Indebtedness with respect thereto, shall be deemed to have been Incurred in compliance with Section 407 .

 

(b)    Clauses (ii) and (iii) of Section 501(a)  will not apply to any transaction in which the Company consolidates or merges with or into or transfers all or substantially all its properties and assets to ( x ) an Affiliate incorporated or organized for the purpose of reincorporating or reorganizing the Company in another jurisdiction or changing its legal structure to a corporation or other entity or ( y ) a Restricted Subsidiary of the Company so long as all assets of the Company and the Restricted Subsidiaries immediately prior to such transaction (other than Capital Stock of such Restricted Subsidiary) are owned by such Restricted Subsidiary and its Restricted Subsidiaries immediately after the consummation thereof.  Section 501(a)  will not apply to any transaction in which any Restricted Subsidiary consolidates with, merges into or transfers all or part of its assets to the Company.

 

(c)    For the purpose of this Section 501 , the Reorganization Assets (whether individually or in the aggregate) shall not be deemed at any time to constitute all or substantially all of the assets of the Company, and any sale or transfer of all or any part of the Reorganization Assets (whether directly or indirectly, whether by sale or transfer of any such assets, or of any Capital Stock or other interest in any Person holding such assets, or of any combination thereof, and whether in one or more transactions, or otherwise) shall not be deemed at any time to constitute a sale or transfer of all or substantially all of the assets of the Company.

 

92


 

Section 502.            Successor Company Substituted .  Upon any transaction involving the Company in accordance with Section 501 in which the Company is not the Successor Company, the Successor Company shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture, and thereafter the predecessor Company shall be relieved of all obligations and covenants under this Indenture, except that the predecessor Company in the case of a lease of all or substantially all its assets shall not be released from the obligation to pay the principal of and interest on the Notes.

 

ARTICLE VI

 

REMEDIES

 

Section 601.            Events of Default .  An “ Event of Default ” means the occurrence of the following:

 

(i)             a default in any payment of interest on any Note when due, continued for a period of 30 days;

 

(ii)            a default in the payment of principal of any Note when due, whether at its Stated Maturity, upon optional redemption, upon required repurchase, upon declaration of acceleration or otherwise;

 

(iii)           the failure by the Company to comply with its obligations under Section 501(a );

 

(iv)           the failure by the Company to comply for 30 days after the notice specified in the penultimate paragraph of this Section 601 with any of its obligations under Section 415 (other than a failure to purchase the Notes);

 

(v)            the failure by the Company to comply for 60 days after the notice specified in the penultimate paragraph of this Section 601 with its other agreements contained in the Notes or this Indenture;

 

(vi)           the failure by any Subsidiary Guarantor to comply for 45 days after the notice specified in the penultimate paragraph of this Section 601 with its obligations under its Subsidiary Guarantee;

 

(vii)          the failure by the Company or any Restricted Subsidiary to pay any Indebtedness for borrowed money (other than Indebtedness owed to the Company or any Restricted Subsidiary) within any applicable grace period after final maturity or the acceleration of any such Indebtedness by the holders thereof because of a default, if the total amount of such Indebtedness so unpaid or accelerated exceeds $75.0 million or its foreign currency equivalent; provided, that no Default or Event of Default will be deemed to occur with respect to any such Indebtedness that is paid or otherwise acquired or retired (or for which such failure to pay or

 

93



 

acceleration is waived or rescinded) within 20 Business Days after such failure to pay or such acceleration;

 

(viii)         the taking of any of the following actions by the Company or a Significant Subsidiary, or by each of such other Restricted Subsidiaries that are not Significant Subsidiaries but would in the aggregate constitute a Significant Subsidiary if considered as a single Person, pursuant to or within the meaning of any Bankruptcy Law:

 

(A)  the commencement of a voluntary case;

 

(B)  the consent to the entry of an order for relief against it in an involuntary case;

 

(C)  the consent to the appointment of a Custodian of it or for any substantial part of its property; or

 

(D)  the making of a general assignment for the benefit of its creditors;

 

(ix)            a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that:

 

(A)  is for relief against the Company or any Significant Subsidiary, or against each of such other Restricted Subsidiaries that are not Significant Subsidiaries but would in the aggregate constitute a Significant Subsidiary if considered as a single Person, in an involuntary case;

 

(B)  appoints ( x ) a Custodian of the Company or any Significant Subsidiary or for any substantial part of its property, or ( y ) a Custodian of each of such other Restricted Subsidiaries that are not Significant Subsidiaries but would in the aggregate constitute a Significant Subsidiary if considered as a single Person, or for any substantial part of their property in the aggregate; or

 

(C)  orders the winding up or liquidation of the Company or any Significant Subsidiary, or of each of such other Restricted Subsidiaries that are not Significant Subsidiaries but would in the aggregate constitute a Significant Subsidiary if considered as a single Person;

 

and the order or decree remains unstayed and in effect for 60 days;

 

(x)             the rendering of any judgment or decree for the payment of money in an amount (net of any insurance or indemnity payments actually received in respect thereof prior to or within 90 days from the entry thereof, or to be received in respect thereof in the event any appeal thereof shall be unsuccessful) in excess of $75.0 million or its foreign currency equivalent against the Company or a Significant Subsidiary, or jointly and severally against other Restricted Subsidiaries that are not Significant Subsidiaries but would in the aggregate constitute a

 

94



 

Significant Subsidiary if considered as a single Person, that is not discharged, or bonded or insured by a third Person, if such judgment or decree remains outstanding for a period of 90 days following such judgment or decree and is not discharged, waived or stayed; or

 

(xi)            the failure of any Subsidiary Guarantee by a Subsidiary Guarantor that is a Significant Subsidiary to be in full force and effect (except as contemplated by the terms thereof or of this Indenture) or the denial or disaffirmation in writing by any Subsidiary Guarantor that is a Significant Subsidiary of its obligations under this Indenture or its Subsidiary Guarantee (other than by reason of the termination of this Indenture or such Subsidiary Guarantee or the release of such Subsidiary Guarantee in accordance with such Subsidiary Guarantee and this Indenture), if such Default continues for 10 days.

 

The foregoing will constitute Events of Default whatever the reason for any such Event of Default and whether it is voluntary or involuntary or is effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body.

 

The term “ Bankruptcy Law ” means Title 11, United States Code, or any similar Federal, state or foreign law for the relief of debtors.  The term “ Custodian ” means any receiver, trustee, assignee, liquidator, custodian or similar official under any Bankruptcy Law.

 

However, a Default under clause (iv), (v) or (vi) will not constitute an Event of Default until the Trustee or the Holders of at least 30% in principal amount of the Outstanding Notes notify the Company in writing of the Default and the Company does not cure such Default within the time specified in such clause after receipt of such notice.  Such notice must specify the Default, demand that it be remedied and state that such notice is a “ Notice of Default .”  When a Default or an Event of Default is cured, it ceases.

 

The Company shall deliver to the Trustee, within 30 days after the occurrence thereof, written notice in the form of an Officer’s Certificate of any Event of Default under clause (vii) or (x) and any event that with the giving of notice or the lapse of time would become an Event of Default under clause (iv), (v) or (vi), its status and what action the Company is taking or proposes to take with respect thereto.

 

Section 602.            Acceleration of Maturity; Rescission and Annulment .  If an Event of Default (other than an Event of Default specified in Section 601(viii)  or Section 601(ix)  with respect to the Company) occurs and is continuing, the Trustee by written notice to the Company, or the Holders of at least thirty percent (30%) in principal amount of the Outstanding Notes by written notice to the Company and the Trustee, in either case specifying in such notice the respective Event of Default and that such notice is a “notice of acceleration,” may declare the principal of and accrued but unpaid interest on all the Notes to be due and payable. Upon the effectiveness of such a declaration, such principal and interest will be due and payable immediately.

 

95



 

Notwithstanding the foregoing, if an Event of Default specified in Section 601(viii)  or Section 601(ix)  with respect to the Company occurs and is continuing, the principal of and accrued but unpaid interest on all the Outstanding Notes will ipso facto become immediately due and payable without any declaration or other act on the part of the Trustee or any Holder.  The Holders of a majority in principal amount of the Outstanding Notes by notice to the Company and the Trustee may rescind an acceleration and its consequences if the rescission would not conflict with any judgment or decree and if all existing Events of Default have been cured or waived except non-payment of principal or interest that has become due solely because of such acceleration.  No such rescission shall affect any subsequent Default or impair any right consequent thereto.

 

Section 603.            Other Remedies; Collection Suit by Trustee .  If an Event of Default occurs and is continuing, the Trustee may, but is not obligated under this Section 603 to, pursue any available remedy to collect the payment of principal of or interest on the Notes or to enforce the performance of any provision of the Notes or this Indenture.  If an Event of Default specified in Section 601(i)  or 601(ii)  occurs and is continuing, the Trustee may recover judgment in its own name and as trustee of an express trust against the Company for the whole amount then due and owing (together with interest on any unpaid interest to the extent lawful) and the amounts provided for in Section 707 .

 

Section 604.            Trustee May File Proofs of Claim .  The Trustee may 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 and the Holders allowed in any judicial proceedings relative to the Company or any other obligor upon the Notes, its creditors or its property and, unless prohibited by law or applicable regulations, may vote on behalf of the Holders in any election of a trustee in bankruptcy or other Person performing similar functions, and any Custodian in any such judicial proceeding is hereby authorized by each Holder to make payments to the Trustee and, in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amount due it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and its counsel, and any other amounts due the Trustee under Section 707 .

 

No provision of this Indenture shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting the Notes or the rights of any Holder thereof or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding.

 

Section 605.            Trustee May Enforce Claims Without Possession of Notes .  All rights of action and claims under this Indenture or the Notes may be prosecuted and enforced by the Trustee without the possession of any of the Notes or the production thereof in any proceeding relating thereto, and any such proceeding instituted by the Trustee shall be brought in its own name as trustee of an express trust, and any recovery of judgment shall, after provision for the payment of the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, be for the ratable benefit of the Holders of the Notes in respect of which such judgment has been recovered.

 

96



 

Section 606.            Application of Money Collected .  Any money collected by the Trustee pursuant to this Article VI shall be applied in the following order, at the date or dates fixed by the Trustee and, in case of the distribution of such money on account of principal (or premium, if any) or interest, upon presentation of the Notes and the notation thereon of the payment if only partially paid and upon surrender thereof if fully paid:

 

First :  To the payment of all amounts due the Trustee under Section 707 ;

 

Second :  To the payment of the amounts then due and unpaid upon the Notes for principal (and premium, if any) and interest, in respect of which or for the benefit of which such money has been collected, ratably, without preference or priority of any kind, according to the amounts due and payable on such Notes for principal (and premium, if any) and interest, respectively; and

 

Third :  to the Company.

 

Section 607.            Limitation on Suits Subject to Section 608 hereof, no Holder may pursue any remedy with respect to this Indenture or the Notes unless:

 

(i)             such Holder has previously given the Trustee written notice that an Event of Default is continuing;

 

(ii)            Holders of at least 30% in principal amount of the Outstanding Notes have requested the Trustee in writing to pursue the remedy;

 

(iii)           such Holder or Holders have offered to the Trustee security or indemnity reasonably satisfactory to it against any loss, liability or expense;

 

(iv)           the Trustee has not complied with the request within 60 days after receipt of the request and the offer of security or indemnity; and

 

(v)            the Holders of a majority in principal amount of the Outstanding Notes have not given the Trustee a direction inconsistent with the request within such 60-day period.

 

A Holder may not use this Indenture to affect, disturb or prejudice the rights of another Holder, to obtain a preference or priority over another Holder or to enforce any right under this Indenture except in the manner herein provided and for the equal and ratable benefit of all Holders (it being understood that the Trustee does not have an affirmative duty to ascertain whether or not such actions or forbearances are unduly prejudicial to such Holders).

 

Section 608.            Unconditional Right of Holders to Receive Principal and Interest .  Notwithstanding any other provision in this Indenture, the Holder of any Note shall have the absolute and unconditional right to receive payment of the principal of, premium (if any) on and all (subject to Section 307 ) interest on such Note on the respective Stated Maturity or Interest

 

97



 

Payment Dates expressed in such Note and to institute suit for the enforcement of any such payment on or after such respective Stated Maturity or Interest Payment Dates, and such right shall not be impaired without the consent of such Holder.

 

Section 609.            Restoration of Rights and Remedies .  If the Trustee or any Holder has instituted any proceeding to enforce any right or remedy under this Indenture or any Note and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to such Holder, then and in every such case the Company, any other obligor upon the Notes, the Trustee and the Holders shall, subject to any determination in such proceeding, be restored severally and respectively to their former positions hereunder, and thereafter all rights and remedies of the Trustee and the Holders shall continue as though no such proceeding had been instituted.

 

Section 610.            Rights and Remedies Cumulative .  No right or remedy herein conferred upon or reserved to the Trustee or to the Holders is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise.  The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy.

 

Section 611.            Delay or Omission Not Waiver .  No delay or omission of the Trustee or of any Holder of any Note to exercise any right or remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein.  Every right and remedy given by this Article VI or by law to the Trustee or to the Holders may be exercised from time to time, and as often as may be deemed expedient, by the Trustee or by the Holders, as the case may be.

 

Section 612.            Control by Holders .  The Holders of not less than a majority in aggregate principal amount of the Outstanding Notes shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee or of exercising any trust or power conferred on the Trustee, provided that

 

(1)            such direction shall not be in conflict with any rule of law or with this Indenture, and

 

(2)            the Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction.

 

However, the Trustee may refuse to follow any direction that conflicts with law or this Indenture or, subject to Section 701 , that the Trustee determines is unduly prejudicial to the rights of any other Holder or that would involve the Trustee in personal liability; provided , however , that the Trustee may take any other action deemed proper by the Trustee that is not inconsistent with such direction.  Prior to taking any action under this Indenture, the Trustee shall be entitled to indemnification satisfactory to it in its sole discretion against all losses and

 

98



 

expenses caused by taking or not taking such action.  This Section 612 shall be in lieu of § 316(a)(1)(A) of the TIA, and such § 316(a)(1)(A) of the TIA is hereby expressly excluded from this Indenture and the Notes, as permitted by the TIA.

 

Section 613.            Waiver of Past Defaults .  The Holders of not less than a majority in aggregate principal amount of the Outstanding Notes may on behalf of the Holders of all the Notes waive any past Default hereunder and its consequences, except a Default

 

(1)            in the payment of the principal of or interest on any Note (which may only be waived with the consent of each Holder of Notes affected), or

 

(2)            in respect of a covenant or provision hereof that pursuant to the second paragraph of Section 902 cannot be modified or amended without the consent of the Holder of each Outstanding Note affected.

 

Upon any such waiver, such Default shall cease to exist, and any Event of Default 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 Default or Event of Default or impair any right consequent thereon.  In case of any such waiver, the Company, any other obligor upon the Notes, the Trustee and the Holders shall be restored to their former positions and rights hereunder and under the Notes, respectively.  This paragraph of this Section 613 shall be in lieu of § 316(a)(1)(B) of the TIA and such § 316(a)(1)(B) of the TIA is hereby expressly excluded from this Indenture and the Notes, as permitted by the TIA.

 

Section 614.            Undertaking for Costs .  All parties to this Indenture agree, and each Holder of any Note by such Holder’s acceptance thereof shall be deemed to have agreed, that any court may in its discretion require, in any suit for the enforcement of any right or remedy under this Indenture or the Notes, or in any suit against the Trustee for any action taken, suffered or omitted by it as Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys’ fees and expenses, against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant.  This Section 614 shall not apply to any suit instituted by the Trustee, to any suit instituted by any Holder, or group of Holders, holding in the aggregate more than 10% in principal amount of the Outstanding Notes, or to any suit instituted by any Holder for the enforcement of the payment of the principal of (or premium, if any) or interest on any Note on or after the respective Stated Maturity or Interest Payment Dates expressed in such Note.

 

Section 615.            Waiver of Stay, Extension or Usury Laws .  The Company (to the extent that it may lawfully do so) shall not at any time insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay or extension law or any usury or other similar law wherever enacted, now or at any time hereafter in force, that would prohibit or forgive the Company from paying all or any portion of the principal of (or premium, if any) or interest on the Notes contemplated herein or in the Notes or that may affect the covenants or the performance of this Indenture; and the Company (to the extent that it may lawfully do so) hereby

 

99



 

expressly waives all benefit or advantage of any such law, and shall not hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer and permit the execution of every such power as though no such law had been enacted.

 

ARTICLE VII

 

THE TRUSTEE

 

Section 701.            Certain Duties and Responsibilities .  (a)  Except during the continuance of an Event of Default,

 

(1)            the Trustee undertakes to perform such duties and only such duties as are specifically set forth in this Indenture, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and

 

(2)            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; but in the case of any such certificates or opinions that by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they conform to the requirements of this Indenture, but need not verify the contents thereof.

 

(b)    In case an Event of Default 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 person would exercise or use under the circumstances in the conduct of such person’s own affairs.

 

(c)    No provision of this Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that ( i ) this paragraph does not limit the effect of Section 701(a) ; ( ii ) the Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer, unless it is proved that the Trustee was negligent in ascertaining the pertinent facts; and ( 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 612 .

 

(d)    No provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers, if it shall have reasonable grounds to believe that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it.

 

(e)    Whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section 701 and Section 703 .

 

100



 

Section 702.            Notice of Defaults .  If a Default occurs and is continuing and is known to the Trustee, the Trustee must mail within 90 days after it occurs, to all Holders as their names and addresses appear in the Note Register, notice of such Default hereunder known to the Trustee unless such Default shall have been cured or waived; provided, however , that, except in the case of a Default in the payment of the principal of, premium, if any, or interest on any Note, the Trustee shall be protected in withholding such notice if and so long as the Trustee in good faith determines that the withholding of such notice is in the interests of the Holders.

 

Section 703.            Certain Rights of Trustee .  Subject to the provisions of Section 701 :

 

(1)            the Trustee may conclusively rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;

 

(2)            any request or direction of the Company mentioned herein shall be sufficiently evidenced by a Company Request or Company Order thereof, and any resolution of any Person’s board of directors shall be sufficiently evidenced if certified by an Officer of such Person as having been duly adopted and being in full force and effect on the date of such certificate;

 

(3)            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, rely upon an Officer’s Certificate of the Company;

 

(4)            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 in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon;

 

(5)            the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of any of the Holders pursuant to this Indenture, unless such Holders shall have offered to the Trustee security or indemnity reasonably satisfactory to it against the costs, expenses and liabilities which might be incurred by it in compliance with such request or direction;

 

(6)            the Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, note, other evidence of indebtedness or other paper or document;

 

101



 

(7)            the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder;

 

(8)            the Trustee shall not be liable for any action taken, suffered, or omitted to be taken by it in good faith and reasonably believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Indenture;

 

(9)            the Trustee shall not be deemed to have notice of any Default or Event of Default unless a Responsible Officer of the Trustee has actual knowledge thereof or unless notice of any event which is in fact such a default is received by the Trustee at the Corporate Trust Office of the Trustee, and such notice references the Notes and this Indenture; and

 

(10)          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.

 

Section 704.            Not Responsible for Recitals or Issuance of Notes .  The recitals contained herein and in the Notes, except the Trustee’s certificates of authentication, shall be taken as the statements of the Company, and neither the Trustee nor any Authenticating Agent assumes any responsibility for their correctness.  The Trustee makes no representations as to the validity or sufficiency of this Indenture or of the Notes, except that the Trustee represents that it is duly authorized to execute and deliver this Indenture, authenticate the Notes and perform its obligations hereunder and that the statements made by it in a Statement of Eligibility on Form T-1 supplied to the Company and any other obligor upon the Notes in connection with the registration of any Notes and any Subsidiary Guarantees issued hereunder are and will be true and accurate subject to the qualifications set forth therein.  Neither the Trustee nor any Authenticating Agent shall be accountable for the use or application by the Company of the Notes or the proceeds thereof.

 

Section 705.            May Hold Notes .  The Trustee, any Authenticating Agent, any Paying Agent, any Note Registrar or any other agent of the Company, in its individual or any other capacity, may become the owner or pledgee of Notes and, subject to Section 708 and Section 713 , may otherwise deal with the Company or its Affiliates with the same rights it would have if it were not Trustee, Authenticating Agent, Paying Agent, Note Registrar or such other agent.

 

Section 706.            Money Held in Trust .  Money held by the Trustee in trust hereunder need not be segregated from other funds except to the extent required by law.  The Trustee shall be under no liability for interest on any money received by it hereunder except as otherwise agreed in writing with the Company.

 

102


 

Section 707.            Compensation and Reimbursement .  The Company agrees,

 

(1)            to pay to the Trustee from time to time such compensation as the Company and the Trustee shall from time to time agree in writing for all services rendered by the Trustee hereunder (which compensation shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust);

 

(2)            except as otherwise expressly provided herein, to reimburse the Trustee upon its request for all reasonable out-of-pocket expenses incurred by the Trustee in accordance with any provision of this Indenture (including the reasonable compensation and the expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance as may be attributable to its negligence or bad faith; and

 

(3)            to indemnify the Trustee for, and to hold it harmless against, any loss, liability or expense incurred without negligence or bad faith on the Trustee’s part, arising out of or in connection with the administration of the trust or trusts hereunder, including the costs and expenses of defending itself against any claim or liability in connection with the exercise or performance of any of its powers or duties hereunder.

 

The Trustee shall have a lien prior to the Notes as to all property and funds held by it hereunder for any amount owing it or any predecessor Trustee pursuant to this Section 707 , except with respect to funds held in trust for the benefit of the Holders of particular Notes.

 

When the Trustee incurs expenses or renders services in connection with an Event of Default specified in Section 601(viii)  or Section 601(ix) , the expenses (including the reasonable charges and expenses of its counsel) and the compensation for the services are intended to constitute expenses of administration under any applicable Federal or state bankruptcy, insolvency or other similar law.

 

The Company need not pay for any settlement made without its consent.  The provisions of this Section 707 shall survive the termination of this Indenture.

 

Section 708.            Conflicting Interests .  If the Trustee has or shall acquire a conflicting interest within the meaning of the TIA, the Trustee shall eliminate such interest, apply to the SEC for permission to continue as Trustee with such conflict or resign, to the extent and in the manner provided by, and subject to the provisions of, the TIA and this Indenture.  To the extent permitted by the TIA, the Trustee shall not be deemed to have a conflicting interest by virtue of being a trustee under this Indenture with respect to Original Notes and Additional Notes, or a trustee under any other indenture between the Company and the Trustee.

 

Section 709.            Corporate Trustee Required; Eligibility .  There shall at all times be one (and only one) Trustee hereunder.  The Trustee shall be a Person that is eligible pursuant to the TIA to act as such and has a combined capital and surplus of at least $50,000,000.  If any such Person publishes reports of condition at least annually, pursuant to law or to the requirements of its supervising or examining authority, then for the purposes of this Section 709

 

103



 

and to the extent permitted by the TIA, the combined capital and surplus of such Person shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published.  If at any time the Trustee shall cease to be eligible in accordance with the provisions of this Section 709 , it shall resign immediately in the manner and with the effect hereinafter specified in this Article.

 

Section 710.            Resignation and Removal; Appointment of Successor .  No resignation or removal of the Trustee and no appointment of a successor Trustee pursuant to this Article shall become effective until the acceptance of appointment by the successor Trustee in accordance with the applicable requirements of Section 711 .

 

The Trustee may resign at any time by giving written notice thereof to the Company.  If the instrument of acceptance by a successor Trustee required by Section 711 shall not have been delivered to the Trustee within 30 days after the giving of such notice of resignation, the resigning Trustee may petition at the expense of the Company any court of competent jurisdiction for the appointment of a successor Trustee.

 

The Trustee may be removed at any time by Act of the Holders of a majority in principal amount of the Outstanding Notes, delivered to the Trustee and to the Company.

 

If at any time:

 

(1)            the Trustee shall fail to comply with Section 708 after written request therefor by the Company or by any Holder who has been a bona fide Holder of a Note for at least six months, or

 

(2)            the Trustee shall cease to be eligible under Section 709 and shall fail to resign after written request therefor by the Company or by any such Holder, or

 

(3)            the Trustee shall become incapable of acting or shall be adjudged bankrupt or insolvent or a receiver of the Trustee or of its property shall be appointed or any public officer shall take charge or control of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation,

 

then, in any such case, ( A ) the Company may remove the Trustee, or ( B ) subject to Section 614 , any Holder who has been a bona fide Holder of a Note for at least six months may, on behalf of itself and all others similarly situated, petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee or Trustees.

 

If the Trustee shall resign, be removed or become incapable of acting, or if a vacancy shall occur in the office of Trustee for any cause, the Company shall promptly appoint a successor Trustee and shall comply with the applicable requirements of Section 711 .  If, within one year after such resignation, removal or incapability, or the occurrence of such vacancy, a successor Trustee shall be appointed by Act of the Holders of a majority in principal amount of the Outstanding Notes delivered to the Company and the retiring Trustee, the successor Trustee

 

104



 

so appointed shall, forthwith upon its acceptance of such appointment in accordance with the applicable requirements of Section 711 , become the successor Trustee and to that extent supersede the successor Trustee appointed by the Company.  If no successor Trustee shall have been so appointed by the Company or the Holders and accepted appointment in the manner required by Section 711 , then, subject to Section 614 , any Holder who has been a bona fide Holder of a Note for at least six months may, on behalf of itself and all others similarly situated, petition any court of competent jurisdiction for the appointment of a successor Trustee.

 

The Company shall give notice of each resignation and each removal of the Trustee and each appointment of a successor Trustee to all Holders in the manner provided in Section 110 .  Each notice shall include the name of the successor Trustee and the address of its Corporate Trust Office.

 

Section 711.            Acceptance of Appointment by Successor .  In case of the appointment hereunder of a successor Trustee, every such successor Trustee so appointed shall execute, acknowledge and deliver to the Company and to the retiring Trustee an instrument accepting such appointment, and thereupon the resignation or removal of the retiring Trustee shall become effective and such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee; but, on the request of the Company or the successor Trustee, such retiring Trustee shall, upon payment of its charges, execute and deliver an instrument transferring to such successor Trustee all the rights, powers and trusts of the retiring Trustee and shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder.

 

Upon request of any such successor Trustee, the Company shall execute any and all instruments for more fully and certainly vesting in and confirming to such successor Trustee all such rights, powers and trusts referred to above.

 

No successor Trustee shall accept its appointment unless at the time of such acceptance such successor Trustee shall be qualified and eligible under this Article VII .

 

Section 712.            Merger, Conversion, Consolidation or Succession to Business .  Any corporation into which the Trustee may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Trustee shall be a party, or any corporation succeeding to all or substantially all the corporate trust business of the Trustee, shall be the successor of the Trustee hereunder, provided such corporation shall be otherwise qualified and eligible under this Article VII , without the execution or filing of any paper or any further act on the part of any of the parties hereto.  In case any Notes shall have been authenticated, but not delivered, by the Trustee then in office, any successor by merger, conversion or consolidation to such authenticating Trustee may adopt such authentication and deliver the Notes so authenticated with the same effect as if such successor Trustee had itself authenticated such Notes.

 

Section 713.            Preferential Collection of Claims Against the Company .  If and when the Trustee shall be or become a creditor of the Company (or any other obligor upon the

 

105



 

Notes), the Trustee shall be subject to the provisions of the TIA regarding the collection of claims against the Company (or any such other obligor) or realizing on certain property received by it in respect of such claims.

 

Section 714.            Appointment of Authenticating Agent .  The Trustee may appoint an Authenticating Agent acceptable to the Company to authenticate the Notes.  Any such appointment shall be evidenced by an instrument in writing signed by a Responsible Officer, a copy of which instrument shall be promptly furnished to the Company.  Unless limited by the terms of such appointment, an Authenticating Agent may authenticate Notes whenever the Trustee may do so.  Each reference in this Indenture to authentication (or execution of a certificate of authentication) by the Trustee includes authentication (or execution of a certificate of authentication) by such Authenticating Agent.  An Authenticating Agent has the same rights as any Note Registrar, Paying Agent or agent for service of notices and demands.

 

ARTICLE VIII

 

HOLDERS’ LISTS AND REPORTS BY
TRUSTEE AND THE COMPANY

 

Section 801.            The Company to Furnish Trustee Names and Addresses of Holders .  The Company will furnish or cause to be furnished to the Trustee

 

(1)            semi-annually, not more than 10 days after each Regular Record Date, a list, in such form as the Trustee may reasonably require, of the names and addresses of the Holders as of such Regular Record Date, and

 

(2)            at such other times as the Trustee may request in writing, within 30 days after the receipt by the Company of any such request, a list of similar form and content as of a date not more than 15 days prior to the time such list is furnished;

 

provided , however , that if and to the extent and so long as the Trustee shall be the Note Registrar, no such list need be furnished pursuant to this Section 801 .

 

Section 802.            Preservation of Information; Communications to Holders .  The Trustee shall preserve, in as current a form as is reasonably practicable, the names and addresses of Holders contained in the most recent list, if any, furnished to the Trustee as provided in Section 801 and the names and addresses of Holders received by the Trustee in its capacity as Note Registrar; provided , however , that if and so long as the Trustee shall be the Note Registrar, the Note Register shall satisfy the requirements relating to such list.  None of the Company, any Subsidiary Guarantor or the Trustee or any other Person shall be under any responsibility with regard to the accuracy of such list.  The Trustee may destroy any list furnished to it as provided in Section 801 upon receipt of a new list so furnished.

 

106



 

The rights of Holders to communicate with other Holders with respect to their rights under this Indenture or under the Notes, and the corresponding rights and privileges of the Trustee, shall be as provided by the TIA.

 

Every Holder of Notes, by receiving and holding the same, agrees with the Company and the Trustee that neither the Company nor the Trustee, nor any agent of either of them, shall be held accountable by reason of any disclosure of information as to names and addresses of Holders made pursuant to the TIA.

 

Section 803.            Reports by Trustee .  Within 60 days after each July 15, beginning with July 15, 2011, the Trustee shall transmit to Holders such reports concerning the Trustee and its actions under this Indenture as may be required pursuant to the TIA at the times and in the manner provided pursuant thereto for so long as any Notes remain outstanding.  A copy of each such report shall, at the time of such transmission to Holders, be filed by the Trustee or any applicable listing agent with each stock exchange upon which any Notes are listed, with the SEC and with the Company.  The Company will notify the Trustee when any Notes are listed on any stock exchange.

 

ARTICLE IX

 

AMENDMENT, SUPPLEMENT OR WAIVER

 

Section 901.            Without Consent of Holders .  Without the consent of (or notice to) the Holders of any Notes, the Company, the Trustee and (as applicable) each Subsidiary Guarantor may amend or supplement this Indenture or the Notes, for any of the following purposes:

 

(1)            to cure any ambiguity, mistake, omission, defect or inconsistency,

 

(2)            to provide for the assumption by a Successor Company of the obligations of the Company or a Subsidiary Guarantor under this Indenture,

 

(3)            to provide for uncertificated Notes in addition to or in place of certificated Notes,

 

(4)            to add Guarantees with respect to the Notes, to secure the Notes, to confirm and evidence the release, termination or discharge of any Guarantee or Lien with respect to or securing the Notes when such release, termination or discharge is provided for under this Indenture,

 

(5)            to add to the covenants of the Company for the benefit of the Holders or to surrender any right or power conferred upon the Company,

 

(6)            to provide for or confirm the issuance of Additional Notes,

 

107



 

(7)            to conform the text of this Indenture, the Notes or any Subsidiary Guarantee to any provision of the “Description of Notes” section of the Offering Memorandum,

 

(8)            to increase the minimum denomination of the Notes to equal the dollar equivalent of €1,000 rounded up to the nearest $1,000 (including for the purposes of redemption or repurchase of any Note in part),

 

(9)            to make any change that does not materially adversely affect the rights of any Holder under the Notes or this Indenture, or

 

(10)          to comply with any requirement of the SEC in connection with the qualification of this Indenture under the TIA or otherwise.

 

Section 902.            With Consent of Holders .  Subject to Section 608 , the Company,  the Trustee and (if applicable) each Subsidiary Guarantor may amend or supplement this Indenture or the Notes with the written consent of the Holders of a majority in aggregate principal amount of the Outstanding Notes (including consents obtained in connection with a tender offer or exchange offer for Notes), and the Holders of not less than a majority in aggregate principal amount of the Outstanding Notes by written notice to the Trustee (including consents obtained in connection with a tender offer or exchange offer for Notes) may waive any existing Default or Event of Default or compliance by the Company or any Subsidiary Guarantor with any provision of this Indenture, the Notes or any Subsidiary Guarantee.

 

Notwithstanding the provisions of this Section 902 , without the consent of each Holder affected, an amendment or waiver, including a waiver pursuant to Section 613 , may not:

 

(i)             reduce the principal amount of the Notes whose Holders must consent to an amendment or waiver;

 

(ii)            reduce the rate of or extend the time for payment of interest on any Note;

 

(iii)           reduce the principal of or extend the Stated Maturity of any Note;

 

(iv)           reduce the premium payable upon the redemption of any Note or change the date on which any Note may be redeemed as described in Section 1001 ;

 

(v)            make any Note payable in money other than that stated in such Note;

 

(vi)           impair the right of any Holder to receive payment of principal of and interest on such Holder’s Notes on or after the due dates therefor or to institute suit for the enforcement of any such payment on or with respect to such Holder’s Notes; or

 

(vii)          make any change in the amendment or waiver provisions described in this paragraph.

 

108



 

It shall not be necessary for the consent of the Holders under this Section 902 to approve the particular form of any proposed amendment, supplement or waiver, but it shall be sufficient if such consent approves the substance thereof.

 

After an amendment, supplement or waiver under this Section 902 becomes effective, the Company shall mail to the Holders, with a copy to the Trustee, a notice briefly describing the amendment, supplement or waiver.  Any failure of the Company to mail such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any supplemental indenture or the effectiveness of any such amendment, supplement or waiver.

 

Section 903.            Execution of Amendments, Supplements or Waivers .  The Trustee shall sign any amendment, supplement or waiver authorized pursuant to this Article IX if the amendment, supplement or waiver 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 or refusing to sign such amendment, supplement or waiver, the Trustee shall receive, and shall be fully protected in relying upon, an Officer’s Certificate and an Opinion of Counsel to the effect that the execution of such amendment, supplement or waiver has been duly authorized, executed and delivered by the Company and that, subject to applicable bankruptcy, insolvency, fraudulent transfer, fraudulent conveyance, reorganization, moratorium and other laws now or hereinafter in effect affecting creditors’ rights or remedies generally and to general principles of equity (including standards of materiality, good faith, fair dealing and reasonableness), whether considered in a proceeding at law or at equity, such amendment, supplement or waiver is a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms.

 

Section 904.            Revocation and Effect of Consents .  Until an amendment, supplement or waiver becomes effective, a consent to it by a Holder is a continuing consent by the Holder and every subsequent Holder of that Note or any Note that evidences all or any part of the same debt as the consenting Holder’s Note, even if notation of the consent is not made on any Note.  Subject to the following paragraph of this Section 904 , any such Holder or subsequent Holder may revoke the consent as to such Holder’s Note by written notice to the Trustee or the Company, received by the Trustee or the Company, as the case may be, before the date on which the Trustee receives an Officer’s Certificate certifying that the Holders of the requisite principal amount of Notes have consented (and not theretofore revoked such consent) to the amendment, supplement or waiver.  The Company may, but shall not be obligated to, fix a record date for the purpose of determining the Holders entitled to consent to any amendment, supplement or waiver as set forth in Section 108 .

 

After an amendment, supplement or waiver becomes effective, it shall bind every Holder of Notes, unless it makes a change described in any of clauses (i) through (vii) of the second paragraph of Section 902 .  In that case, the amendment, supplement or waiver shall bind each Holder of a Note who has consented to it and every subsequent Holder of such Note or any Note that evidences all or any part of the same debt as the consenting Holder’s Note.

 

109



 

Section 905.            Conformity with TIA .  Every amendment or supplemental indenture executed pursuant to this Article shall conform to the requirements of the TIA as then in effect.

 

Section 906.            Notation on or Exchange of Notes .  If an amendment, supplement or waiver changes the terms of a Note, the Trustee shall (if required by the Company and in accordance with the specific direction of the Company) request the Holder of the Note to deliver it to the Trustee.  The Trustee shall (if required by the Company and in accordance with the specific direction of the Company) place an appropriate notation on the Note about the changed terms and return it to the Holder.  Alternatively, if the Company or the Trustee so determines, the Company in exchange for the Note shall issue and the Trustee shall authenticate a new Note that reflects the changed terms.  Failure to make the appropriate notation or issue a new Note shall not affect the validity and effect of such amendment, supplement or waiver.

 

ARTICLE X

 

REDEMPTION OF NOTES

 

Section 1001.          Right of Redemption .  (a)  The Notes of any series will be redeemable, at the Company’s option, in whole or in part, at any time and from time to time on and after April 15, 2015 and prior to maturity at the applicable redemption price set forth below. Such redemption may be made upon notice mailed by first-class mail to each Holder’s registered address in accordance with Section 1005 . The Company may provide in such notice that payment of the redemption price and the performance of the Company’s obligations with respect to such redemption may be performed by another Person. Any such redemption and notice may, in the Company’s discretion, be subject to the satisfaction of one or more conditions precedent, including but not limited to the occurrence of a Change of Control. The Notes will be so redeemable at the following redemption prices (expressed as a percentage of principal amount), plus accrued and unpaid interest, if any, to the relevant Redemption Date (subject to Section 307 ), if redeemed during the 12-month period commencing on April 15 of the years set forth below:

 

Redemption Period

 

Price

 

2015

 

103.375

%

2016

 

101.688

%

2017 and thereafter

 

100.000

%

 

(b)    In addition, at any time and from time to time on or prior to April 15, 2014, the Company at its option may redeem Notes in an aggregate principal amount equal to up to 35% of the original aggregate principal amount of the Notes (including the principal amount of any Additional Notes), with funds in an equal aggregate amount (the “ Redemption Amount ”) not exceeding the aggregate proceeds of one or more Equity Offerings, at a redemption price (expressed as a percentage of principal amount thereof) of 106.75%, plus accrued and unpaid

 

110



 

interest, if any, to the Redemption Date (subject to Section 307 ); provided, however , that an aggregate principal amount of Notes equal to at least 65% of the original aggregate principal amount of Notes (including the principal amount of any Additional Notes) must remain outstanding immediately after each such redemption of Notes.

 

The Company may make such redemption upon notice mailed by first-class mail to each Holder’s registered address in accordance with Section 1005 (but in no event more than 180 days after the completion of the related Equity Offering). The Company may provide in such notice that payment of the redemption price and performance of the Company’s obligations with respect to such redemption may be performed by another Person. Any such notice may be given prior to the completion of the related Equity Offering, and any such redemption or notice may, at the Company’s discretion, be subject to the satisfaction of one or more conditions precedent, including but not limited to the completion of the related Equity Offering.

 

(c)    At any time prior to April 15, 2015, Notes of any series may also be redeemed or purchased (by the Company or any other Person) in whole or in part, at the Company’s option, at a price (the “ Redemption Price ”) equal to 100% of the principal amount thereof plus the Applicable Premium as of, and accrued but unpaid interest, if any, to, the Redemption Date (subject to Section 307 ). Such redemption or purchase may be made upon notice mailed by first-class mail to each Holder’s registered address in accordance with Section 1005 . The Company may provide in such notice that payment of the Redemption Price and performance of the Company’s obligations with respect to such redemption or purchase may be performed by another Person. Any such redemption, purchase or notice may, at the Company’s discretion, be subject to the satisfaction of one or more conditions precedent, including but not limited to the occurrence of a Change of Control.

 

Applicable Premium ” means, with respect to a Note at any Redemption Date, the greater of ( i ) 1.0% of the principal amount of such Note and ( ii ) the excess of ( A ) the present value at such Redemption Date of ( 1 ) the redemption price of such Note on April 15, 2015 (such redemption price being that described in Section 1001(a) ) plus ( 2 ) all required remaining scheduled interest payments due on such Note through such date (excluding accrued and unpaid interest to the Redemption Date), computed using a discount rate equal to the Treasury Rate plus 50 basis points, over ( B ) the principal amount of such Note on such Redemption Date, as calculated by the Company or on behalf of the Company by such Person as the Company shall designate; provided that such calculation shall not be a duty or obligation of the Trustee.

 

Treasury Rate ” means, with respect to a Redemption Date, the yield to maturity at the time of computation of United States Treasury securities with a constant maturity (as compiled and published in the most recent Federal Reserve Statistical Release H.15(519) that has become publicly available at least two Business Days prior to such Redemption Date (or, if such Statistical Release is no longer published, any publicly available source of similar market data)) most nearly equal to the period from such Redemption Date to April 15, 2015; provided , however , that if the period from the Redemption Date to such date is not equal to the constant maturity of a United States Treasury security for which a weekly average yield is given, the

 

111



 

Treasury Rate shall be obtained by linear interpolation (calculated to the nearest one-twelfth of a year) from the weekly average yields of United States Treasury securities for which such yields are given, except that if the period from the Redemption Date to such date is less than one year, the weekly average yield on actually traded United States Treasury securities adjusted to a constant maturity of one year shall be used.

 

Section 1002.          Applicability of Article .  Redemption or purchase of Notes as permitted by Section 1001 shall be made in accordance with this Article X .

 

Section 1003.          Election to Redeem; Notice to Trustee .  In case of any redemption at the election of the Company of less than all of the Notes, the Company shall, at least two Business Days (but not more than 60 days) prior to the date on which notice is required to be mailed or caused to be mailed to Holders pursuant to Section 1005 , notify the Trustee of such Redemption Date and of the principal amount of Notes to be redeemed.

 

Section 1004.          Selection by Trustee of Notes to Be Redeemed .  In the case of any partial redemption, selection of the Notes for redemption will be made by the Trustee not more than 60 days prior to the Redemption Date on a pro rata basis, by lot or by such other method as the Trustee in its sole discretion shall deem to be fair and appropriate, although no Note of $2,000 in original principal amount or less will be redeemed in part.

 

The Trustee shall promptly notify the Company in writing of the Notes selected for redemption and, in the case of any Note selected for partial redemption, the principal amount thereof to be redeemed.  On and after the Redemption Date, interest will cease to accrue on Notes or portions thereof called for redemption.

 

For all purposes of this Indenture, unless the context otherwise requires, all provisions relating to the redemption of Notes shall relate, in the case of any Note redeemed or to be redeemed only in part, to the portion of the principal of such Note that has been or is to be redeemed.

 

Section 1005.          Notice of Redemption .  Notice of redemption or purchase as provided in Section 1001 shall be given by first-class mail, postage prepaid, mailed not less than 30 nor more than 60 days prior to the Redemption Date, to each Holder of Notes to be redeemed, at such Holder’s address appearing in the Note Register.  Each Notice of redemption shall identify the Notes to be redeemed (including the CUSIP number).

 

Any such notice shall state:

 

(1)            the expected Redemption Date,

 

(2)            the redemption price (or the formula by which the redemption price will be determined),

 

112


 

(3)            if less than all Outstanding Notes are to be redeemed, the identification (and, in the case of partial redemption, the portion of the respective principal amounts) of the Notes to be redeemed,

 

(4)            that, on the Redemption Date, the redemption price will become due and payable upon each such Note, and that, unless the Company defaults in making such redemption payment or the Paying Agent is prohibited from making such payment pursuant to the terms of this Indenture, interest thereon shall cease to accrue from and after said date, and

 

(5)            the place where such Notes are to be surrendered for payment of the redemption price.

 

In addition, if such redemption, purchase or notice is subject to satisfaction of one or more conditions precedent, as permitted by Section 1001 , such notice shall describe each such condition, and if applicable, shall state that, in the Company’s discretion, the Redemption Date may be delayed until such time as any or all such conditions shall be satisfied, or such redemption or purchase may not occur and such notice may be rescinded in the event that any or all such conditions shall not have been satisfied by the Redemption Date, or by the Redemption Date as so delayed.

 

The Company may provide in such notice that payment of the redemption price and the performance of the Company’s obligations with respect to such redemption may be performed by another Person.

 

Notice of such redemption or purchase of Notes to be so redeemed or purchased at the election of the Company shall be given by the Company or, at the Company’s request (made to the Trustee at least 40 days (or such shorter period as shall be satisfactory to the Trustee) prior to the Redemption Date), by the Trustee in the name and at the expense of the Company.  Any such request will set forth the information to be stated in such notice, as provided by this Section 1005 .

 

The notice if mailed in the manner herein provided shall be conclusively presumed to have been given, whether or not the Holder receives such notice.  In any case, failure to give such notice by mail or any defect in the notice to the Holder of any Note designated for redemption as a whole or in part shall not affect the validity of the proceedings for the redemption of any other Note.

 

Section 1006.          Deposit of Redemption Price .  On or prior to 12:00 p.m., New York City time, on any Redemption Date, the Company shall deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, the Company shall segregate and hold in trust as provided in Section 403 ) an amount of money sufficient to pay the redemption price of, and any accrued and unpaid interest on, all the Notes or portions thereof which are to be redeemed on that date.

 

113



 

Section 1007.          Notes Payable on Redemption Date .  Notice of redemption having been given as provided in this Article X , the Notes so to be redeemed shall, on the Redemption Date, become due and payable at the redemption price herein specified and from and after such date (unless the Company shall default in the payment of the redemption price or the Paying Agent is prohibited from paying the redemption price pursuant to the terms of this Indenture) such Notes shall cease to bear interest.  Upon surrender of such Notes for redemption in accordance with such notice, such Notes shall be paid by the Company at the redemption price.  Installments of interest whose Interest Payment Date is on or prior to the Redemption Date shall be payable to the Holders of such Notes registered as such on the relevant Regular Record Dates according to their terms and the provisions of Section 307 .

 

On and after any Redemption Date, if money sufficient to pay the redemption price of and any accrued and unpaid interest on Notes called for redemption shall have been made available in accordance with Section 1006 , the Notes (or the portions thereof) called for redemption will cease to accrue interest and the only right of the Holders of such Notes (or portions thereof) will be to receive payment of the redemption price of and, subject to the last sentence of the preceding paragraph, any accrued and unpaid interest on such Notes (or portions thereof) to the Redemption Date.  If any Note (or portion thereof) called for redemption shall not be so paid upon surrender thereof for redemption, the principal (and premium, if any) shall, until paid, bear interest from the Redemption Date at the rate borne by the Note (or portion thereof).

 

Section 1008.          Notes Redeemed in Part .  Any Note that is to be redeemed only in part shall be surrendered at the Place of Payment (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or its attorney duly authorized in writing) and the Company shall execute and the Trustee shall authenticate and deliver to the Holder of such Note without service charge, a new Note or Notes, of any authorized denomination as requested by such Holder in aggregate principal amount equal to and in exchange for the unredeemed portion of the principal of the Note so surrendered.

 

ARTICLE XI

 

SATISFACTION AND DISCHARGE

 

Section 1101.          Satisfaction and Discharge of Indenture .  This Indenture shall be discharged and shall cease to be of further effect (except as to any surviving rights of registration of transfer or exchange of Notes herein expressly provided for), and the Trustee, on demand of and at the expense of the Company, shall execute proper instruments acknowledging satisfaction and discharge of this Indenture, when

 

(i)             either

 

(a)            all Notes theretofore authenticated and delivered (other than ( i ) Notes that have been destroyed, lost or stolen and that have been replaced or paid as provided in Section 306 , and ( ii ) Notes for whose payment money has

 

114



 

theretofore been deposited in trust or segregated and held in trust by the Company and thereafter repaid to the Company or discharged from such trust, as provided in Section 403 ) have been cancelled or delivered to the Trustee for cancellation; or

 

(b)            all such Notes not theretofore cancelled or delivered to the Trustee for cancellation

 

(1)            have become due and payable, or

 

(2)            will become due and payable at their Stated Maturity within one year, or

 

(3)            have been or are to be called for redemption within one year under arrangements reasonably satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company,

 

(ii)            the Company has irrevocably deposited or caused to be deposited with the Trustee money or U.S. Government Obligations, or a combination thereof, sufficient (without reinvestment) to pay and discharge the entire Indebtedness on such Notes not theretofore cancelled or delivered to the Trustee for cancellation, for principal (and premium, if any) and interest to the date of such deposit (in the case of Notes that have become due and payable), or to the Stated Maturity or Redemption Date, as the case may be ( provided that if such redemption is made pursuant to Section 1001(c) , (x) the amount of money or U.S. Government Obligations or a combination thereof that the Company must irrevocably deposit or cause to be deposited will be determined using an assumed Applicable Premium calculated as of the date of such deposit, as calculated by the Company, and (y) the Company must irrevocably deposit or cause to be deposited additional money in trust on the Redemption Date, as required by Section 1006 , as necessary to pay the Applicable Premium as determined on such date);

 

(iii)           the Company has paid or caused to be paid all other sums then payable hereunder by the Company; and

 

(iv)           the Company has delivered to the Trustee an Officer’s Certificate of the Company and an Opinion of Counsel, each to the effect that all conditions precedent provided for in this Section 1101 relating to the satisfaction and discharge of this Indenture have been complied with, provided that any such counsel may rely on any Officer’s Certificate as to matters of fact (including as to compliance with the foregoing clauses (i), (ii) and (iii)).

 

Notwithstanding the satisfaction and discharge of this Indenture, the obligations of the Company to the Trustee under Section 707 and, if money shall have been deposited with

 

115



 

the Trustee pursuant to Section 1101(ii) , the obligations of the Trustee under Section 1102 shall survive.

 

Section 1102.          Application of Trust Money .  Subject to the provisions of the last paragraph of Section 403 , all money and/or U.S. Government Obligations (including the proceeds thereof) deposited with the Trustee pursuant to Section 1101 shall be held in trust and applied by it, in accordance with the provisions of the Notes and this Indenture, to the payment, either directly or through any Paying Agent as the Trustee may determine, to the Persons entitled thereto, of the principal (and premium, if any) and interest on the Notes; but such money need not be segregated from other funds except to the extent required by law.

 

ARTICLE XII

 

DEFEASANCE OR COVENANT DEFEASANCE

 

Section 1201.          The Company’s Option to Effect Defeasance or Covenant Defeasance .  The Company may, concurrently (and not separately) at its option, at any time, elect to have terminated the obligations of the Company with respect to Outstanding Notes and to have terminated all of the obligations of the Subsidiary Guarantors with respect to the Subsidiary Guarantees, in each case, as set forth in this Article XII , and elect to have either Section 1202 or Section 1203 be applied to all of the Outstanding Notes (the “ Defeased Notes ”), upon compliance with the conditions set forth below in Section 1204 .  Either Section 1202 or Section 1203 may be applied to the Defeased Notes to any Redemption Date or the Stated Maturity of the Notes.

 

Section 1202.          Defeasance and Discharge .  Upon the Company’s exercise under Section 1201 of the option applicable to this Section 1202 , the Company shall be deemed to have been released and discharged from its obligations with respect to the Defeased Notes on the date the relevant conditions set forth in Section 1204 below are satisfied (hereinafter, “ Defeasance ”).  For this purpose, such Defeasance means that the Company shall be deemed to have paid and discharged the entire Indebtedness represented by the Defeased Notes, which shall thereafter be deemed to be “Outstanding” only for the purposes of Section 1205 and the other Sections of this Indenture referred to in clauses (a) and (b) below, and the Company and each of the Subsidiary Guarantors shall be deemed to have satisfied all other obligations under such Notes and this Indenture insofar as such Notes are concerned (and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging the same), except for the following, which shall survive until otherwise terminated or discharged hereunder:  ( a ) the rights of Holders of Defeased Notes to receive, solely from the trust fund described in Section 1204 and as more fully set forth in such Section, payments in respect of the principal of and premium, if any, and interest on such Notes when such payments are due, ( b ) the Company’s obligations with respect to such Defeased Notes under Sections 304 , 305 , 306 , 402 and 403 , ( c ) the rights, powers, trusts, duties and immunities of the Trustee hereunder, including the Trustee’s rights under Section 707 , and ( d ) this Article XII .  If the Company exercises its option under this Section 1202 , payment of the Notes may not be accelerated because of an Event of Default with respect thereto.  Subject to

 

116



 

compliance with this Article XII , the Company may, at its option and at any time, exercise its option under this Section 1202 notwithstanding the prior exercise of its option under Section 1203 with respect to the Notes.

 

Section 1203.          Covenant Defeasance .  Upon the Company’s exercise under Section 1201 of the option applicable to this Section 1203 , ( a ) the Company and the Subsidiary Guarantors shall be released from their respective obligations under any covenant or provision contained in Section 405 and Sections 407 through 415 and the provisions of clauses (iii), (iv) and (v) of Section 501(a)  shall not apply, and ( b ) the occurrence of any event specified in clause (iv), (v) (with respect to Section 405 and Sections 407 through 415 , inclusive), (vi), (vii), (viii) (with respect to Subsidiaries), (ix) (with respect to Subsidiaries), (x) or (xi) of Section 601 shall be deemed not to be or result in an Event of Default, in each case with respect to the Defeased Notes on and after the date the conditions set forth below are satisfied (hereinafter, “ Covenant Defeasance ”), and the Notes shall thereafter be deemed not to be “Outstanding” for the purposes of any direction, waiver, consent or declaration or Act of Holders (and the consequences of any thereof) in connection with such covenants or provisions, but shall continue to be deemed “Outstanding” for all other purposes hereunder.  For this purpose, such Covenant Defeasance means that, with respect to the Outstanding Notes, the Company and the Subsidiary Guarantors may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such covenant or provision, whether directly or indirectly, by reason of any reference elsewhere herein to any such covenant or provision or by reason of any reference in any such covenant or provision to any other provision herein or in any other document and such omission to comply shall not constitute a Default or an Event of Default under Section 601 , but, except as specified above, the remainder of this Indenture and such Outstanding Notes shall be unaffected thereby.

 

Section 1204.          Conditions to Defeasance or Covenant Defeasance .  The following shall be the conditions to application of either Section 1202 or Section 1203 to the Outstanding Notes:

 

(1)            The Company shall have irrevocably deposited or caused to be deposited with the Trustee, in trust, money or U.S. Government Obligations, or a combination thereof in amounts as will be sufficient (without reinvestment), to pay and discharge the principal of, and premium, if any, and interest on the Defeased Notes to the Stated Maturity or relevant Redemption Date in accordance with the terms of this Indenture and the Notes ( provided that if such redemption is made pursuant to Section 1001(c) , (x) the amount of money or U.S. Government Obligations or a combination thereof that the Company must irrevocably deposit or cause to be deposited will be determined using an assumed Applicable Premium calculated as of the date of such deposit, as calculated by the Company, and (y) the Company must irrevocably deposit or cause to be deposited additional money in trust on the Redemption Date, as required by Section 1006 , as necessary to pay the Applicable Premium as determined on such date);

 

117



 

(2)            No Default or Event of Default shall have occurred and be continuing on the date of such deposit;

 

(3)            Such deposit shall not result in a breach or violation of, or constitute a Default or Event of Default under, this Indenture or any other material agreement or instrument to which the Company is a party or by which it is bound;

 

(4)            In the case of an election under Section 1202 , the Company shall have delivered to the Trustee an Opinion of Counsel from Jenner & Block LLP or other counsel in the United States to the effect that ( x ) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or ( y ) since the Issue Date, there has been a change in the applicable Federal income tax law, in either case to the effect that, and based thereon such opinion shall confirm to the effect that, the Holders of the Outstanding Notes will not recognize income, gain or loss for Federal income tax purposes as a result of such Defeasance and will be subject to Federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Defeasance had not occurred; provided that such Opinion of Counsel need not be delivered if all Notes theretofore authenticated and delivered (other than ( i ) Notes that have been destroyed, lost or stolen and that have been replaced or paid as provided in Section 306 , and ( ii ) Notes for whose payment money has theretofore been deposited in trust or segregated and held in trust by the Company and thereafter repaid to the Company or discharged from such trust, as provided in Section 403 ) not theretofore delivered to the Trustee for cancellation have become due and payable, will become due and payable at their Stated Maturity within one year, or are to be called for redemption within one year under arrangements reasonably satisfactory to the Trustee in the name, and at the expense, of the Company;

 

(5)            In the case of an election under Section 1203 , the Company shall have delivered to the Trustee an Opinion of Counsel from Jenner & Block LLP or other counsel in the United States to the effect that the Holders of the Outstanding Notes will not recognize income, gain or loss for Federal income tax purposes as a result of such Covenant Defeasance and will be subject to Federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred; and

 

(6)            The Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each to the effect that all conditions precedent provided for in this Section 1204 relating to either the Defeasance under Section 1202 or the Covenant Defeasance under Section 1203 , as the case may be, have been complied with.  In rendering such Opinion of Counsel, counsel may rely on an Officer’s Certificate as to compliance with the foregoing clauses (1), (2) and (3) of this Section 1204 or as to any matters of fact.

 

Section 1205.          Deposited Money and U.S. Government Obligations to Be Held in Trust; Other Miscellaneous Provisions .  Subject to the provisions of the last paragraph of

 

118



 

Section 403 , all money and U.S. Government Obligations (including the proceeds thereof) deposited with the Trustee (or such other Person that would qualify to act as successor trustee under Article VII , collectively and solely for purposes of this Section 1205 , the “ Trustee ”) pursuant to Section 1204 in respect of the Defeased Notes shall be held in trust and applied by the Trustee, in accordance with the provisions of such Notes and this Indenture, to the payment, either directly or through any Paying Agent as the Trustee may determine, to the Holders of such Notes of all sums due and to become due thereon in respect of principal, premium, if any, and interest, but such money need not be segregated from other funds except to the extent required by law.

 

The Company shall pay and indemnify the Trustee and its agents and hold them harmless against any tax, fee or other charge imposed on or assessed against the U.S. Government Obligations deposited pursuant to Section 1204 , or the principal, premium, if any, and interest received in respect thereof, other than any such tax, fee or other charge that by law is for the account of the Holders of the Defeased Notes.

 

Anything in this Article XII to the contrary notwithstanding, the Trustee shall deliver to the Company from time to time, upon Company Request, any money or U.S. Government Obligations held by it as provided in Section 1204 that, in the opinion of a nationally recognized accounting or investment banking firm expressed in a written certification thereof to the Trustee, are in excess of the amount thereof that would then be required to be deposited to effect an equivalent Defeasance or Covenant Defeasance.  Subject to Article VII , the Trustee shall not incur any liability to any Person by relying on such opinion.

 

Section 1206.          Reinstatement .  If the Trustee or Paying Agent is unable to apply any money or U.S. Government Obligations in accordance with Section 1202 or 1203 , as the case may be, by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, then the obligations of the Company and each of the Subsidiary Guarantors under this Indenture, the Notes and the Subsidiary Guarantees shall be revived and reinstated as though no deposit had occurred pursuant to Section 1202 or 1203 , as the case may be, until such time as the Trustee or Paying Agent is permitted to apply all such money and U.S. Government Obligations in accordance with Section 1202 or 1203 , as the case may be; provided , however , that if the Company or any Subsidiary Guarantor makes any payment of principal, premium, if any, or interest on any Note following the reinstatement of its obligations, the Company or Subsidiary Guarantor, as the case may be, shall be subrogated to the rights of the Holders of such Notes to receive such payment from the money and U.S. Government Obligations held by the Trustee or Paying Agent.

 

Section 1207.          Repayment to the Company .  The Trustee shall pay to the Company upon Company Request any money held by it for the payment of principal or interest that remains unclaimed for two years.  After payment to the Company, Holders entitled to money must look to the Company for payment as general creditors unless an applicable abandoned property law designates another Person and all liability of the Trustee or Paying Agent with respect to such money shall thereupon cease.

 

119



 

ARTICLE XIII

 

SUBSIDIARY GUARANTEES

 

Section 1301.          Guarantees Generally .

 

(a)            Guarantee of Each Subsidiary Guarantor .  Each Subsidiary Guarantor, as primary obligor and not merely as surety, will jointly and severally, irrevocably and fully and unconditionally Guarantee, on an unsecured senior basis, the punctual payment when due, whether at Stated Maturity, by acceleration or otherwise, of all monetary obligations of the Company under this Indenture and the Notes, whether for principal of or interest on the Notes, expenses, indemnification or otherwise (all such obligations guaranteed by such Subsidiary Guarantors being herein called the “ Subsidiary Guaranteed Obligations ”).

 

The obligations of each Subsidiary Guarantor will be limited to the maximum amount as will, after giving effect to all other contingent and fixed liabilities of such Subsidiary Guarantor (including but not limited to any Guarantee by it of any Credit Facility Indebtedness), and after giving effect to any collections from or payments made by or on behalf of any other Subsidiary Guarantor in respect of the obligations of such other Subsidiary Guarantor under its Subsidiary Guarantee or pursuant to its contribution obligations under this Indenture, result in the obligations of such Subsidiary Guarantor under the Subsidiary Guarantee not constituting a fraudulent conveyance or fraudulent transfer under applicable law, or being void or unenforceable under any law relating to insolvency of debtors.

 

(b)    Further Agreements of Each Subsidiary Guarantor .  (i)  Each Subsidiary Guarantor hereby agrees that (to the fullest extent permitted by law) its obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of this Indenture, the Notes or the obligations of the Company or any other Subsidiary Guarantor to the Holders or the Trustee hereunder or thereunder, the absence of any action to enforce the same, any waiver or consent by any Holder with respect to any provisions hereof or thereof, any release of any other Subsidiary Guarantor, the recovery of any judgment against the Company, any action to enforce the same, whether or not a notation concerning its Subsidiary Guarantee is made on any particular Note, or any other circumstance that might otherwise constitute a legal or equitable discharge or defense of a Subsidiary Guarantor.

 

(ii)            Each Subsidiary Guarantor hereby waives (to the fullest extent permitted by law) the benefit of diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and covenants that (except as otherwise provided in Section 1303 ) its Subsidiary Guarantee will not be discharged except by complete performance of the obligations contained in the Notes, this Indenture and this Subsidiary Guarantee.  Such Subsidiary Guarantee is a guarantee of payment and not of collection.  Each Subsidiary Guarantor further agrees (to the fullest extent permitted by law) that, as between it, on the one hand, and the Holders of Notes and the Trustee, on the other hand, subject to this Article XIII , ( 1 ) the maturity

 

120



 

of the obligations guaranteed by its Subsidiary Guarantee may be accelerated as and to the extent provided in Article VI for the purposes of such Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed by such Subsidiary Guarantee, and ( 2 ) in the event of any acceleration of such obligations as provided in Article VI , such obligations (whether or not due and payable) shall forthwith become due and payable by such Subsidiary Guarantor in accordance with the terms of this Section 1301 for the purpose of such Subsidiary Guarantee.  Neither the Trustee nor any other Person shall have any obligation to enforce or exhaust any rights or remedies or to take any other steps under any security for the Subsidiary Guaranteed Obligations or against the Company or any other Person or any property of the Company or any other Person before the Trustee is entitled to demand payment and performance by any or all Subsidiary Guarantors of their obligations under their respective Subsidiary Guarantees or under this Indenture.

 

(iii)           Until terminated in accordance with Section 1303 , each Subsidiary Guarantee shall remain in full force and effect and continue to be effective should any petition be filed by or against the Company for liquidation or reorganization, should the Company become insolvent or make an assignment for the benefit of creditors or should a receiver or trustee be appointed for all or any significant part of the Company’s assets, and shall, to the fullest extent permitted by law, continue to be effective or be reinstated, as the case may be, if at any time payment and performance of the Notes are, pursuant to applicable law, rescinded or reduced in amount, or must otherwise be restored or returned by any obligee on such Notes, whether as a “voidable preference,” “fraudulent transfer” or otherwise, all as though such payment or performance had not been made.  In the event that any payment, or any part thereof, is rescinded, reduced, restored or returned, the Notes shall, to the fullest extent permitted by law, be reinstated and deemed reduced only by such amount paid and not so rescinded, reduced, restored or returned.

 

(c)    Each Subsidiary Guarantor that makes a payment or distribution under its Subsidiary Guarantee shall have the right to seek contribution from the Company or any non-paying Subsidiary Guarantor that has also Guaranteed the relevant Subsidiary Guaranteed Obligations in respect of which such payment or distribution is made, so long as the exercise of such right does not impair the rights of the Holders under the Subsidiary Guarantees.

 

(d)    Each Subsidiary Guarantor acknowledges that it will receive direct and indirect benefits from the financing arrangements contemplated by this Indenture and that its Subsidiary Guarantee, and the waiver set forth in Section 1305 , are knowingly made in contemplation of such benefits.

 

(e)    Each Subsidiary Guarantor, pursuant to its Subsidiary Guarantee, also hereby agrees to pay any and all reasonable out-of-pocket expenses (including reasonable counsel fees and expenses) incurred by the Trustee or the Holders in enforcing any rights under its Subsidiary Guarantee.

 

121



 

Section 1302.          Continuing Guarantees .  (a)  Each Subsidiary Guarantee shall be a continuing Guarantee and shall ( i ) subject to Section 1303 , remain in full force and effect until payment in full of the principal amount of all Outstanding Notes (whether by payment at maturity, purchase, redemption, defeasance, retirement or other acquisition) and all other Subsidiary Guaranteed Obligations of the Subsidiary Guarantor then due and owing, ( ii ) be binding upon such Subsidiary Guarantor and ( iii ) inure to the benefit of and be enforceable by the Trustee, the Holders and their permitted successors, transferees and assigns.

 

(b)            The obligations of each Subsidiary Guarantor hereunder shall continue to be effective or shall be reinstated, as the case may be, if at any time any payment which would otherwise have reduced or terminated the obligations of any Subsidiary Guarantor hereunder and under its Subsidiary Guarantee (whether such payment shall have been made by or on behalf of the Company or by or on behalf of a Subsidiary Guarantor) is rescinded or reclaimed from any of the Holders upon the insolvency, bankruptcy, liquidation or reorganization of the Company or any Subsidiary Guarantor or otherwise, all as though such payment had not been made.

 

Section 1303.          Release of Subsidiary Guarantees .  Notwithstanding the provisions of Section 1302 , Subsidiary Guarantees will be subject to termination and discharge under the circumstances described in this Section 1303 .  Any Subsidiary Guarantor will automatically and unconditionally be released from all obligations under its Subsidiary Guarantee, and such Subsidiary Guarantee shall thereupon terminate and be discharged and of no further force or effect, ( i ) concurrently with any direct or indirect sale or disposition (by merger or otherwise) of any Subsidiary Guarantor or any interest therein in accordance with the terms of this Indenture (including Section 411 and Section 501 ) by the Company or a Restricted Subsidiary, following which such Subsidiary Guarantor is no longer a Restricted Subsidiary of the Company, ( ii ) at any time that such Subsidiary Guarantor is released from all of its obligations under all of its Guarantees of payment by the Company of any Indebtedness of the Company under the Senior Credit Facilities and any Refinancing Credit Facility (it being understood that a release subject to contingent reinstatement is still a release, and that if any such Guarantee is so reinstated, such Subsidiary Guarantee shall also be reinstated to the extent that such Subsidiary Guarantor would then be required to provide a Subsidiary Guarantee pursuant to Section 414 ), ( iii ) upon the merger or consolidation of any Subsidiary Guarantor with and into the Company or another Subsidiary Guarantor that is the surviving Person in such merger or consolidation, or upon the liquidation of such Subsidiary Guarantor following the transfer of all of its assets to the Company or another Subsidiary Guarantor ( iv ) concurrently with any Subsidiary Guarantor becoming an Unrestricted Subsidiary, ( v ) at any time after the Termination Date, upon the merger or consolidation of any Subsidiary Guarantor with and into another Subsidiary that is not a Guarantor with such non-Guarantor being the surviving Person in such merger or consolidation, or upon liquidation of such Subsidiary Guarantor following the transfer of all its assets to a non-Guarantor Subsidiary, ( vi ) with respect to HERC, at the option of the Company at any time when no Event of Default has occurred and is continuing, ( vii ) upon legal or covenant defeasance of the Company’s obligations, or satisfaction and discharge of this Indenture, or ( viii ) subject to Section 1302(b) , upon payment in full of the aggregate principal amount of all Notes then Outstanding and all other Subsidiary Guaranteed Obligations then due and owing.  In addition, the Company will have the right, upon

 

122


 

30 days’ written notice to the Trustee, to cause any Subsidiary Guarantor that has not guaranteed payment by the Company of any Indebtedness of the Company under the Senior Credit Facilities to be unconditionally released from all obligations under its Subsidiary Guarantee, and such Subsidiary Guarantee shall thereupon terminate and be discharged and of no further force or effect.

 

Upon any such occurrence specified in this Section 1303 , the Trustee shall execute any documents reasonably requested by the Company in order to evidence such release, discharge and termination in respect of the applicable Subsidiary Guarantee.

 

Section 1304.                           [Reserved] .

 

Section 1305.                           Waiver of Subrogation .  Each Subsidiary Guarantor hereby irrevocably waives any claim or other rights that it may now or hereafter acquire against the Company that arise from the existence, payment, performance or enforcement of the Company’s obligations under the Notes and this Indenture or such Subsidiary Guarantor’s obligations under its Subsidiary Guarantee and this Indenture, including any right of subrogation, reimbursement, exoneration, indemnification, and any right to participate in any claim or remedy of any Holder of Notes against the Company, whether or not such claim, remedy or right arises in equity, or under contract, statute or common law, until this Indenture is discharged and all of the Notes are discharged and paid in full.  If any amount shall be paid to any Subsidiary Guarantor in violation of the preceding sentence and the Notes shall not have been paid in full, such amount shall be deemed to have been paid to such Subsidiary Guarantor for the benefit of, and held in trust for the benefit of, the Holders of the Notes, and shall forthwith be paid to the Trustee for the benefit of such Holders to be credited and applied upon the Notes, whether matured or unmatured, in accordance with the terms of this Indenture.

 

Section 1306.                           Notation Not Required .  Neither the Company nor any Subsidiary Guarantor shall be required to make a notation on the Notes to reflect any Subsidiary Guarantee or any release, termination or discharge thereof.

 

Section 1307.                           Successors and Assigns of Subsidiary Guarantors .  All covenants and agreements in this Indenture by each Subsidiary Guarantor shall bind its respective successors and assigns, whether so expressed or not.

 

Section 1308.                           Execution and Delivery of Subsidiary Guarantees .  The Company shall cause each Restricted Subsidiary that is required to become a Subsidiary Guarantor pursuant to Section 414 , and each Subsidiary of the Company that the Company causes to become a Subsidiary Guarantor pursuant to Section 414 , to promptly execute and deliver to the Trustee a supplemental indenture substantially in the form set forth in Exhibit E to this Indenture, or otherwise in form and substance reasonably satisfactory to the Trustee, evidencing its Subsidiary Guarantee on substantially the terms set forth in this Article XIII .  Concurrently therewith, the Company shall deliver to the Trustee an Opinion of Counsel in form and substance reasonably satisfactory to the Trustee to the effect that such supplemental indenture has been duly authorized, executed and delivered by such Restricted Subsidiary and that, subject to applicable bankruptcy, insolvency, fraudulent transfer, fraudulent conveyance, reorganization,

 

123



 

moratorium and other laws now or hereafter in effect affecting creditors’ rights or remedies generally and to general principles of equity (including standards of materiality, good faith, fair dealing and reasonableness), whether considered in a proceeding at law or at equity, such supplemental indenture is a valid and binding agreement of such Restricted Subsidiary, enforceable against such Restricted Subsidiary in accordance with its terms.

 

Section 1309.                           Notices .  Notice to any Subsidiary Guarantor shall be sufficient if addressed to such Subsidiary Guarantor care of the Company at the address, place and manner provided in Section 109 .

 

124



 

IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed, all as of the date first written above.

 

 

 

THE HERTZ CORPORATION

 

 

 

 

 

 

 

 

 

 

By:

/s/ R. Scott Massengill

 

 

Name: R. Scott Massengill

 

 

Title: Vice President and Treasurer

 

 

 

 

 

 

 

 

 

 

WELLS FARGO BANK

 

 

NATIONAL ASSOCIATION, as Trustee

 

 

 

 

 

 

 

 

 

 

By:

/s/ Martin Reed

 

 

Name: Martin Reed

 

 

Title: Vice President

 

S-1



 

 

 

SUBSIDIARY GUARANTORS

 

 

 

 

 

 

 

Brae Holding Corp.

 

 

 

Hertz Claim Management Corporation

 

 

 

HCM Marketing Corporation

 

 

 

Hertz Equipment Rental Corporation

 

 

 

Hertz Local Edition Corp.

 

 

 

Hertz Local Edition Transporting, Inc.

 

 

 

Hertz Global Services Corporation

 

 

 

Hertz System, Inc.

 

 

 

Hertz Technologies, Inc.

 

 

 

Hertz Transporting, Inc.

 

 

 

Smartz Vehicle Rental Corporation

 

 

 

Simply Wheelz LLC

 

 

 

 

 

 

 

By:

/s/ R. Scott Massengill

 

 

 

 

Name: R. Scott Massengill

 

 

 

 

Title: Treasurer

 

S-2



 

EXHIBIT A

 

Form of Initial Note(1)

(FACE OF NOTE)

 

THE HERTZ CORPORATION

 

6.75% Senior Notes due 2019

 

CUSIP No. 428040 CH0(2)/U42804 AH4(3)

No.               

 

$               

 

The Hertz Corporation, a corporation duly organized and existing under the laws of the State of Delaware (and its successors and assigns, the “ Company ”), promises to pay to                                                 , or registered assigns, the principal sum of $                                 ([                                ] United States Dollars) [(or such lesser or greater amount as shall be outstanding hereunder from time to time in accordance with Sections 312 and 313 of the Indenture referred to on the reverse hereof)](4) (the “ Principal Amount ”) on April 15, 2019.  The Company promises to pay interest semi-annually in arrears on April 15 and October 15 in each year, commencing April 15, 2011, at the rate of 6.75% per annum (subject to adjustment as provided below), until the Principal Amount is paid or made available for payment. [Interest on this Note will accrue from the most recent date to which interest on this Note or any of its Predecessor Notes has been paid or duly provided for or, if no interest has been paid, from the Issue Date.](5)  [Interest on this Note will accrue (or will be deemed to have accrued) from the most recent date to which interest on this Note or any of its Predecessor Notes has been paid or duly provided for or, if no such interest has been paid, from                   ,         (6).](7)  Interest on the Notes shall be computed on the basis of a 360-day year of twelve 30-day months.  The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided in such Indenture, be paid to the Person in whose name this Note (or one or more Predecessor Notes) is registered at the close of business on the Regular Record Date for such interest, which shall be the April 1 or October 1 (whether or not a Business Day), as the case may be, next preceding such Interest Payment Date.  Any such interest not so punctually paid or duly provided for will forthwith cease to be payable to the Holder on such Regular Record Date and may either be paid to the Person in whose name this Note (or one or more Predecessor

 


(1)          Insert any applicable legends from Article II.

(2)           Insert for Rule 144A Note only

(3)           Insert for Regulation S Note only

(4)           Include only if the Note is issued in global form.

(5)           Include only for Original Notes.

(6)           Insert the Interest Payment Date immediately preceding the date of issuance of the applicable Additional Notes, or if the date of issuance of such Additional Notes is an Interest Payment Date, such date of issuance, or, if no Interest Payment Date has occurred, the Issue Date.

(7)           Include only for Additional Notes.

 



 

Notes) is registered at the close of business on a Special Record Date for the payment of such Defaulted Interest to be fixed by the Trustee, notice whereof shall be given to Holders of Notes not more than 15 days nor less than 10 days prior to such Special Record Date, or be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Notes may be listed, and upon such notice as may be required by such exchange, all as more fully provided in said Indenture.

 

The Holder of this Note is entitled to the benefits of the Exchange and Registration Rights Agreement, dated as of February 8, 2011, among the Company and the initial purchasers named therein (the “ Registration Rights Agreement ”).  Until ( i ) this Note has been exchanged for an Exchange Security (as defined in the Registration Rights Agreement) in an Exchange Offer (as defined in the Registration Rights Agreement); ( ii ) a Shelf Registration Statement (as defined in the Registration Rights Agreement) registering this Note under the Securities Act has been declared or becomes effective and this Note has been sold or otherwise transferred by the holder thereof pursuant to and in a manner contemplated by such effective Shelf Registration Statement; ( iii ) this Note is sold pursuant to Rule 144 under circumstances in which any legend borne by this Note relating to restrictions on transferability thereof, under the Securities Act or otherwise, is removed or deemed removed by the Company or pursuant to the Indenture referred to on the reverse hereof; ( iv ) on or following the earliest date that is no less than 545 days after the date of the Indenture and on which this Note would be saleable (if it were held by a non-affiliate of the Company) pursuant to Rule 144 without restrictions on volume or manner of sale; or ( v ) this Note shall cease to be outstanding:  From and including the date on which a Registration Default (as defined below) shall occur to but excluding the date on which such Registration Default has been cured, additional interest will accrue on this Note until such time as all Registration Defaults have been cured at the rate of ( a ) prior to the 91 st  day of such period (for so long as such period is continuing), 0.25% per annum and ( b ) thereafter (so long as such period is continuing), 0.50% per annum.  Any such additional interest shall not exceed such respective rates for such respective periods, and shall not in any event exceed 0.50% per annum in the aggregate, regardless of the number of Registration Defaults that shall have occurred and be continuing.  Any such additional interest shall be paid in the same manner and on the same dates as interest payments in respect of this Note.  Immediately following the cure of all Registration Defaults, the accrual of such additional interest will cease.  A Registration Default under clause (iii) or (iv) below will be deemed cured upon consummation of the Exchange Offer in the case of a Shelf Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time period.  For purposes of the foregoing, each of the following events, as more particularly defined in the Registration Rights Agreement, is a “ Registration Default ”:  ( i ) the Exchange Registration Statement has not become effective or been declared effective by the SEC on or before 365 days following the Issue Date; ( ii ) the Exchange Offer has not been consummated within 395 days after the Issue Date; ( iii ) if a Shelf Registration Statement required by the Registration Rights Agreement is not declared effective by the SEC within 365 days following the date on which the obligation to file the Shelf Registration Statement arises or ( i v ) if any Shelf Registration Statement required by the Registration Rights Agreement is filed and declared effective, and during the period the Company is required to use its commercially reasonable efforts to cause the Shelf Registration

 

2



 

Statement to remain effective, ( 1 ) the Company shall have suspended the Shelf Registration Statement for more than 60 days in the aggregate in any consecutive twelve-month period and be continuing to suspend the availability of the Shelf Registration Statement, or ( 2 ) the Shelf Registration Statement shall cease to be effective (other than by action of the Company) without being replaced within 90 days by a Shelf Registration Statement that is filed and declared effective.

 

Payment of the principal of (and premium, if any) and interest on this Note will be made at the office of the applicable Paying Agent, or such other office or agency of the Company maintained for that purpose; provided , however , that at the option of the Company payment of interest may be made by wire transfer of immediately available funds to the account designated to the Company by the Person entitled thereto or by check mailed to the address of the Person entitled thereto as such address shall appear in the Note Register.

 

Reference is hereby made to the further provisions of this Note set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.

 

Unless the certificate of authentication hereon has been executed by the Trustee referred to on the reverse hereof by manual signature, this Note shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.

 

3



 

IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.

 

 

 

 

THE HERTZ CORPORATION

 

 

 

 

 

 

 

 

 

 

By

 

 

 

 

Name:

 

 

 

Title:

 

4



 

This is one of the Notes referred to in the within-mentioned Indenture.

 

 

 

WELLS FARGO BANK,

 

 

NATIONAL ASSOCIATION

 

 

As Trustee

 

 

 

 

 

 

 

 

 

 

By

 

 

 

Authorized Signatory

Dated:

 

 

 

 

5


 

(REVERSE OF NOTE)

 

This Note is one of the duly authorized issue of 6.75% Senior Notes due 2019 of the Company (herein called the “ Notes ”), issued under an Indenture, dated as of February 8, 2011 (herein called the “ Indenture ,” which term shall have the meanings assigned to it in such instrument), among the Company, as issuer, the Subsidiary Guarantors from time to time parties thereto, and Wells Fargo Bank, National Association, as Trustee (herein called the “ Trustee, ” which term includes any successor trustee under the Indenture), and reference is hereby made to the Indenture for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Company, any other obligor upon this Note, the Trustee and the Holders of the Notes and of the terms upon which the Notes are, and are to be, authenticated and delivered.  The terms of the Notes include those stated in the Indenture and those made a part of the Indenture by reference to the Trust Indenture Act of 1939, as amended, as in effect from time to time (the “ TIA ”).  The Notes are subject to all such terms, and Holders are referred to the Indenture and the TIA for a statement of such terms.  Additional Notes may be issued under the Indenture which will vote (or consent) as a single class with the Notes and otherwise be treated as Notes for purposes of the Indenture.

 

All terms used in this Note that are defined in the Indenture shall have the meanings assigned to them in the Indenture.

 

This Note may hereafter be entitled to certain other senior Subsidiary Guarantees made for the benefit of the Holders.  Reference is made to Article XIII of the Indenture for terms relating to such Subsidiary Guarantees, including the release, termination and discharge thereof.  Neither the Company nor any Subsidiary Guarantor shall be required to make any notation on this Note to reflect any Subsidiary Guarantee or any such release, termination or discharge.

 

The Notes will be redeemable, at the Company’s option, in whole or in part, at any time and from time to time on and after April 15, 2015 and prior to maturity at the applicable redemption price set forth below. Such redemption may be made upon notice mailed by first-class mail to each Holder’s registered address in accordance with the Indenture.  The Company may provide in such notice that payment of the redemption price and the performance of the Company’s obligations with respect to such redemption may be performed by another Person.  Any such redemption and notice may, in the Company’s discretion, be subject to the satisfaction of one or more conditions precedent, including but not limited to the occurrence of a Change of Control.  The Notes will be so redeemable at the following redemption prices (expressed as a percentage of principal amount), plus accrued and unpaid interest, if any, to the relevant Redemption Date (subject to the right of Holders of record on the relevant Regular Record Date to receive interest due on the relevant Interest Payment Date), if redeemed during the 12-month period commencing on April 15 of the years set forth below:

 

Period

 

Redemption Price

 

2015

 

103.375

%

2016

 

101.688

%

2017 and thereafter

 

100.000

%

 

6



 

In addition, at any time and from time to time on or prior to April 15, 2014, the Company at its option may redeem Notes in an aggregate principal amount equal to up to 35% of the original aggregate principal amount of Notes (including the principal amount of any Additional Notes), with funds in an equal aggregate amount not exceeding the aggregate proceeds of one or more Equity Offerings, at a redemption price (expressed as a percentage of principal amount thereof) of 106.75% plus accrued and unpaid interest, if any, to the Redemption Date (subject to the right of Holders of record on the relevant Record Date to receive interest due on the relevant Interest Payment Date); provided , however , that an aggregate principal amount of Notes equal to at least 65% of the original aggregate principal amount of Notes (including the principal amount of any Additional Notes) must remain outstanding after each such redemption.  The Company may make such redemption upon notice mailed by first-class mail to each Holder’s registered address in accordance with the Indenture (but in no event more than 180 days after the completion of the related Equity Offering).  The Company may provide in such notice that payment of the redemption price and performance of the Company’s obligations with respect to such redemption may be performed by another Person.  Any such notice may be given prior to the completion of the related Equity Offering, and any such redemption or notice may, at the Company’s discretion, be subject to the satisfaction of one or more conditions precedent, including the completion of the related Equity Offering.

 

At any time prior to April 15, 2015, Notes may also be redeemed or purchased (by the Company or any other Person) in whole or in part, at the Company’s option, at a price equal to 100% of the principal amount thereof plus the Applicable Premium as of, and accrued but unpaid interest, if any, to, the Redemption Date (subject to the right of Holders of record on the relevant record date to receive interest due on the relevant interest payment date). Such redemption or purchase may be made upon notice mailed by first-class mail to each Holder’s registered address in accordance with the Indenture.  The Company may provide in such notice that payment of the Redemption Price and performance of the Company’s obligations with respect to such redemption or purchase may be performed by another Person.  Any such redemption, purchase or notice may, at the Company’s discretion, be subject to the satisfaction of one or more conditions precedent, including but not limited to the occurrence of a Change of Control.

 

The Indenture provides that, upon the occurrence after the Issue Date of a Change of Control, each Holder will have the right to require that the Company repurchase all or any part of such Holder’s Notes at a purchase price in cash equal to 101% of the principal amount thereof plus accrued and unpaid interest, if any, to the date of such repurchase (subject to the right of Holders of record on the relevant record date to receive interest due on the relevant interest payment date); provided , however , that the Company shall not be obligated to repurchase Notes in the event it has exercised its right to redeem all the Notes as described above.

 

The Notes will not be entitled to the benefit of a sinking fund.

 

7



 

The Indenture contains provisions for defeasance at any time of the entire Indebtedness of this Note or certain restrictive covenants and certain Events of Default with respect to this Note, in each case upon compliance with certain conditions set forth in the Indenture.

 

If an Event of Default with respect to the Notes shall occur and be continuing, the principal of and accrued but unpaid interest on the Notes may be declared due and payable in the manner and with the effect provided in the Indenture.

 

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 Notes to be effected under the Indenture at any time by the Company and the Trustee with the consent of the Holders of at least a majority in principal amount of the Notes at the time Outstanding to be affected.  The Indenture also contains provisions permitting the Holders of specified percentages in principal amount of the Notes at the time Outstanding, on behalf of the Holders of all Notes, to waive compliance by the Company with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences.  Any such consent or waiver by the Holder of this Note shall be conclusive and binding upon such Holder and upon all future Holders of this Note and of any Note issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Note.

 

As provided in and subject to the provisions of the Indenture, the Holder of this Note shall not have the right to institute any proceeding with respect to the Indenture or for the appointment of a receiver or trustee or for any other remedy thereunder, unless such Holder shall have previously given the Trustee written notice of a continuing Event of Default with respect to the Notes, the Holders of not less than 30% in principal amount of the Notes at the time Outstanding shall have made written request to the Trustee to pursue such remedy in respect of such Event of Default as Trustee and offered the Trustee security or indemnity reasonably satisfactory to it against any loss, liability or expense, and the Trustee shall not have received from the Holders of a majority in principal amount of Notes at the time Outstanding a direction inconsistent with such request, and shall have failed to institute any such proceeding, for 60 days after receipt of such notice, request and offer of security or indemnity.  The foregoing shall not apply to any suit instituted by the Holder of this Note for the enforcement of any payment of principal hereof or any premium or interest hereon on or after the respective due dates expressed herein.

 

No reference herein to the Indenture and no provision of this 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 any premium and interest on this Note at the times, place and rate, and in the coin or currency, herein prescribed.

 

As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Note is registrable in the Note Register, upon surrender of this Note for registration of transfer at the office or agency of the Company in a Place of Payment, duly

 

8



 

endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Company and the Note Registrar duly executed by, the Holder hereof or such Holder’s attorney duly authorized in writing, and thereupon one or more new Notes of like tenor, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees.

 

The Notes are issuable only in fully registered form without coupons in minimum denominations of $2,000 and any integral multiple of $1,000 in excess thereof.  As provided in the Indenture and subject to certain limitations therein set forth, the Notes are exchangeable for a like aggregate principal amount of Notes of like tenor of a different authorized denomination, as requested by the Holder surrendering the same.

 

No service charge shall be made for any such registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any transfer tax or other governmental charge payable in connection therewith.

 

Prior to due presentment of this Note for registration of transfer, the Company,  any other obligor in respect of this Note, the Trustee and any agent of the Company, such other obligor or the Trustee may treat the Person in whose name this Note is registered as the owner hereof for all purposes, whether or not this Note be overdue, and none of the Company, any other obligor upon this Note, the Trustee nor any such agent shall be affected by notice to the contrary.

 

No director, officer, employee, incorporator or stockholder, as such, of the Company, any Subsidiary Guarantor or any Subsidiary of any thereof shall have any liability for any obligation of the Company, or any Subsidiary Guarantor under the Indenture, the Notes or any Subsidiary Guarantee, or for any claim based on, in respect of, or by reason of, any such obligation or its creation.  Each Holder, by accepting this Note, hereby waives and releases all such liability.  The waiver and release are part of the consideration for issuance of the Notes.

 

THE INDENTURE AND THE NOTES 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 THE INDENTURE, THE NOTES OR THE SUBSIDIARY GUARANTEES.

 

9



 

[FORM OF CERTIFICATE OF TRANSFER]

 

FOR VALUE RECEIVED the undersigned holder hereby sell(s), assign(s) and transfer(s) unto

 

Insert Taxpayer Identification No.

 

(Please print or typewrite name and address including zip code of assignee)

 

 

 

 

 

the within Note and all rights thereunder, hereby irrevocably constituting and appointing

 

 

 

attorney to transfer such Note on the books of the Company with full power of substitution in the premises.

 

Check One

 

o (a)                   this Note is being transferred in compliance with the exemption from registration under the Securities Act of 1933, as amended, provided by Rule 144A thereunder.

 

or

 

o (b)                  this Note is being transferred other than in accordance with (a) above and documents are being furnished which comply with the conditions of transfer set forth in this Note and the Indenture.

 

If neither of the foregoing boxes is checked, the Trustee or other Note Registrar shall not be obligated to register this Note in the name of any Person other than the Holder hereof unless and until the conditions to any such transfer of registration set forth herein and in Section 313 of the Indenture shall have been satisfied.

 

Date:

 

 

 

 

 

 

 

 

 

 

10



 

NOTICE:  The signature to this
assignment must correspond with the name
as written upon the face of the within-
mentioned instrument in every particular,
without alteration or any change
whatsoever.

 

Signature Guarantee:

 

 

 

 

Signatures must be guaranteed by an “eligible guarantor institution” meeting the requirements of the Note Registrar, which requirements include membership or participation in the Security Transfer Agent Medallion Program (“ STAMP ”) or such other “signature guarantee program” as may be determined by the Note Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended.

 

11



 

TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED.

 

The undersigned represents and warrants that it is purchasing this Note 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 “qualified institutional buyer” within the meaning of Rule 144A under the Securities Act of 1933, as amended, 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 the Company as the undersigned 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 the undersigned’s foregoing representations in order to claim the exemption from registration provided by Rule 144A.

 

Dated:

 

 

 

 

 

 

NOTICE:

To be executed by an executive officer

 

12



 

OPTION OF HOLDER TO ELECT PURCHASE

 

If you wish to have this Note purchased by the Company pursuant to Section 411 or 415 of the Indenture, check the box:   o .

 

If you wish to have a portion of this Note purchased by the Company pursuant to Section 411 or 415 of the Indenture, state the amount (in principal amount) below:

 

$                            

 

Date:

 

 

 

 

 

 

 

Your Signature:

 

 

 

 

 

 

 

(Sign exactly as your name appears on the other side of this Note)

 

 

 

 

Signature Guarantee:

 

 

 

 

Signatures must be guaranteed by an “eligible guarantor institution” meeting the requirements of the Note Registrar, which requirements include membership or participation in the Security Transfer Agent Medallion Program (“ STAMP ”) or such other “signature guarantee program” as may be determined by the Note Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended.

 

13



 

SCHEDULE OF INCREASES OR DECREASES IN GLOBAL NOTE

 

The following increases or decreases in this Global Note have been made:

 

Date of
Exchange 

 

Amount of decreases in
Principal
Amount of this
Global Note

 

Amount of increases in
Principal
Amount of this Global
Note

 

Principal amount
of this Global Note
following such decreases or
increases

 

Signature
of authorized signatory of
Trustee or Notes
Custodian

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

14



 

EXHIBIT B

 

Form of Exchange Note(8)

(FACE OF NOTE)

 

THE HERTZ CORPORATION

 

6.75% Senior Notes due 2019

 

CUSIP No. [        ]

No.               

 

$               

 

The Hertz Corporation, a corporation duly organized and existing under the laws of the State of Delaware (and its successors and assigns, the “ Company ”), promises to pay to                                                 , or registered assigns, the principal sum of $                                 ([                                ] United States Dollars) [(or such lesser or greater amount as shall be outstanding hereunder from time to time in accordance with Sections 312 and 313 of the Indenture referred to on the reverse hereof)](9) (the “ Principal Amount ”) on April 15, 2019.  The Company promises to pay interest semi-annually in arrears on April 15 and October 15 in each year, commencing April 15, 2011, at the rate of 6.75% per annum, except that interest accrued on this Note for periods prior to the date on which the Initial Note was surrendered in exchange for this Note will accrue at the rate or rates borne by such Initial Note from time to time during such periods, until the Principal Amount is paid or made available for payment. [Interest on this Note will accrue from the most recent date to which interest on this Note or any of its Predecessor Notes has been paid or duly provided for or, if no interest has been paid, from the Issue Date.](10)  [Interest on this Note will accrue (or will be deemed to have accrued) from the most recent date to which interest on this Note or any of its Predecessor Notes has been paid or duly provided for or, if no such interest has been paid, from                 ,         (11).](12)  Interest on the Notes shall be computed on the basis of a 360-day year of twelve 30-day months.  The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided in such Indenture, be paid to the Person in whose name this Note (or one or more Predecessor Notes) is registered at the close of business on the Regular Record Date for such interest, which shall be the April 1 or October 1 (whether or not a Business Day), as the case may be, next preceding such Interest Payment Date.  Any such interest not so punctually paid or duly provided for will forthwith cease to be payable to the Holder on such Regular Record Date and may either be paid to the Person in whose name this Note (or one or more Predecessor Notes) is registered at the close of business on a Special Record Date for the payment of such Defaulted Interest to be fixed by the Trustee, notice whereof shall be given to Holders of Notes

 


(8)                     Insert any applicable legends from Article II.

(9)                     Include only if the Note is issued in global form.

(10)               Include only for Original Notes.

(11)               Insert the Interest Payment Date immediately preceding the date of issuance of the applicable Additional Notes, or if the date of issuance of such Additional Notes is an Interest Payment Date, such date of issuance, or, if no Interest Payment Date has occurred, the Issue Date.

(12)               Include only for Exchange Notes issued in the exchange for Additional Notes.

 



 

not more than 15 days nor less than 10 days prior to such Special Record Date, or be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Notes may be listed, and upon such notice as may be required by such exchange, all as more fully provided in said Indenture.

 

Payment of the principal of (and premium, if any) and interest on this Note will be made at the office of the applicable Paying Agent, or such other office or agency of the Company maintained for that purpose; provided , however , that at the option of the Company payment of interest may be made by wire transfer of immediately available funds to the account designated to the Company by the Person entitled thereto or by check mailed to the address of the Person entitled thereto as such address shall appear in the Note Register.

 

Reference is hereby made to the further provisions of this Note set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.

 

Unless the certificate of authentication hereon has been executed by the Trustee referred to on the reverse hereof by manual signature, this Note shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.

 

2


 

IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.

 

 

 

 

THE HERTZ CORPORATION

 

 

 

 

 

 

 

 

 

 

By

 

 

 

 

Name:

 

 

 

Title:

 

3



 

This is one of the Notes referred to in the within-mentioned Indenture.

 

 

 

 

WELLS FARGO BANK,

 

 

 

NATIONAL ASSOCIATION

 

 

 

As Trustee

 

 

 

 

 

 

 

 

 

 

By

 

 

 

 

Authorized Signatory

 

 

 

 

Dated:

 

 

 

 

 

4



 

(REVERSE OF NOTE)

 

This Note is one of the duly authorized issue of 6.75% Senior Notes due 2019 of the Company (herein called the “ Notes ”), issued under an Indenture, dated as of February 8, 2011 (herein called the “ Indenture ,” which term shall have the meanings assigned to it in such instrument), among the Company, as issuer, the Subsidiary Guarantors from time to time parties thereto, and Wells Fargo Bank, National Association, as Trustee (herein called the “ Trustee ,” which term includes any successor trustee under the Indenture), and reference is hereby made to the Indenture for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Company, any other obligor upon this Note, the Trustee and the Holders of the Notes and of the terms upon which the Notes are, and are to be, authenticated and delivered.  The terms of the Notes include those stated in the Indenture and those made a part of the Indenture by reference to the Trust Indenture Act of 1939, as amended, as in effect from time to time (the “ TIA ”).  The Notes are subject to all such terms, and Holders are referred to the Indenture and the TIA for a statement of such terms.  Additional Notes may be issued under the Indenture which will vote (or consent) as a single class with the Notes and otherwise be treated as Notes for purposes of the Indenture.

 

All terms used in this Note that are defined in the Indenture shall have the meanings assigned to them in the Indenture.

 

This Note may hereafter be entitled to certain other senior Subsidiary Guarantees made for the benefit of the Holders.  Reference is made to Article XIII of the Indenture for terms relating to such Subsidiary Guarantees, including the release, termination and discharge thereof.  Neither the Company nor any Subsidiary Guarantor shall be required to make any notation on this Note to reflect any Subsidiary Guarantee or any such release, termination or discharge.

 

The Notes will be redeemable, at the Company’s option, in whole or in part, at any time and from time to time on and after April 15, 2015 and prior to maturity at the applicable redemption price set forth below. Such redemption may be made upon notice mailed by first-class mail to each Holder’s registered address in accordance with the Indenture.  The Company may provide in such notice that payment of the redemption price and the performance of the Company’s obligations with respect to such redemption may be performed by another Person.  Any such redemption and notice may, in the Company’s discretion, be subject to the satisfaction of one or more conditions precedent, including but not limited to the occurrence of a Change of Control.  The Notes will be so redeemable at the following redemption prices (expressed as a percentage of principal amount), plus accrued and unpaid interest, if any, to the relevant Redemption Date (subject to the right of Holders of record on the relevant Regular Record Date to receive interest due on the relevant Interest Payment Date), if redeemed during the 12-month period commencing on April 15 of the years set forth below:

 

Period

 

Redemption Price

 

2015

 

103.375

%

2016

 

101.688

%

2017 and thereafter

 

100.000

%

 

5



 

In addition, at any time and from time to time on or prior to April 15, 2014 the Company at its option may redeem Notes in an aggregate principal amount equal to up to 35% of the original aggregate principal amount of Notes (including the principal amount of any Additional Notes), with funds in an equal aggregate amount not exceeding the aggregate proceeds of one or more Equity Offerings, at a redemption price (expressed as a percentage of principal amount thereof) of 106.75% plus accrued and unpaid interest, if any, to the Redemption Date (subject to the right of Holders of record on the relevant Record Date to receive interest due on the relevant Interest Payment Date); provided , however , that an aggregate principal amount of Notes equal to at least 65% of the original aggregate principal amount of Notes (including the principal amount of any Additional Notes) must remain outstanding after each such redemption.  The Company may make such redemption upon notice mailed by first-class mail to each Holder’s registered address in accordance with the Indenture (but in no event more than 180 days after the completion of the related Equity Offering).  The Company may provide in such notice that payment of the redemption price and performance of the Company’s obligations with respect to such redemption may be performed by another Person.  Any such notice may be given prior to the completion of the related Equity Offering, and any such redemption or notice may, at the Company’s discretion, be subject to the satisfaction of one or more conditions precedent, including the completion of the related Equity Offering.

 

At any time prior to April 15, 2015, Notes may also be redeemed or purchased (by the Company or any other Person) in whole or in part, at the Company’s option, at a price equal to 100% of the principal amount thereof plus the Applicable Premium as of, and accrued but unpaid interest, if any, to, the Redemption Date (subject to the right of Holders of record on the relevant record date to receive interest due on the relevant interest payment date). Such redemption or purchase may be made upon notice mailed by first-class mail to each Holder’s registered address in accordance with the Indenture.  The Company may provide in such notice that payment of the Redemption Price and performance of the Company’s obligations with respect to such redemption or purchase may be performed by another Person.  Any such redemption, purchase or notice may, at the Company’s discretion, be subject to the satisfaction of one or more conditions precedent, including but not limited to the occurrence of a Change of Control.

 

The Indenture provides that, upon the occurrence after the Issue Date of a Change of Control, each Holder will have the right to require that the Company repurchase all or any part of such Holder’s Notes at a purchase price in cash equal to 101% of the principal amount thereof plus accrued and unpaid interest, if any, to the date of such repurchase (subject to the right of Holders of record on the relevant record date to receive interest due on the relevant interest payment date); provided , however , that the Company shall not be obligated to repurchase Notes in the event it has exercised its right to redeem all the Notes as described above.

 

The Notes will not be entitled to the benefit of a sinking fund.

 

6



 

The Indenture contains provisions for defeasance at any time of the entire indebtedness of this Note or certain restrictive covenants and certain Events of Default with respect to this Note, in each case upon compliance with certain conditions set forth in the Indenture.

 

If an Event of Default with respect to the Notes shall occur and be continuing, the principal of and accrued but unpaid interest on the Notes may be declared due and payable in the manner and with the effect provided in the Indenture.

 

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 Notes to be effected under the Indenture at any time by the Company and the Trustee with the consent of the Holders of at least a majority in principal amount of the Notes at the time Outstanding to be affected.  The Indenture also contains provisions permitting the Holders of specified percentages in principal amount of the Notes at the time Outstanding, on behalf of the Holders of all Notes, to waive compliance by the Company with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences.  Any such consent or waiver by the Holder of this Note shall be conclusive and binding upon such Holder and upon all future Holders of this Note and of any Note issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Note.

 

As provided in and subject to the provisions of the Indenture, the Holder of this Note shall not have the right to institute any proceeding with respect to the Indenture or for the appointment of a receiver or trustee or for any other remedy thereunder, unless such Holder shall have previously given the Trustee written notice of a continuing Event of Default with respect to the Notes, the Holders of not less than 30% in principal amount of the Notes at the time Outstanding shall have made written request to the Trustee to pursue such remedy in respect of such Event of Default as Trustee and offered the Trustee security or indemnity reasonably satisfactory to it against any loss, liability or expense, and the Trustee shall not have received from the Holders of a majority in principal amount of Notes at the time Outstanding a direction inconsistent with such request, and shall have failed to institute any such proceeding, for 60 days after receipt of such notice, request and offer of security or indemnity.  The foregoing shall not apply to any suit instituted by the Holder of this Note for the enforcement of any payment of principal hereof or any premium or interest hereon on or after the respective due dates expressed herein.

 

No reference herein to the Indenture and no provision of this 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 any premium and interest on this Note at the times, place and rate, and in the coin or currency, herein prescribed.

 

As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Note is registrable in the Note Register, upon surrender of this Note for registration of transfer at the office or agency of the Company in a Place of Payment, duly

 

7



 

endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Company and the Note Registrar duly executed by, the Holder hereof or such Holder’s attorney duly authorized in writing, and thereupon one or more new Notes of like tenor, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees.

 

The Notes are issuable only in fully registered form without coupons in minimum denominations of $2,000 and any integral multiple of $1,000 in excess thereof.  As provided in the Indenture and subject to certain limitations therein set forth, the Notes are exchangeable for a like aggregate principal amount of Notes of like tenor of a different authorized denomination, as requested by the Holder surrendering the same.

 

No service charge shall be made for any such registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any transfer tax or other governmental charge payable in connection therewith.

 

Prior to due presentment of this Note for registration of transfer, the Company,  any other obligor in respect of this Note, the Trustee and any agent of the Company, such other obligor or the Trustee may treat the Person in whose name this Note is registered as the owner hereof for all purposes, whether or not this Note be overdue, and none of the Company, any other obligor upon this Note, the Trustee nor any such agent shall be affected by notice to the contrary.

 

No director, officer, employee, incorporator or stockholder, as such, of the Company, any Subsidiary Guarantor or any Subsidiary of any thereof shall have any liability for any obligation of the Company, or any Subsidiary Guarantor under the Indenture, the Notes or any Subsidiary Guarantee, or for any claim based on, in respect of, or by reason of, any such obligation or its creation.  Each Holder, by accepting this Note, hereby waives and releases all such liability.  The waiver and release are part of the consideration for issuance of the Notes.

 

THE INDENTURE AND THE NOTES 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 THE INDENTURE, THE NOTES OR THE SUBSIDIARY GUARANTEES.

 

8



 

[FORM OF CERTIFICATE OF TRANSFER]

 

FOR VALUE RECEIVED the undersigned holder hereby sell(s), assign(s) and transfer(s) unto

 

Insert Taxpayer Identification No.

 

(Please print or typewrite name and address including zip code of assignee)

 

 

 

 

 

the within Note and all rights thereunder, hereby irrevocably constituting and appointing

 

 

 

 

attorney to transfer such Note on the books of the Company with full power of substitution in the premises.

 

NOTICE:  The signature to this
assignment must correspond with the name
as written upon the face of the within-
mentioned instrument in every particular,
without alteration or any change
whatsoever.

 

Signature Guarantee:

 

 

 

 

Signatures must be guaranteed by an “eligible guarantor institution” meeting the requirements of the Note Registrar, which requirements include membership or participation in the Security Transfer Agent Medallion Program (“ STAMP ”) or such other “signature guarantee program” as may be determined by the Note Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended.

 

9



 

OPTION OF HOLDER TO ELECT PURCHASE

 

If you wish to have this Note purchased by the Company pursuant to Section 411 or 415 of the Indenture, check the box:   o .

 

If you wish to have a portion of this Note purchased by the Company pursuant to Section 411 or 415 of the Indenture, state the amount (in principal amount) below:

 

$                      

 

Date:

 

 

 

 

 

 

 

Your Signature:

 

 

 

 

 

 

 

(Sign exactly as your name appears on the other side of this Note)

 

 

 

 

Signature Guarantee:

 

 

 

 

Signatures must be guaranteed by an “eligible guarantor institution” meeting the requirements of the Note Registrar, which requirements include membership or participation in the Security Transfer Agent Medallion Program (“ STAMP ”) or such other “signature guarantee program” as may be determined by the Note Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended.

 

10



 

SCHEDULE OF INCREASES OR DECREASES IN GLOBAL NOTE

 

The following increases or decreases in this Global Note have been made:

 

Date of
Exchange 

 

Amount of decreases in
Principal
Amount of this
Global Note

 

Amount of increases in
Principal
Amount of this Global
Note

 

Principal amount
of this Global Note
following such decreases or
increases

 

Signature
of authorized signatory of
Trustee or Notes
Custodian

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

11


 

EXHIBIT C

 

Form of Certificate of Beneficial Ownership

 

On or after [                    ], 20[  ]

 

WELLS FARGO BANK, NATIONAL ASSOCIATION

Wells Fargo Bank, National Association,

as Trustee and Note Registrar — DAPS Reorg

MAC N9303-121

608 2 nd  Avenue South

Minneapolis, MN 55479

Telephone No.:  (877) 872-4605

Fax No.:  (866) 969-1290

Email:  DAPSReorg@wellsfargo.com

 

Re:                                 The Hertz Corporation (the “ Company ”)

 

6.75% Senior Notes due 2019 (the “Notes”)

 

Ladies and Gentlemen:

 

This letter relates to $                 principal amount of Notes represented by the offshore [temporary] global note certificate (the “[ Temporary] Regulation S Global Note ”).  Pursuant to Section 313(3) of the Indenture dated as of February 8, 2011 relating to the Notes (the “ Indenture ”), we hereby certify that ( 1 ) we are the beneficial owner of such principal amount of Notes represented by the [Temporary] Regulation S Global Note and ( 2 ) we are either ( i ) a Non-U.S. Person to whom the Notes could be transferred in accordance with Rule 903 or 904 of Regulation S (“ Regulation S ”) promulgated under the Securities Act of 1933, as amended (the “ Act ”) or ( ii ) a U.S. Person who purchased securities in a transaction that did not require registration under the Act.

 

You, the Company and counsel for the Company are entitled to rely upon this letter and are irrevocably authorized to produce this letter or a copy hereof to any interested party in any administrative or legal proceedings or official inquiry with respect to the matters covered hereby.  Terms used in this certificate have the meanings set forth in Regulation S.

 

 

 

Very truly yours,

 

 

 

 

 

[Name of Holder]

 

 

 

 

 

 

By:

 

 

 

 

Authorized Signature

 



 

EXHIBIT D

 

Form of Regulation S Certificate

 

Regulation S Certificate

 

WELLS FARGO BANK, NATIONAL ASSOCIATION

Wells Fargo Bank, National Association,

as Trustee and Note Registrar — DAPS Reorg

MAC N9303-121

608 2 nd  Avenue South

Minneapolis, MN 55479

Telephone No.:  (877) 872-4605

Fax No.:  (866) 969-1290

Email:  DAPSReorg@wellsfargo.com

 

Re:                                 The Hertz Corporation (the “ Company ”)

 

6.75% Senior Notes due 2019 (the “Notes”)

 

Ladies and Gentlemen:

 

In connection with our proposed sale of $           aggregate principal amount of Notes, we confirm that such sale has been effected pursuant to and in accordance with Regulation S (“ Regulation S ”) under the Securities Act of 1933, as amended (the “ Securities Act ”), and accordingly, we hereby certify as follows:

 

1.  The offer of the Notes was not made to a person in the United States (unless such person or the account held by it for which it is acting is excluded from the definition of “U.S. person” pursuant to Rule 902(k) of Regulation S under the circumstances described in Rule 902(h)(3) of Regulation S) or specifically targeted at an identifiable group of U.S. citizens abroad.

 

2.  Either ( a ) at the time the buy order was originated, the buyer was outside the United States or we and any person acting on our behalf reasonably believed that the buyer was outside the United States or ( b ) the transaction was executed in, on or through the facilities of a designated offshore securities market, and neither we nor any person acting on our behalf knows that the transaction was pre-arranged with a buyer in the United States.

 

3.  No directed selling efforts have been made in the United States in contravention of the requirements of Rule 903(a)(2) or Rule 904(a)(2) of Regulation S, as applicable.

 

4.  The proposed transfer of Notes is not part of a plan or scheme to evade the registration requirements of the Securities Act.

 



 

5.  If we are a dealer or a person receiving a selling concession or other fee or remuneration in respect of the Notes, and the proposed transfer takes place before end of the distribution compliance period under Regulation S, or we are an officer or director of the Company or a distributor, we certify that the proposed transfer is being made in accordance with the provisions of Rules 903 and 904 of Regulation S.

 

6.  If the proposed transfer takes place before the end of the distribution compliance period under Regulation S, the beneficial interest in the Notes so transferred will be held immediately thereafter through Euroclear (as defined in such Indenture) or Clearstream (as defined in such Indenture).

 

7.  We have advised the transferee of the transfer restrictions applicable to the Notes.

 

You, the Company and counsel for the Company are entitled to rely upon this Certificate and are irrevocably authorized to produce this Certificate or a copy hereof to any interested party in any administrative or legal proceeding or official inquiry with respect to the matters covered hereby.  Terms used in this certificate have the meanings set forth in Regulation S.

 

 

 

Very truly yours,

 

 

 

 

 

[NAME OF SELLER]

 

 

 

 

 

 

 

 

 

 

By:

 

 

 

 

Name:

 

 

 

Title:

 

 

 

Address:

 

 

 

 

Date of this Certificate:                                    , 20    

 

 

 

 

2



 

EXHIBIT E

 

Form of Supplemental Indenture in Respect of Subsidiary Guarantee

 

SUPPLEMENTAL INDENTURE, dated as of [                  ] (this “ Supplemental Indenture ”), among [name of Guarantor(s)] (the “ Subsidiary Guarantor(s) ”), The Hertz Corporation, a corporation duly organized and existing under the laws of the State of Delaware (together with its respective successors and assigns, the “ Company ”), and each other then existing Subsidiary Guarantor under the Indenture referred to below (the “ Existing Guarantors ”), 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, any Existing Guarantors and the Trustee have heretofore become parties to an Indenture, dated as of February 8, 2011 (as amended, supplemented, waived or otherwise modified, the “ Indenture ”), providing for the issuance of 6.75% Senior Notes due 2019 of the Company (the “ Notes ”);

 

WHEREAS, Section 1308 of the Indenture provides that the Company is required to cause the Subsidiary Guarantors to execute and deliver to the Trustee a supplemental indenture pursuant to which the Subsidiary Guarantors shall guarantee the Company’s Subsidiary Guaranteed Obligations under the Notes pursuant to a Subsidiary Guarantee on the terms and conditions set forth herein and in Article XIII of the Indenture;

 

WHEREAS, each Subsidiary Guarantor desires to enter into such supplemental indenture for good and valuable consideration, including substantial economic benefit in that the financial performance and condition of such Subsidiary Guarantor is dependent on the financial performance and condition of the Company, the obligations hereunder of which such Subsidiary Guarantor has guaranteed, and on such Subsidiary Guarantor’s access to working capital through the Company’s access to revolving credit borrowings under the Senior Credit Agreements; and

 

WHEREAS, pursuant to Section 901 of the Indenture, the parties hereto are authorized to execute and deliver this Supplemental Indenture to amend the Indenture, without 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 Subsidiary Guarantors, the Company, the Existing Guarantors 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.  Agreement to Guarantee .  [The] [Each] Subsidiary Guarantor hereby agrees, jointly and severally with [all] [any] other Subsidiary Guarantors and fully and unconditionally,

 



 

to guarantee the Subsidiary Guaranteed Obligations under the Indenture and the Notes on the terms and subject to the conditions set forth in Article XIII of the Indenture and to be bound by (and shall be entitled to the benefits of) all other applicable provisions of the Indenture as a Subsidiary Guarantor.

 

3.  Termination, Release and Discharge .  [The] [Each] Subsidiary Guarantor’s Subsidiary Guarantee shall terminate and be of no further force or effect, and [the] [each] Subsidiary Guarantor shall be released and discharged from all obligations in respect of such Subsidiary Guarantee, as and when provided in Section 1303 of the Indenture.

 

4.  Parties .  Nothing in this Supplemental Indenture is intended or shall be construed to give any Person, other than the Holders and the Trustee, any legal or equitable right, remedy or claim under or in respect of [the] [each] Subsidiary Guarantor’s Subsidiary Guarantee or any provision contained herein or in Article XIII of the Indenture.

 

5.  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.

 

6.  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.

 

7.  Counterparts .  The parties hereto may sign one or more copies of this Supplemental Indenture in counterparts, all of which together shall constitute one and the same agreement.

 

8.  Headings .  The Section headings herein are for convenience of reference only and shall not be deemed to alter or affect the meaning or interpretation of any provisions hereof.

 

2



 

IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed as of the date first above written.

 

 

 

[NAME OF SUBSIDIARY GUARANTOR(S)],

 

 

as Subsidiary Guarantor

 

 

 

 

 

 

 

 

 

 

By:

 

 

 

 

Name:

 

 

 

Title:

 

 

 

 

 

 

 

 

 

 

THE HERTZ CORPORATION

 

 

 

 

 

 

 

 

 

 

By:

 

 

 

 

Name:

 

 

 

Title:

 

 

 

 

 

 

 

 

 

 

WELLS FARGO BANK, NATIONAL

 

 

ASSOCIATION, as Trustee

 

 

 

 

 

 

 

 

 

 

By:

 

 

 

 

Name:

 

 

 

Title:

 

3



 

EXHIBIT F

 

[Form of Certificate from Acquiring Institutional Accredited Investors]

 

Certificate from Acquiring Institutional Accredited Investor

 

WELLS FARGO BANK, NATIONAL ASSOCIATION

Wells Fargo Bank, National Association,

as Trustee and Note Registrar — DAPS Reorg

MAC N9303-121

608 2 nd  Avenue South

Minneapolis, MN 55479

Telephone No.:  (877) 872-4605

Fax No.:  (866) 969-1290

Email:  DAPSReorg@wellsfargo.com

 

Re:                                 The Hertz Corporation (the “ Company ”)

 

6.75% Senior Notes due 2019 (the “Notes”)

 

Ladies and Gentlemen:

 

In connection with our proposed sale of $           aggregate principal amount of Notes, we confirm that:

 

1.                                        We understand that any subsequent transfer of the Notes is subject to certain restrictions and conditions set forth in the Indenture dated as of February 8, 2011 relating to the Notes (the “ Indenture ”) and the undersigned agrees to be bound by, and not to resell, pledge or otherwise transfer the Notes except in compliance with, such restrictions and conditions and the Securities Act of 1933, as amended (the “ Securities Act ”).

 

2.                                        We understand that the Notes have not been registered under the Securities Act or any other applicable securities law, and that the Notes may not be offered, sold or otherwise transferred except as permitted in the following sentence.  We agree, on our own behalf and on behalf of any accounts for which we are acting as hereinafter stated, that if we should offer, sell, transfer, pledge, hypothecate or otherwise dispose of any Notes within two years after the original issuance of the Notes, we will do so only ( A ) to the Company, ( B ) inside the United States to a “qualified institutional buyer” in compliance with Rule 144A under the Securities Act, ( C ) inside the United States to an institutional “accredited investor” (as defined below) that, prior to such transfer, furnishes to you a signed letter substantially in the form of this letter, ( D ) outside the United States to a foreign person in compliance with Rule 904 of Regulation S under the Securities Act, ( E ) pursuant to the exemption from registration provided by Rule 144 under the Securities Act (if available), or ( F ) pursuant to an effective registration statement under the Securities Act, and we further agree to provide to any person purchasing any of the Notes from us a notice advising such purchaser that resales of the Notes are restricted as stated herein and in the Indenture.

 



 

3.                                        We understand that, on any proposed transfer of any Notes prior to the later of the original issue date of the Notes and the last date the Notes were held by an affiliate of the Company pursuant to paragraphs 2(C), 2(D) and 2(E) above, we will be required to furnish to you and the Company such certifications, legal opinions and other information as you and the Company may reasonably require to confirm that the proposed transfer complies with the foregoing restrictions.  We further understand that the Notes purchased by us will bear a legend to the foregoing effect.

 

4.                                        We are an institutional “accredited investor” (as defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Act) and have such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of our investment in the Notes, and we and any accounts for which we are acting are acquiring the Notes for investment purposes and not with a view to, or offer or sale in connection with, any distribution in violation of the Securities Act, and we are each able to bear the economic risk of our or its investment.

 

5.                                        We are acquiring the Notes purchased by us for our own account or for one or more accounts (each of which is an institutional “ accredited investor ”) as to each of which we exercise sole investment discretion.

 

You and the Company are entitled to rely upon this letter and are irrevocably authorized to produce this letter or a copy hereof to any interested party in any administrative or legal proceedings or official inquiry with respect to the matters covered hereby.

 

 

 

Very truly yours,

 

 

 

 

 

 

(Name of Transferee)

 

 

 

 

 

 

 

 

 

 

By:

 

 

 

 

Authorized Signature

 

2




Exhibit 4.4.2

 

The Hertz Corporation

 

$500,000,000 6.75% Senior Notes due 2019

 

Exchange and Registration Rights Agreement

 

February 8, 2011

Barclays Capital Inc.

745 Seventh Avenue

New York, New York 10019

 

As representative of the Initial Purchasers

 

Ladies and Gentlemen:

 

The Hertz Corporation, a Delaware corporation (the “ Company ”), proposes to issue and sell upon the terms set forth in the Purchase Agreement (as defined herein) to the initial purchasers named in Schedule I to the Purchase Agreement (collectively, the “ Initial Purchasers ”) for whom Barclays Capital Inc. (the “ Representative ”) is acting as representative, an aggregate of $500 million principal amount of the Company’s 6.75% Senior Notes due 2019 (the “ Notes ”). The Notes will be guaranteed (the “ Guarantees ”) at the Closing Date (as defined below) on a senior unsecured basis by each domestic subsidiary of the Company named in Schedule II to the Purchase Agreement (the “ Guarantors ”). As an inducement to the Initial Purchasers to enter into the Purchase Agreement and in satisfaction of a condition to the obligations of the Initial Purchasers thereunder, the Company agrees with the Initial Purchasers for the benefit of holders (as defined herein) from time to time of the Registrable Securities (as defined herein) as follows:

 

1.              Certain Definitions .  For purposes of this Exchange and Registration Rights Agreement, the following terms shall have the following respective meanings:

 

Base Interest ” shall mean the interest that would otherwise accrue on the Securities under the terms thereof and the Indenture, without giving effect to the provisions of this Exchange and Registration Rights Agreement.

 

The term “ broker-dealer ” shall mean any broker or dealer registered with the Commission under the Exchange Act.

 

Closing Date ” shall mean the date on which the Securities are initially issued.

 

Commission ” shall mean the United States Securities and Exchange Commission, or any other federal agency at the time administering the Exchange Act or the Securities Act, whichever is the relevant statute for the particular purpose.

 

Effective Time ,” in the case of (i) an Exchange Registration, shall mean the time and date as of which the Commission declares the Exchange Registration Statement effective or as of which the Exchange Registration Statement otherwise becomes effective and (ii) a Shelf Registration, shall mean the time and date as of which the Commission declares the Shelf Registration Statement effective or as of which the Shelf Registration Statement otherwise becomes effective.

 

Electing Holder ” shall mean any holder of Registrable Securities that has returned a completed and signed Notice and Questionnaire to the Company in accordance with Section 3(d)(ii) or 3(d)(iii) hereof.

 

Exchange Act ” shall mean the Securities Exchange Act of 1934, or any successor thereto, as the same shall be amended from time to time.

 

Exchange Offer ” shall have the meaning assigned thereto in Section 2(a) hereof.

 



 

Exchange Registration ” shall have the meaning assigned thereto in Section 3(c) hereof.

 

Exchange Registration Statement ” shall have the meaning assigned thereto in Section 2(a) hereof

 

Exchange Securities ” shall have the meaning assigned thereto in Section 2(a) hereof.

 

The term “ holder ” shall mean each of the Initial Purchasers and other persons who acquire Registrable Securities from time to time (including any successors or assigns), in each case for so long as such person owns any Registrable Securities.

 

Indenture ” shall mean the Indenture, dated as of the Closing Date, among the Company, the Guarantors and Wells Fargo Bank, National Association, as Trustee, governing the Notes as the same shall be amended or supplemented from time to time.

 

Notice and Questionnaire ” means a Notice of Registration Statement and Selling Securityholder Questionnaire substantially in the form of Exhibit A hereto, with such changes thereto as the Company may reasonably determine.

 

The term “ person ” shall mean a corporation, association, partnership, organization, business, individual, government or political subdivision thereof or governmental agency.

 

Purchase Agreement ” shall mean the Purchase Agreement, dated as of December 6, 2010, by and between the Representative, on behalf of the Initial Purchasers, and the Company relating to the Notes.

 

Registrable Securities ” shall mean the Securities; provided, however , that a Security shall cease to be a Registrable Security when (i) the Security has been exchanged for an Exchange Security in an Exchange Offer as contemplated in Section 2(a) hereof ( provided that any Exchange Security that, pursuant to the last two sentences of Section 2(a), is included in a prospectus for use in connection with resales by broker-dealers shall be deemed to be a Registrable Security with respect to Sections 5 and 8 until resale of such Registrable Security has been effected within the up to 90-day period referred to in Section 2(a)); (ii) a Shelf Registration Statement registering such Security under the Securities Act has been declared or becomes effective and such Security has been sold or otherwise transferred by the holder thereof pursuant to and in a manner contemplated by such effective Shelf Registration Statement; (iii) such Security is sold pursuant to Rule 144 under circumstances in which any legend borne by such Security relating to restrictions on transferability thereof, under the Securities Act or otherwise, is removed or deemed removed by the Company or pursuant to the Indenture; (iv) on or following the earliest date that is no less than 545 days after the date of the Indenture and on which such Security would be saleable (if it were held by a non-affiliate of the Company) pursuant to Rule 144 without restrictions on volume or manner of sale or (v) such Security shall cease to be outstanding.

 

Registration Default ” shall have the meaning assigned thereto in Section 2(c) hereof.

 

Registration Expenses ” shall have the meaning assigned thereto in Section 4 hereof.

 

Resale Period ” shall have the meaning assigned thereto in Section 2(a) hereof.

 

Restricted Holder ” shall mean a holder that (i) is an “affiliate,” as defined in Rule 405, of the Company, (ii) acquires Exchange Securities outside the ordinary course of such holder’s business, (iii) has an arrangement or understanding with any person to participate in the distribution of the Securities or the Exchange Securities, (iv) is a broker-dealer, but only with respect to Exchange Securities received by such broker-dealer pursuant to an Exchange Offer in exchange for Registrable Securities acquired by the broker-dealer directly from the Company, (v) is not a broker-dealer and is engaged in, or intends to engage in, the distribution of the Exchange Securities and (vi) is acting on behalf of any person who could not truthfully make the representations in the second paragraph of Section 2(a) hereof.

 

2



 

Rule 144 ,” “ Rule 405 ”, “ Rule 415 ” and “ Rule 158 ” shall mean, in each case, such rule promulgated under the Securities Act (or any successor provision), as the same shall be amended from time to time.

 

Securities ” shall mean the Notes to be issued and sold to the Initial Purchasers, and securities issued in exchange therefor or in lieu thereof pursuant to the Indenture. Each Security is entitled to the benefit of the Guarantees, if any, provided for in the Indenture and, unless the context otherwise requires, any reference herein to a “Security,” an “Exchange Security” or a “Registrable Security” shall include a reference to the related Guarantees, if any.

 

Securities Act ” shall mean the Securities Act of 1933, or any successor thereto, as the same shall be amended from time to time.

 

Shelf Registration ” shall have the meaning assigned thereto in Section 2(b) hereof.

 

Shelf Registration Statement ” shall have the meaning assigned thereto in Section 2(b) hereof.

 

Special Interest ” shall have the meaning assigned thereto in Section 2(c) hereof.

 

Trust Indenture Act ” shall mean the Trust Indenture Act of 1939, or any successor thereto, and the rules, regulations and forms promulgated thereunder, all as the same shall be amended from time to time.

 

Unless the context otherwise requires, any reference herein to a “Section” or “clause” refers to a Section or clause, as the case may be, of this Exchange and Registration Rights Agreement, and the words “herein,” “hereof’ and “hereunder” and other words of similar import refer to this Exchange and Registration Rights Agreement as a whole and not to any particular Section or other subdivision.

 

2.              Registration Under the Securities Act .

 

(a)            Except as set forth in Section 2(b) below, the Company agrees to use its commercially reasonable efforts to file under the Securities Act a registration statement relating to an offer to exchange (such registration statement, the “ Exchange Registration Statement ” and such offer, the “ Exchange Offer ”) any and all of the Securities for a like aggregate principal amount of debt securities issued by the Company and guaranteed by the Guarantors, which debt securities and guarantees are substantially identical to the Securities (and are entitled to the benefits of a trust indenture which is substantially identical to the Indenture or is the Indenture and which has been qualified under the Trust Indenture Act), except that they have been registered pursuant to an effective registration statement under the Securities Act, do not contain restrictions on transfer, do not contain provisions for the additional interest contemplated in Section 2(c) below, do not contain provisions for the liquidated damages provided in Section 2(d) below, will bear a different CUSIP or ISIN number from the Notes, will not entitle their holders to registration rights, and will be subject to terms relating to book-entry procedures and administrative terms relating to transfers that differ from those of the Notes (such new debt securities hereinafter called “ Exchange Securities ”). The Company agrees to use its commercially reasonable efforts to cause the Exchange Registration Statement to become effective under the Securities Act within 365 days following the Closing Date. The Exchange Offer will be registered under the Securities Act on the appropriate form and will comply with all applicable tender offer rules and regulations under the Exchange Act. The Company further agrees to use its commercially reasonable efforts to commence the Exchange Offer promptly after the Exchange Registration Statement becomes effective, hold the Exchange Offer open for the period required by applicable law (including pursuant to any applicable interpretation by the staff of the Commission), but in any event for at least 10 business days, and exchange the Exchange Securities for all Securities that have been validly tendered and not withdrawn on or prior to the expiration of the Exchange Offer. If the Company commences the Exchange Offer, the Company will be entitled to close the Exchange Offer 30 days after the commencement thereof (or at the end of such shorter period permitted by applicable law; provided that such period shall not, in any case, be less than 10 business days), provided that the Company has accepted all the Securities validly tendered in accordance with the terms of the Exchange Offer. The Company agrees (x) to include in the Exchange Registration Statement a prospectus for use in any resales by any holder of Exchange Securities that is a broker-dealer and (y) to keep such Exchange Registration Statement effective for a period (the “ Resale Period ”) beginning when Exchange Securities are first issued in the Exchange Offer and ending upon the earlier of the expiration of the 90th day after the Exchange Offer has been completed and such time as such broker-dealers no longer own any Registrable Securities.

 

3



 

Each holder participating in the Exchange Offer shall be required to represent to the Company that (i) any Exchange Securities received by such holder will be acquired in the ordinary course of business, (ii) such holder has no arrangement or understanding with any person to participate in the distribution of the Securities or the Exchange Securities, (iii) such holder is not an “affiliate,” as defined in Rule 405, of the Company, (iv) if such holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities, (v) if such holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Securities that were acquired as a result of market making activities or other trading activities and, that it will deliver a prospectus in connection with any resale of such Exchange Securities and (vi) such holder is not acting on behalf of any person who could not truthfully make the foregoing representations.

 

(b)            If (i) on or before the date of consummation of the Exchange Offer existing Commission interpretations are changed such that the Exchange Securities received by holders other than Restricted Holders in the Exchange Offer for Registrable Securities are not or would not be, upon receipt, transferable by each such holder without restriction under the Securities Act, (ii) the Exchange Offer has not been completed within 395 days following the Closing Date, (iii) any Initial Purchaser so requests with respect to Registrable Securities not eligible to be exchanged for Exchange Securities in the Exchange Offer and held by it following consummation of the Exchange Offer or (iv) any holder (other than an Initial Purchaser) shall be, and shall notify the Company that such holder is, not permitted by law or Commission policy to participate in the Exchange Offer or such holder may not resell the Exchange Securities acquired in the Exchange Offer to the public without delivering a prospectus and the prospectus contained in the Exchange Registration Statement is not available for such resales by such holder (other than, in either case, (x) due solely to the status of such holder as an affiliate of the Company within the meaning of Rule 405 or (y) due to such holder’s inability to make the representations set forth in the second paragraph of Section 2(a) hereof) and any such holder so requests, the Company shall, in lieu of (or, in the case of clauses (iii) and (iv), in addition to) conducting the Exchange Offer contemplated by Section 2(a), use its commercially reasonable efforts to file under the Securities Act as promptly as reasonably practicable, a “shelf” registration statement providing for the registration of, and the sale on a continuous or delayed basis by the holders of, all of the Registrable Securities (or, in the case of clause (iii), the Registrable Securities held by the Initial Purchasers, or, in the case of clause (iv), by the holders referred to in clause (iv), as the case may be), pursuant to Rule 415 or any similar rule that may be adopted by the Commission (such filing, the “ Shelf Registration ” and such registration statement, the “ Shelf Registration Statement ”). The Company agrees to use its commercially reasonable efforts (x) to cause the Shelf Registration Statement to become effective within 365 days after the date on which the obligation to file such Shelf Registration Statement arises and to use its commercially reasonable efforts to cause such Shelf Registration Statement to remain effective for a period ending on the earlier of 365 days following the Effective Time or such shorter period that will terminate when all the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement or are distributed to the public pursuant to Rule 144 or, after the 90th day following the Effective Time, would be eligible for resale (if held by a non-affiliate of the Company) pursuant to Rule 144 without restriction on volume or manner of sale, if any; provided, however , that no holder shall be entitled to be named as a selling securityholder in the Shelf Registration Statement or to use the prospectus forming a part thereof for resales of Registrable Securities unless such holder is an Electing Holder, and (y) after the Effective Time of the Shelf Registration Statement, promptly upon the request of any holder of Registrable Securities that is not then an Electing Holder, to take any action reasonably necessary to enable such holder to use the prospectus forming a part thereof for resales of Registrable Securities, including, without limitation, any action necessary to identify such holder as a selling securityholder in the Shelf Registration Statement; provided, however , that nothing in this clause (y) shall relieve any such holder of the obligation to return a completed and signed Notice and Questionnaire to the Company in accordance with Section 3(d)(iii) hereof. The Company further agrees to supplement or make amendments to the Shelf Registration Statement, as and when required by the rules, regulations or instructions applicable to the registration form used by the Company for such Shelf Registration Statement or by the Securities Act or rules and regulations thereunder for shelf registration, and the Company agrees to furnish to each Electing Holder copies of any such supplement or amendment promptly following its filing with the Commission.

 

Notwithstanding the foregoing, the Company may suspend the availability of any Shelf Registration Statement (x) for up to an aggregate of 60 days in any consecutive 12 month period if (i) such action is required by applicable law or (ii) such action is taken by the Company in good faith and for valid business reasons (not including avoidance of the Company’s obligations hereunder), including the acquisition or divestiture of assets, or (y) with respect to a Shelf Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time period, if such action occurs following the consummation of the Exchange Offer.

 

4



 

(c)            In the event that (i) the Exchange Registration Statement has not become effective or been declared effective by the Commission on or before 365 days following the Closing Date, or (ii) the Exchange Offer has not been consummated within 395 days after the Closing Date, or (iii) if a Shelf Registration Statement required to be filed under Section 2(b) hereof is not declared effective within 365 days following the date on which the obligation to file the Shelf Registration Statement arises, or (iv) if any Shelf Registration Statement required by Section 2(b) hereof is filed and declared effective, and during the period the Company is required to use its commercially reasonable efforts to cause the Shelf Registration Statement to remain effective, (x) the Company shall have suspended the Shelf Registration Statement pursuant to Section 2(b) hereof for more than 60 days in the aggregate in any consecutive 12 month period and be continuing to suspend the availability of the Shelf Registration Statement or (y) the Shelf Registration Statement shall cease to be effective (other than by action of the Company pursuant to the second paragraph of Section 2(b) hereof) without being replaced within 90 days by a shelf registration statement that is filed and declared effective (each such event referred to in clauses (i) through (iv), a “ Registration Default ” and each period during which a Registration Default has occurred and is continuing, a “ Registration Default Period ”), then, as liquidated damages for such Registration Default, subject to the provisions of Section 8(b), special interest (“ Special Interest ”), in addition to the Base Interest, shall accrue on the respective Registrable Securities for the Registration Default Period (but only with respect to one Registration Default at any particular time) until such time as all Registration Defaults have been cured at a per annum rate of 0.25% for the first 90 days of the Registration Default Period, which rate shall increase by an additional 0.25% during each subsequent 90-day period, up to a maximum of 0.50% regardless of the number of Registration Defaults that shall have occurred and be continuing. Immediately following the cure of all Registration Defaults, the accrual of Special Interest will cease. A Registration Default under clause (iii) or (iv) will be deemed cured upon consummation of the Exchange Offer in the case of a Shelf Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time period.

 

(d)            If during the Resale Period the Exchange Offer Registration Statement is suspended by the Company or ceases to be effective such that any broker-dealer that (i) receives Exchange Securities in the Exchange Offer and (ii) is subject to prospectus delivery requirements cannot fulfill such requirements, the Company shall, during the respective Resale Period, pay liquidated damages to such broker-dealers in an amount calculated in a manner consistent with that specified above with respect to Registration Defaults.

 

(e)            The Company shall take all actions reasonably necessary or advisable to be taken by it to ensure that the transactions contemplated herein are effected as so contemplated, including all actions necessary or desirable to register the Guarantees (if any) under the registration statement contemplated in Section 2(a) or 2(b) hereof, as applicable.

 

(f)             Any reference herein to a registration statement as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time and any reference herein to any post-effective amendment to a registration statement as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time.

 

3.              Registration Procedures .

 

If the Company files a registration statement pursuant to Section 2(a) or Section 2(b), the following provisions shall apply:

 

(a)            At or before the Effective Time of the Exchange Offer or the Shelf Registration, as the case may be, the Company shall qualify the Indenture under the Trust Indenture Act.

 

(b)            In the event that such qualification would require the appointment of a new trustee under the Indenture, the Company shall appoint a new trustee thereunder pursuant to the applicable provisions of the Indenture.

 

(c)            In connection with the Company’s obligations with respect to the registration of Exchange Securities as contemplated by Section 2(a) (the “ Exchange Registration ”), if applicable, the Company shall:

 

(i)             use its commercially reasonable efforts to prepare and file with the Commission an Exchange Registration Statement on any form which may be utilized by the Company and which shall permit the Exchange Offer and resales of Exchange Securities by broker-dealers during the Resale Period to be effected as contemplated

 

5



 

by Section 2(a), and use its commercially reasonable efforts to cause such Exchange Registration Statement to become effective within 365 days following the Closing Date;

 

(ii)            prepare and file with the Commission such amendments and supplements to such Exchange Registration Statement and the prospectus included therein as may be necessary to effect and maintain the effectiveness of such Exchange Registration Statement for the periods and purposes contemplated in Section 2(a) hereof and as may be required by the applicable rules and regulations of the Commission and the instructions applicable to the form of such Exchange Registration Statement, and promptly provide each broker-dealer holding Exchange Securities with such number of copies of the prospectus included therein (as then amended or supplemented), in conformity in all material respects with the requirements of the Securities Act and the rules and regulations of the Commission thereunder, as such broker-dealer reasonably may request prior to the expiration of the Resale Period, for use in connection with resales of Exchange Securities;

 

(iii)           promptly notify each broker-dealer that has requested or received copies of the prospectus included in such registration statement, and confirm such advice in writing, (A) when such Exchange Registration Statement or the prospectus included therein or any prospectus amendment or supplement or post-effective amendment has been filed, and, with respect to such Exchange Registration Statement or any post-effective amendment, when the same has become effective, (B) of any request by the Commission for amendments or supplements to such Exchange Registration Statement or prospectus or for additional information, (C) of the issuance by the Commission of any stop order suspending the effectiveness of such Exchange Registration Statement or the initiation of any proceedings for that purpose, (D) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Exchange Securities for sale in any jurisdiction or the initiation of any proceeding for such purpose, or (E) at any time during the Resale Period when a prospectus is required to be delivered under the Securities Act, that such Exchange Registration Statement, prospectus, prospectus amendment or supplement or post-effective amendment does not conform in all material respects to the applicable requirements of the Securities Act and the rules and regulations of the Commission thereunder or contains an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances then existing;

 

(iv)           in the event that the Company would be required, pursuant to Section 3(c)(iii)(E) above, to notify any broker-dealers holding Exchange Securities, use its commercially reasonable efforts to prepare and furnish as soon as practicable to each such broker-dealer a reasonable number of copies of a prospectus supplemented or amended so that, as thereafter delivered to purchasers of such Exchange Securities during the Resale Period, such prospectus shall conform in all material respects to the applicable requirements of the Securities Act and the rules and regulations of the Commission thereunder and shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances then existing;

 

(v)            use its commercially reasonable efforts to obtain the withdrawal of any order suspending the effectiveness of such Exchange Registration Statement or any post-effective amendment thereto at the earliest practicable date;

 

(vi)           use its commercially reasonable efforts to (A) register or qualify the Exchange Securities under the state securities laws or blue sky laws of such U.S. jurisdictions as any participating holder of the Registrable Securities reasonably requests in writing no later than the commencement of the Exchange Offer, (B) keep such registrations or qualifications in effect and comply with such laws so as to permit the continuance of offers, sales and dealings therein in such jurisdictions until the expiration of the Resale Period and (C) take any and all other actions as may be reasonably necessary to enable each broker-dealer holding Exchange Securities to consummate the disposition thereof in such jurisdictions; provided, however , that the Company shall not be required for any such purpose to (1) qualify as a foreign corporation or other entity or as a dealer in securities in any jurisdiction wherein it would not otherwise be required to qualify but for the requirements of this Section 3(c)(vi), (2) consent to general service of process in any such jurisdiction, (3) subject itself to taxation in any such jurisdiction if it is not so subject or (4) make any changes to its certificate of incorporation, by-laws or other organizational document, or any agreement between it and any of its equityholders;

 

6



 

(vii)          provide a CUSIP number for all Exchange Securities, not later than the consummation of the Exchange Offer; and

 

(viii)         comply in all material respects with all applicable rules and regulations of the Commission, and make generally available to its securityholders as soon as practicable but no later than 18 months after the effective date of such Exchange Registration Statement, an earning statement of the Company and its subsidiaries complying with Section 11(a) of the Securities Act (including, at the option of the Company, Rule 158).

 

(d)            In connection with the Company’s obligations with respect to the Shelf Registration, if applicable, the Company shall:

 

(i)             use its commercially reasonable efforts to prepare and file with the Commission, as promptly as reasonably practicable, a Shelf Registration Statement on any form which may be utilized by the Company and which shall register all of the Registrable Securities (or, in the case of a Shelf Registration Statement filed pursuant to Section 2(b)(iii), the Registrable Securities held by the Initial Purchasers or, in the case of a Shelf Registration Statement filed pursuant to Section 2(b)(iv), the Registrable Securities held by the holders specified in Section 2(b)(iv)) for resale by the holders thereof in accordance with such method or methods of disposition as may be specified in the applicable Notice and Questionnaire by such of the holders as, from time to time, may be Electing Holders and use its commercially reasonable efforts to cause such Shelf Registration Statement to become effective within the time periods specified in Section 2(b);

 

(ii)            not less than 15 calendar days prior to the Effective Time of the Shelf Registration Statement, mail the Notice and Questionnaire to the holders of Registrable Securities; no holder shall be entitled to be named as a selling securityholder in the Shelf Registration Statement as of the Effective Time, and no holder shall be entitled to use the prospectus forming a part thereof for resales of Registrable Securities at any time, unless such holder has returned a completed and signed Notice and Questionnaire to the Company by the deadline for response set forth therein; provided, however , holders of Registrable Securities shall have at least 13 calendar days from the date on which the Notice and Questionnaire is first mailed to such holders to return a completed and signed Notice and Questionnaire to the Company;

 

(iii)           after the Effective Time of the Shelf Registration Statement, upon the request of any holder of Registrable Securities that is not then an Electing Holder, promptly send a Notice and Questionnaire to such holder; provided that the Company shall not be required to take any action to name such holder as a selling securityholder in the Shelf Registration Statement or to enable such holder to use the prospectus forming a part thereof for resales of Registrable Securities until such holder has returned a completed and signed Notice and Questionnaire to the Company;

 

(iv)           as soon as practicable, prepare and file with the Commission such amendments and supplements to such Shelf Registration Statement and the prospectus included therein as may be necessary to effect and maintain the effectiveness of such Shelf Registration Statement for the period specified in Section 2(b) hereof and as may be required by the applicable rules and regulations of the Commission and the instructions applicable to the form of such Shelf Registration Statement, and furnish to the Electing Holders copies of any such supplement or amendment as soon as practicable following its filing with the Commission. Notwithstanding the foregoing, the Company may suspend the availability of any Shelf Registration Statement (x) for up to an aggregate of 60 days in any consecutive 12 month period if (i) such action is required by applicable law or, (ii) such action is taken by the Company in good faith and for valid business reasons (not including avoidance of the Company’s obligations hereunder), including the acquisition or divestiture of assets, or (y) with respect to a Shelf Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time period, if such action occurs following the consummation of the Exchange Offer;

 

(v)            comply in all material respects with the provisions of the Securities Act with respect to the disposition of all of the Registrable Securities covered by such Shelf Registration Statement in accordance with the intended methods of disposition by the Electing Holders provided for in such Shelf Registration Statement;

 

(vi)           for a reasonable period prior to the filing of such Shelf Registration Statement, and throughout the period specified in Section 2(b), make reasonably available at reasonable times at the Company’s principal place of

 

7



 

business or such other reasonable place for inspection by a representative of, and not more than one counsel acting for, Electing Holders holding at least a majority in aggregate principal amount of the Registrable Securities at the time outstanding (the “ Majority Electing Holders ”) and any underwriter participating in the distribution of the Registrable Securities being sold (including any person who may be deemed an underwriter within the meaning of Section 2(a)(ii) of the Securities Act) such relevant financial and other pertinent information and books and records of the Company, and use its commercially reasonable efforts to cause the officers, employees, counsel and independent certified public accountants of the Company to respond to such inquiries, as shall be reasonably necessary to conduct a reasonable investigation within the meaning of Section 11 of the Securities Act; provided, however , that the foregoing investigation and information gathering shall be coordinated on behalf of all such parties by one counsel designated by and on behalf of all such parties and provided, further , that each such party shall be required (pursuant to an agreement in form and substance reasonably satisfactory to the Company) to maintain in confidence and not to disclose to any other person any information or records reasonably designated by the Company as being confidential, until such time as (A) such information becomes a matter of public record (whether by virtue of its inclusion in such registration statement or otherwise except as a result of a breach of this or any other obligation of confidentiality to the Company known to such party), or (B) such person shall be required so to disclose such information pursuant to a subpoena or order of any court or other governmental agency or body having jurisdiction over the matter (subject to the requirements of such order, and only after such person shall have given the Company prompt prior written notice of such requirement so that the Company, at its expense, may undertake appropriate action to prevent disclosure of such information or records), or (C) such information is required to be set forth in such Shelf Registration Statement or the prospectus included therein or in an amendment to such Shelf Registration Statement or an amendment or supplement to such prospectus in order that such Shelf Registration Statement, prospectus, amendment or supplement, as the case may be, complies with applicable requirements of the federal securities laws and the rules and regulations of the Commission and does not contain an untrue statement of a material fact or omit to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances then existing;

 

(vii)          promptly notify each of the Electing Holders and any managing underwriter thereof and confirm such advice in writing, (A) when such Shelf Registration Statement or the prospectus included therein or any prospectus amendment or supplement or post-effective amendment has been filed, and, with respect to such Shelf Registration Statement or any post-effective amendment, when the same has become effective, (B) of any request by the Commission for amendments or supplements to such Shelf Registration Statement or prospectus or for additional information, (C) of the issuance by the Commission of any stop order suspending the effectiveness of such Shelf Registration Statement or the initiation of any proceedings for that purpose, (D) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction or the initiation of any proceeding for such purpose or (E) if at any time when a prospectus is required to be delivered under the Securities Act, that such Shelf Registration Statement, prospectus, prospectus amendment or supplement or post-effective amendment does not conform in all material respects to the applicable requirements of the Securities Act and the rules and regulations of the Commission thereunder or contains an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances then existing;

 

(viii)         use its commercially reasonable efforts to obtain the withdrawal of any order suspending the effectiveness of such registration statement or any post-effective amendment thereto at the earliest practicable date;

 

(ix)            if requested by any managing underwriter or the Majority Electing Holders, promptly incorporate in a prospectus supplement or post-effective amendment such information as is required by the applicable rules and regulations of the Commission and as such managing underwriter or such Majority Electing Holders shall specify should be included therein relating to the terms of the sale of such Registrable Securities, including information with respect to the principal amount of Registrable Securities being sold by such Majority Electing Holders or to any underwriters, the names and descriptions of such Majority Electing Holders or underwriters, the offering price of such Registrable Securities and any discount, commission or other compensation payable in respect thereof, the purchase price being paid therefor by such underwriters and with respect to any other terms of the offering of the Registrable Securities to be sold by such Majority Electing Holders or to such underwriters; and make all required filings of such prospectus supplement or post-effective amendment as soon as practicable after notification of the matters to be incorporated in such prospectus supplement or post-effective amendment;

 

8



 

(x)             furnish to each Electing Holder, and each underwriter, if any, thereof such number of copies of such Shelf Registration Statement (excluding exhibits thereto and documents incorporated by reference therein) and of the prospectus included in such Shelf Registration Statement (including each preliminary prospectus), in conformity in all material respects with the applicable requirements of the Securities Act and the rules and regulations of the Commission thereunder, as such Electing Holder and underwriter, if any, may reasonably request in order to facilitate the offering and disposition of the Registrable Securities owned by such Electing Holder or underwritten by such underwriter and to permit such Electing Holder and underwriter, if any, to satisfy the prospectus delivery requirements of the Securities Act; and the Company hereby consents to the use of such prospectus (including such preliminary prospectus) and any amendment or supplement thereto by each such Electing Holder and by any such underwriter, in each case in the form most recently provided to such person by the Company, in connection with the offering and sale of the Registrable Securities covered by the prospectus (including such preliminary prospectus) or any supplement or amendment thereto;

 

(xi)            use its commercially reasonable efforts to (A) register or qualify the Registrable Securities to be included in such Shelf Registration Statement under such state securities laws or blue sky laws of such U.S. jurisdictions as any Electing Holder and managing underwriter, if any, thereof shall reasonably request, (B) keep such registrations or qualifications in effect and comply with such laws so as to permit the continuance of offers, sales and dealings therein in such jurisdictions during the period the Shelf Registration is required to remain effective under Section 2(b) above and for so long as may be necessary to enable any such Electing Holder or underwriter to complete its distribution of Securities pursuant to such Shelf Registration Statement and (C) take any and all other actions as may be reasonably necessary to enable each such Electing Holder and underwriter, if any, to consummate the disposition in such jurisdictions of such Registrable Securities; provided, however , that the Company shall not be required for any such purpose to (1) qualify as a foreign corporation or other entity or as a dealer in securities in any jurisdiction wherein it would not otherwise be required to qualify but for the requirements of this Section 3(d)(xi), (2) consent to general service of process in any such jurisdiction, (3) subject itself to taxation in any such jurisdiction if it is not so subject or (4) make any changes to its certificate of incorporation, by-laws or other organizational document, or any agreement between it and any of its equityholders;

 

(xii)           unless any Registrable Securities shall be in book-entry only form, cooperate with the Electing Holders and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold, which certificates shall not bear any restrictive legends; and, in the case of an underwritten offering, enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriter may request a reasonable amount of time prior to any sale of the Registrable Securities;

 

(xiii)          provide a CUSIP number for all Registrable Securities, not later than the applicable Effective Time;

 

(xiv)         enter into one or more underwriting agreements in customary form, including customary provisions relating to indemnification and contribution, and use its commercially reasonable efforts to take such other actions, if any, in connection therewith as any Electing Holders aggregating at least 20% in aggregate principal amount of the Registrable Securities at the time outstanding shall reasonably request in order to expedite or facilitate the disposition of such Registrable Securities;

 

(xv)          if requested by the Majority Electing Holders or if the offering contemplated by the Shelf Registration is an underwritten offering, use its commercially reasonable efforts to (A) make such representations and warranties to the Electing Holders and the underwriters, if any, thereof in form, substance and scope as are customarily made in connection with an offering of debt securities pursuant to any underwriting agreement; (B) obtain an opinion of counsel to the Company in customary form subject to customary limitations, assumptions and exclusions and covering such matters, of the type customarily covered by such an opinion, as the managing underwriters, if any, or as any Electing Holders of at least 20% in aggregate principal amount of the Registrable Securities at the time outstanding may reasonably request, addressed to the Electing Holders and the underwriters, if any, thereof and dated the effective date of such Shelf Registration Statement (and if such Shelf Registration Statement contemplates an underwritten offering of a part or all of the Registrable Securities, dated the date of the closing under the underwriting agreement relating thereto); (C) obtain a “cold comfort” letter or letters from the independent certified public accountants of the Company addressed to the selling Electing Holders or the

 

9



 

underwriters, if any, thereof, dated (i) the effective date of such Shelf Registration Statement and (ii) if such Shelf Registration Statement contemplates an underwritten offering, dated the date of the closing under the underwriting agreement relating thereto, such letter or letters to be in customary form and covering such matters of the type customarily covered by letters of such type, subject to receipt of appropriate documentation as contemplated, and only if permitted, by Statement of Auditing Standards No. 72; and (D) deliver such customary documents and certificates, including officers’ certificates, as may be reasonably requested by the Majority Electing Holders and the managing underwriters, if any, thereof,

 

(xvi)         notify in writing each holder of Registrable Securities of any proposal by the Company to amend or waive any provision of this Exchange and Registration Rights Agreement pursuant to Section 8(h) hereof and of any amendment or waiver effected pursuant thereto, each of which notices shall contain the text of the amendment or waiver proposed or effected, as the case may be;

 

(xvii)        in the event that any broker-dealer registered under the Exchange Act shall underwrite any Registrable Securities or participate as a member of an underwriting syndicate (within the meaning of the Conduct Rules (the “ Conduct Rules ”) of the Financial Industry Regulatory Authority, Inc. (“ FINRA ”) or any successor thereto, as amended from time to time) thereof as an underwriter, use commercially reasonable efforts to provide information to assist such broker-dealer in complying with the requirements of such Conduct Rules; and

 

(xviii)       comply in all material respects with all applicable rules and regulations of the Commission, and make generally available to its securityholders as soon as practicable but in any event not later than 18 months after the effective date of such Shelf Registration Statement, an earning statement of the Company and its subsidiaries complying with Section 11(a) of the Securities Act (including, at the option of the Company, Rule 158).

 

(e)            In the event that the Company would be required, pursuant to Section 3(d)(vii)(E) above, to notify the Electing Holders and the managing underwriters, if any, thereof, the Company shall as soon as practicable prepare and furnish to each of the Electing Holders and to each such underwriter, if any, a reasonable number of copies of a prospectus supplemented or amended so that, as thereafter delivered to purchasers of Registrable Securities, such prospectus shall conform in all material respects to the applicable requirements of the Securities Act and the rules and regulations of the Commission thereunder and shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances then existing. Each broker-dealer and Electing Holder agrees that upon receipt of any notice from the Company pursuant to Section 3(c)(iii)(E) or Section 3(d)(vii)(E) hereof, such broker-dealer or Electing Holder shall forthwith discontinue the disposition of Registrable Securities pursuant to the Exchange Registration Statement or Shelf Registration Statement applicable to such Registrable Securities until such broker-dealer or Electing Holder shall have received copies of such amended or supplemented prospectus, and if so directed by the Company, such broker-dealer or Electing Holder shall deliver to the Company (at the Company’s expense) all copies, other than permanent file copies, then in such broker-dealer’s or Electing Holder’s possession of the prospectus covering such Registrable Securities at the time of receipt of such notice.

 

(f)             In the event of a Shelf Registration, in addition to the information required to be provided by each Electing Holder in its Notice and Questionnaire, the Company may require such Electing Holder to furnish to the Company such additional information regarding such Electing Holder and such Electing Holder’s intended method of distribution of Registrable Securities as may be required in order to comply with the Securities Act. Each such Electing Holder agrees to notify the Company as promptly as practicable of any inaccuracy or change in information previously furnished by such Electing Holder to the Company or of the occurrence of any event in either case as a result of which any prospectus relating to such Shelf Registration contains or would contain an untrue statement of a material fact regarding such Electing Holder or such Electing Holder’s intended method of disposition of such Registrable Securities or omits to state any material fact regarding such Electing Holder or such Electing Holder’s intended method of disposition of such Registrable Securities required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances then existing, and promptly to furnish to the Company any additional information required to correct and update any previously furnished information or required so that such prospectus shall not contain, with respect to such Electing Holder or the disposition of such Registrable Securities, an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances then existing.

 

10



 

4.              Registration Expenses .

 

The Company agrees to bear and to pay or cause to be paid promptly all expenses incident to the Company’s performance of or compliance with this Exchange and Registration Rights Agreement, including (a) all Commission and any FINRA registration, filing and review fees and expenses including the reasonable fees and disbursements of counsel for the underwriters, if any, in connection with such registration, filing and review, (b) all fees and expenses in connection with the qualification of the Securities for offering and sale under the state securities laws and the blue sky laws referred to in Section 3(d)(xi) hereof and determination of their eligibility for investment under the laws of such jurisdictions as any managing underwriters or the Electing Holders may reasonably designate, including the reasonable fees and disbursements of counsel for the Electing Holders or underwriters in connection with such qualification and determination, (c) all expenses relating to the preparation, printing, production, distribution and reproduction of each registration statement required to be filed hereunder, each prospectus included therein or prepared for distribution pursuant hereto, each amendment or supplement to the foregoing, the expenses of preparing the Securities for delivery and the expenses of printing or producing any underwriting agreements, selling agreements and blue sky or legal investment memoranda and all other documents in connection with the offering, sale or delivery of Securities to be disposed of (including certificates representing the Securities), (d) messenger, telephone and delivery expenses relating to the offering, sale or delivery of Securities and the preparation of documents referred in clause (c) above, (e) reasonable fees and expenses of the Trustee under the Indenture, any agent of the Trustee and any counsel for the Trustee and of any collateral agent or custodian, (f) internal expenses (including all salaries and expenses of the Company’s officers and employees performing legal or accounting duties), (g) fees, disbursements and expenses of counsel of the Company and independent certified public accountants of the Company (including the expenses of any opinions or “cold comfort” letters required by or incident to such performance and compliance), (h) reasonable fees, disbursements and expenses of any “qualified independent underwriter” engaged pursuant to Section 3(d)(xvii) hereof, (i) the reasonable fees, disbursements and expenses of one counsel for the Electing Holders retained in connection with a Shelf Registration, as selected by the Electing Holders of at least a majority in aggregate principal amount of the Registrable Securities held by Electing Holders (which counsel shall be reasonably satisfactory to the Company), (j) any fees charged by securities rating services for rating the Securities, and (k) fees, expenses and disbursements of any other persons, including special experts, retained by the Company in connection with such registration (collectively, the “ Registration Expenses ”). To the extent that any Registration Expenses are incurred, assumed or paid by any holder of Registrable Securities or any placement or sales agent therefor or underwriter thereof, the Company shall reimburse such person for the full amount of the Registration Expenses so incurred, assumed or paid promptly after receipt of a request therefore, which shall be accompanied by written evidence of the expenses so incurred. Notwithstanding the foregoing, the holders of the Registrable Securities being registered shall pay all agency fees and commissions and underwriting discounts and commissions attributable to the sale of such Registrable Securities and the fees and disbursements of any counsel or other advisors or experts retained by such holders (severally or jointly), other than the counsel and experts specifically referred to above.

 

5.              Indemnification .

 

(a)            Indemnification by the Company . The Company will indemnify and hold harmless (x) each of the broker-dealers whose Registrable Securities are included in an Exchange Registration Statement and each of the Electing Holders of Registrable Securities included in a Shelf Registration Statement against any losses, claims, damages or liabilities, joint or several, to which such broker-dealer or Electing Holder may become subject under the Securities Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in any Exchange Registration Statement or Shelf Registration Statement, as the case may be, under which such Registrable Securities were registered under the Securities Act, or any preliminary, final or summary prospectus contained therein or furnished by the Company to any such broker-dealer or Electing Holder, or any amendment or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and will reimburse such broker-dealer or Electing Holder for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such action or claim as such expenses are incurred; provided, however , that (i) the Company shall not be liable to any such person in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such registration statement, or preliminary, final or summary prospectus, or amendment or supplement thereto, in reliance upon and in conformity with written information furnished to the Company by such person expressly for use therein and (ii) with respect to any untrue statement or alleged untrue statement or omission or alleged omission made in any Exchange Registration Statement or Shelf Registration Statement or prospectus or in any amendment or supplement thereto or in any

 

11



 

preliminary prospectus relating to such Exchange Registration Statement or Shelf Registration Statement, the indemnity agreement contained in this Section 5(a) will not inure to the benefit of any broker-dealer or Electing Holder from whom the person asserting any such loss, claim, damage or liability purchased the Registrable Securities to the extent that at the time of such purchase such broker-dealer or Electing Holder had received timely written advice from the Company prior to such purchase that the use of such prospectus, amendment, supplement or preliminary prospectus was suspended as provided in Section 3(e) hereof.

 

(b)            Indemnification by the Electing Holders . The Company may require, as a condition to including any Registrable Securities in any registration statement filed pursuant to Section 2(b) hereof, that the Company shall have received an undertaking reasonably satisfactory to it from the Electing Holder of such Registrable Securities, severally and not jointly, to (i) indemnify and hold harmless the Company and all other holders of Registrable Securities, against any losses, claims, damages or liabilities to which the Company or such other holders of Registrable Securities may become subject, under the Securities Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in such registration statement, or any preliminary, final or summary prospectus contained therein or furnished by the Company to any such Electing Holder, or any amendment or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in reliance upon and in conformity with written information furnished to the Company by such Electing Holder expressly for use therein, and (ii) reimburse the Company for any legal or other expenses reasonably incurred by the Company in connection with investigating or defending any such action or claim as such expenses are incurred; provided, however , that no such Electing Holder shall be required to undertake liability to any person under this Section 5(b) for any amounts in excess of the dollar amount of the proceeds to be received by such Electing Holder from the sale of such Electing Holder’s Registrable Securities pursuant to such registration.

 

(c)            Notices of Claims, Etc . Promptly after receipt by an indemnified party under Section 5(a) or 5(b) above of written notice of the commencement of any action, such indemnified party shall, if a claim in respect thereof is to be made against an indemnifying party pursuant to the indemnification provisions of or contemplated by this Section 5, notify such indemnifying party in writing of the commencement of such action; but the omission so to notify the indemnifying party shall not relieve it from any liability which it may have to any indemnified party otherwise than under the indemnification provisions of or contemplated by Section 5(a) or 5(b) hereof. In case any such action shall be brought against any indemnified party and it shall notify an indemnifying party of the commencement thereof, such indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and, after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, such indemnifying party shall not be liable to such indemnified party for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. No indemnifying party shall, without the written consent of the indemnified party, effect the settlement or compromise of, or consent to the entry of any judgment with respect to, any pending or threatened action or claim in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified party is an actual or potential party to such action or claim) unless such settlement, compromise or judgment (i) includes an unconditional release of the indemnified party from all liability arising out of such action or claim and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act by or on behalf of any indemnified party.

 

(d)            Contribution . If for any reason the indemnification provisions contemplated by Section 5(a) or Section 5(b) hereof are unavailable to or insufficient to hold harmless an indemnified party in respect of any losses, claims, damages or liabilities (or actions in respect thereof) referred to therein, then each indemnifying party shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages or liabilities (or actions in respect thereof) in such proportion as is appropriate to reflect the relative fault of the indemnifying party and the indemnified party in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities (or actions in respect thereof), as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified party shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by such indemnifying party or by such indemnified party, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The parties hereto agree that it would not be just and equitable if contributions

 

12


 

pursuant to this Section 5(d) were determined by pro rata allocation (even if the holders or any agents or underwriters or all of them were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to in this Section 5(d). The amount paid or payable by an indemnified party as a result of the losses, claims, damages, or liabilities (or actions in respect thereof) referred to above shall be deemed to include any legal or other fees or expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 5(d), no holder shall be required to contribute any amount in excess of the amount by which the dollar amount of the proceeds received by such holder from the sale of any Registrable Securities (after deducting any fees, discounts and commissions applicable thereto) exceeds the amount of any damages which such holder has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The holders’ and any underwriters’ obligations in this Section 5(d) to contribute shall be several in proportion to the principal amount of Registrable Securities registered or underwritten, as the case may be, by them and not joint.

 

(e)            The obligations of the Company under this Section 5 shall be in addition to any liability which the Company may otherwise have and shall extend, upon the same terms and conditions, to each officer, director and partner of each holder and each person, if any, who controls any holder within the meaning of the Securities Act; and the obligations of the holders contemplated by this Section 5 shall be in addition to any liability which the respective holder may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of the Company (including any person who, with his consent, is named in any registration statement as about to become a director of the Company) and to each person, if any, who controls the Company within the meaning of the Securities Act.

 

6.              Underwritten Offerings .

 

(a)            Selection of Underwriters . If any of the Registrable Securities covered by the Shelf Registration are to be sold pursuant to an underwritten offering, the managing underwriter or underwriters thereof shall be designated by the Company, subject to the consent of the Electing Holders holding at least a majority in aggregate principal amount of the Registrable Securities to be included in such offering (which shall not be unreasonably withheld or delayed) and such Electing Holders shall be responsible for all underwriting discounts and commissions in connection therewith.

 

(b)            Participation by Holders . Each holder of Registrable Securities hereby agrees with each other such holder that no such holder may participate in any underwritten offering hereunder unless such holder (i) agrees to sell such holder’s Registrable Securities on the basis provided in any underwriting arrangements approved by the persons entitled hereunder to approve such arrangements and (ii) completes and executes all questionnaires, powers of attorney, indemnities, underwriting agreements and other documents reasonably required under the terms of such underwriting arrangements.

 

7.              Rule 144 .

 

The Company covenants to the holders of Registrable Securities that to the extent it shall be required to do so under the Exchange Act, the Company shall timely file the reports required to be filed by it under the Exchange Act or the Securities Act (including the reports under Section 13 and 15(d) of the Exchange Act referred to in subparagraph (c)(1) of Rule 144 adopted by the Commission under the Securities Act) and the rules and regulations adopted by the Commission thereunder, and shall take such further action as any holder of Registrable Securities may reasonably request, all to the extent required from time to time to enable such holder to sell Registrable Securities without registration under the Securities Act within the limitations of the exemption provided by Rule 144. Upon the request of any holder of Registrable Securities in connection with that holder’s sale pursuant to Rule 144, the Company shall deliver to such holder a written statement as to whether it has complied with such requirements. The Company will be deemed to have satisfied the foregoing requirements if any of the Company’s parents file such reports and take such actions of the types otherwise so required, in each case within the applicable time periods.

 

8.              Miscellaneous .

 

(a)            No Inconsistent Agreements . The Company represents warrants, covenants and agrees that it has not granted, and shall not grant, registration rights with respect to Registrable Securities or any other securities which would be inconsistent with the terms contained in this Exchange and Registration Rights Agreement.

 

13



 

(b)            Specific Performance . The parties hereto acknowledge that there would be no adequate remedy at law if the Company fails to perform any of its obligations hereunder and that the Initial Purchasers and the holders from time to time of the Registrable Securities may be irreparably harmed by any such failure, and accordingly agree that the Initial Purchasers and such holders, in addition to any other remedy to which they may be entitled at law or in equity, shall be entitled to compel specific performance of the obligations of the Company under this Exchange and Registration Rights Agreement in accordance with the terms and conditions of this Exchange and Registration Rights Agreement, in any court of the United States or any state thereof having jurisdiction.

 

(c)            Notices . All notices, requests, claims, demands, waivers and other communications hereunder shall be in writing and shall be deemed to have been duly given when delivered by hand, if delivered personally or by courier, or three days after being deposited in the mail (registered or certified mail, postage prepaid, return receipt requested) as follows: (i) if to the Company, to it at 225 Brae Boulevard, Park Ridge, New Jersey 07656, Attention: Richard J. Frecker, Assistant General Counsel and Assistant Secretary, with a copy to Thomas Monson, Esq. and Donald Batterson, Esq., Jenner & Block LLP, 353 N. Clark Street, Chicago, Illinois 60654, (ii) if to a holder, to the address of such holder set forth in the security register or other records of the Company or to such other address as the Company or any such holder may have furnished to the other in writing in accordance herewith, except that notices of change of address shall be effective only upon receipt, and (iii) if to the Initial Purchasers, c/o Barclays Capital Inc., 745 Seventh Avenue, New York, New York 10019, Attention: Syndicate Registration, with a copy to Kirk A. Davenport II, Esq., Latham & Watkins LLP, 885 Third Avenue, New York, New York 10022.

 

(d)            Parties in Interest . All the terms and provisions of this Exchange and Registration Rights Agreement shall be binding upon, shall inure to the benefit of and shall be enforceable by the parties hereto and the holders from time to time of the Registrable Securities and the respective successors and assigns of the parties hereto and such holders. In the event that any transferee of any holder of Registrable Securities shall acquire Registrable Securities, in any manner, whether by gift, bequest, purchase, operation of law or otherwise, such transferee shall, without any further writing or action of any kind, be deemed a beneficiary hereof for all purposes and such Registrable Securities shall be held subject to all of the terms of this Exchange and Registration Rights Agreement, and by taking and holding such Registrable Securities such transferee shall be entitled to receive the benefits of, and be conclusively deemed to have agreed to be bound by all of the applicable terms and provisions of this Exchange and Registration Rights Agreement. If the Company shall so request, any such successor, assign or transferee shall agree in writing to acquire and hold the Registrable Securities subject to all of the applicable terms hereof.

 

(e)            Survival . The respective indemnities, agreements, representations, warranties and each other provision set forth in this Exchange and Registration Rights Agreement or made pursuant hereto shall remain in full force and effect regardless of any investigation (or statement as to the results thereof) made by or on behalf of any holder of Registrable Securities, any director, officer or partner of such holder, any agent or underwriter or any director, officer or partner thereof, or any controlling person of any of the foregoing, and shall survive delivery of and payment for the Registrable Securities pursuant to the Purchase Agreement and the transfer and registration of Registrable Securities by such holder and the consummation of an Exchange Offer.

 

(f)             Governing Law . This Exchange and Registration Rights Agreement shall be governed by and construed in accordance with the laws of the State of New York.

 

(g)            Headings . The descriptive headings of the several Sections and paragraphs of this Exchange and Registration Rights Agreement are inserted for convenience only, do not constitute a part of this Exchange and Registration Rights Agreement and shall not affect in any way the meaning or interpretation of this Exchange and Registration Rights Agreement.

 

(h)            Entire Agreement; Amendments . This Exchange and Registration Rights Agreement and the other writings referred to herein (including the Indenture and the form of Securities) or delivered pursuant hereto which form a part hereof contain the entire understanding of the parties with respect to its subject matter. This Exchange and Registration Rights Agreement supersedes all prior agreements and understandings between the parties with respect to its subject matter. This Exchange and Registration Rights Agreement may be amended and the observance of any term of this Exchange and Registration Rights Agreement may be waived (either generally or in a particular instance and either retroactively or prospectively) only by a written instrument duly executed by the Company and the holders of at least a majority in aggregate principal amount of the Registrable Securities at the time outstanding. Each holder of any Registrable Securities at the time or

 

14



 

thereafter outstanding shall be bound by any amendment or waiver effected pursuant to this Section 8(h), whether or not any notice, writing or marking indicating such amendment or waiver appears on such Registrable Securities or is delivered to such holder.

 

(i)             Counterparts . This Exchange and Registration Rights Agreement may be executed by the parties in counterparts, each of which shall be deemed to be an original, but all such respective counterparts shall together constitute one and the same instrument.

 

If the foregoing is in accordance with your understanding, please sign and return to us seven (7) counterparts hereof, and upon the acceptance hereof by you, on behalf of each of the Initial Purchasers, this letter and such acceptance hereof shall constitute a binding agreement between each of the Initial Purchasers and the Company.

 

[Signature Pages Follow]

 

15



 

 

Very truly yours,

 

 

 

The Hertz Corporation

 

 

 

By:

/s/ R. Scott Massengill

 

 

Name: R. Scott Massengill

 

 

Title: Vice President and Treasurer

 

 

 

 

 

Brae Holding Corp.

 

Hertz Claim Management Corporation

 

HCM Marketing Corporation

 

Hertz Equipment Rental Corporation

 

Hertz Local Edition Corp.

 

Hertz Local Edition Transporting, Inc.

 

Hertz Global Services Corporation

 

Hertz System, Inc.

 

Hertz Technologies, Inc.

 

Hertz Transporting, Inc.

 

Smartz Vehicle Rental Corporation

 

Simply Wheelz LLC

 

 

 

By:

/s/ R. Scott Massengill

 

 

Name: R. Scott Massengill

 

 

Title: Treasurer

 

[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]

 



 

 Accepted as of the date hereof for itself and as Representative of the several Initial Purchasers named in Schedule I to the Purchase Agreement:

 

 

 

 

 

BARCLAYS CAPITAL INC.

 

By:

/s/ Benjamin Burton

 

 

Name: Benjamin Burton

 

 

Title: Managing Director

 

 

[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]

 



 

Exhibit A

The Hertz Corporation

 

INSTRUCTION TO DTC PARTICIPANTS

 

(Date of Mailing)

 

URGENT - IMMEDIATE ATTENTION REQUESTED

 

DEADLINE FOR RESPONSE:  [DATE] (1)

 

The Depository Trust Company (“ DTC ”) has identified you as a DTC Participant through which beneficial interests in The Hertz Corporation (the “ Company ”) 6.75% Senior Notes due 2019 (the “ Securities ”) are held.

 

The Company is in the process of registering the Securities under the Securities Act of 1933, as amended, for resale by the beneficial owners thereof. In order to have their Securities included in the registration statement, beneficial owners must complete and return the enclosed Notice of Registration Statement and Selling Securityholder Questionnaire.

 

It is important that beneficial owners of the Securities receive a copy of the enclosed materials as soon as possible as their rights to have the Securities included in the registration statement depend upon their returning the Notice and Questionnaire by [Deadline For Response]. Please forward a copy of the enclosed documents to each beneficial owner that holds interests in the Securities through you. If you require more copies of the enclosed materials or have any questions pertaining to this matter, please contact The Hertz Corporation, 225 Brae Boulevard, Park Ridge, New Jersey, 07656, Attention: Richard J. Frecker, Assistant General Counsel and Assistant Secretary, (201) 307-2000.

 


(1)            Not less than 28 calendar days from date of mailing.

 



 

The Hertz Corporation

 

Notice of Registration Statement
and
Selling Securityholder Questionnaire

 

([Date])

 

Reference is hereby made to the Exchange and Registration Rights Agreement (the “ Exchange and Registration Rights Agreement ”) between The Hertz Corporation (the “ Company ”) and the Initial Purchasers named therein. Pursuant to the Exchange and Registration Rights Agreement, the Company has filed with the United States Securities and Exchange Commission (the “ Commission ”) a registration statement on Form [      ] (the “ Shelf Registration Statement ”) for the registration and resale under Rule 415 of the Securities Act of 1933, as amended (the “ Securities Act ”), of the Company’s 6.75% Senior Notes due 2019 (the “ Securities ”). A copy of the Exchange and Registration Rights Agreement is attached hereto. All capitalized terms not otherwise defined herein shall have the meanings ascribed thereto in the Exchange and Registration Rights Agreement.

 

Each beneficial owner of Registrable Securities is entitled to have the Registrable Securities beneficially owned by it included in the Shelf Registration Statement. In order to have Registrable Securities included in the Shelf Registration Statement, this Notice of Registration Statement and Selling Securityholder Questionnaire (“ Notice and Questionnaire ”) must be completed, executed and delivered to the Company’s counsel at the address set forth herein for receipt ON OR BEFORE [Deadline for Response]. Beneficial owners of Registrable Securities who do not complete, execute and return this Notice and Questionnaire by such date (i) will not be named as selling securityholders in the Shelf Registration Statement and (ii) may not use the prospectus forming a part thereof for resales of Registrable Securities.

 

Certain legal consequences arise from being named as a selling securityholder in the Shelf Registration Statement and related prospectus. Accordingly, holders and beneficial owners of Registrable Securities are advised to consult their own securities law counsel regarding the consequences of being named or not being named as a selling securityholder in the Shelf Registration Statement and related prospectus.

 



 

ELECTION

 

The undersigned holder (the “ Selling Securityholder ”) of Registrable Securities hereby elects to include in the Shelf Registration Statement the Registrable Securities beneficially owned by it and listed below in Item (3). The Selling Securityholder, by signing and returning this Notice and Questionnaire, agrees to be bound with respect to such Registrable Securities by the terms and conditions of this Notice and Questionnaire and the Exchange and Registration Rights Agreement, including, without limitation, Sections 3(e) and 5 of the Exchange and Registration Rights Agreement, as if the Selling Securityholder were an original party thereto.

 

Upon any sale of Registrable Securities pursuant to the Shelf Registration Statement, the Selling Securityholder will be required to deliver to the Company and Trustee the Notice of Transfer set forth in the prospectus and as Exhibit B to the Exchange and Registration Rights Agreement.

 

The Selling Securityholder hereby provides the following information to the Company and represents and warrants that such information is accurate and complete:

 

QUESTIONNAIRE

 

1.              Names:

 

(a)                                   Full Legal Name of Selling Securityholder

 

(b)                                  Full Legal Name of Registered Holder (if not the same as in (a) above) of Registrable Securities Listed in Item (3) below:

 

(c)                                   Full Legal Name of DTC Participant (if applicable and if not the same as (b) above) Through Which Registrable Securities Listed in Item (3) below are Held:

 

2.              Address for Notices to Selling Securityholder:

 

 

Telephone:

 

Fax:

 

Contact
Person:

 

3.              Beneficial Ownership of Securities:

 

Except as set forth below in this Item (3), the undersigned does not beneficially own any Securities.

 

(a)                                   Principal amount of Registrable Securities beneficially owned:
CUSIP No(s). of such Registrable Securities:

 

(b)                                  Principal amount of Securities other than Registrable Securities beneficially owned:
CUSIP No(s). of such other Securities:

 



 

(c)                                   Principal amount of Registrable Securities which the undersigned wishes to be included in the Shelf Registration Statement:
CUSIP No(s). of such Registrable Securities to be included in the Shelf Registration Statement:

 

4.              Beneficial Ownership of Other Securities of the Company:

 

Except as set forth below in this Item (4), the undersigned Selling Securityholder is not the beneficial or registered owner of any other securities of the Company, other than the Securities listed above in Item (3).

 

State any exceptions here:

 

5.              Relationships with the Company:

 

Except as set forth below, neither the Selling Securityholder nor any of its affiliates, officers, directors or principal equity holders (5% or more) has held any position or office or has had any other material relationship with the Company (or its predecessors or affiliates) during the past three years.

 

State any exceptions here:

 

6.              Plan of Distribution:

 

Except as set forth below, the undersigned Selling Securityholder intends to distribute the Registrable Securities listed above in Item (3) only as follows (if at all):  such Registrable Securities may be sold from time to time directly by the undersigned Selling Securityholder or, alternatively, through underwriters, broker-dealers or agents. Such Registrable Securities may be sold in one or more transactions at fixed prices, at prevailing market prices at the time of sale, at varying prices determined at the time of sale, or at negotiated prices. Such sales may be effected in transactions (which may involve crosses or block transactions) (i) on any national securities exchange or quotation service on which the Registered Securities may be listed or quoted at the time of sale, (ii) in the over-the-counter market, (iii) in transactions otherwise than on such exchanges or services or in the over-the-counter market, or (iv) through the writing of options. In connection with sales of the Registrable Securities or otherwise, the Selling Securityholder may enter into hedging transactions with broker-dealers, which may in turn engage in short sales of the Registrable Securities in the course of hedging the positions they assume. The Selling Securityholder may also sell Registrable Securities short and deliver Registrable Securities to close out such short positions, or loan or pledge Registrable Securities to broker-dealers that in turn may sell such securities.

 

State any exceptions here:

 

By signing below, the Selling Securityholder acknowledges that it understands its obligation to comply, and agrees that it will comply, with the provisions of the Exchange Act and the rules and regulations thereunder, particularly Regulation M.

 

In the event that the Selling Securityholder transfers all or any portion of the Registrable Securities listed in Item (3) above after the date on which such information is provided to the Company, the Selling Securityholder agrees to notify the transferee(s) at the time of the transfer of its rights and obligations under this Notice and Questionnaire and the Exchange and Registration Rights Agreement.

 

By signing below, the Selling Securityholder consents to the disclosure of the information contained herein in its answers to Items (1) through (6) above and the inclusion of such information in the Shelf Registration Statement and related prospectus. The Selling Securityholder understands that such information will be relied upon by the Company in connection with the preparation of the Shelf Registration Statement and related prospectus.

 

In accordance with the Selling Securityholder’s obligation under Section 3(d) of the Exchange and Registration Rights Agreement to provide such information as may be required by law for inclusion in the Shelf Registration Statement, the Selling Securityholder agrees to promptly notify the Company of any inaccuracies or changes in the information provided herein which may occur subsequent to the date hereof at any time while the Shelf Registration Statement remains in effect.

 



 

All notices hereunder and pursuant to the Exchange and Registration Rights Agreement shall be made in writing, by hand delivery, first-class mail, or air courier guaranteeing overnight delivery as follows:

 

(i)             To the Company:

 

The Hertz Corporation
225 Brae Boulevard
Park Ridge, New Jersey 07656-0713
Attention: Assistant General Counsel and Assistant Secretary

 

(ii)            With a copy to:

 

Thomas Monson and Donald Batterson

Jenner & Block LLP

353 N. Clark Street

Chicago, IL 60654

 

Once this Notice and Questionnaire is executed by the Selling Securityholder and received by the Company’s counsel, the terms of this Notice and Questionnaire, and the representations and warranties contained herein, shall be binding on, shall inure to the benefit of and shall be enforceable by the respective successors, heirs, personal representatives, and assigns of the Company and the Selling Securityholder (with respect to the Registrable Securities beneficially owned by such Selling Securityholder and listed in Item (3) above). This agreement shall be governed in all respects by the laws of the State of New York.

 

IN WITNESS WHEREOF, the undersigned, by authority duly given, has caused this Notice and Questionnaire to be executed and delivered either in person or by its duly authorized agent.

 

Dated:

 

 

 

 

Selling Securityholder

 

(Print/type full legal name of beneficial owner of Registrable Securities)

 

 

 

 

 

By:

 

 

 

Name:

 

 

Title:

 



 

PLEASE RETURN THE COMPLETED AND EXECUTED NOTICE AND QUESTIONNAIRE FOR RECEIPT ON OR BEFORE [DEADLINE FOR RESPONSE] TO THE COMPANY’S COUNSEL AT:

 

Thomas Monson and Donald Batterson

Jenner & Block LLP

353 N. Clark Street

Chicago, IL 60654

 



 

Exhibit B

 

NOTICE OF TRANSFER PURSUANT TO REGISTRATION STATEMENT

 

Wells Fargo Bank, National Association
The Hertz Corporation
c/o Wells Fargo Bank, National Association
45 Broadway, 14th floor
New York, NY 10006

 

Attention:  Corporate Trust Services

 

Re:                                The Hertz Corporation (the “ Company ”)
6.75% Senior Notes due 2019 (the “ Notes ”)

 

Dear Sirs:

 

Please be advised that                    has transferred $             aggregate principal amount of the above-referenced Notes pursuant to an effective Registration Statement on Form [             ] (File No. 333-[         ]) filed by the Company.

 

We hereby certify that the prospectus delivery requirements, if any, of the Securities Act of 1933, as amended, have been satisfied and that the above-named beneficial owner of the Notes is named as a “Selling Securityholder” in the prospectus dated              or in supplements thereto, and that the aggregate principal amount of the Notes transferred is listed in such prospectus opposite such owner’s name.

 

Dated:

 

 

Very truly yours,

 

 

 

 

 

(Name)

 

 

 

 

 

By:

 

 

(Authorized Signature)

 




Exhibit 4.6.2

 

SUPPLEMENTAL INDENTURE NO. 1 (this “ Amendment ”) dated as of December 21, 2010, to the THIRD AMENDED AND RESTATED BASE INDENTURE, dated as of September 18, 2009 (as amended, modified or supplemented as of the date hereof, exclusive of Series Supplements, “ Base Indenture ”), among HERTZ VEHICLE FINANCING LLC, a special purpose limited liability company established under the laws of Delaware (“ HVF ”), and THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., a national banking association, in its capacity as trustee (the “ Trustee ”).

 

WITNESSETH :

 

WHEREAS, HVF and the Trustee wish to amend the Base Indenture to clarify that Relinquished Property (as defined in the Master Exchange Agreement), Relinquished Property Proceeds and Relinquished Property Agreements are not subject to the grant set forth in Article III of the Base Indenture and therefore are excluded from the Collateral and clarify the definition of “Segregated Series of Notes” as herein set forth;

 

WHEREAS, Sections 12.2 and 12.3 of the Base Indenture permit HVF and the Trustee to effect certain amendments to the Base Indenture, subject to the conditions set forth therein;

 

WHEREAS, pursuant to Section 6.19 of the Amended and Restated Series 2009-2 Supplement to the Base Indenture, dated as of June 18, 2010, between HVF and the Trustee (as amended, modified or supplemented as of the date hereof, the “ Series 2009-2 Supplement ”), the Series 2009-2 Noteholders (as defined in the Series 2009-2 Supplement) are deemed to have agreed and consented to the execution of this Amendment;

 

WHEREAS, pursuant to Section 6.1 2 of the Series 2010-1 Supplement to the Base Indenture, dated as of July 22, 2010, between HVF and the Trustee (as amended, modified or supplemented as of the date hereof, the “ Series 2010-1 Supplement ”), the Series 2010-1 Noteholders (as defined in the Series 2010-1 Supplement) are deemed to have agreed and consented to the execution of this Amendment; and

 

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 .  All capitalized terms not otherwise defined herein shall have the meanings assigned thereto in the Base Indenture or, if not defined therein, the applicable Series Supplement.  Reference is made herein to the Amended and Restated Series 2009-1 Supplement to the Base Indenture, dated as of December 16, 2010, between HVF and the Trustee (as further amended, modified or supplemented as of the date hereof, the “ Series 20 09-1 Supplement ”) and the Series 2010-2 Supplement to the Base Indenture, dated as of December 16, 2010, between HVF and the Trustee (as amended, modified or supplemented as of the date hereof, the “ Series 20 10-2 Supplement ”, together with the Series 2009-1 Supplement, the Series 2009-2 Supplement and the Series 2010-1 Supplement, the “ Series Supplements ” or each a “ Series Supplement ”).

 



 

2.  Trustee Consent .  Pursuant to Section 6.19 of the Series 2009-2 Supplement and Section 6. 12 of the Series 2010-1 Supplement, the Series 2009-2 Noteholders and the Series 2010-1 Noteholders, respectively, are deemed to have consented to the Trustee entering into this Amendment and, by agreeing, acknowledging and consenting to this Amendment , the Series 2009-1 Noteholders and the Series 2010-2 Noteholders (together with the Series 2009-2 Noteholders and the Series 2010-1 Noteholders constituting the Requisite Investors and the Requisite Indenture Investors), hereby consent to the Trustee entering into this Amendment.

 

3.  Amendments to the Base Indenture .

 

(a) The phrase “HVF Vehicle Collateral” shall be deleted from Section 3.1(a)(ii) of the Base Indenture and replaced with the phrase “Indenture Collateral”.

 

(b) The punctuation mark “.” shall be deleted from the final line of Section 3.1(a)(vi) of the Base Indenture and replaced with the punctuation mark “;”.

 

(c) The following proviso shall be added as a new paragraph at the end of Section 3.1(a) of the Base Indenture immediately after Section 3.1(a)(vi) of the Base Indenture:

 

provided, that, in no event shall any of the foregoing include any right, title or interest in, to or under any Relinquished Property (as defined in the Master Exchange Agreement), the related identifiable Relinquished Property Proceeds or the related Rights (as defined in the Master Exchange Agreement) with respect to such Relinquished Property, if any (collectively, “ Relinquished Property Rights ”), from the time such Relinquished Property Rights become Relinquished Property Rights as a result of the assignment of the related Relinquished Property and the related Rights with respect to such Relinquished Property to the Intermediary pursuant to the Master Exchange Agreement, unless and until, in the case of Relinquished Property Proceeds, such Relinquished Property Proceeds become Additional Subsidies.”

 

(c) The following defined term shall be inserted in Schedule 1 to the Base Indenture where alphabetically appropriate:

 

“‘ Relinquished Property Rights ’ has the meaning specified in Section 3.1(a)  of the Base Indenture.”

 

(d) The definition of “‘ Segregated Series of Notes ’ or ‘ Segregated Series ’” shall be deleted in its entirety from Schedule I of the Base Indenture and replaced with the following:

 

“‘ Segregated Series of Notes ’ means one or more Segregated Series, as the context may require.”

 

4.  Effectiveness .  This Amendment shall be effective upon delivery of executed signature pages by all parties hereto and satisfaction of the Rating Agency Condition with respect to each Series of Indenture Notes Outstanding.

 

2



 

5.  Reference to and Effect on the Base Indenture; Ratification .

 

(a) Except as specifically amended above, the Base Indenture is and shall continue to be in full force and effect and is 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 Base Indenture, or constitute a waiver of any provision of any other agreement.

 

(c) Upon the effectiveness hereof, each reference in the Base Indenture to “Base Indenture”, “hereto”, “hereunder”, “hereof” or words of like import referring to the Base Indenture, and each reference in any other Related Document to “the Base Indenture”, “thereto”, “thereof”, “thereunder” or words of like import referring to the Base Indenture, shall mean and be a reference to the Base Indenture as amended hereby.

 

6.  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.

 

7.  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.

 

8.  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.

 

9.  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.

 

10.  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.

 

3



 

IN WITNESS WHEREOF, the parties hereto 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/ Scott Massengill

 

 

Name: 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

 

4



 

ACKNOWLEDGED AND AGREED

 

 

SARATOGA FUNDING CORP., LLC,

 

as a Conduit Investor

 

 

 

 

By:

/s/ Mary L. Brady

 

 

Name: Mary L. Brady

 

 

Title: Vice President

 

 

 

 

 

 

 

DEUTSCHE BANK AG, NEW YORK BRANCH,

 

as a Funding Agent

 

 

 

 

By:

/s/ Robert Sheldon

 

 

Name: Robert Sheldon

 

 

Title: Managing Director

 

 

 

By:

/s/ Ozan Kaya

 

 

Name: Ozan Kaya

 

 

Title: Vice President

 

 

 

 

 

DEUTSCHE BANK AG, NEW YORK BRANCH,

 

as a Committed Note Purchaser

 

 

 

 

By:

/s/ Robert Sheldon

 

 

Name: Robert Sheldon

 

 

Title: Managing Director

 

 

 

By:

/s/ Ozan Kaya

 

 

Name: Ozan Kaya

 

 

Title: Vice President

 

 

5



 

ACKNOWLEDGED AND AGREED

 

BANK OF AMERICA, N.A.,

 

 

as a Funding Agent

 

 

 

 

By:

/s/ Jeremy Grubb

 

 

Name: Jeremy Grubb

 

 

Title: Vice President

 

 

 

 

 

 

 

BANK OF AMERICA, N.A.,

 

 

as a Committed Note Purchaser

 

 

 

 

By:

/s/ Jeremy Grubb

 

 

Name: Jeremy Grubb

 

 

Title: Vice President

 

 



 

ACKNOWLEDGED AND AGREED

 

LIBERTY STREET FUNDING LLC,

 

as a Conduit Investor

 

 

 

 

By:

/s/ Jill A. Russo

 

 

Name: Jill A. Russo

 

 

Title: Vice President

 

 

 

 

 

THE BANK OF NOVA SCOTIA, acting through its New York Agency,

 

as a Funding Agent

 

 

 

 

By:

/s/ Darren Ward

 

 

Name: Darren Ward

 

 

Title: Director

 

 

 

 

 

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

 

 



 

ACKNOWLEDGED AND AGREED

 

 

 

SHEFFIELD RECEIVABLES CORPORATION,

 

 

as a Conduit Investor

 

 

 

 

By:

BARCLAYS BANK PLC,

 

 

as Attorney-in-Fact

 

 

 

 

By:

/s/ John McCarthy

 

 

Name: John McCarthy

 

 

Title: Vice President

 

 

 

 

 

BARCLAYS BANK PLC,

 

 

as a Funding Agent

 

 

 

 

By:

/s/ Jamie Pratt

 

 

Name: Jamie Pratt

 

 

Title: Director

 

 

 

 

 

SHEFFIELD RECEIVABLES CORPORATION,

 

 

as a Committed Note Purchaser

 

 

 

 

By:

BARCLAYS BANK PLC,

 

 

as Attorney-in-Fact

 

 

 

By:

/s/ John McCarthy

 

 

Name: John McCarthy

 

 

Title: Vice President

 

 



 

ACKNOWLEDGED AND AGREED

 

 

 

FAIRWAY FINANCE COMPANY LLC,

 

 

as a Conduit Investor

 

 

 

 

By:

/s/ Mary L. Brady

 

 

Name: Mary L. Brady

 

 

Title: Vice President

 

 

 

 

 

BMO CAPITAL MARKETS CORP.,

 

 

as a Funding Agent

 

 

 

 

By:

/s/ Keith J. Niebrugge

 

 

Name: Keith J. Niebrugge

 

 

Title: Managing Director

 

 

 

 

 

BANK OF MONTREAL,

 

 

as a Committed Note Purchaser

 

 

 

 

By:

/s/ Brian Zaban

 

 

Name: Brian Zaban

 

 

Title: Managing Director

 

 



 

ACKNOWLEDGED AND AGREED

 

ATLANTIC ASSET SECURITIZATION LLC,

 

 

as a Conduit Investor

 

 

By:

CREDIT AGRICOLE CORPORATE AND INVESTMENT BANK,

 

as Attorney-in-Fact

 

 

 

 

By:

/s/ Sam Pilcer

 

 

Name: Sam Pilcer

 

 

Title: Managing Director

 

 

 

By:

/s/ Kostantina Kourmpetis

 

 

Name: Kostantina Kourmpetis

 

 

Title: Managing Director

 

 

 

CREDIT AGRICOLE CORPORATE AND INVESTMENT BANK,

 

as a Funding Agent

 

 

 

 

By:

/s/ Sam Pilcer

 

 

Name: Sam Pilcer

 

 

Title: Managing Director

 

 

 

By:

/s/ Kostantina Kourmpetis

 

 

Name: Kostantina Kourmpetis

 

 

Title: Managing Director

 

 

 

CREDIT AGRICOLE CORPORATE AND INVESTMENT BANK,

 

as a Committed Note Purchaser

 

 

 

 

By:

/s/ Sam Pilcer

 

 

Name: Sam Pilcer

 

 

Title: Managing Director

 

 

 

By:

/s/ Kostantina Kourmpetis

 

 

Name: Kostantina Kourmpetis

 

 

Title: Managing Director

 

 


 

ACKNOWLEDGED AND AGREED

 

 

 

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

 

 

 

 

 

ING CAPITAL MARKETS, LLC,

 

 

as a Funding Agent

 

 

 

 

By:

/s/ Leonard Y.K. Woo, Jr.

 

 

Name: Leonard Y.K. Woo, Jr.

 

 

Title: Director

 

 

 

 

 

ING BANK N.V. (DUBLIN BRANCH),

 

 

as a Committed Note Purchaser

 

 

 

 

By:

/s/ Aidan Neill

 

 

Name: Aidan Neill

 

 

Title: Director

 

 

 

By:

/s/ David Rea

 

 

Name: David Rea

 

 

Title: Vice President

 

 



 

ACKNOWLEDGED AND AGREED

 

 

 

JUPITER SECURITIZATION COMPANY LLC,

 

 

as a Conduit Investor

 

 

 

 

By:

JPMORGAN CHASE BANK, N.A.,

 

 

as Attorney-in-Fact

 

 

 

 

By:

/s/ Laura V. Chittick

 

 

Name: Laura V. Chittick

 

 

Title: Vice President

 

 

 

 

 

 

JPMORGAN CHASE BANK, N.A.,

 

 

as a Funding Agent

 

 

 

 

By:

/s/ Laura V. Chittick

 

 

Name: Laura V. Chittick

 

 

Title: Vice President

 

 

 

 

 

 

JPMORGAN CHASE BANK, N.A.,

 

 

as a Committed Note Purchaser

 

 

 

 

By:

/s/ Laura V. Chittick

 

 

Name: Laura V. Chittick

 

 

Title: Vice President

 

 



 

ACKNOWLEDGED AND AGREED

 

 

 

VERSAILLES ASSETS LLC,

 

 

as a Conduit Investor

 

 

 

 

By:

GLOBAL SECURITIZATION SERVICES, LLC,

 

 

its Manager

 

 

 

 

By:

/s/ Bernard J. Angelo

 

 

Name: Bernard J. Angelo

 

 

Title: Senior Vice President

 

 

 

 

 

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, Senior Counsel

 

 

 

 

 

VERSAILLES ASSETS LLC,

 

 

as a Committed Note Purchaser

 

 

 

 

By:

GLOBAL SECURITIZATION SERVICES, LLC,

 

 

its Manager

 

 

 

By:

/s/ Bernard J. Angelo

 

 

Name: Bernard J. Angelo

 

 

Title: Senior Vice President

 

 



 

ACKNOWLEDGED AND AGREED

 

 

 

AMSTERDAM FUNDING CORPORATION,

 

 

as a Conduit Investor

 

 

 

 

By:

/s/ Jill A. Russo

 

 

Name: Jill A. Russo

 

 

Title: Vice President

 

 

 

 

 

THE ROYAL BANK OF SCOTLAND PLC,

 

 

as a Funding Agent

 

 

 

 

By:

RBS SECURITIES INC., as agent

 

 

 

 

By:

/s/ David Viney

 

 

Name: David Viney

 

 

Title: Managing Director

 

 

 

 

 

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

 

 




Exhibit 4.6.4

 

AMENDMENT NO. 1 (this “ Amendment ”) dated as of December  21, 2010, to the THIRD AMENDED AND RESTATED MASTER MOTOR VEHICLE OPERATING LEASE AND SERVICING AGREEMENT, dated as of September 18, 2009 (the “ HVF Lease ”), between THE HERTZ CORPORATION, a Delaware corporation (“ Hertz ”), in its capacity as lessee (the “ Lessee ”) and in its capacity as servicer (the “ Servicer ”), and HERTZ VEHICLE FINANCING LLC, a special purpose limited liability company established under the laws of Delaware (“ HVF ”), in its capacity as lessor (the “ Lessor ”).

 

WITNESSETH :

 

WHEREAS, HVF and Hertz wish to amend the HVF Lease as herein set forth.

 

WHEREAS, Section 22 of the HVF Lease permits certain amendments to the HVF Lease to be effected pursuant to a writing executed by the Lessor, the Servicer and the Lessee and consented to by the Trustee, subject to certain conditions set forth therein;

 

WHEREAS, Section 8.7(b) of the 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 amended, modified or supplemented as of the date hereof, exclusive of Series Supplements, the “ Base Indenture ”) permits HVF to enter into certain amendments to the Related Documents, subject to certain conditions set forth therein;

 

WHEREAS, pursuant to Section 6.19 of the Amended and Restated Series 2009-2 Supplement to the Base Indenture, dated as of June 18, 2010, between HVF and the Trustee (as amended, modified or supplemented as of the date hereof, the “ Series 2009-2 Supplement ”), the Series 2009-2 Noteholders (as defined in the Series 2009-2 Supplement) are deemed to have agreed and consented to the execution of this Amendment;

 

WHEREAS, pursuant to Section 6.1 2 of the Series 2010-1 Supplement to the Base Indenture, dated as of July 22, 2010, between HVF and the Trustee (as amended, modified or supplemented as of the date hereof, the “ Series 2010-1 Supplement ”), the Series 2010-1 Noteholders (as defined in the Series 2010-1 Supplement) are deemed to have agreed and consented to the execution of this Amendment; and

 

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 .  All capitalized terms not otherwise defined herein shall have the meanings assigned thereto in the HVF Lease or, if not defined therein, the Base Indenture or the applicable Series Supplement.  Reference is made herein to the Amended and Restated Series 2009-1 Supplement to the Base Indenture, dated as of December 16, 2010, between HVF and the Trustee (as further amended, modified or supplemented as of the date hereof, the “ Series 2009-1

 



 

Supplement ” and, together with the Series 2009-2 Supplement and the Series 2010-1 Supplement, the “ Series Supplements ” or each a “ Series Supplement ”).

 

2.  Trustee Direction and Consent .  Pursuant to Section 6.19 of the Series 2009-2 Supplement and Section 6. 12 of the Series 2010-1 Supplement, the Series 2009-2 Noteholders and the Series 2010-1 Noteholders, respectively, are deemed to have directed the Trustee to enter into this Amendment and, by agreeing, acknowledging and consenting to this Amendment, the Series 2009-1 Noteholders (together with the Series 2009-2 Noteholders and the Series 2010-1 Noteholders constituting the Requisite Investors and the Requisite Indenture Investors), hereby direct the Trustee to consent in writing to this Amendment.

 

3.  Amendments to the HVF Lease .

 

(a) The punctuation mark “.” shall be deleted from the final line of Section 2(b)(vi) of the HVF Lease and replaced with the punctuation mark “;”.

 

(b) The following proviso shall be added as a new paragraph immediately after Section 2(b)(vi) of the HVF Lease and immediately prior to Section 2(c) of the HVF Lease:

 

provided , that, in no event shall any of the foregoing include any right, title or interest in, to or under any Relinquished Property Rights, from the time such Relinquished Property Rights become Relinquished Property Rights as a result of the assignment of the related Relinquished Property and the related Rights with respect to such Relinquished Property to the Intermediary pursuant to the Master Exchange Agreement, unless and until, in the case of Relinquished Property Proceeds, such Relinquished Property Proceeds become Additional Subsidies.”

 

4.  Effectiveness .  This Amendment shall be effective upon delivery of executed signature pages by all parties hereto and satisfaction of the Rating Agency Condition with respect to each Series of Notes Outstanding.

 

5.  Reference to and Effect on the HVF Lease; Ratification.

 

(a) Except as specifically amended above, the HVF Lease is and shall continue to be in full force and effect and is 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 HVF Lease, or constitute a waiver of any provision of any other agreement.

 

(c) Upon the effectiveness hereof, each reference in the HVF Lease to “HVF Lease”, “hereto”, “hereunder”, “hereof” or words of like import referring to the HVF Lease, and each reference in any other Related Document to “the HVF Lease”, “thereto”, “thereof”,

 

2



 

“thereunder” or words of like import referring to the HVF Lease, shall mean and be a reference to the HVF Lease as amended hereby.

 

6.  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.

 

7.  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.

 

8.  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.

 

9.  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.

 

10.  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.

 

3



 

IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed by their respective officers hereunto duly authorized as of the day and year first above written.

 

 

THE HERTZ CORPORATION

 

 

 

 

By:

/s/ Scott Massengill

 

 

Name:   Scott Massengill

 

 

Title:    Treasurer

 

 

 

HERTZ VEHICLE FINANCING LLC

 

 

 

 

By:

/s/ Scott Massengill

 

 

Name:  Scott Massengill

 

 

Title:   Vice President & Treasurer

 

4



 

ACKNOWLEDGED AND AGREED

 

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

 

By:

/s/ John D. Ask

 

Name:    John D. Ask

 

Title:      Senior Associate

 

 

5



 

ACKNOWLEDGED AND AGREED

 

SARATOGA FUNDING CORP., LLC,
as a Conduit Investor

 

By:

/s/ Mary L. Brady

 

 

Name: Mary L. Brady

 

 

Title: Vice President

 

 

 

 

 

DEUTSCHE BANK AG, NEW YORK BRANCH,
as a Funding Agent

 

 

 

By:

/s/ Robert Sheldon

 

 

Name: Robert Sheldon

 

 

Title: Managing Director

 

 

 

By:

/s/ Ozan Kaya

 

 

Name: Ozan Kaya

 

 

Title: Vice President

 

 

 

 

 

DEUTSCHE BANK AG, NEW YORK BRANCH,
as a Committed Note Purchaser

 

 

 

By:

/s/ Robert Sheldon

 

 

Name: Robert Sheldon

 

 

Title: Managing Director

 

 

 

By:

/s/ Ozan Kaya

 

 

Name: Ozan Kaya

 

 

Title: Vice President

 

 

6



 

ACKNOWLEDGED AND AGREED

 

BANK OF AMERICA, N.A.,
as a Funding Agent

 

By:

/s/ Jeremy Grubb

 

 

Name: Jeremy Grubb

 

 

Title: Vice President

 

 

 

 

 

BANK OF AMERICA, N.A.,

 

as a Committed Note Purchaser

 

 

 

By:

/s/ Jeremy Grubb

 

 

Name: Jeremy Grubb

 

 

Title: Vice President

 

 



 

ACKNOWLEDGED AND AGREED

 

LIBERTY STREET FUNDING LLC,
as a Conduit Investor

 

By:

/s/ Jill A. Russo

 

 

Name: Jill A. Russo

 

 

Title: Vice President

 

 

 

 

 

THE BANK OF NOVA SCOTIA, acting through its New York Agency,

as a Funding Agent

 

 

 

By:

/s/ Darren Ward

 

 

Name: Darren Ward

 

 

Title: Director

 

 

 

 

 

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

 

 



 

ACKNOWLEDGED AND AGREED

 

SHEFFIELD RECEIVABLES CORPORATION,
as a Conduit Investor

 

By: BARCLAYS BANK PLC,

 

as Attorney-in-Fact

 

 

 

By:

/s/ John McCarthy

 

 

Name: John McCarthy

 

 

Title: Vice President

 

 

 

 

 

BARCLAYS BANK PLC,

 

as a Funding Agent

 

 

 

By:

/s/ Jamie Pratt

 

 

Name: Jamie Pratt

 

 

Title: Director

 

 

 

 

 

SHEFFIELD RECEIVABLES CORPORATION,

 

as a Committed Note Purchaser

 

 

 

By: BARCLAYS BANK PLC,

 

as Attorney-in-Fact

 

 

 

By:

/s/ John McCarthy

 

 

Name: John McCarthy

 

 

Title: Vice President

 

 



 

ACKNOWLEDGED AND AGREED

 

FAIRWAY FINANCE COMPANY LLC,
as a Conduit Investor

 

By:

/s/ Mary L. Brady

 

 

Name: Mary L. Brady

 

 

Title: Vice President

 

 

 

 

 

BMO CAPITAL MARKETS CORP.,

 

as a Funding Agent

 

 

 

By:

/s/ Keith J. Niebrugge

 

 

Name: Keith J. Niebrugge

 

 

Title: Managing Director

 

 

 

 

 

BANK OF MONTREAL,

 

as a Committed Note Purchaser

 

 

 

By:

/s/ Brian Zaban

 

 

Name: Brian Zaban

 

 

Title: Managing Director

 

 



 

ACKNOWLEDGED AND AGREED

 

ATLANTIC ASSET SECURITIZATION LLC,
as a Conduit Investor

 

By: CREDIT AGRICOLE CORPORATE AND INVESTMENT BANK,

as Attorney-in-Fact

 

By:

/s/ Sam Pilcer

 

 

Name: Sam Pilcer

 

 

Title: Managing Director

 

 

 

By:

/s/ Kostantina Kourmpetis

 

 

Name: Kostantina Kourmpetis

 

 

Title: Managing Director

 

 

 

CREDIT AGRICOLE CORPORATE AND INVESTMENT BANK,

as a Funding Agent

 

 

 

By:

/s/ Sam Pilcer

 

 

Name: Sam Pilcer

 

 

Title: Managing Director

 

 

 

By:

/s/ Kostantina Kourmpetis

 

 

Name: Kostantina Kourmpetis

 

 

Title: Managing Director

 

 

 

CREDIT AGRICOLE CORPORATE AND INVESTMENT BANK,

as a Committed Note Purchaser

 

 

 

By:

/s/ Sam Pilcer

 

 

Name: Sam Pilcer

 

 

Title: Managing Director

 

 

 

By:

/s/ Kostantina Kourmpetis

 

 

Name: Kostantina Kourmpetis

 

 

Title: Managing Director

 

 



 

ACKNOWLEDGED AND AGREED

 

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

 

 

 

 

 

ING CAPITAL MARKETS, LLC,

 

as a Funding Agent

 

 

 

By:

/s/ Leonard Y.K. Woo, Jr.

 

 

Name: Leonard Y.K. Woo, Jr.

 

 

Title: Director

 

 

 

 

 

ING BANK N.V. (DUBLIN BRANCH),

 

as a Committed Note Purchaser

 

 

 

By:

/s/ Aidan Neill

 

 

Name: Aidan Neill

 

 

Title: Director

 

 

 

By:

/s/ David Rea

 

 

Name: David Rea

 

 

Title: Vice President

 

 



 

ACKNOWLEDGED AND AGREED

 

JUPITER SECURITIZATION COMPANY LLC,
as a Conduit Investor

 

By: JPMORGAN CHASE BANK, N.A.,

 

as Attorney-in-Fact

 

 

 

By:

/s/ Laura V. Chittick

 

 

Name: Laura V. Chittick

 

 

Title: Vice President

 

 

 

 

 

JPMORGAN CHASE BANK, N.A.,

 

as a Funding Agent

 

 

 

By:

/s/ Laura V. Chittick

 

 

Name: Laura V. Chittick

 

 

Title: Vice President

 

 

 

 

 

JPMORGAN CHASE BANK, N.A.,

 

as a Committed Note Purchaser

 

 

 

By:

/s/ Laura V. Chittick

 

 

Name: Laura V. Chittick

 

 

Title: Vice President

 

 



 

ACKNOWLEDGED AND AGREED

 

VERSAILLES ASSETS LLC,
as a Conduit Investor

 

By: GLOBAL SECURITIZATION SERVICES, LLC,

 

its Manager

 

 

 

By:

/s/ Bernard J. Angelo

 

 

Name: Bernard J. Angelo

 

 

Title: Senior Vice President

 

 

 

 

 

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, Senior Counsel

 

 

 

 

 

VERSAILLES ASSETS LLC,

 

as a Committed Note Purchaser

 

 

 

By: GLOBAL SECURITIZATION SERVICES, LLC,

 

its Manager

 

 

 

By:

/s/ Bernard J. Angelo

 

 

Name: Bernard J. Angelo

 

 

Title: Senior Vice President

 

 



 

ACKNOWLEDGED AND AGREED

 

AMSTERDAM FUNDING CORPORATION,
as a Conduit Investor

 

By:

/s/ Jill A. Russo

 

 

Name: Jill A. Russo

 

 

Title: Vice President

 

 

 

 

 

THE ROYAL BANK OF SCOTLAND PLC,

 

as a Funding Agent

 

 

 

BY: RBS SECURITIES INC., as agent

 

 

 

By:

/s/ David Viney

 

 

Name: David Viney

 

 

Title: Managing Director

 

 

 

 

 

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

 

 




Exhibit 4.6.6

 

AMENDMENT NO. 1 (this “ Amendment ”), dated as of December  21, 2010, to the SECOND AMENDED AND RESTATED PURCHASE AND SALE AGREEMENT, dated as of September 18, 2009 (the “ Purchase Agreement ”), among THE HERTZ CORPORATION, a Delaware corporation (“ Hertz ”), HERTZ VEHICLE FINANCING LLC, a special purpose limited liability company established under the laws of Delaware (“ HVF ”), and HERTZ GENERAL INTEREST LLC, a Delaware limited liability company (“ HGI ”).

 

WITNESSETH :

 

WHEREAS, HVF, HGI and Hertz wish to amend the Purchase Agreement as herein set forth;

 

WHEREAS, Section 8.08 of the Purchase Agreement permits amendments to the Purchase Agreement to be effected, subject to certain conditions set forth therein;

 

WHEREAS, Section 8.7(b) of the 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. (the “ Trustee ” or “ BNYM ”) (as amended, modified or supplemented as of the date hereof, exclusive of Series Supplements, the “ Base Indenture ”) permits HVF to enter into certain amendments to the Related Documents, subject to certain conditions set forth therein;

 

WHEREAS, pursuant to Section 6.19 of the Amended and Restated Series 2009-2 Supplement to the Base Indenture, dated as of June 18, 2010, between HVF and the Trustee (as amended, modified or supplemented as of the date hereof, the “ Series 2009-2 Supplement ”), the Series 2009-2 Noteholders (as defined in the Series 2009-2 Supplement) are deemed to have agreed and consented to the execution of this Amendment;

 

WHEREAS, pursuant to Section 6.1 2 of the Series 2010-1 Supplement to the Base Indenture, dated as of July 22, 2010, between HVF and the Trustee (as amended, modified or supplemented as of the date hereof, the “ Series 2010-1 Supplement ”), the Series 2010-1 Noteholders (as defined in the Series 2010-1 Supplement) are deemed to have agreed and consented to the execution of this Amendment; and

 

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 .  All capitalized terms not otherwise defined herein shall have the meanings assigned thereto in the Purchase Agreement or, if not defined therein, the Base Indenture or, if not defined in the Purchase Agreement or the Base Indenture, the applicable Series Supplement.  Reference is made herein to the Amended and Restated Series 2009-1 Supplement to the Base Indenture, dated as of December 16, 2010, between HVF and the Trustee (as further amended, modified or supplemented as of the date hereof, the “ Series 20 09-1 Supplement ”) and the Series 2010-2 Supplement to the Base Indenture, dated as of December 16, 2010, between HVF and the Trustee (as amended, modified or supplemented as of the date hereof, the “ Series 20 10-2

 



 

Supplement ”, together with the Series 2009-1 Supplement, the Series 2009-2 Supplement and the Series 2010-1 Supplement, the “ Series Supplements ” or each a “ Series Supplement ”).

 

2.  Trustee Direction and Consent .  Pursuant to Section 6.19 of the Series 2009-2 Supplement and Section 6. 12 of the Series 2010-1 Supplement, the Series 2009-2 Noteholders and the Series 2010-1 Noteholders, respectively, are deemed to have directed the Trustee to enter into this Amendment and, by agreeing, acknowledging and consenting to this Amendment, the Series 20 09-1 Noteholders and the Series 2010-2 Noteholders (together with the Series 2009-2 Noteholders and the Series 2010-1 Noteholders constituting the Requisite Investors and the Requisite Indenture Investors), hereby direct the Trustee to consent in writing to this Amendment.

 

3.  Amendments to the Purchase Agreement .

 

(a) The phrase “HVF Vehicle Termination Event (as such term is defined in Section 6.01 )” shall be deleted in its entirety from Section 2.02(a)(ii) of the Purchase Agreement and shall be replaced with the phrase “Event of Termination (as such term is defined in Section 6.01 ) relating to the HVF Vehicles”.

 

(b) The phrase “HVF Segregated Vehicle Termination Event (as such term is defined in Section 6.01 ) with respect to such Segregated Series” shall be deleted in its entirety from Section 2.02(a)(iii) of the Purchase Agreement and shall be replaced with the phrase “Event of Termination (as such term is defined in Section 6.01 ) relating to the HVF Segregated Vehicles pledged as Series-Specific Collateral for such Segregated Series”.

 

(c) The phrase “HVF Segregated Vehicle Termination Event” in Section 4.01(f) shall be deleted in its entirety from Section 4.01(f) of the Purchase Agreement and shall be replaced with the phrase “Event of Termination”.

 

(d) The phrase “with respect to each Series of Notes Outstanding” shall be added immediately after the phrase “With respect to the HVF Vehicles, an Amortization Event occurs” where it appears in Section 6.01(h) of the Purchase Agreement.

 

4.  Effectiveness .  This Amendment shall be effective upon delivery of executed signature pages by all parties hereto and satisfaction of the Rating Agency Condition with respect to each Series of Indenture Notes Outstanding.

 

5.  Reference to and Effect on the Purchase Agreement; Ratification .

 

(a) Except as specifically amended above, the Purchase Agreement is and shall continue to be in full force and effect and is 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 Purchase Agreement, or constitute a waiver of any provision of any other agreement.

 

2



 

(c) Upon the effectiveness hereof, each reference in the Purchase Agreement to “Purchase Agreement”, “hereto”, “hereunder”, “hereof” or words of like import referring to the Purchase Agreement, and each reference in any other Related Document to “the Purchase Agreement”, “thereto”, “thereof”, “thereunder” or words of like import referring to the Purchase Agreement, shall mean and be a reference to the Purchase Agreement as amended hereby.

 

6.  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.

 

7.  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.

 

8.  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.

 

9.  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.

 

10.  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.

 

3



 

IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed by their respective officers hereunto duly authorized as of the day and year first above written.

 

 

THE HERTZ CORPORATION

 

 

 

 

by:

/s/ Scott Massengill

 

 

Name: Scott Massengill

 

 

Title: Treasurer

 

 

 

 

HERTZ VEHICLE FINANCING LLC

 

 

 

 

by:

/s/ Scott Massengill

 

 

Name: Scott Massengill

 

 

Title: Vice President & Treasurer

 

 

 

 

HERTZ GENERAL INTEREST LLC

 

 

 

 

by:

/s/ Scott Massengill

 

 

Name: Scott Massengill

 

 

Title: Vice President & Treasurer

 

4



 

ACKNOWLEDGED AND AGREED

 

THE BANK OF NEW YORK MELLON

TRUST COMPANY, N.A., as Trustee

 

By:

/s/ John D. Ask

 

 

Name: John D. Ask

 

Title: Senior Associate

 

5



 

ACKNOWLEDGED AND AGREED

 

SARATOGA FUNDING CORP., LLC,

as a Conduit Investor

 

By:

/s/ Mary L. Brady

 

 

Name: Mary L. Brady

 

Title: Vice President

 

 

DEUTSCHE BANK AG, NEW YORK BRANCH,

as a Funding Agent

 

By:

/s/ Robert Sheldon

 

 

Name: Robert Sheldon

 

Title: Managing Director

 

By:

/s/ Ozan Kaya

 

 

Name: Ozan Kaya

 

Title: Vice President

 

 

DEUTSCHE BANK AG, NEW YORK BRANCH,

as a Committed Note Purchaser

 

By:

/s/ Robert Sheldon

 

 

Name: Robert Sheldon

 

Title: Managing Director

 

By:

/s/ Ozan Kaya

 

 

Name: Ozan Kaya

 

Title: Vice President

 

6



 

ACKNOWLEDGED AND AGREED

 

SHEFFIELD RECEIVABLES CORPORATION,

as a Conduit Investor

 

By: BARCLAYS BANK PLC,

as Attorney-in-Fact

 

By:

/s/ John McCarthy

 

 

Name: John McCarthy

 

Title: Vice President

 

 

BARCLAYS BANK PLC,

as a Funding Agent

 

By:

/s/ Jamie Pratt

 

 

Name: Jamie Pratt

 

Title: Director

 

 

SHEFFIELD RECEIVABLES CORPORATION,

as a Committed Note Purchaser

 

By: BARCLAYS BANK PLC,

as Attorney-in-Fact

 

By:

/s/ John McCarthy

 

 

Name: John McCarthy

 

Title: Vice President

 



 

ACKNOWLEDGED AND AGREED

 

FAIRWAY FINANCE COMPANY LLC,

as a Conduit Investor

 

By:

/s/ Mary L. Brady

 

 

Name: Mary L. Brady

 

Title: Vice President

 

 

BMO CAPITAL MARKETS CORP.,

as a Funding Agent

 

By:

/s/ Keith J. Niebrugge

 

 

Name: Keith J. Niebrugge

 

Title: Managing Director

 

 

BANK OF MONTREAL,

as a Committed Note Purchaser

 

By:

/s/ Brian Zaban

 

 

Name: Brian Zaban

 

Title: Managing Director

 



 

ACKNOWLEDGED AND AGREED

 

LIBERTY STREET FUNDING LLC,

as a Conduit Investor

 

By:

/s/ Jill A. Russo

 

 

Name: Jill A. Russo

 

Title: Vice President

 

 

THE BANK OF NOVA SCOTIA, acting through its New York Agency,

as a Funding Agent

 

By:

/s/ Darren Ward

 

 

Name: Darren Ward

 

Title: Director

 

 

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

 



 

ACKNOWLEDGED AND AGREED

 

BANK OF AMERICA, N.A.,

as a Funding Agent

 

By:

/s/ Jeremy Grubb

 

 

Name: Jeremy Grubb

 

Title: Vice President

 

 

BANK OF AMERICA, N.A.,

as a Committed Note Purchaser

 

By:

/s/ Jeremy Grubb

 

 

Name: Jeremy Grubb

 

Title: Vice President

 



 

ACKNOWLEDGED AND AGREED

 

ATLANTIC ASSET SECURITIZATION LLC,

as a Conduit Investor

 

By: CREDIT AGRICOLE CORPORATE AND INVESTMENT BANK,

as Attorney-in-Fact

 

By:

/s/ Sam Pilcer

 

 

Name: Sam Pilcer

 

Title: Managing Director

 

By:

/s/ Kostantina Kourmpetis

 

 

Name: Kostantina Kourmpetis

 

Title: Managing Director

 

CREDIT AGRICOLE CORPORATE AND INVESTMENT BANK,

as a Funding Agent

 

By:

/s/ Sam Pilcer

 

 

Name: Sam Pilcer

 

Title: Managing Director

 

By:

/s/ Kostantina Kourmpetis

 

 

Name: Kostantina Kourmpetis

 

Title: Managing Director

 

CREDIT AGRICOLE CORPORATE AND INVESTMENT BANK,

as a Committed Note Purchaser

 

By:

/s/ Sam Pilcer

 

 

Name: Sam Pilcer

 

Title: Managing Director

 

By:

/s/ Kostantina Kourmpetis

 

 

Name: Kostantina Kourmpetis

 

Title: Managing Director

 



 

ACKNOWLEDGED AND AGREED

 

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

 

 

ING CAPITAL MARKETS, LLC,

as a Funding Agent

 

By:

/s/ Leonard Y.K. Woo, Jr.

 

 

Name: Leonard Y.K. Woo, Jr.

 

Title: Director

 

 

ING BANK N.V. (DUBLIN BRANCH),

as a Committed Note Purchaser

 

By:

/s/ Aidan Neill

 

 

Name: Aidan Neill

 

Title: Director

 

By:

/s/ David Rea

 

 

Name: David Rea

 

Title: Vice President

 



 

ACKNOWLEDGED AND AGREED

 

JUPITER SECURITIZATION COMPANY LLC,

as a Conduit Investor

 

By: JPMORGAN CHASE BANK, N.A.,

as Attorney-in-Fact

 

By:

/s/ Laura V. Chittick

 

 

Name: Laura V. Chittick

 

Title: Vice President

 

 

JPMORGAN CHASE BANK, N.A.,

as a Funding Agent

 

By:

/s/ Laura V. Chittick

 

 

Name: Laura V. Chittick

 

Title: Vice President

 

 

JPMORGAN CHASE BANK, N.A.,

as a Committed Note Purchaser

 

By:

/s/ Laura V. Chittick

 

 

Name: Laura V. Chittick

 

Title: Vice President

 



 

ACKNOWLEDGED AND AGREED

 

VERSAILLES ASSETS LLC,

as a Conduit Investor

 

By: GLOBAL SECURITIZATION SERVICES, LLC,

its Manager

 

By:

/s/ Bernard J. Angelo

 

 

Name: Bernard J. Angelo

 

Title: Senior Vice President

 

 

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, Senior Counsel

 

 

VERSAILLES ASSETS LLC,

as a Committed Note Purchaser

 

By: GLOBAL SECURITIZATION SERVICES, LLC,

its Manager

 

By:

/s/ Bernard J. Angelo

 

 

Name: Bernard J. Angelo

 

Title: Senior Vice President

 



 

ACKNOWLEDGED AND AGREED

 

AMSTERDAM FUNDING CORPORATION,

as a Conduit Investor

 

By:

/s/ Jill A. Russo

 

 

Name: Jill A. Russo

 

Title: Vice President

 

 

THE ROYAL BANK OF SCOTLAND PLC,

as a Funding Agent

 

BY: RBS SECURITIES INC., as agent

 

By:

/s/ David Viney

 

 

Name: David Viney

 

Title: Managing Director

 

 

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

 




Exhibit 4.6.8

 

AMENDMENT NO. 1 (this “ Amendment ”) dated as of December 21 , 2010, to the THIRD AMENDED AND RESTATED COLLATERAL AGENCY AGREEMENT, dated as of September 18, 2009 (the “ Collateral Agency Agreement ”), among THE HERTZ CORPORATION, a Delaware corporation (“ Hertz ”), in its capacity as secured party (the “ Hertz Secured Party ”) and in its capacity as servicer (the “ Servicer ”), HERTZ VEHICLE FINANCING LLC, a special purpose limited liability company established under the laws of Delaware (“ HVF ”), in its capacity as grantor (the “ HVF Grantor ”), HERTZ GENERAL INTEREST LLC, a Delaware limited liability company (“ HGI ”), in its capacity as grantor (the “ HGI Grantor ” and, together with the HVF Grantor, the “ Grantors ”) and THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., a national banking association (“ BNYM ”), as a secured party (the “ Trustee Secured Party ” and, together with the Hertz Secured Party, the “ Secured Parties ”) in its capacity as trustee (the “ Trustee ”) and as the collateral agent (the “ Collateral Agent ”).

 

WITNESSETH :

 

WHEREAS, HVF, HGI, Hertz and BNYM wish to amend the Collateral Agency Agreement as herein set forth.

 

WHEREAS, Section 6.1 of the Collateral Agency Agreement permits certain amendments to the Collateral Agency Agreement to be effected pursuant to a writing executed by the Collateral Agent, each Secured Party, each Grantor and the Servicer, subject to certain conditions set forth therein;

 

WHEREAS, Section 8.7(b) of the Third Amended and Restated Base Indenture, dated as of September 18, 2009, between HVF and the BNYM (as amended, modified or supplemented as of the date hereof, exclusive of Series Supplements, the “ Base Indenture ”) permits HVF to enter into certain amendments to the Related Documents, subject to certain conditions set forth therein;

 

WHEREAS, pursuant to Section 6.19 of the Amended and Restated Series 2009-2 Supplement to the Base Indenture, dated as of June 18, 2010, between HVF and the Trustee (as amended, modified or supplemented as of the date hereof, the “ Series 2009-2 Supplement ”), the Series 2009-2 Noteholders (as defined in the Series 2009-2 Supplement) are deemed to have agreed and consented to the execution of this Amendment;

 

WHEREAS, pursuant to Section 6.1 2 of the Series 2010-1 Supplement to the Base Indenture, dated as of July 22, 2010, between HVF and the Trustee (as amended, modified or supplemented as of the date hereof, the “ Series 2010-1 Supplement ”), the Series 2010-1 Noteholders (as defined in the Series 2010-1 Supplement) are deemed to have agreed and consented to the execution of this Amendment; and

 

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 .  All capitalized terms not otherwise defined herein shall have the meanings assigned thereto in the Collateral Agency Agreement or, if not defined therein, the Base Indenture or the applicable Series Supplement.  Reference is made herein to the Amended and Restated Series 2009-1 Supplement to the Base Indenture, dated as of December 16, 2010, between HVF and the Trustee (as further amended, modified or supplemented as of the date hereof, the “ Series 20 09-1 Supplement ”) and the Series 2010-2 Supplement to the Base Indenture, dated as of December 16, 2010, between HVF and the Trustee (as amended, modified or supplemented as of the date hereof, the “ Series 20 10-2 Supplement ”, together with the Series 2009-1 Supplement, the Series 2009-2 Supplement and the Series 2010-1 Supplement, the “ Series Supplements ” or each a “ Series Supplement ”).

 

2.  Trustee Direction and Consent .  Pursuant to Section 6.19 of the Series 2009-2 Supplement and Section 6. 12 of the Series 2010-1 Supplement, the Series 2009-2 Noteholders and the Series 2010-1 Noteholders, respectively, are deemed to have directed the Trustee to enter into this Amendment and, by agreeing, acknowledging and consenting to this Amendment , the Series 2009-1 Noteholders and the Series 2010-2 Noteholders (together with the Series 2009-2 Noteholders and the Series 2010-1 Noteholders constituting the Requisite Investors and the Requisite Indenture Investors), hereby direct the Trustee to consent in writing to this Amendment.

 

3.  Amendments to the Collateral Agency Agreement .

 

(a) The following proviso shall be added to Section 2.1(a)(ix) of the Collateral Agency Agreement immediately after the punctuation mark “;” appearing at the end of the final line thereof:

 

provided , however, that in the case of any funds held in the Collateral Accounts that constitute and are identifiable as Relinquished Property Proceeds, such funds shall not constitute HVF Vehicle Collateral unless and until such funds are or become Additional Subsidies;”

 

(b) The punctuation mark “.” shall be deleted from the final line of Section 2.1(a)(xi) of the Collateral Agency Agreement and replaced with the punctuation mark “;”.

 

(c) The following proviso shall be added as a new paragraph at the end of Section 2.1(a) of the Collateral Agency Agreement, immediately prior to Section 2.1(b) of the Collateral Agency Agreement:

 

provided , that, in no event shall any of the foregoing include any right, title or interest in, to or under any Relinquished Property Rights, from the time such Relinquished Property Rights become Relinquished Property Rights as a result of the assignment of the related Relinquished Property and the related Rights with respect to such Relinquished Property to the Intermediary pursuant to the Master Exchange Agreement, unless and until, in the case of Relinquished Property Proceeds, such Relinquished Property Proceeds become Additional Subsidies.”

 

2



 

(d) The following proviso shall be added to Section 2.1(b)(vii) of the Collateral Agency Agreement immediately after the punctuation mark “;” appearing at the end of the final line thereof:

 

provided , however, that in the case of any funds held in the Collateral Accounts that constitute and are identifiable as Relinquished Property Proceeds, such funds shall not constitute HVF Segregated Vehicle Collateral unless and until such funds are or become Additional Subsidies;”

 

(e) The punctuation mark “.” shall be deleted from the final line of Section 2.1(b)(ix) of the Collateral Agency Agreement and replaced with the punctuation mark “;”.

 

(f) The following proviso shall be added as a new paragraph at the end of Section 2.1(b) of the Collateral Agency Agreement, immediately prior to Section 2.1(c) of the Collateral Agency Agreement:

 

provided , that, in no event shall any of the foregoing include any right, title or interest in, to or under any Relinquished Property Rights, from the time such Relinquished Property Rights become Relinquished Property Rights as a result of the assignment of the related Relinquished Property and the related Rights with respect to such Relinquished Property to the Intermediary pursuant to the Master Exchange Agreement, unless and until, in the case of Relinquished Property Proceeds, such Relinquished Property Proceeds become Additional Subsidies.”

 

(g) The following proviso shall be added to Section 2.1(c)(vii) of the Collateral Agency Agreement immediately after the punctuation mark “;” appearing at the end of the final line thereof:

 

provided , however, that in the case of any funds held in the Collateral Accounts that constitute and are identifiable as Relinquished Property Proceeds, such funds shall not constitute HGI Vehicle Collateral unless and until such funds are or become Additional Subsidies;”

 

(h) The punctuation mark “.” shall be deleted from the final line of Section 2.1(c)(ix) of the Collateral Agency Agreement and replaced with the punctuation mark “;”.

 

(i) The following proviso shall be added as a new paragraph immediately after Section 2.1(c)(ix) of the Collateral Agency Agreement:

 

provided, that, in no event shall any of the foregoing include any right, title or interest in, to or under any Relinquished Property Rights, from the time such Relinquished Property Rights become Relinquished Property Rights as a result of the assignment of the related Relinquished Property and the related Rights with respect to such Relinquished Property to the

 

3



 

Intermediary pursuant to the Master Exchange Agreement, unless and until, in the case of Relinquished Property Proceeds, such Relinquished Property Proceeds become Additional Subsidies.”

 

4. Effectiveness .  This Amendment shall be effective upon delivery of executed signature pages by all parties hereto and satisfaction of the Rating Agency Condition with respect to each Series of Notes Outstanding.

 

5.  Reference to and Effect on the Collateral Agency Agreement; Ratification .

 

(a) Except as specifically amended above, the Collateral Agency Agreement is and shall continue to be in full force and effect and is 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 Collateral Agency Agreement, or constitute a waiver of any provision of any other agreement.

 

(c) Upon the effectiveness hereof, each reference in the Collateral Agency Agreement to “Collateral Agency Agreement”, “hereto”, “hereunder”, “hereof” or words of like import referring to the Collateral Agency Agreement, and each reference in any other Related Document to “the Collateral Agency Agreement”, “thereto”, “thereof”, “thereunder” or words of like import referring to the Collateral Agency Agreement, shall mean and be a reference to the Collateral Agency Agreement as amended hereby.

 

6.  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.

 

7.  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.

 

8.  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.

 

9.  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.

 

4



 

10.  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.

 

5


 

IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed by their respective officers hereunto duly authorized as of the day and year first above written.

 

 

THE HERTZ CORPORATION

 

 

 

By:

/s/ Scott Massengill

 

 

Name: Scott Massengill

 

 

Title: Treasurer

 

 

 

 

HERTZ VEHICLE FINANCING LLC

 

 

 

 

by:

/s/ Scott Massengill

 

 

Name: Scott Massengill

 

 

Title: Vice President and Treasurer

 

 

 

 

HERTZ GENERAL INTEREST LLC

 

 

 

 

By:

/s/ Scott Massengill

 

 

Name: Scott Massengill

 

 

Title: Vice President and 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

 

 

 

 

 

 

 

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

 

 

 

 

By:

/s/ John D. Ask

 

 

Name: John D. Ask

 

 

Title: Senior Associate

 

6



 

ACKNOWLEDGED AND AGREED

 

 

 

 

 

SARATOGA FUNDING CORP., LLC,
as a Conduit Investor

 

 

 

By:

/s/ Mary L. Brady

 

 

Name: Mary L. Brady

 

 

Title: Vice President

 

 

 

 

 

DEUTSCHE BANK AG, NEW YORK BRANCH,

 

as a Funding Agent

 

 

 

By:

/s/ Robert Sheldon

 

 

Name: Robert Sheldon

 

 

Title: Managing Director

 

 

 

 

By:

/s/ Ozan Kaya

 

 

Name: Ozan Kaya

 

 

Title: Vice President

 

 

 

 

 

 

DEUTSCHE BANK AG, NEW YORK BRANCH,

 

as a Committed Note Purchaser

 

 

 

By:

/s/ Robert Sheldon

 

 

Name: Robert Sheldon

 

 

Title: Managing Director

 

 

 

By:

/s/ Ozan Kaya

 

 

Name: Ozan Kaya

 

 

Title: Vice President

 

 

7



 

ACKNOWLEDGED AND AGREED

 

 

 

BANK OF AMERICA, N.A.,

 

as a Funding Agent

 

 

 

By:

/s/ Jeremy Grubb

 

 

Name: Jeremy Grubb

 

 

Title: Vice President

 

 

 

 

 

 

 

BANK OF AMERICA, N.A.,

 

as a Committed Note Purchaser

 

 

 

By:

/s/ Jeremy Grubb

 

 

Name: Jeremy Grubb

 

 

Title: Vice President

 

 



 

ACKNOWLEDGED AND AGREED

 

 

 

LIBERTY STREET FUNDING LLC,

 

as a Conduit Investor

 

 

 

By:

/s/ Jill A. Russo

 

 

Name: Jill A. Russo

 

 

Title: Vice President

 

 

 

 

 

THE BANK OF NOVA SCOTIA, acting through its New York Agency,

as a Funding Agent

 

 

 

By:

/s/ Darren Ward

 

 

Name: Darren Ward

 

 

Title: Director

 

 

 

 

 

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

 

 



 

ACKNOWLEDGED AND AGREED

 

 

 

SHEFFIELD RECEIVABLES CORPORATION,

 

as a Conduit Investor

 

 

 

By:

BARCLAYS BANK PLC,

 

 

as Attorney-in-Fact

 

 

 

By:

/s/ John McCarthy

 

 

Name: John McCarthy

 

 

Title: Vice President

 

 

 

 

 

BARCLAYS BANK PLC,

 

as a Funding Agent

 

 

 

By:

/s/ Jamie Pratt

 

 

Name: Jamie Pratt

 

 

Title: Director

 

 

 

 

 

 

 

SHEFFIELD RECEIVABLES CORPORATION,

 

as a Committed Note Purchaser

 

 

 

By:

BARCLAYS BANK PLC,

 

 

as Attorney-in-Fact

 

 

 

By:

/s/ John McCarthy

 

 

Name: John McCarthy

 

 

Title: Vice President

 

 



 

ACKNOWLEDGED AND AGREED

 

 

 

FAIRWAY FINANCE COMPANY LLC,

 

as a Conduit Investor

 

 

 

By:

/s/ Mary L. Brady

 

 

Name: Mary L. Brady

 

 

Title: Vice President

 

 

 

 

 

 

 

BMO CAPITAL MARKETS CORP.,

 

as a Funding Agent

 

 

 

By:

/s/ Keith J. Niebrugge

 

 

Name: Keith J. Niebrugge

 

 

Title: Managing Director

 

 

 

 

 

BANK OF MONTREAL,

 

as a Committed Note Purchaser

 

 

 

By:

/s/ Brian Zaban

 

 

Name: Brian Zaban

 

 

Title: Managing Director

 

 



 

ACKNOWLEDGED AND AGREED

 

 

 

ATLANTIC ASSET SECURITIZATION LLC,

 

as a Conduit Investor

 

 

 

By: 

CREDIT AGRICOLE CORPORATE AND INVESTMENT BANK,

 

as Attorney-in-Fact

 

 

 

By:

/s/ Sam Pilcer

 

 

Name: Sam Pilcer

 

 

Title: Managing Director

 

 

 

 

By:

/s/ Kostantina Kourmpetis

 

 

Name: Kostantina Kourmpetis

 

 

Title: Managing Director

 

 

 

CREDIT AGRICOLE CORPORATE AND INVESTMENT BANK,

as a Funding Agent

 

 

 

By:

/s/ Sam Pilcer

 

 

Name: Sam Pilcer

 

 

Title: Managing Director

 

 

 

 

By:

/s/ Kostantina Kourmpetis

 

 

Name: Kostantina Kourmpetis

 

 

Title: Managing Director

 

 

 

CREDIT AGRICOLE CORPORATE AND INVESTMENT BANK,

as a Committed Note Purchaser

 

 

 

By:

/s/ Sam Pilcer

 

 

Name: Sam Pilcer

 

 

Title: Managing Director

 

 

 

 

By:

/s/ Kostantina Kourmpetis

 

 

Name: Kostantina Kourmpetis

 

 

Title: Managing Director

 

 



 

ACKNOWLEDGED AND AGREED

 

 

 

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

 

 

 

 

 

ING CAPITAL MARKETS, LLC,

 

as a Funding Agent

 

 

 

By:

/s/ Leonard Y.K. Woo, Jr.

 

 

Name: Leonard Y.K. Woo, Jr.

 

 

Title: Director

 

 

 

 

 

ING BANK N.V. (DUBLIN BRANCH),

 

as a Committed Note Purchaser

 

 

 

By:

/s/ Aidan Neill

 

 

Name: Aidan Neill

 

 

Title: Director

 

 

 

 

By:

/s/ David Rea

 

 

Name: David Rea

 

 

Title: Vice President

 

 



 

ACKNOWLEDGED AND AGREED

 

 

 

JUPITER SECURITIZATION COMPANY LLC,

 

as a Conduit Investor

 

 

 

By: 

JPMORGAN CHASE BANK, N.A.,

 

 

as Attorney-in-Fact

 

 

 

 

By:

/s/ Laura V. Chittick

 

 

Name: Laura V. Chittick

 

 

Title: Vice President

 

 

 

 

 

JPMORGAN CHASE BANK, N.A.,

 

as a Funding Agent

 

 

 

By:

/s/ Laura V. Chittick

 

 

Name: Laura V. Chittick

 

 

Title: Vice President

 

 

 

 

 

 

JPMORGAN CHASE BANK, N.A.,

 

as a Committed Note Purchaser

 

 

 

By:

/s/ Laura V. Chittick

 

 

Name: Laura V. Chittick

 

 

Title: Vice President

 

 



 

ACKNOWLEDGED AND AGREED

 

 

 

VERSAILLES ASSETS LLC,

 

as a Conduit Investor

 

 

 

By:

GLOBAL SECURITIZATION SERVICES, LLC,

 

 

its Manager

 

 

 

By:

/s/ Bernard J. Angelo

 

 

Name: Bernard J. Angelo

 

 

Title: Senior Vice President

 

 

 

 

 

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, Senior Counsel

 

 

 

 

 

VERSAILLES ASSETS LLC,

 

as a Committed Note Purchaser

 

 

 

By:

GLOBAL SECURITIZATION SERVICES, LLC,

 

 

its Manager

 

 

 

By:

/s/ Bernard J. Angelo

 

 

Name: Bernard J. Angelo

 

 

Title: Senior Vice President

 

 



 

ACKNOWLEDGED AND AGREED

 

 

 

AMSTERDAM FUNDING CORPORATION,

 

as a Conduit Investor

 

 

 

By:

/s/ Jill A. Russo

 

 

Name: Jill A. Russo

 

 

Title: Vice President

 

 

 

 

 

THE ROYAL BANK OF SCOTLAND PLC,

 

as a Funding Agent

 

 

 

BY:

RBS SECURITIES INC., as agent

 

 

 

By:

/s/ David Viney

 

 

Name: David Viney

 

 

Title: Managing Director

 

 

 

 

 

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

 

 


 



Exhibit 4.7.1

 

EXECUTION COPY

 

HERTZ VEHICLE FINANCING LLC,

 

as Issuer

 

and

 

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

 

as Trustee and Securities Intermediary

 


 

AMENDED AND RESTATED SERIES 2009-1 SUPPLEMENT

 

dated as of December 16, 2010

 

to

 

THIRD AMENDED AND RESTATED
BASE INDENTURE

 

dated as of September 18, 2009

 


 

$1,938,072,755 Series 2009-1 Variable Funding Rental Car Asset Backed Notes



 

TABLE OF CONTENTS

 

 

 

 

 

Page

 

 

 

 

 

ARTICLE I

DEFINITIONS

2

 

 

 

 

 

ARTICLE II

INITIAL ISSUANCE AND INCREASES AND DECREASES OF PRINCIPAL AMOUNT OF SERIES 2009-1 NOTES

42

 

 

 

 

 

 

Section 2.1.

 

Initial Issuance; Procedure for Increasing the Series 2009-1 Principal Amount

42

 

 

 

 

 

 

Section 2.2.

 

Procedure for Decreasing the Series 2009-1 Principal Amount

44

 

 

 

 

 

 

Section 2.3.

 

Procedure for Amending and Restating the Initial Series 2009-1 Notes

46

 

 

 

 

 

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

56

 

 

 

 

 

 

Section 3.6.

 

Payment by Wire Transfer

62

 

 

 

 

 

 

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

73

 

 

 

 

 

ARTICLE IV

AMORTIZATION EVENTS

73

 

 

 

 

 

ARTICLE V

FORM OF SERIES 2009-1 NOTES

78

 

 

 

 

 

 

Section 5.1.

 

Issuance of Series 2009-1 Notes

78

 

 

 

 

 

 

Section 5.2.

 

Transfer of Series 2009-1 Notes

79

 

i



 

TABLE OF CONTENTS

(continued)

 

 

 

 

 

Page

 

 

 

 

 

ARTICLE VI

GENERAL

80

 

 

 

 

 

 

Section 6.1.

 

Optional Redemption of Series 2009-1 Notes

80

 

 

 

 

 

 

Section 6.2.

 

Information

81

 

 

 

 

 

 

Section 6.3.

 

Exhibits

84

 

 

 

 

 

 

Section 6.4.

 

Ratification of Base Indenture

84

 

 

 

 

 

 

Section 6.5.

 

Notice to the Rating Agencies

84

 

 

 

 

 

 

Section 6.6.

 

Third Party Beneficiary

84

 

 

 

 

 

 

Section 6.7.

 

Counterparts

85

 

 

 

 

 

 

Section 6.8.

 

Governing Law

85

 

 

 

 

 

 

Section 6.9.

 

Amendments

85

 

 

 

 

 

 

Section 6.10.

 

Covenant Regarding Affiliate Issuers

85

 

 

 

 

 

 

Section 6.11.

 

Termination of Series Supplement

85

 

 

 

 

 

 

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:

Form of Monthly 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

 

Exhibit I:

Maximum Manufacturer Amounts

 

Exhibit J:

Additional UCC Representations

 

 

iii



 

AMENDED AND RESTATED SERIES 2009-1 SUPPLEMENT dated as of December 16, 2010 (“ 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., 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.

 

WHEREAS, HVF and the Trustee entered into the Series 2009-1 Supplement, dated as of September 18, 2009 (the “ Prior Series 2009-1 Supplement ”);

 

WHEREAS, Section 6.9 of the Prior Series 2009-1 Supplement permits HVF to make amendments to the Prior Series 2009-1 Supplement subject to certain conditions set forth therein;

 

WHEREAS, HVF and the Trustee, in accordance with Section 6.9 of the Prior Series 2009-1 Supplement, desire to amend and restate the Prior Series 2009-1 Supplement on the date hereof in its entirety as set forth herein.

 

NOW, THEREFORE, the parties hereto agree as follows:

 

DESIGNATION

 

There was created a Series of Notes issued pursuant to the Base Indenture and the Prior Series 2009-1 Supplement and such Series of Notes was 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 were issued in a principal amount equal to the Series 2009-1 Initial Principal Amount, and be referred to herein as the “ Series 2009-1 Notes ”. HVF can on any Business Day during the Series 2009-1 Revolving Period increase the Series 2009-1 Principal Amount or issue Additional Series 2009-1 Notes.

 

The net proceeds from any Increase or sale of Additional Series 2009-1 Notes shall be deposited in the Series 2009-1 Excess Collection Account and paid to HVF and used (i) to acquire Eligible Vehicles from HGI pursuant to the Purchase Agreement or (ii) 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 or the Series 2009-1 Note Purchase Agreement, the meaning given to such term herein shall apply for purposes of the Series 2009-1 Supplement.  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 Indenture 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 Investor Group Initial Principal Amount ” has the meaning specified in the Series 2009-1 Note Purchase Agreement.

 

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.

 

2



 

Administrator Default ” means any of the events described in Section 8(c)  of the Administration Agreement.

 

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.

 

Amendment and Rebalancing ” has the meaning specified in Section 2.3 of this Series Supplement.

 

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/Lexus/Mercedes/Audi Group ” means the group of Manufacturers comprised of BMW, Lexus, Mercedes and Audi which has a Series 2009-1 Manufacturer Percentage specified in Column B of Exhibit I hereto.

 

3



 

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%.

 

Carlyle ” means TC Group L.L.C. (which operates under the trade name The Carlyle Group) or any successor thereof.

 

Carlyle Investors ” means the collective reference to (a) Carlyle Partners IV, L.P., a Delaware limited partnership or any successor thereto, (b) CEP II Participations S.àr.l., a Luxembourg limited liability company or any successor thereto, (c) CP IV Co-investment L.P., a Delaware limited partnership or any successor thereto, (d) CEP II U.S. Investments, L.P., a Delaware limited partnership, or any successor thereto, (e) CMC-Hertz Partners, L.P., a Delaware limited partnership, or any successor thereto, and (f) 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.

 

4



 

Category 1 Manufacturer Non-Eligible Program Vehicle Amount ” means, as of any date of determination, the sum of the Manufacturer Non-Eligible Program Vehicle Amounts for all Category 1 Manufacturers as of such date.

 

Category 1 Manufacturer Non-Eligible Program Vehicle Percentage ” means, as of any date of determination, the percentage equivalent of a fraction, the numerator of which is the Category 1 Manufacturer Non-Eligible Program Vehicle Amount as of such date and the denominator of which is the excess of (A) the Aggregate Asset Amount over (B) the amount of cash and Permitted Investments on deposit in the Collection Account and the HVF Exchange Account, in each case, as of such date.

 

Category 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.

 

5



 

Category 2 Manufacturer Non-Eligible Program Vehicle Amount ” means, as of any date of determination, the sum of the Manufacturer Non-Eligible Program Vehicle Amounts for all Category 2 Manufacturers as of such date.

 

Category 2 Manufacturer Non-Eligible Program Vehicle Percentage ” means, as of any date of determination, the percentage equivalent of a fraction, the numerator of which is the Category 2 Manufacturer Non-Eligible Program Vehicle Amount as of such date and the denominator of which is the excess of (A) the Aggregate Asset Amount over (B) the amount of cash and Permitted Investments on deposit in the Collection Account and the HVF Exchange Account, in each case, as of such date.

 

Category 2 Manufacturer 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, LLC and any successor in interest thereto, and any successor to its investment management business.

 

CD&R Investors ”  means the collective reference to (i) Clayton, Dubilier & Rice Fund VII, L.P., a Cayman Islands exempted limited partnership or any successor thereto, (ii) CD&R CCMG Co-Investor L.P., a Cayman Islands exempted limited partnership, or any successor thereto, (iii) CD&R Parallel Fund VII, L.P., a Cayman Islands exempted limited partnership or any successor thereto, and (iv) any Affiliate of any thereof.

 

Change of Control ”  means the occurrence of any of the following events:  ( a ) (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 shares of Voting Stock having less than 35% of the total voting power of all outstanding shares of the Relevant Parent Entity and ( y ) any “person” or “group” (as such terms are used in Sections 13(d)

 

6


 

and 14(d) of the Exchange Act), other than one or more Permitted Holders or a Parent Entity, shall be the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act) of shares of Voting Stock having more than 35% of the total voting power of all outstanding shares of the Relevant Parent Entity, ( b ) the Continuing Directors shall cease to constitute a majority of the members of the board of directors of Hertz or ( c ) Hertz shall cease to own directly 100% of the Capital Stock of HVF.

 

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 relating to the Vehicles 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 relating to the Vehicles 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 relating to the Vehicles 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 relating to the Vehicles 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 Hertz on the Series 2009-1 Closing Date and each other director whose election or nomination for election to the board of directors of Hertz is recommended by at least a majority of the then Continuing Directors or is approved by one or more Permitted Holders.

 

Credit Support Annex ” has the meaning set forth in Section 3.12(b)  of this Series Supplement.

 

Decrease ” means a Mandatory Decrease or a Voluntary Decrease, as applicable.

 

7



 

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 Manufacturer ” means (a) an “Eligible Manufacturer” as defined in the Definitions List attached to the Base Indenture as Schedule I thereto and (b) Fiat, Mini and Smart.

 

Eligible Program Manufacturer ” means (a) an “Eligible Program Manufacturer” as defined in the Definitions List attached to the Base Indenture as Schedule I thereto and (b) Fiat, Mini and Smart.

 

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, plus (vi) with respect to Eligible Vehicles that were Eligible

 

8



 

Program Vehicles sold by HVF to a third party pursuant to Section 2.5(a) of the HVF Lease, any non-return incentives payable to HVF under a Manufacturer Program by an Eligible Program Manufacturer in respect of the sale of such Vehicles outside of the related Manufacturer Program as of such date, plus (vii) if such date is during the period from and including a Determination Date to but excluding the next Payment Date, accrued and unpaid Monthly Base Rent payable on the next Payment Date with respect to all Eligible Vehicles that are Eligible Program Vehicles as of such date and that have not been turned in to and accepted by the Manufacturer thereof pursuant to its Manufacturer Program, not been delivered and accepted for Auction pursuant to a Manufacturer Program and not otherwise been sold or deemed to be sold under the Related Documents.

 

Equity Investors ” means the collective reference to (a) the CD&R Investors, the Carlyle Investors and the Merrill Lynch Investors and (b) any Person that acquired Voting Stock of Holdings on or prior to December 21, 2005, and any Affiliate of such Person.

 

Estimated Interest ” has the meaning specified in Section 3.3(a)  of this Series Supplement.

 

Estimated Interest Adjustment Amount ” means, with respect to any Determination Date, the result (whether a positive or negative number) of (i) the actual amount of Series 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 2009-2 Notes and the Series 2010-1 Notes.

 

Existing Series Supplement ” means each of the Series 2009-2 Supplement and the Series 2010-1 Supplement.

 

9



 

Expected Final Payment Date ” means March 25, 2013.

 

Fiat ” means a Person designated by HVF and organized under the laws of the United States of America that distributes automobiles manufactured under the brand “Fiat”.

 

Financial Assets ” has the meaning specified in Section 3.11(b)(i)  of this Series Supplement.

 

Group of Manufacturers ” means the BMW/Lexus/Mercedes/Audi Group and/or the Kia/Subaru/Hyundai Group as the context may require.

 

Holdings ” means Hertz Global Holdings, Inc.

 

HVF Service Vehicle Amount ” means, as of any date of determination, an amount equal to the sum of the Manufacturer Non-Eligible Vehicle Amount and the Manufacturer Eligible Program Vehicle Amount, in each case, with respect to HVF Service Vehicles as of such date.

 

HVF Service Vehicles ” means, an HVF Vehicle used by Hertz’s employees, or to the extent permitted under the HVF Lease, employees of Hertz Equipment Rental Corporation.

 

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 (other than any such operating expenses that relate solely to any Segregated Series).

 

Ineligible Receivable Applicable Manufacturer Receivables ” means, as of any date of determination, the portion of the Ineligible Receivable Manufacturer Receivable Amount that does not constitute a portion of the Ineligible Non-Investment Grade Manufacturer Receivable Amount as of such date.

 

“Ineligible Receivable Manufacturer ” means a Manufacturer that is a Category 2 Manufacturer, a Category 3 Manufacturer or a Bankrupt Manufacturer.

 

10



 

Ineligible Receivable Manufacturer Receivable Adjusted Amount ” means, as of any date of determination, the excess of (a) the Ineligible Receivable Manufacturer Receivable Amount over (b) the Ineligible Receivable Manufacturer Receivable Adjustment Total, in each case as of such date of determination.

 

“Ineligible Receivable Manufacturer Receivable Adjustment ” means, as of any date of determination, for each Manufacturer that is an Ineligible Receivable Manufacturer but not a Non-Investment Grade Manufacturer, the sum of (I) the product of (a) the Series 2009-1 Manufacturer Excess with respect to such Manufacturer and (b) the quotient of (i) the Ineligible Receivable Manufacturer Receivable Amount with respect to such Manufacturer divided by (ii) the Series 2009-1 Manufacturer Amount for such Manufacturer and (II) in the event such Manufacturer is part of a Group of Manufacturers, the product of (a) the Series 2009-1 Manufacturer Excess with respect to such Group of Manufacturers, (b) the Series 2009-1 Manufacturer Ineligible Receivable Group Proportion with respect to such Manufacturer and (c) the quotient of (i) the Ineligible Receivable Manufacturer Receivable Amount with respect to such Manufacturer divided by (ii) the Series 2009-1 Manufacturer Amount for such Manufacturer, in each case as of such date of determination.

 

Ineligible Receivable Manufacturer Receivable Adjustment Total ” means, as of any date of determination, the sum of (i) the aggregate Ineligible Receivable Manufacturer Receivable Adjustment for all Manufacturers and (ii) the product of (a) the amount determined pursuant to clause (ii)(B)(2)  of the definition of “Series 2009-1 Required Incremental Enhancement Amount” and (b) the quotient of (I) the portion of the Non-Eligible Manufacturer Amount attributable to Ineligible Receivable Applicable Manufacturer Receivables over (II) the Non-Eligible Manufacturer Amount, in each case as of such date of determination.

 

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 but only 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

 

11



 

the consent of the Funding Agents, subject to satisfaction of the Rating Agency Condition with respect to such exclusion.

 

Interest Rate Cap Provider ” means HVF’s counterparty under a Series 2009-1 Interest Rate Cap.

 

Investor Group Maximum Principal Increase ” has the meaning set forth in the Series 2009-1 Note Purchase Agreement.

 

Kia/Subaru/Hyundai Group ” means the group of Manufacturers comprised of Kia, Subaru and Hyundai which has a Series 2009-1 Manufacturer Percentage specified in Column B of Exhibit I hereto.

 

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.

 

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.

 

Management Investors ” means the collective reference to the officers, directors, employees and other members of the management of any Parent Entity, 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 Hertz 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

 

12



 

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 plus (vi) with respect to Eligible Vehicles that were Eligible Program Vehicles sold by HVF to a third party pursuant to Section 2.5(a) of the HVF Lease, any non-return incentives payable to HVF under a Manufacturer Program by such Manufacturer in respect of the sale of such Vehicles outside of the related Manufacturer Program as of such date, plus (vii) if such date is during the period from and including a Determination Date to but excluding the next Payment Date, accrued and unpaid Monthly Base Rent payable on the next Payment Date with respect to all Eligible Vehicles that are Eligible Program Vehicles as of such date that were manufactured by such Manufacturer or an Affiliate thereof and that have not been turned in to and accepted by such Manufacturer pursuant to its Manufacturer Program, not been delivered and accepted for Auction pursuant to its Manufacturer Program and not otherwise been sold or deemed to be sold under the Related Documents.  For the purposes of this definition, an Affiliate of a Manufacturer shall not include any Person who is included as a Manufacturer hereunder.

 

Manufacturer Non-Eligible Program Vehicle Amount ” means, as of any date of determination, with respect to any Manufacturer, an amount equal to the portion of the Manufacturer Non-Eligible Vehicle Amount for such Manufacturer as of such date allocable to or arising from Non-Eligible Program Vehicles.

 

Manufacturer Non-Eligible Vehicle Adjusted Amount ” means, as of any date of determination, with respect to any Manufacturer, an amount equal to the excess of (i) the Manufacturer Non-Eligible Vehicle Amount with respect to such Manufacturer over (ii) the Manufacturer Non-Eligible Vehicle Amount Adjustment with respect to such Manufacturer, in each case as of such date of determination.

 

13



 

Manufacturer Non-Eligible Vehicle Amount Adjustment ” means, as of any date of determination, with respect to any Manufacturer, the sum of (I) the sum of (i) the Series 2009-1 Manufacturer Excess Reduction with respect to such Manufacturer and (ii) in the event that such Manufacturer is part of a Group of Manufacturers, the product of (A) the Series 2009-1 Manufacturer Excess Reduction with respect to such Group of Manufacturers and (B) the Series 2009-1 Manufacturer Non-Eligible Vehicle Group Proportion with respect to such Manufacturer and (II) in the event that such Manufacturer is not a Eligible Manufacturer, the product of (x) the amount determined pursuant to clause (ii)(B)(2) of the definition of “Series 2009-1 Required Incremental Enhancement Amount” and (y) the quotient expressed as a percentage of (i) the portion of the Non-Eligible Manufacturer Amount attributable to such Manufacturer and (ii) the Non-Eligible Manufacturer Amount, in each case as of such date of determination.

 

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, 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

 

14



 

accepted for Auction pursuant to a Manufacturer Program and not otherwise been sold or deemed to be sold under the Related Documents.  For the purposes of this definition, an Affiliate of a Manufacturer shall not include any Person who is included as a Manufacturer hereunder.

 

Market Value Average ” means, as of any day on or after the third Determination Date, the percentage equivalent (not to exceed 100%) of a fraction, the numerator of which is the average of the Non-Program Fleet Market Value as of such preceding Determination Date and the two Determination Dates precedent thereto and the denominator of which is the average of the aggregate Net Book Value of all Non-Program Vehicles (excluding any Excluded Redesignated Vehicles) as of the preceding Determination Date and the two Determination Dates precedent thereto.

 

Maximum Investor Group Principal Amount ” has the meaning set forth in the Series 2009-1 Note Purchase Agreement.

 

Merrill Lynch Investors ” means the collective reference to (i) ML Global Private Equity Fund, L.P., a Cayman Islands exempted limited partnership, or any successor thereto, (ii) Merrill Lynch Ventures L.P. 2001, a Delaware limited partnership, or any successor thereto, (iii) CMC-Hertz Partners, L.P., a Delaware limited partnership, or any successor thereto, (iv) ML Hertz Co-Investor, L.P., a Delaware limited partnership, or any successor thereto, and (v) any Affiliate of any thereof.

 

Mini ” means a Person designated by HVF and organized under the laws of the United States of America that distributes automobiles manufactured under the brand “MINI” or “MINI-Cooper”.

 

ML ” means Merrill Lynch Global Private Equity, Inc. (formerly known as Merrill Lynch Global Partners, Inc.), or any successor thereto.

 

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-term senior unsecured debt, deposit, claims paying or credit (as the case may be) rating is “A3” or above by Moody’s.

 

15



 

New York UCC ” has the meaning specified in Section 3.11(b)(i)  of this Series Supplement.

 

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, 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

 

16


 

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, 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 Adjusted Amount ” means, as of any date of determination, the excess of (a) the Non-Investment Grade Manufacturer Program Vehicle Amount over (b) the sum of (I) the Non-Investment Grade Manufacturer Program Vehicle Amount Adjustment with respect to all Manufacturers and (II) the product of (a) the amount determined pursuant to clause (ii)(B)(2)  of the definition of “Series 2009-1 Required Incremental Enhancement Amount” and (b) the quotient of (I) the portion of the Non-Eligible Manufacturer Amount attributable to Non-Investment Grade Manufacturer Program Vehicle Amounts over (II) the Non-Eligible Manufacturer Amount, in each case as of such date of determination.

 

17



 

Non-Investment Grade Manufacturer Program Vehicle Amount Adjustment ” means, as of any date of determination, with respect to any Manufacturer that is a Non-Investment Grade Manufacturer, the sum of (I) the product of (a) the Series 2009-1 Manufacturer Excess with respect to such Manufacturer and (b) the Series 2009-1 Manufacturer Non-Investment Grade Individual Proportion with respect to such Manufacturer, (II) in the event that such Manufacturer is part of a Group of Manufacturers, the product of (i) the Series 2009-1 Manufacturer Excess with respect to such Group of Manufacturers and (ii) the Series 2009-1 Manufacturer Non-Investment Grade Group Proportion with respect to such Manufacturer and (III) the product of (a) the amount determined with respect to such Manufacturer pursuant to clause (ii)(B)(3)  of the definition of “Series 2009-1 Required Incremental Enhancement Amount” and (b) the Series 2009-1 Manufacturer Non-Investment Grade Individual Proportion with respect to such Manufacturer.

 

Non-Investment Grade Manufacturer Program Vehicle Amount ” means, as of any date of determination, the sum of the Manufacturer Eligible Program Vehicle Amounts and the Manufacturer Non-Eligible Program Vehicle Amounts for all Non-Investment Grade Manufacturers, in each case as of such date.

 

Non-Investment Grade Proportion ” means, as of any date of determination, the quotient of (a) the Ineligible Receivable Manufacturer Receivable Amount attributable to Category 3 Manufacturers and Bankrupt Manufacturers divided by (b) the Ineligible Receivable Manufacturer Receivable Amount, in each case as of such date of determination.

 

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-

 

18



 

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; provided , that any portion of the Non-Program Vehicle Amount that, as of such date of determination, also constitutes a portion of the “Bankrupt Manufacturer Vehicle Amount” shall be excluded from such numerator.

 

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 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, Hertz Investors, Inc., any Other Parent Entity, and any other Person that becomes a direct or indirect Subsidiary of Holdings or any Other Parent Entity after the Series 2009-1 Closing Date and of which Hertz is a direct or indirect Subsidiary that is designated by Hertz as a “Parent Entity”.  As used herein, “Other Parent Entity” means a Person of which the then Relevant Parent Entity becomes a direct or indirect Subsidiary after the Series 2009-1 Closing Date (it being understood that, without limiting the application of the definition of Change of Control to the new Relevant Parent Entity, such existing Relevant Parent Entity so becoming such a Subsidiary shall not constitute a Change of Control).

 

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, ML and any of their respective Affiliates; (b) any investment fund or vehicle managed, sponsored or advised by CD&R, Carlyle, ML 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, (d) any “group” (as such term is used in Sections 13(d) and 14(d) of the Exchange Act) of which any of the Persons specified in clauses (a), (b) or (c) above is a member, and any other Person that is a member of such “group”, provided that (without giving effect to the existence of such “group” or any other “group”) such Persons collectively have beneficial ownership, directly or indirectly, of more than 50% of the total voting power of the Voting Stock of the Relevant Parent Entity held by such “group” and (e) any Person acting in the capacity of an underwriter in connection with a public or private offering of Capital Stock of Hertz or any Subsidiary thereof or any Parent Entity.

 

19



 

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 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.

 

20



 

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.

 

Relevant Parent Entity ”:  (i) Hertz, so long as Hertz is not a Subsidiary of a Parent Entity, and (ii) any Parent Entity, so long as Hertz is a Subsidiary thereof and such Parent Entity is not a Subsidiary of any other Parent Entity.

 

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.

 

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, that certain Fourth Amendment to Credit Agreement, dated as of September 30, 2007 and that certain Fifth Amendment, dated as of September 17, 2010)), (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

 

21



 

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, 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 2009-1 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.

 

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

 

22



 

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.

 

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.

 

23



 

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 substantially 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 substantially in the form of Annex C to a Series 2009-1 Letter of Credit.

 

Series 2009-1 Certificate of Termination Demand ” means a certificate substantially 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 substantially 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 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

 

24



 

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 January, February and March 2013.

 

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 December, 2012 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 December 26, 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 2009-1 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 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

 

25



 

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.

 

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

 

26


 

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 (Reserve Adjusted).

 

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 day (including such date of determination) 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 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,

 

27



 

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 day (including such date of determination) 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 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.

 

28



 

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.

 

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 not substantially in the form of Exhibit B to this Series Supplement 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

 

29



 

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).

 

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.

 

30



 

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 Manufacturer Amount ” means, as of any date of determination, for any Manufacturer or Group of Manufacturers set forth in Column A of Exhibit I hereto, the sum of the Manufacturer Non-Eligible Vehicle Amount and the Manufacturer Eligible Program Vehicle Amount, in each case with respect to such Manufacturer or Group of Manufacturers, as applicable, as of such date.

 

Series 2009-1 Manufacturer Excess ” means, as of any date of determination, for (i) any Manufacturer listed in Column A of Exhibit I hereto, the excess (if any) of (a) the Series 2009-1 Manufacturer Amount for such Manufacturer over (b) the Series 2009-1 Manufacturer Maximum Amount for such Manufacturer, in each case as of such date; (ii) the BMW/Lexus/Mercedes/Audi Group, the excess (if any) of (a) the Series 2009-1 Manufacturer Amount for such Group of Manufacturers over (b) the sum of (1) the Series 2009-1 Manufacturer Maximum Amount for such Group of Manufacturers and (2) any portion of the Series 2009-1 Manufacturer Amount with respect to BMW, Lexus, Mercedes and/or Audi which constitutes Series 2009-1 Manufacturer Excess with respect to such Manufacturer, in each case as of such date, and (iii) the Kia/Subaru/Hyundai Group, the excess (if any) of (a) the Series 2009-1 Manufacturer Amount for such Group of Manufacturers over (b) the sum of (1) the Series 2009-1 Manufacturer Maximum Amount for such Group of Manufacturers and (2) any portion of the Series 2009-1 Manufacturer Amount with respect to Kia, Subaru and/or Hyundai which constitutes Series 2009-1 Manufacturer Excess with respect to such Manufacturer, in each case as of such date of determination.

 

Series 2009-1 Manufacturer Excess Reduction ” means, as of any date of determination, for any Manufacturer or Group of Manufacturers with respect to which a Series 2009-1 Manufacturer Excess exists as of such date, the product of (a) such Series 2009-1 Manufacturer Excess for such Manufacturer or Group of Manufacturers and (b)

 

31



 

the Series 2009-1 Manufacturer Non-Eligible Vehicle Amount Portion for such Manufacturer or Group of Manufacturers, in each case as of such date of determination.

 

Series 2009-1 Manufacturer Ineligible Receivable Group Proportion ” means, as of any date of determination, with respect to any Manufacturer in a Group of Manufacturers, the quotient (expressed as a percentage) of (a) the Ineligible Receivable Manufacturer Receivable Amount with respect to such Manufacturer as of such date and (b) the sum of the Ineligible Receivable Manufacturer Receivable Amount with respect to all Manufacturers in such Group of Manufacturers, in each case, as of such date of determination.

 

Series 2009-1 Manufacturer Group Proportion ” means, as of any date of determination, with respect to any Manufacturer in a Group of Manufacturers, the quotient (expressed as a percentage) of (a) the Series 2009-1 Manufacturer Amount with respect to such Manufacturer and (b) the sum of the Series 2009-1 Manufacturer Amounts with respect to all Manufacturers in such Group of Manufacturers.

 

Series 2009-1 Manufacturer Maximum Amount ” means, as of any date of determination, for any Manufacturer or Group of Manufacturers listed in Column A of Exhibit I hereto, an amount equal to the product of (x) the Series 2009-1 Manufacturer Percentage for such Manufacturer or Group of Manufacturers and (y) the Adjusted Aggregate Asset Amount on such date.

 

Series 2009-1 Manufacturer Non-Eligible Vehicle Amount Portion ” means, as of any date of determination, with respect to any Manufacturer or Group of Manufacturers, a fraction expressed as a percentage, (a) the numerator of which is the Manufacturer Non-Eligible Vehicle Amount with respect to such Manufacturer or Group of Manufacturers; provided that, in the event that such Manufacturer is Ford, Nissan, GM, Kia, Chrysler, Toyota or Honda (or such Manufacturer is included in such Group of Manufacturers), to the extent that an Event of Bankruptcy has occurred with respect to such Manufacturer, 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)) shall be excluded therefrom and (b) the denominator of which is the Series 2009-1 Manufacturer Amount with respect to such Manufacturer or Group of Manufacturers, as applicable, as of such date.

 

Series 2009-1 Manufacturer Non-Eligible Vehicle Group Proportion ” means, as of any date of determination, with respect to any Manufacturer in a Group of Manufacturers, the quotient (expressed as a percentage) of (a) the Manufacturer Non-Eligible Vehicle Amount with respect to such Manufacturer as of such date and (b) the sum of the Manufacturer Non-Eligible Vehicle Amounts with respect to all Manufacturers in such Group of Manufacturers, in each case, as of such date.

 

Series 2009-1 Manufacturer Non-Investment Grade Group Proportion ” means, as of any date of determination, with respect to any Manufacturer that is part of any Group of Manufacturers, the fraction (expressed as a percentage) of the quotient of (a) the Non-Investment Grade Manufacturer Program Vehicle Amount attributable to

 

32



 

such Manufacturer divided by (b) the aggregate Non-Investment Grade Manufacturer Program Vehicle Amount attributable to all Manufacturers in such Group of Manufacturers.

 

Series 2009-1 Manufacturer Non-Investment Grade Individual Proportion ” means, as of any date of determination, with respect to any Manufacturer, the fraction (expressed as a percentage) of the quotient of (a) the Non-Investment Grade Manufacturer Program Vehicle Amount attributable to such Manufacturer divided by (b) the Series 2009-1 Manufacturer Amount with respect to such Manufacturer.

 

Series 2009-1 Manufacturer Percentage ” means, for any Manufacturer or Group of Manufacturers listed in Column A of Exhibit I hereto, the percentage set forth opposite such Manufacturer or Group of Manufacturers in Column B of Exhibit I hereto.

 

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 Non-Eligible Manufacturer Amount ” means, as of any day, an amount equal to 5% of the Adjusted Aggregate Asset Amount on such day.

 

Series 2009-1 Maximum Principal Amount ” means, $1,938,072,755; 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 (a) an Additional Investor Group becoming party to the Series 2009-1 Note Purchase Agreement in accordance with the terms thereof or (b) the effective date for any Investor Group Maximum Principal Increase.

 

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 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)).

 

33



 

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 Amended and Restated Note Purchase Agreement, dated as of December 16, 2010, 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 sum of (a) the weighted average of the CP Rates applicable to the Series 2009-1 CP Tranche, (b) the weighted average of the Eurodollar Rates (Reserve Adjusted) applicable to the Series 2009-1 Eurodollar Tranche and (c) the weighted average of the Series 2009-1 Base Rates applicable to the Series 2009-1 Base Rate Tranche, in each case, for such Series 2009-1 Interest Period and (ii) the weighted average of the daily weighted average Program Fee Rate for each Investor Group with respect to such Series 2009-1 Interest Period; 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.

 

34



 

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) without duplication, the sum of (i) Series 2009-1 Initial Principal Amount plus (ii) the sum of the Additional Investor Group Initial Principal Amounts for each Additional Investor Group as of such date plus (iii) the sum of the Investor Group Maximum Principal Increase Amount for each Investor Group Maximum Principal Increase 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 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

 

35



 

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.

 

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

 

36


 

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) 47%, 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 aggregate Series 2009-1 Manufacturer Excesses for each Manufacturer and Group of Manufacturers set forth in Column A of Exhibit I hereto as of such immediately preceding Business Day, (2) 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, (3) the excess, if any, of the Manufacturer Non-Eligible Vehicle Adjusted 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, (4) the excess, if any, of the Ineligible Receivable Manufacturer Receivable Adjusted Amount over the Ineligible Non-Investment Grade Manufacturer Receivable Amount as of such immediately preceding Business Day, (5) an amount equal to the excess, if any, of (a) the lesser of (i) the Non-Investment Grade Manufacturer Program Vehicle Adjusted 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 (6) the excess, if any, of the Non-Investment Grade Manufacturer Program Vehicle Adjusted Amount

 

37



 

over the Series 2009-1 Second Maximum Non-Investment Grade Manufacturer Program Vehicle Amount as of such immediately preceding Business Day.  The Manufacturer Non-Eligible Vehicle Amounts with respect to Ford 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 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, 4.45%.

 

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 which constitutes part of the Series 2009-1 Adjusted Enhancement 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.

 

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

 

38



 

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 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 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) 47% 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

 

39



 

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 2009-2 Notes ” means the medium term asset-backed notes issued pursuant to the Series 2009-2 Supplement.

 

Series 2009-2 Supplement ” means that certain Amended and Restated Series Supplement to the Base Indenture, dated as of June 18, 2010 (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 2009-2 Notes.

 

Series 2010-1 Notes ” means the medium term asset-backed notes issued pursuant to the Series 2010-1 Supplement.

 

Series 2010-1 Supplement ” means that certain Series Supplement to the Base Indenture, dated as of July 22, 2010 (as 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 2010-1 Notes.

 

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.

 

Smart ” means smart USA Distributor, LLC, a Delaware limited liability company, and its successors.

 

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.

 

40



 

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 downgrade and (ii) the date on which the Trustee or the Administrative Agent notifies the Servicer of such withdrawal or downgrade.

 

Terminated Purchaser ” has the meaning specified in the Series 2009-1 Note Purchase Agreement.

 

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.

 

Voluntary Decrease ” has the meaning specified in Section 2.2(b)  of this Series Supplement.

 

41



 

Voting Stock ” means, with respect to any Person, shares of Capital Stock entitled to vote generally in the election of directors to the board of directors or equivalent governing body of such Person.

 

Wholly Owned Subsidiary ” means as to any Person, any Subsidiary of such Person of which such Person owns, directly or indirectly through one or more Wholly Owned Subsidiaries, all of the Capital Stock of such Subsidiary (other than director’s qualifying shares, shares held by nominees or such other de minimis portion thereof to the extent required by law).

 

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)           On the Series 2009-1 Closing Date, HVF issued Series 2009-1 Notes in the aggregate initial principal amount equal to the Series 2009-1 Initial Principal Amount.  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 any Business Day during the Series 2009-1 Revolving Period, issue Additional Series 2009-1 Notes in an aggregate initial principal amount equal to (a) the Additional Investor Group Initial Principal Amount with respect to the related Additional Investor Group or (b) in connection with any Investor Group Maximum Principal Increase for any Investor Group, the Investor Group Principal Amount for such Investor Group (immediately after giving effect to such Investor Group Maximum Principal Increase) and (ii) 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; provided , that in the event that one or more Additional Investor Groups become party to the Series 2009-1 Note Purchase Agreement or one or more Investor Group Maximum Principal Increases for any Investor Group are given effect, any Increase occurring thereafter shall be allocated solely to such Additional Investor Groups and/or such Investor Groups, as applicable, until (and only until) the Series 2009-1 Principal Amount is allocated ratably among all Investor Groups (based upon each such Investor Groups’ Commitment Percentage after giving effect to any such Additional Investor Group becoming party to the Series 2009-1 Note Purchase Agreement and/or Investor Group Maximum Principal Increase, as applicable)  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, subject to the proviso in the immediately preceding sentence, shall be ratably allocated among the Series 2009-1 Notes, based on

 

42



 

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 or from any Investor Group Maximum Principal Increase and from any Increase shall be deposited into the Collection Account and allocated in accordance with Article III hereof.  Upon each Increase, the Trustee shall, or shall cause the Registrar to, indicate in the Note Register such Increase.

 

(b)           The 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 or an effective date occurs with respect to any Investor Group Maximum Principal Increase, 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 additional issuance of Additional Series 2009-1 Notes and each proposed Increase:

 

(i)            [omitted intentionally];

 

(ii)           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);

 

43



 

(viii)        all conditions precedent to the making of advances under the Series 2009-1 Note Purchase Agreement shall have been satisfied;

 

(ix)           no more than three Increases shall occur during any calendar week;

 

(x)            each Rating Agency shall have received prior written notice of each issuance of Additional Series 2009-1 Notes; and

 

(xi)           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 interest scheduled to accrue through the maturity of such Series 2009-1 Commercial Paper) incurred as a result of such decrease (calculated in accordance with the procedures outlined in Section 6.1 of this Series Supplement for optional repurchases and paid in

 

44



 

accordance with Section 3.06 of the Series 2009-1 Note Purchase Agreement).  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 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 (x) pro rata to the Series 2009-1 Noteholders in respect of principal of the Series 2009-1 Notes or (y) in the event HVF, subject to Section 3.11 of the Series 2009-1 Note Purchase Agreement, prepays Terminated Purchaser’s Investor Group Principal Amount, to such Terminated Purchaser up to the amount of its Investor Group Principal Amount, the amount of such withdrawal in accordance with Section 3.5(e)  of this Series Supplement; plus , with respect to each clause above, in accordance with Section 3.06 of the Series 2009-1 Note Purchase Agreement, 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; provided further that, in the event that HVF elects to prepay any Terminated Purchaser’s Investor Group Principal Amount in accordance with Section 3.11 of the Series 2009-1 Note Purchase Agreement, HVF may, from time to time, allocate a Voluntary Decrease solely to such Terminated Purchaser in an amount up to such Terminated Purchaser’s Investor Group Principal Amount.  Subject to the immediately preceding sentence, 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 unless such Voluntary Decrease is allocated to pay any Terminated Purchaser’s Investor Group Principal Amount in full.

 

45



 

(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 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”.

 

Section 2.3.   Procedure for Amending and Restating the Initial Series 2009-1 Notes.

 

(a)           Notwithstanding anything herein or in any other Series 2009-1 Related Document to the contrary (including the requirement that any Decrease or any Increase be made ratably among the Series 2009-1 Noteholders), subject to the conditions provided in clause (b)  below, in connection with the reduction of the Series 2009-1 Maximum Principal Amount from $2,138,072,750 to $1,938,072,755 and the related reductions of the Commitment Amounts and related Maximum Investor Group Principal Amounts with respect to each Investor Group as specified in Schedule II to the Series 2009-1 Note Purchase Agreement, each Outstanding Series 2009-1 Note shall be amended and restated on the Series 2009-1 Subsequent Closing Date, and in connection with such amendment and restatement, HVF shall pay to each Series 2009-1 Noteholders, as a payment of principal of such Series 2009-1 Noteholders’ Series 2009-1 Note, the amount specified for such Series 2009-1 Noteholders in Schedule II to the Series 2009-1 Note Purchase Agreement (such amendment and restatement and attendant payments, the “ Amendment and Rebalancing ”); provided that all fees and interest accrued with respect to each Series 2009-1 Note through the Series 2009-1 Subsequent Closing Date shall be paid on the first Payment Date following the Series 2009-1 Subsequent Closing Date.

 

(b)           The Amendment and Rebalancing shall be subject to satisfaction of each of the following conditions:

 

(i)            after giving effect to such Amendment and Rebalancing, (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;

 

(ii)           after giving effect to such Amendment and Rebalancing, no Series 2009-1 Enhancement Deficiency, Series 2009-1 Liquidity Deficiency or Aggregate Asset Amount Deficiency shall exist;

 

(iii)          after giving effect to such Amendment and Rebalancing, 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;

 

46


 

(iv)          no Amortization Event with respect to the Series 2009-1 Notes has occurred and is continuing and such amendment and restatement 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;

 

(v)           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);

 

(vi)          the conditions precedent set forth in Section 7.01 and Section 7.02 of the Series 2009-1 Note Purchase Agreement shall have been satisfied; and

 

(vii)         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.

 

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 has established and maintained, and shall continue to 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.

 

47



 

(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) 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 with respect to financial assets credited 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 were deposited into the

 

48



 

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 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:

 

(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 sum of (x) Series 2009-1 Principal Allocation for such day plus (y) 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

 

49



 

Series 2009-1 Controlled Amortization Payment Date related to the Series 2009-1 Controlled Amortization Payment Period in which such allocations 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.

 

(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 (but in no event an amount in excess) 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

 

50



 

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 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

 

51



 

(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 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 and (v)  fifth , any remaining funds may be released to HVF, provided that the application of such funds pursuant to clauses (iii)  through (v)  above may be made 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.  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

 

52



 

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 Payment Date immediately preceding such Payment Date through such 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 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 as calculated in accordance with Section 3.3(e)) 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 such 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

 

53



 

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, 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:

 

54



 

(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 (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

 

55



 

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 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

 

56


 

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 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

 

57



 

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.

 

(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

 

58



 

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 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

 

59



 

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 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

 

60



 

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 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 (x) to any Terminated Purchaser up to such Terminated Purchaser’s Investor Group Principal Amount or (y) otherwise, on a pro rata basis to the Series 2009-1 Noteholders, in each case 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

 

61



 

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 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 established and maintained, and shall continue to maintain, in the name of the Trustee for the benefit of the Series 2009-1 Noteholders an account (the “ Series 2009-1 Reserve

 

62



 

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 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 unless previously distributed pursuant to the terms hereof.

 

(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 with respect to financial assets credited 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

 

63



 

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 the Trustee, acting in accordance with the written instructions of the Administrator, shall withdraw from the Series 2009-1 Reserve Account all remaining amounts on deposit therein and pay such amounts 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 with respect to financial assets credited 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

 

64



 

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 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.

 

65



 

(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 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

 

66


 

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 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 unless previously distributed pursuant to the terms hereof.

 

(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

 

67



 

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.

 

(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 have established and maintained, and shall continue to 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

 

68



 

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 Series 2009-1 Distribution Account shall be deemed to be on deposit and available for distribution unless previously distributed pursuant to the terms hereof.

 

(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 with respect to financial assets credited 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

 

69



 

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 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

 

70



 

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.

 

(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 September 22, 2009, HVF acquired the Series 2009-1 Interest Rate Caps from an Eligible Interest Rate Cap Provider with the aggregate notional amount of all Series 2009-1 Interest Rate Caps equal to the Series 2009-1 Maximum Principal Amount. 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 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 ”).

 

71



 

(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 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,

 

72



 

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 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 Series 2009-1 Closing Date, HVF delivered to the Trustee, for the benefit of the Series 2009-1 Noteholders, the Series 2009-1 Demand Note, endorsed in blank.  On the date hereof, HVF shall deliver to the Trustee, for the benefit of the Series 2009-1 Noteholders, an amended and restated 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:

 

73



 

(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 exist and continue to exist for at least three (3) Business Days;

 

(d)            a Series 2009-1 Liquidity Deficiency shall exist and continue to exist 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;

 

(f)             the Series 2009-1 Controlled Amortization Amount required to be paid in respect of any Series 2009-1 Controlled Amortization Payment Date is not paid on such 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 a period of 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 asserts 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,

 

74



 

estoppel or other stay or a Lien (other than a Permitted Lien) for a period of 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 asserts 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)           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 and such failure continues for at least 3 Business Days;

 

(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 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)            [Reserved];

 

(r)             HVF fails to comply with any of its other agreements or covenants (other than any agreements or covenants relating solely to one or more Segregated Series of Notes) in the Series 2009-1 Notes, the Indenture, this Series Supplement or any other Related Document (other than any Related Document relating solely to one or more Segregated Series of Notes) 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 (other than any representation relating solely to one or more Segregated Series of Notes) made by HVF in the Indenture, this Series Supplement or any other Related Document (other than any Related Document relating solely to one or more Segregated Series of Notes) 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;

 

75



 

(t)             the Administrator fails to comply with any of its other agreements or covenants (other than any agreements or covenants relating solely to one or more Segregated Series of Notes) in 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 one or more 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 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

 

76


 

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

 

(ii)            any event described in clauses (o)  through (w)  above, so long as such event is continuing, 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.

 

77



 

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 were 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 were sold to the Series 2009-1 Noteholders pursuant to and in accordance with the Prior Series 2009-1 Note Purchase Agreement and were 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 bore a face amount equal to the Series 2009-1 Maximum Principal Amount as of the Series 2009-1 Closing Date, and were 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 hereof in connection with the addition of an Additional Investor Group pursuant to Section 9.16(a) of the Series 2009-1 Note Purchase Agreement or in connection with the effectuation of an Investor Group Maximum Principal Increase pursuant to Section 9.16(b) of the Series 2009-1 Note Purchase Agreement.   Additional Series 2009-1 Notes issued in connection with (x) the addition of an Additional Investor Group 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 and (y) an Investor Group Maximum Principal Increase shall bear a face amount equal to up to the Maximum Investor Group Principal Amount with respect to the related Investor Group (immediately after giving effect to such Investor Group Maximum Principal Increase) and shall initially be issued in a principal amount equal to the Investor Group Principal Amount for such Investor Group (immediately after giving effect to such Investor Group Maximum Principal Increase); provided , that in the case of (y) above, no such Additional Series 2009-1 Note shall be delivered to the applicable Investor Group until such Investor Group’s previous Series 2009-1 has been delivered to the Registrar for cancellation.  Upon the issuance of any Additional Series 2009-1 Notes, the Series 2009-1 Maximum Principal Amount shall be increased by an amount equal to (x) in connection with the addition of an Additional Investor Group, the Maximum Investor Group Principal Amount with respect to such Additional Investor Group or (y) in connection with an Investor Group Maximum Principal Increase, the amount by which the Maximum Investor Group Principal Amount with respect to such Investor Group was increased pursuant to such Investor Group Maximum Principal Increase.  The Trustee shall, or shall cause the Registrar, to record any Increases, Decreases or additional issuances with respect to the Series 2009-1

 

78



 

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(a) thereof and Persons who increase their Maximum Investor Group Principal Amount pursuant to an Investor Group Maximum Principal Increase, in each case in accordance with Section 9.16(b) 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 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,

 

79



 

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 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

 

80



 

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 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 , setting forth, inter alia, the following information, provided , however , that the Monthly Noteholders’ Statement for the December 2010 Payment Date shall be prepared in accordance with the Section 6.2 of the Prior Series 2009-1 Supplement:

 

(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 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);

 

81



 

(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 Related Month and the Market Value Average and Non-Program Vehicle Measurement Month Average and all calculations related thereto;

 

(xiv)         the Series 2009-1 Manufacturer Amounts as of the close of business on the last day of the Related Month;

 

82



 

(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 Program 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;

 

(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

 

83



 

(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.

 

Section 6.3.   Exhibits .  The following exhibits attached hereto supplement the exhibits included in the Indenture.

 

Exhibit A:

 

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:

 

Form of Monthly 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

Exhibit I:

 

Maximum Manufacturer Amounts

Exhibit J:

 

Additional UCC Representations

 

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.

 

84



 

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 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.   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.

 

85



 

Section 6.12.   Discharge of Indenture.  Notwithstanding anything to the contrary contained in the Base Indenture, so long as this Series Supplement shall be in effect in accordance with Section 6.12 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.Section 6.13.   Additional UCC Representations Without limiting any other representation or warranty given by HVF in the Base Indenture or the HVF Lease, HVF hereby makes the representations and warranties set forth in Exhibit J hereto for the benefit of the Trustee and the Series 2009-1 Noteholders, in each case, as of the date hereof.

 

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/ Scott Massengill

 

 

Name: 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

 



 

AMENDED AND RESTATED SERIES 2009-1 VARIABLE FUNDING RENTAL CAR ASSET BACKED NOTE

 

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 [                ] , as funding agent for [                ] , as a Committed Note Purchaser, and [                ], 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.

 



 

This Series 2009-1 Note replaces that Series 2009-1 Variable Funding Rental Car Asset Backed Note, No. R-2, dated September 18, 2009, in the original principal amount of $[                ] issued by the Company under the Series 2009-1 Supplement , dated as of September 18, 2009 (without giving effect to the amendment and restatement thereof on December 16, 2010) to the Third Amended and Restated Base Indenture, dated as of September 18, 2009 (without giving effect to the Supplemental Indenture No. 1 thereto, dated as of December 16, 2010), each by and between the Company and the Trustee.

 

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: December        , 20 10

 

 

 

 

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: December        , 20 10

 

 

 

 

 

 

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 Amended and Restated 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 ( the Third Amended and Restated Base Indenture, as 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) the Amended and Restated Series 2009-1 Supplement, dated as of December 16 , 20 10 (such Amended and Restated 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 December  25, 20 10 .

 

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  2009-1 Supplement or otherwise amend or modify any provision relating to the amendment or modification of the Series  2009-1 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:

 

 

 

 

 

 

 

*

 

 

 

Signature Guaranteed:

 

 

 

 

 

Name:

 

Title:

 


*  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

 


 

AMENDED AND RESTATED SERIES 2009-1 LETTER OF CREDIT

 

NO. [    ]

 

OUR IRREVOCABLE LETTER OF CREDIT NO. DBS-[   ]

 

December [       ], 2010

 

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 ”), among Hertz, the Issuing Bank, certain affiliates of Hertz and the several banks and financial institutions party thereto from time to time, in the Beneficiary’s favor on Beneficiary’s behalf as Trustee under the Amended and Restated Series 2009-1 Supplement, dated as of December 16, 2010 (as such agreement may be further 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., as Trustee (the “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 December 16, 2011 (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 ”). The Issuing Bank hereby agrees that the Series 2009-1 Letter of Credit Expiration Date shall be automatically extended, without amendment, to the earlier of (i) the date that is one year from the then current Series 2009-1 Letter of Credit Expiration Date and (ii) March 25, 2013, in each case unless, no fewer than sixty (60) days before the then current Series 2009-1 Letter of Credit Expiration Date, we notify you in writing by registered mail (return receipt) or overnight courier that this letter of credit will not be extended beyond the then current Series 2009-1 Letter of Credit Expiration Date.  The term “Beneficiary” refers herein (and in each Annex hereto) to 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) if not defined in the Base Indenture, 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 draws 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 (as defined below), (2) in one or more draws 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 it in substantially the form of Annex B attached hereto (any such draft accompanied by such certificate being an “ Unpaid Demand Note Demand ”), an amount equal to the face amount of each such draft but not exceeding the Series 2009-1 Letter of Credit Amount as in effect on such Business Day (as defined below), (3) in one or more draws 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 C attached hereto (any such draft accompanied by such certificate being a “ Preference Payment Demand ”), an amount equal to the face amount of each such draft but not exceeding the Series 2009-1 Letter of Credit Amount as in effect on such Business Day (as defined below) and (4) in one or more draws 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 (as defined below), and accompanied by the Trustee’s written and completed certificate signed by the Trustee in substantially the form of Annex D attached hereto (any such draft accompanied by such certificate being a “ Termination Demand ”), an amount equal to the face amount of each such draft but not exceeding the Series 2009-1 Letter of Credit Amount as in effect on such Business Day (as defined below).  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

 

2



 

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 or required 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 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 any 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

 

3



 

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 Issuing Bank under this Series 2009-1 Letter of Credit shall be made with the Issuing Bank’s own funds.

 

In the event there is more than one draw request on the same Business Day, the draw requests shall be honored in the following order:  (1) the Credit Demands, (2) the Unpaid Demand Note Demands, (3) the Preference Payment Demand and (4) the Termination Demand.

 

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.

 

4



 

This Series 2009-1 Letter of Credit is subject to the Uniform Customs and Practice for Documentary Credits, 2007 Revision, ICC Publication No. 600 (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 draw which otherwise conforms to the terms and conditions of this Series 2009-1 Letter of Credit 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 draws hereunder shall not be deemed to be installments for purposes thereof.

 

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 December 16, 2010, 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.](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 on the applicable 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 the Series 2009-1 Supplement, if any, on the applicable Payment Date 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 on the applicable 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 the Series 2009-1

 


(1)                If Trustee under the Series 2009-1 Supplement 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



 

Supplement, if any, on the applicable Payment Date 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][least] 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 December 16, 2010, 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.](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 Series 2009-1 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 (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)][Section 3.5(c)(iii)] 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 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)

 

[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 Demand

 


(1)                If Trustee under the Series 2009-1 Supplement 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



 

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 December 16, 2010, 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.](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 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.

 


(1)                If Trustee under the Series 2009-1 Supplement 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.

 

(4)                Use if the Series 2009-1 Cash Collateral Account has been established and funded as of such date.

 

C-1



 

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 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.

 

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.

 


(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 December 16, 2010, 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.](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 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)

 


(1)                If Trustee under the Series 2009-1 Supplement 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 an expiring Series 2009-1 Letter of Credit.

 

D-1



 

[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 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:

 


(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



 

[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 December 16, 2010, issued by [                    ] , as the Issuing Bank, in favor of [The Bank of New York Mellon 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 for Hertz or all or any substantial part of its assets, or any similar action with respect to

 


(1)                If the Trustee under the Series 2009-1 Supplement 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



 

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 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:

 

 

 

 

 

By:

 

 

Name:

 

 

Title:

 

 

E-3



 

ANNEX F

 

INSTRUCTION TO TRANSFER

 

[Issuing Bank’s Address]

 

Attention:              Standby Letter of Credit Unit

 

Re:          Irrevocable Letter of Credit No. [                   ]

 

Ladies and Gentlemen:

 

Instruction to Transfer under the Irrevocable Letter of Credit No. [    ] (the “ Series 2009-1 Letter of Credit ”), dated December 16, 2010, issued by [                     ] , as 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.

 

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 Series 2009-1 Letter of Credit.  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 Supplement 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 December 16, 2010, issued by [                       ] , as the Issuing Bank, in favor of [The Bank of New York Mellon 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 in accordance with the Series 2009-1 Supplement 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 Supplement 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 December 16, 2010, issued by [               ] , as the Issuing Bank, in favor of [The Bank of New York Mellon 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 Supplement 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                       ,              .

 

 

[                                                                ]

 

 

 

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 December 16 , 20 10 , to the Third Amended and Restated Base Indenture, dated as of September 18, 2009 (the “ Base Indenture ”) , by and between Hertz Vehicle Financing LLC, as Issuer, and The Bank of New York Mellon 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., in its capacity as the Trustee (the “ Trustee ”) under the Amended and Restated 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 Amended and Restated Series 2009-1 Supplement, dated as of December  [   ] , 20 10 (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., 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 ”) , by and 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

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 from time to time amended, supplemented or otherwise modified in accordance with the terms thereof, 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., and Hertz as Administrator and (iii)  the Third Amended and Restated Base Indenture, 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 “ Base Indenture ”), by and between HVF, as issuer, and The Bank of New York Mellon Trust Company, N.A., as trustee (the “ Trustee ”) and securities intermediary, as supplemented by the Amended and Restated Series 2009-1 Supplement, dated as of December 16, 2010 (the “ Series 2009-1 Supplement ”), 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 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 G- 1

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 Amended and Restated Series 2009-1 Supplement, dated as of December 16 , 20 10 (the “ Series 2009-1 Supplement ”), between Hertz Vehicle Financing LLC (“ HVF ”) and The Bank of New York Mellon 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 AMENDED AND RESTATED SERIES 2009-1 DEMAND NOTE

 

$ [                    ]

 

New York, New York

 

 

December [    ] , 20 10

 

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 $ [         ] .

 

1.  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 the same may be 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 Amended and Restated Series 2009-1 Supplement thereto dated as of December 16, 20 10 (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.

 

2.  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.

 

3.  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 December  25, 20 10 .  “ 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.

 

4.  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.

 

5.  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.

 

6.  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.

 

7.  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.

 

8.  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.

 

9.   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.

 

10.   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.

 

11.  Replacement .  This Demand Note replaces that certain Demand Note, dated September 18, 2009 in an initial principal amount of $133,629,547 issued by Hertz.

 

3



 

 

THE HERTZ CORPORATION

 

 

 

By:

 

 

 

Scott Massengill

 

 

Vice President and T reasurer

 

4



 

PAYMENT GRID

 

Date

 

Principal
Amount

 

Amount of
Principal
Payment

 

Outstanding
Principal
Balance

 

Notation Made
By

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

5



 

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 Amended and Restated Series 2009-1 Supplement, dated as of December 16 , 20 10 (the “ Series 2009-1 Supplement ”), between Hertz Vehicle Financing LLC and The Bank of New York Mellon 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  I

TO

SERIES 2009-1 SUPPLEMENT

 

Maximum Manufacturer Amounts

 

Column A – Manufacturer or Group of
Manufacturers

 

Column B – Series 20 09-1  Manufacturer
Percentage

 

Audi

 

5

%

BMW

 

5

%

Chrysler

 

70

%

Fiat

 

5

%

Ford

 

70

%

GM

 

70

%

Honda

 

70

%

Hyundai

 

13

%

Jaguar

 

5

%

Kia

 

20

%

Land Rover

 

5

%

Lexus

 

5

%

Mazda

 

20

%

Mercedes

 

5

%

Mini

 

5

%

Mitsubishi

 

10

%

Nissan

 

20

%

Smart

 

5

%

Subaru

 

5

%

Suzuki

 

5

%

Toyota

 

70

%

Volkswagen

 

10

%

Volvo

 

5

%

BMW/Lexus/Mercedes/Audi

 

12

%

Kia/Subaru/Hyundai

 

35

%

 

3



 

EXHIBIT J

 

Additional UCC Representations

 

General

 

1.      (a)    The Base Indenture creates a valid and continuing security interest (as defined in the applicable UCC) in the Indenture Collateral in favor of the Trustee for the benefit of the Noteholders; (b) the Collateral Agency Agreement creates a valid and continuing security interest (as defined in the applicable UCC) in the HVF Vehicle Collateral in favor of the Collateral Agent for the benefit of the HVF General Secured Party; and (c) the Series 2009-1 Supplement creates a valid and continuing security interest (as defined in the applicable UCC) in (A) the Series 2009-1 Demand Note and (B) all of the Issuer’s right, title and interest in the Series 2009-1 Interest Rate Caps and all proceeds thereof and all proceeds of any and all of the items described in the preceding clauses (A) and (B) (the collateral described in clauses (A)  and (B)  above, the “ Series Collateral ”) in favor of the Trustee for the benefit of the Series 2009-1 Noteholders and in the case of each of clause (a) , (b)  and (c)  is prior to all other Liens on such Indenture Collateral, HVF Vehicle Collateral and Series Collateral, as applicable, in each case except for Permitted Liens, and is enforceable as such against creditors and purchasers from HVF.

 

2.      HVF owns and has good and marketable title to the Indenture Collateral, the HVF Vehicle Collateral and Series Collateral free and clear of any lien, claim, or encumbrance of any Person, in each case except for Permitted Liens.

 

Characterization

 

1.      (a) The Series 2009-1 Demand Note constitutes an “instrument” within the meaning of the applicable UCC and (b) the HVF Lease, the Master Exchange Agreement, all Series 2009-1 Interest Rate Caps and all Manufacturer Receivables constitute “accounts” or “general intangibles” within the meaning of the applicable UCC.

 

Perfection by filing

 

1.      HVF has caused or will have caused, within ten days after the Series 2009-1 Subsequent Closing Date, the filing of all appropriate financing statements in the proper filing office in the appropriate jurisdictions under applicable law in order to perfect (a) the security interest in any accounts and general intangibles included in the Indenture Collateral granted to the Trustee, (b) the security interest in any accounts and general intangibles included in the HVF Vehicle Collateral granted to the Collateral Agent and (c) the security interest in any accounts and general intangibles included in the Series Collateral granted to the Trustee.

 



 

Perfection by Possession

 

All original copies of the Series 2009-1 Demand Note that constitute or evidence the Series 2009-1 Demand Note have been delivered to the Trustee.

 

Priority

 

1.      Other than the security interest granted to the Trustee pursuant to the Indnture and the security interest granted to the Collateral Agent pursuant to the Collateral Agency Agreement, HVF has not pledged, assigned, sold or granted a security interest in, or otherwise conveyed, any of the Indenture Collateral, the HVF Vehicle Collateral or the Series Collateral.  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 Indenture Collateral, the HVF Vehicle Collateral or the Series Collateral, other than any financing statement relating to the security interests granted to the Trustee and the Collateral Agent, as secured parties under the Indenture and the Collateral Agency Agreement, respectively, or that has been terminated.  HVF is not aware of any judgment or tax lien filings against HVF.

 

2.      The Series 2009-1 Demand Note does not contain any marks or notations indicating that it has been pledged, assigned or otherwise conveyed to any Person other than the Trustee.

 

2




Exhibit 4.7.2

 

EXECUTION COPY

 

AMENDED AND RESTATED SERIES 2009-1 NOTE PURCHASE AGREEMENT

 

(SERIES 2009-1 VARIABLE FUNDING RENTAL CAR ASSET BACKED NOTES)

 

 

dated as of December 16 , 20 10 ,

 

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

12

SECTION 2.03

Borrowing Procedures

13

SECTION 2.04

The Series 2009-1 Notes

15

SECTION 2.05

Commitment Terms

15

SECTION 2.06

Selection of Interest Rates

15

SECTION 2.07

Reduction in Commitment Amount

15

SECTION 2.08

Extensions of Commitments

16

ARTICLE III

INTEREST AND FEES

16

SECTION 3.01

Interest

16

SECTION 3.02

Fees

17

SECTION 3.03

Eurodollar Lending Unlawful

18

SECTION 3.04

Deposits Unavailable

18

SECTION 3.05

Increased or Reduced Costs, etc.

19

SECTION 3.06

Funding Losses

19

SECTION 3.07

Increased Capital Costs

20

SECTION 3.08

Taxes

21

SECTION 3.09

Indenture Carrying Charges; Survival

22

SECTION 3.10

Minimizing Costs and Expenses and Equivalent Treatment

23

SECTION 3.11

Replacement of Investor Group

23

ARTICLE IV

OTHER PAYMENT TERMS

24

SECTION 4.01

Time and Method of Payment

24

ARTICLE V

THE ADMINISTRATIVE AGENT AND THE FUNDING AGENTS

24

SECTION 5.01

Authorization and Action of the Administrative Agent

24

SECTION 5.02

Delegation of Duties

25

SECTION 5.03

Exculpatory Provisions

25

 

i



 

TABLE OF CONTENTS

(continued)

 

 

Page

 

 

SECTION 5.04

Reliance

25

SECTION 5.05

Non-Reliance on the Administrative Agent and Other Purchasers

26

SECTION 5.06

The Administrative Agent in its Individual Capacity

26

SECTION 5.07

Successor Administrative Agent

26

SECTION 5.08

Authorization and Action of Funding Agents

27

SECTION 5.09

Delegation of Duties

27

SECTION 5.10

Exculpatory Provisions

27

SECTION 5.11

Reliance

28

SECTION 5.12

Non-Reliance on the Funding Agent and Other Purchasers

28

SECTION 5.13

The Funding Agent in its Individual Capacity

28

SECTION 5.14

Successor Funding Agent

28

ARTICLE VI

REPRESENTATIONS AND WARRANTIES

29

SECTION 6.01

HVF

29

SECTION 6.02

Administrator

30

SECTION 6.03

Conduit Investors

30

ARTICLE VII

CONDITIONS

32

SECTION 7.01

Conditions Precedent

32

SECTION 7.02

Conditions to Initial Borrowing

33

SECTION 7.03

Conditions to Each Borrowing

33

ARTICLE VIII

COVENANTS

34

SECTION 8.01

Covenants

34

ARTICLE IX

MISCELLANEOUS PROVISIONS

40

SECTION 9.01

Amendments

40

SECTION 9.02

No Waiver; Remedies

40

SECTION 9.03

Binding on Successors and Assigns

41

SECTION 9.04

Survival of Agreement

42

SECTION 9.05

Payment of Costs and Expenses; Indemnification

42

SECTION 9.06

Characterization as Related Document; Entire Agreement

45

SECTION 9.07

Notices

45

SECTION 9.08

Severability of Provisions

45

 

ii



 

TABLE OF CONTENTS

(continued)

 

 

 

Page

 

 

 

SECTION 9.09

Tax Characterization

46

SECTION 9.10

No Proceedings; Limited Recourse

46

SECTION 9.11

Confidentiality

47

SECTION 9.12

Governing Law

48

SECTION 9.13

Jurisdiction

48

SECTION 9.14

Waiver of Jury Trial

49

SECTION 9.15

Counterparts

49

SECTION 9.16

Additional Investor Groups and Investor Group Maximum Principal Amount Increases

49

SECTION 9.17

Assignment

50

SECTION 9.18

Each Conduit Investor and each Committed Note Purchaser’s Covenant

53

 

iii



 

TABLE OF CONTENTS

(continued)

 

 

 

Page

 

 

 

EXHIBITS

 

 

 

 

SCHEDULE I

List of Conduit Investors and Committed Note Purchasers

 

SCHEDULE II

Effect of Amendment and Restatement of Series 2009-1 Initial Notes

 

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 Data Report

 

EXHIBIT F

Form of Investor Group Maximum Principal Increase Addendum

 

EXHIBIT G

Form of Servicer Audit Report

 

 

iv



 

AMENDED AND RESTATED SERIES 2009-1 NOTE PURCHASE AGREEMENT

 

THIS AMENDED AND RESTATED SERIES 2009-1 NOTE PURCHASE AGREEMENT, dated as of December 16 , 20 10 (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, in its capacity as administrator hereunder, 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.             HVF, Hertz, the Conduit Investors, the Committed Note Purchasers, the Funding Agents and the Administrative Agent have previously entered into that certain Note Purchase Agreement, dated as of September 18, 2009 (the “ Original Note Purchase Agreement ”). HVF, as issuer, and The Bank of New York Mellon 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, have previously entered into that certain Series 2009-1 Supplement, dated as of September 18, 2009 (the “ Prior 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 ”), between HVF and the Trustee pursuant to which HVF issued one Series 2009-1 Variable Funding Rental Car Asset Backed Notes (the “ Series 2009-1 Initial Notes ” and together with any Additional Series 2009-1 Notes, the Series 2009-1 Notes ”).

 

2.             Section 9.01 of the Original Note Purchase Agreement permits HVF, Hertz, the Administrator, each Conduit Investor and each Committed Note Purchaser to amend the Original Note Purchase Agreement. Such parties intend to change certain terms of the financing facility and amend and restate the Original Note Purchase Agreement in its entirety.

 

3.             Contemporaneously with the execution and delivery of this Agreement, HVF and the Trustee entered into the Amended and Restated 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 Base Indenture (the Base Indenture together with the Series 2009-1 Supplement, the “ Indenture ”).

 

4.             HVF issued the Series 2009-1 Initial Notes in favor of the Conduit Investors, or if there was no Conduit Investor with respect to any Investor Group, the Committed Note Purchaser with respect to such Investor Group, and obtained 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 will constitute Increases, and all of which Advances 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:

 

Action ” has the meaning set forth in Section 3.11 .

 

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

 

2



 

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(a)  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 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, an amount up to the product of (a) the Drawn Percentage (immediately prior to such Additional Investor Group becoming a party hereto) and (b) the Maximum Investor Group Principal Amount of such Additional Investor Group on such date (immediately after such Additional Investor Group has become a party hereto).

 

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 3 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) .

 

3


 

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 Subsequent 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.

 

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

 

4



 

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) 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.

 

Drawn Percentage ” means, as of any date of determination, a fraction expressed as a percentage, the numerator of which is the Series 2009-1 Outstanding Principal Amount and the denominator of which is the Series 2009-1 Maximum Principal Amount, in each case as of such date.

 

Election Period ” has the meaning set forth in Section 2.08 .

 

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).

 

5



 

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 preceding 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 March 2013 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 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

 

6



 

available next longer than the Eurodollar Interest Period; provided that, if a Eurodollar Interest Period is less than or equal to seven days, the Eurodollar Rate shall be determined by reference to a rate calculated in accordance with the preceding sentence as if the maturity of the Dollar deposits referred to therein were a period of time equal to seven days.

 

Eurodollar Rate (Reserve Adjusted) ” means, for any Eurodollar Interest Period, an interest rate per annum (rounded upward to the nearest 1/100th of 1%) determined pursuant to the following formula:

 

Eurodollar Rate =

 

Eurodollar Rate

(Reserve Adjusted)

 

1.00 – Eurodollar Reserve Percentage

 

The Eurodollar Rate (Reserve Adjusted) for any Eurodollar Interest Period for Eurodollar Advances will be determined by the related Funding Agent on the basis of the Eurodollar Reserve Percentage in effect one (1) Business Day before the first day of such Eurodollar Interest Period.

 

Eurodollar Reserve Percentage ” means, for any Eurodollar Interest Period, the reserve percentage (expressed as a decimal) equal to the maximum aggregate reserve requirements (including all basic, emergency, supplemental, marginal and other reserves and taking into account any transitional adjustments or other scheduled changes 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.

 

Extension Length ” has the meaning set forth in Section 2.08 .

 

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.

 

7



 

Increase Date ” shall mean the Business Day on which an Increase in the Series 2009-1 Principal Amount occurs.

 

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 Maximum Principal Increase ” has the meaning set forth in Section 9.16(b).

 

Investor Group Maximum Principal Increase Addendum ” means an addendum substantially in the form of Exhibit F.

 

Investor Group Maximum Principal Increase Amount ” means, on the effective date of any Investor Group Maximum Principal Increase with respect to any Investor Group, an amount up to the product of (a) the Drawn Percentage (immediately prior to the effectiveness of such Investor Group Maximum Principal Increase) and (b) the amount of such Investor Group Maximum Principal Increase.

 

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 (v) the Investor Group Principal Amount with respect to such Investor Group on the immediately preceding Business Day plus (w) in the event that an Investor Group Maximum Principal Increase occurs with respect to such Investor Group on such date, the Investor Group Maximum Principal Increase Amount in connection therewith 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 (v) the Investor Group Principal Amount with respect to such Additional Investor Group on the immediately preceding Business Day plus (w) in the event that an Investor Group Maximum Principal Increase occurs with respect to such Additional Investor Group on such date, the Investor Group Maximum Principal Increase Amount in connection therewith plus (x) the Investor Group Increase Amount with respect to such Additional Investor Group on such date minus (y) the amount of principal payments

 

8



 

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 in accordance with the terms hereof as evidenced by a written agreement among the Committed Note Purchasers included in such Investor Group on Schedule I hereto, the Administrator and HVF; 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.

 

Non-Consenting Purchaser ” has the meaning set forth in Section 3.11 .

 

Potential Terminated Purchaser ” has the meaning set forth in Section 3.11 .

 

Prime Rate ” means the rate announced by the Reference Lender from time to time as its prime rate in the United States, such rate to change as and when such designated rate changes.  The Prime Rate is not intended to be the lowest rate of interest charged by the Reference Lender in connection with extensions of credit to debtors.

 

Program Fee ” has the meaning set forth in Section 3.02(a) .

 

Program Fee Letter ” means that certain fee letter, dated as of the date hereof, by and among each initial Conduit Purchaser, each initial Committed Note Purchaser, the Administrative Agent and HVF setting forth the definition of Program Fee Rate and the definition of Undrawn Fee.

 

Program Fee Rate ” has the meaning set forth in the Program Fee Letter.

 

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

 

9



 

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.

 

Replacement Purchaser ” has the meaning set forth in Section 3.11 .

 

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 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 December 26, 2012 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.

 

10



 

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 Subsequent Closing Date ” means December 16, 2010.

 

Series 2009-1 Supplement ” means that certain Amended and Restated Series Supplement to the Base Indenture, dated as of the date hereof (as further 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 .

 

Terminated Purchaser ” has the meaning set forth in Section 3.11 .

 

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 each 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.

 

ARTICLE II
PURCHASE AND SALE OF SERIES 2009-1 NOTES

 

SECTION 2.01   The Initial Note Purchase .  On the terms and conditions

 

11



 

set forth in the Indenture and this Agreement, and in reliance on the covenants, representations and agreements set forth herein and therein, HVF caused the Trustee to issue the Series 2009-1 Initial Notes on the Series 2009-1 Closing Date.  Such Series 2009-1 Initial Notes for each Investor Group were 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 were 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, subject to Section 2.03(a)  such Advances shall be made ratably based on, with respect to any portion of such Advance funded by (x) a Conduit Investor, the Commitment Percentage of such Conduit Investor’s Investor Group or (y) a Committed Note Purchaser, such Committed Note Purchaser’s Percentage of the Commitment Percentage with respect to the related Investor Group; provided , further 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 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 a requested Increase (or, (x) 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 (y) in the case of a Conduit Investor in any Investor Group with respect to which an Investor Group Maximum Principal Increase occurs, the Investor Group Maximum Principal Increase Amount with respect to such Investor Group) 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 such Increase (or, (x) in the case of a Committed Note

 

12



 

Purchaser in an Additional Investor Group, the applicable portion of the Additional Investor Group Initial Principal Amount with respect to such Additional Investor Group and (y) in the case of a Committed Note Purchaser in any Investor Group with respect to which an Investor Group Maximum Principal Increase occurs, the applicable portion of the Investor Group Maximum Principal Increase Amount with respect to such Investor Group), as the case may be, not funded by such Conduit Investor.

 

(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 that (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 by providing 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 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; provided that in the event that one or more Additional Investor Groups become party to this Agreement in accordance with Section 9.16(a) or one or more Investor Group Maximum Principal Increases are effected in accordance with Section 9.16(b), any subsequent Borrowings shall be allocated solely to such Additional Investor Groups and/or such Investor Groups, as applicable, until (and

 

13


 

only until) the Series 2009-1 Principal Amount is allocated ratably among all Investor Groups (based upon each such Investor Group’s Commitment Percentage after giving effect to each such Additional Investor Group becoming party hereto and/or each such Investor Group Maximum Principal Increase, as applicable); provided further that on or prior to the Payment Date immediately following the date on which any such Additional Investor Group becomes party hereto or an Investor Group Maximum Principal Increase occurs, HVF shall use commercially reasonable efforts to request Advances and/or effect Voluntary Decreases to the extent necessary to cause (after giving effect to such Advances and Voluntary Decreases) the Series 2009-1 Principal Amount to be allocated ratably among all Investor Groups (based upon each such Investor Group’s Commitment Percentage after giving effect to such Additional Investor Group becoming party hereto or Investor Group Maximum Principal Increase, as applicable).  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 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

 

14



 

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.

 

SECTION 2.05   Commitment Terms

 

The “ Term ” of the Commitment hereunder shall be for a period commencing on the date hereof 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

 

15



 

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 Amounts.

 

SECTION 2.08   Extensions of Commitments

 

(a)           So long as no Amortization Event has occurred and is continuing, HVF may request, through the Administrative Agent, that each Funding Agent, for the account of the related Investor Group, consents to an extension of the Series 2009-1 Commitment Termination Date for such period as HVF may specify (the “ Extension Length ”), which decision will be made by each Funding Agent, for the account of the related Investor Group, in its sole discretion. Upon receipt of any such request, the Administrative Agent shall promptly notify each Funding Agent thereof who shall notify each Conduit Investor, if any, and each Committed Note Purchaser in its Investor Group thereof.  Not later than the first Business Day following the 45th day after such request for an extension (such period, the “ Election Period ”), each Committed Note Purchaser shall notify HVF and the Administrative Agent of its willingness or refusal to consent to such extension and each Conduit Investor shall notify the Funding Agent for its Investor Group of its willingness or refusal to consent to such extension, and such Funding Agent shall notify HVF and the Administrative Agent of such willingness or refusal by each such Conduit Investor (any such Conduit Investor or Committed Note Purchaser which refuses to consent to such extension, a “ Non-Extending Purchaser ”).  Any Committed Note Purchaser which does not expressly notify HVF and the Administrative Agent that it is willing to consent to an extension of the Series 2009-1 Commitment Termination Date during the applicable Election Period and each Conduit Investor which does not expressly notify such Funding Agent that it is willing to consent to an extension of the Series 2009-1 Commitment Termination Date during the applicable Election Period shall be deemed to be a Non-Extending Purchaser.  If a Committed Note Purchaser or a Conduit Investor has agreed to extend its Series 2009-1 Commitment Termination Date, and, at the end of the applicable Election Period no Amortization Event shall be continuing, the Series 2009-1 Commitment Termination Date for such Committed Note Purchaser or Conduit Investor then in effect shall be extended to the date which is the last day of the Extension Length (which shall begin running on the day after its then-current Series 2009-1 Commitment Termination Date).

 

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

 

16



 

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.

 

(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

 

17



 

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 daily average 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.

 

(d)           On the Series 2009-1 Subsequent Closing Date, HVF shall pay the applicable Up-Front Fee to each Funding Agent for the account of the related Committed Note Purchasers.

 

(e)           On the first Payment Date following the Series 2009-1 Subsequent Closing Date, HVF shall pay all interest and fees accrued through such Series 2009-1 Subsequent Closing Date to each Funding Agent for the account of its related Committed Note Purchaser or Conduit Investor, as applicable, in addition to any other interest and fees payable on such date.

 

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 any such Advance as, or to convert any such Advance into, 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

 

18



 

(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 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 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

 

19



 

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;

 

(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; provided, that in no event shall HVF be required to pay to any Affected Person any amounts in respect of any such losses or expenses which result from any repayment or prepayment described in clause (i) above which occurs on any Payment Date.  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 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 hereunder 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 Change in Law, 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

 

20



 

reduction in rate of return to the extent that the increased costs for which such Affected Person is being compensated are allocable to the existence of such Affected Person’s Commitment hereunder.  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 , 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. HVF shall not be under any obligation to compensate any Affected Person under this Section 3.07 with respect to such increased costs that arose during any period prior to the date that is 180 days prior to such Affected Person’s notice being delivered to HVF, except that the foregoing limitation shall not apply to any increased costs arising out of the retroactive application of any Change in Law within such 180-day period. If, after the payment of any amounts on account of increased costs by HVF, any applicable law, rule or regulation in respect of which a payment was made is thereafter determined to be invalid or inapplicable to such Affected Person, then such Affected Person shall, within 60 days after such determination, repay any amounts paid to it by HVF hereunder in respect of such Change in Law.

 

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 from such Affected Person having executed, delivered or performed its obligations or received a payment under, or enforced by, this Agreement), (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 (or acquires a Participation) 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 and (z) United States federal withholding taxes that would not have been imposed but for a failure by an Affected Person (or any financial institution through which any payment is made to such Affected Person) to comply with the procedures, certifications, information reporting, disclosure or other related requirements of current Sections 1471-1474 of the Code (and any amended or successor version that is substantively comparable) or any published administrative guidance implementing such law to establish relief or exemption from the tax imposed by such provisions (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,

 

21



 

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 amounts paid under this Section 3.08 with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses of the Affected Person and without interest (other than any interest paid by the relevant governmental authority with respect to such refund), provided that HVF, upon the request of the Affected Person, agrees to repay the amount paid over to HVF ( plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the Affected Person in the event the Affected Person is required to repay such refund to such governmental authority. This Section 3.08 shall not be construed to require the Affected Person to make available its tax returns (or any other information relating to its taxes which it deems confidential) to HVF or any other Person.

 

SECTION 3.09   Indenture Carrying Charges; Survival .  Any amounts payable by HVF under Sections 3.05, 3.06, 3.07 or 3.08 shall constitute Carrying Charges within the meaning of the Series 2009-1 Supplement.  The agreements in Sections 3.05, 3.06, 3.07, 3.08 and 3.10 shall survive the termination of this Agreement, the Series 2009-1 Supplement and the Base Indenture and the payment of all amounts payable hereunder and thereunder.

 

22



 

SECTION 3.10   Minimizing Costs and Expenses and Equivalent Treatment .  Each Affected Person shall be deemed to have agreed that it shall, as promptly as practicable after it becomes aware of any circumstance referred to in Sections 3.05, 3.06, 3.07 or 3.08, use commercially reasonable efforts (to the extent not inconsistent with its internal policies of general application) to minimize the costs, expenses, taxes or other liabilities incurred by it and payable to it by HVF pursuant to such Section 3.05, 3.06, 3.07 or 3.08.

 

In determining any amounts payable to it by HVF pursuant to Sections 3.05 , 3.06 , 3.07 or 3.08 , each Affected Person shall treat HVF the same as all similarly situated Persons (as determined by such Affected Person in its reasonable discretion) and 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 3.11   Replacement of Investor Group .  Notwithstanding anything to the contrary contained herein or in any other Series 2009-1 Related Document, in the event that (a) any Affected Person shall request reimbursement for amounts owing pursuant to Sections 3.05 , 3.06 , 3.07 or 3.08 , (b) a Committed Note Purchaser shall become a Defaulting Committed Note Purchaser, and such Defaulting Committed Note Purchaser shall fail to pay any amounts in accordance with Section 2.03 within five (5) Business days after demand from the applicable Funding Agent, (c) any Committed Note Purchaser or Conduit Investor shall become a Non-Extending Purchaser, or (d) any Committed Note Purchaser or Conduit Investor fails to give its consent to any amendment, modification, termination or waiver of any Series 2009-1 Related Document (an “ Action ”), by the date specified by HVF or the Administrator on behalf of HVF, for which (A) at least half of the percentage of the Committed Note Purchasers and the Conduit Investors required for such Action have consented to such Action, and (B) the percentage of the Committed Note Purchasers and the Conduit Investors required for such Action have not consented to such Action (or provided written notice that they intend to consent) (each, a “ Non-Consenting Purchaser ”), (each such Committed Note Purchaser or Conduit Investor described in paragraphs (a), (b), (c) or (d), a “ Potential Terminated Purchaser ”), HVF shall be permitted, upon no less than ten (10) days notice to the Administrative Agent, a Potential Terminated Purchaser and its related Funding Agent, to (i)(1) elect to terminate the Commitment, if any, of such Potential Terminated Purchaser on the date specified in such termination notice, and (2) prepay on the date of such termination such Potential Terminated Purchaser’s Investor Group Principal Amount and all accrued and unpaid interest thereon of such Potential Terminated Purchaser, or (ii) elect to cause such Potential Terminated Purchaser to (and the Potential Terminated Purchaser must) assign its Commitment to a replacement purchaser (a “ Replacement Purchaser ”) (any such Potential Terminated Purchaser with respect to which HVF has made any such election, a “ Terminated Purchaser ”).

 

HVF shall not make an election described in the preceding paragraph unless (a) no Amortization Event or Potential Amortization Event with respect to Series 2009-1 Notes shall have occurred and be continuing at the time of such election (unless such Amortization Event or Potential Amortization Event would no longer be continuing

 

23


 

after giving effect to such election), (b) in respect of an election described in clause (ii)  of the immediately preceding paragraph only, on or prior to the effectiveness of the applicable assignment, the Terminated Purchaser shall have been paid its Investor Group Principal Amount and all accrued and unpaid interest thereon by or on behalf of the related Replacement Purchaser, (c) in the event that the Terminated Purchaser is a Non-Extending Purchaser, the Replacement Purchaser (if any) shall have agreed to the applicable extension of the Series 2009-1 Commitment Termination Date and (d) in the event that the Terminated Purchaser is a Non-Consenting Purchaser, the Replacement Purchaser (if any) shall have consented to the applicable amendment, modification, termination or waiver.  Each Terminated Purchaser hereby agrees to take all actions reasonably necessary, at the expense of HVF, to permit a Replacement Purchaser to succeed to its rights and obligations hereunder.  Notwithstanding the foregoing, the consent of each then-current member of an existing Investor Group (other than any Terminated Purchaser) shall be required in order for a Replacement Purchaser to join any such Investor Group.  Upon the effectiveness of any such assignment to a Replacement Purchaser, (i) such Replacement Purchaser shall become a “Committed Note Purchaser” or “Conduit Investor”, as applicable, hereunder for all purposes of this Agreement and the Series 2009-1 Related Documents, (ii) such Replacement Purchaser shall have a Commitment in the amount not less than the Terminated Purchaser’s Commitment assumed by it and (iii) the Commitment of the Terminated Purchaser shall be terminated in all respects.

 

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

 

24



 

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 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

 

25



 

experts selected by the Administrative Agent.  The Administrative Agent shall in all cases be fully justified in failing or refusing to take any action under this Agreement or any other document furnished in connection herewith unless it shall first receive such advice or concurrence of any Conduit Investor, any Committed Note Purchaser or any Funding Agent as it deems appropriate or it shall first be indemnified to its satisfaction by any Conduit Investor, any Committed Note Purchaser or any Funding Agent, provided that unless and until the Administrative Agent shall have received such advice, the Administrative Agent may take or refrain from taking any action, as the Administrative Agent shall deem advisable and in the best interests of the Conduit Investors, the Committed Note Purchasers and the Funding Agents.  The Administrative Agent shall in all cases be fully protected in acting, or in refraining from acting, in accordance with a request of the Required Noteholders and such request and any action taken or failure to act pursuant thereto shall be binding upon the Conduit Investors, the Committed Note Purchasers and the Funding Agents.

 

SECTION 5.05   Non-Reliance on the Administrative Agent and Other Purchasers .  Each of the Conduit Investors, the Committed Note Purchasers and the Funding Agents expressly acknowledge that neither the Administrative Agent nor any of its officers, directors, employees, agents, attorneys-in-fact or affiliates has made any representations or warranties to it and that no act by the Administrative Agent hereafter taken, including, without limitation, any review of the affairs of HVF, shall be deemed to 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

 

26



 

provisions of Section 9.05 and this Article V shall inure to its benefit as to any actions taken or omitted to be taken by it while it was the Administrative Agent under this Agreement.

 

SECTION 5.08   Authorization and Action of Funding Agents .  Each Conduit Investor and each Committed Note Purchaser is hereby deemed to have designated and appointed the Funding Agent set forth next to such Conduit Investor’s name, or if there is no Conduit Investor with respect to any Investor Group, the Committed Note Purchaser’s name with respect to such Investor Group, on Schedule I hereto as the agent of such Person hereunder, and hereby authorizes such Funding Agent to take such actions as agent on its behalf and to exercise such powers as are delegated to such Funding Agent by the terms of this Agreement together with such powers as are reasonably incidental thereto.  Each Funding Agent shall not have any duties or responsibilities, except those expressly set forth herein, or any fiduciary relationship with the related Investor Group, and no implied covenants, functions, responsibilities, duties, obligations or liabilities on the part of such Funding Agent shall be read into this Agreement or otherwise exist for such Funding Agent.  In performing its functions and duties hereunder, each Funding Agent shall act solely as agent for the related Investor Group and does not assume nor shall it be deemed to have assumed any obligation or relationship of trust or agency with or for HVF or any of its successors or assigns.  Each Funding Agent shall not be required to take any action that exposes such Funding Agent to personal liability or that is contrary to this Agreement or Applicable Law.  The 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

 

27



 

Limited Liquidation Event of Default unless such Funding Agent has received notice from HVF or the related Investor Group.

 

SECTION 5.11   Reliance .  Each Funding Agent shall in all cases be entitled to rely, and shall be fully protected in relying, upon any document or conversation believed by it to be genuine and correct and to have been signed, sent or made by the proper Person or Persons and upon advice and statements of the Administrative Agent and legal counsel (including, without limitation, counsel to HVF), independent accountants and other experts selected by such Funding Agent.  Each Funding Agent shall in all cases be fully justified in failing or refusing to take any action under this Agreement or any other document furnished in connection herewith unless it shall first receive such advice or concurrence of the related Investor Group as it deems appropriate or it shall first be indemnified to its satisfaction by the related Investor Group, provided that unless and until such Funding Agent shall have received such advice, such Funding Agent may take or refrain from taking any action, as such Funding Agent shall deem advisable and in the best interests of the related Investor Group.  Each Funding Agent shall in all cases be fully protected in acting, or in refraining from acting, in accordance with a request of the related Investor Group and such request and any action taken or failure to act pursuant thereto shall be binding upon the related Investor Group.

 

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

 

28



 

Group and for all purposes shall deal directly with such Investor Group.  After any retiring Funding Agent’s resignation hereunder as Funding Agent, subject to the limitations set forth herein, the provisions of Section 9.05 and this Article V shall inure to its benefit as to any actions taken or omitted to be taken by it while it was the Funding Agent under this Agreement.

 

ARTICLE VI
REPRESENTATIONS AND WARRANTIES

 

SECTION 6.01   HVF .  HVF represents and warrants to each Conduit Investor and each Committed Note Purchaser that each of its representations and warranties in the Base Indenture and, 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 Subsequent Closing Date, all of which Related Documents are in full force and effect as of the Series 2009-1 Subsequent 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 Subsequent 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,

 

29



 

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 to which it is a party(other than such representation and warranty relating solely to a Series of Indenture Notes other than the Series 2009-1 Notes) is true and correct in all material respects as of the date originally made, as of the date hereof (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, 2009 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 September 30, 2010 and the related statements of income, stockholders equity and cash flows for the nine 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

 

30



 

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 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

 

31



 

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

 

(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 Precedent .  The effectiveness of this Agreement is subject to the following:

 

(a)           the Base Indenture and the Series 2009-1 Supplement shall be in full force and effect as of such Series 2009-1 Subsequent Closing Date;

 

(b)           as of such Series 2009-1 Subsequent 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 Subsequent 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 the current public long term credit rating of “Aaa” assigned to the Series 2009-1 Notes has been confirmed ;

 

(d)           as of such Series 2009-1 Subsequent 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,

 

32



 

true lease, true-sale and UCC security interest matters, tax and no-conflicts) and (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;

 

(e)           [Reserved];

 

(f)            [Reserved]

 

(g)           as of such Series 2009-1 Subsequent 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 Subsequent 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;

 

(i)            each Committed Note Purchaser shall have received payment of the Up-Front Fee owing to it, in each case, as of the Series 2009-1 Subsequent Closing Date; and

 

(j)            on the Series 2009-1 Subsequent Closing Date, all Increases and payments in respect of principal of its Series 2009-1 Initial Note in the amount specified for such Series 2009-1 Noteholder in Schedule II hereto shall have occurred.

 

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 amended and restated 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 Subsequent 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 shall be subject to the conditions precedent that on the date of

 

33


 

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 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 Subsequent 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 December 2010 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

 

34



 

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;

 

(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

 

35



 

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 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 (but excluding making copies of or abstracts from any information that the Administrator or HVF reasonably determines to be proprietary or confidential; provided that, for the avoidance of doubt, all data and information used to calculate the Measurement Month Average or the Market Value Average shall be deemed to be proprietary and confidential), and (ii) upon reasonable notice, 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 other nominees as such officers specify, the Administrator, Hertz, HVF, the Intermediary and/or the Nominee, as applicable, having knowledge of such matters, in each case as may reasonably be requested; 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) 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

 

36



 

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 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 substantially the form set forth hereto as Exhibit G hereto (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

 

37



 

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 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

 

38



 

of Series 2009-1 Noteholders holding more than 50% of the Series 2009-1 Principal Amount;

 

(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 the LLC Agreement or the HVF LLC Agreement, as applicable and (ii) obtaining the prior written consent of the Administrative 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 Administrative 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 ; provided, that, for the avoidance of doubt, in the event that an Independent Director of the Nominee or HVF (as defined in the LLC Agreement or the HVF LLC Agreement, respectively) is removed in connection with any such replacement, HVF and the Administrator shall be required to effect such removal in accordance with clause (x) above;

 

(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 substantially the information set forth in 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.

 

39



 

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 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 any 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

 

40



 

hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of any right hereunder, or any abandonment or discontinuation of steps to enforce the right, power or privilege, preclude any other or further exercise thereof or the exercise of any other right.  No notice to or demand on any party hereto in any case shall entitle such party to any other or further notice or demand in the same, similar or other circumstances.  The remedies herein provided are cumulative and not exclusive of any remedies provided by law.

 

SECTION 9.03   Binding on Successors and Assigns .  This Agreement shall be binding upon, and inure to the benefit of, HVF, the Administrator, the Committed Note Purchasers, the Conduit Investors, the Administrative Agent and their respective successors and assigns; provided , however , that neither HVF nor the Administrator may assign or transfer its rights or obligations hereunder or in connection herewith or any interest herein (voluntarily, by operation of law or otherwise) without the prior written consent of each Committed Note Purchaser and each Conduit Investor; provided, that nothing herein shall prevent HVF from assigning its rights to the Trustee under the Base Indenture and the Series 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

 

41



 

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 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 , 3.10 , 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

 

42



 

(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 and (ii) all reasonable costs  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) in enforcing this Agreement.  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

 

43


 

(i)            any transaction financed or to be financed in whole or in part, directly or indirectly, with the proceeds of any Advance; or

 

(ii)           the entering into and performance of this Agreement and any other Related Document by any of the Indemnified Parties,

except for any such Indemnified Liabilities arising for the account of a particular Indemnified Party by reason of the relevant Indemnified Party’s gross negligence or willful misconduct.  If and to the extent that the foregoing undertaking may be unenforceable for any reason, HVF hereby agrees to make the maximum contribution to the payment and satisfaction of each of the Indemnified Liabilities which is permissible under applicable law.  The indemnity set forth in this Section 9.05(b)  shall in no event include indemnification for any taxes (which indemnification is provided in Section 3.08 ).  HVF shall give notice to the Rating Agencies of any claim for Indemnified Liabilities made under this Section.

 

(c)           Indemnification of the Administrative Agent and each Funding Agent

 

(i)            In consideration of the execution and delivery of this Agreement by the Administrative Agent and each Funding Agent, HVF hereby indemnifies and holds the Administrative Agent and each Funding Agent and each of their respective officers, directors, employees and agents (collectively, the “ Agent Indemnified Parties ”) harmless from and against any and all actions, causes of action, suits, losses, costs, liabilities and damages, and reasonable expenses incurred in connection therewith (irrespective of whether any such Agent Indemnified Party is a party to the action for which indemnification hereunder is sought and including, without limitation, any liability in connection with the offering and sale of the Series 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

 

44



 

(collectively, the “ Administrative Agent Indemnified Parties ”) and each Funding Agent and each of its officers, directors, employees and agents (collectively, the “ Funding Agent Indemnified Parties ”, and together with the Administrative Agent Indemnified Parties, the “ Agent Indemnified Parties ”) harmless from and against any and all actions, causes of action, suits, losses, costs, liabilities and damages, and reasonable expenses incurred in connection therewith  (solely to the extent not reimbursed by or on behalf of HVF) (irrespective of whether any such Agent Indemnified Party is a party to the action for which indemnification hereunder is sought and including, without limitation, any liability in connection with the offering and sale of the Series 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,

 

45



 

agreement or term of this Agreement that is prohibited or is held to be void or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the extent of the prohibition or unenforceability without invalidating the remaining provisions of this Agreement.

 

SECTION 9.09   Tax Characterization .  Each party to this Agreement (a) acknowledges that it is the intent of the parties to this Agreement that, for accounting purposes and for all Federal, state and local income and franchise tax purposes, the Series 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

 

46



 

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 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, each Conduit Investor, each Funding Agent and the Administrative Agent 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

 

47



 

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 professional advisors of any party hereto, (i) to any Person to the extent such Committed Note Purchaser, Conduit Investor, Funding Agent or the Administrative Agent 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, or (j) to a nationally-recognized rating agency that requires access to information to effect compliance with any disclosure obligations under applicable laws or regulations.

 

Confidential Information ” means information that HVF or the Administrator furnishes to a Committed Note Purchaser, a Conduit Investor, a Funding Agent or the Administrative Agent, 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, a Conduit Investor, a Funding Agent or the Administrative Agent or other Person to which a Committed Note Purchaser, a Conduit Investor, a Funding Agent or the Administrative Agent delivered such information, (ii) any such information that was in the possession of a Committed Note Purchaser, a Conduit Investor, a Funding Agent or the Administrative Agent prior to its being furnished to such Committed Note Purchaser, such Conduit Investor, such Funding Agent or the Administrative Agent by HVF or the Administrator, or (iii) that is or becomes available to a Committed Note Purchaser, a Conduit Investor, a Funding Agent or the Administrative Agent 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, a Conduit Investor, a Funding Agent or the Administrative Agent 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, a Conduit Investor, a Funding Agent or the Administrative Agent 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

 

48



 

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 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 and Investor Group Maximum Principal Amount Increases .

 

(a)           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 request that an Additional Investor Group and its related Funding Agent, Conduit Purchasers, if any, and Committed Note Purchasers become parties to this Agreement and increase the Series 2009-1 Maximum Principal Amount by complying with the provisions of this Section 9.16(a)  and Sections 2.1 and 5.1 of the Series 2009-1 Supplement upon execution of an Addendum by such Additional Investor Group, the Administrative Agent and HVF, and HVF shall provide at least three (3) Business Days’ prior written notice to each Funding Agent, the Administrative Agent and each Rating Agency, of any such addition.  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 Additional Investor Group Initial 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

 

49



 

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 revise Schedule I hereto in accordance with the information provided in the notice described above. Notwithstanding anything herein or in any other Series 2009-1 Related Document to the contrary, no consent of any existing Investor Group and its related Funding Agent, Conduit Purchasers, if any, and Committed Note Purchasers is required for HVF to cause Additional Investor Group to become party to this Agreement.

 

(b)           Unless an Amortization Event or a Potential Amortization Event shall have occurred and be continuing, HVF and any Investor Group and its related Funding Agent, Conduit Purchasers, if any, and Committed Note Purchasers may increase such Investor Group’s Maximum Investor Group Principal Amount and effect a corresponding increase to the Series 2009-1 Maximum Principal Amount by complying with the provisions of this Section 9.16(b)  and Sections 2.1 and 5.1 of the Series 2009-1 Supplement (any such increase, an “ Investor Group Maximum Principal Increase ”) and upon the execution of an Investor Group Maximum Principal Increase Addendum. In connection with any such Investor Group Maximum Principal Increase, HVF shall provide at least three (3) Business Days’ prior written notice to each Funding Agent and the Administrative Agent of any such increase.  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 Investor Group, the Maximum Investor Group Principal Amount with respect to such Investor Group after giving effect to such Investor Group Maximum Principal Increase, the Investor Group Maximum Principal Increase Amount in connection with such Investor Group Maximum Principal Increase, the related Committed Note Purchaser’s Committed Note Purchaser Percentage after giving effect to such Investor Group Maximum Principal Increase and the desired effective date of such Investor Group Maximum Principal Increase.  Upon the execution of an Investor Group Maximum Principal Increase Addendum by such Investor Group, the Administrative Agent and HVF, the Administrative Agent shall revise Schedule I hereto in accordance with the information provided in the notice described above. Notwithstanding anything herein or in any other Series 2009-1 Related Document to the contrary, no consent of any other existing Investor Group or its related Funding Agent, Conduit Purchasers, if any, or Committed Note Purchasers is required for HVF to cause the Investor Group Maximum Principal Increase to occur or to modify the related Maximum Investor Group Principal Amount set forth in Schedule I hereto to reflect such Investor Group Maximum Principal Increase.

 

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

 

50



 

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.

 

An assignment by a Committed Note Purchaser that is part of an Investor Group that includes a Conduit Investor to an Investor Group that does not include a Conduit Investor may be made pursuant to this Section 9.17(a); provided, that immediately prior to such assignment each Conduit Investor that is part of the assigning Investor Group shall be deemed to have assigned all of its rights and obligations in the Series 2009-1 Notes (and its rights and obligations hereunder and under the Related Documents) in respect of such assigned interest to its related Committed Note Purchaser pursuant to Section 9.03(b). Notwithstanding anything to the contrary herein, any assignment by a Committed Note Purchaser to a different Investor Group that includes a Conduit Investor shall be made pursuant to Section 9.17(c), and not this Section 9.17(a).

 

(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

 

51



 

Documents shall be interpreted in accordance with the foregoing, and (viii) if reasonably 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 (or, with respect to any Investor Group without a Conduit Investor, the related Committed Note Purchaser) may at any time sell all or any part of their respective (or, with respect to an Investor Group without a Conduit Investor, 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 an Investor Group with respect to which each acquiring Conduit Investor is 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 that includes one or more financial institutions providing support to such multi-seller commercial paper conduit (an “ Acquiring Investor Group ”) pursuant to a transfer supplement, substantially in the form of Exhibit C (the “ Investor Group Supplement ”), executed by such Acquiring Investor Group, the Funding Agent with respect to such Acquiring Investor Group (including each Conduit Investor (if any) 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

 

52



 

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.  Each such Participant shall be deemed to have agreed to the provisions set forth in Section 3.10 hereof 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.

 

SECTION 9.18   Each Conduit Investor and each Committed Note Purchaser’s Covenant .  Without limiting the rights of the Trustee or the Lessor under the HVF Lease, each Conduit Investor and each Committed Note Purchaser agrees that so long as no Servicer Default has occurred and is continuing and no Limited Liquidation Event of Default with respect to the Series 2009-1 Notes has occurred and is continuing, HVF shall not be required by any such Conduit Investor or Committed Note Purchaser to take any action to compel or secure the performance or observance by a Manufacturer of its obligations to HVF under a Manufacturer Program or exercise any rights, remedies, powers or privileges with respect to any Manufacturer if the Servicer reasonably determines that such action or exercise is not commercially reasonable.

 

[Remainder of Page Intentionally Blank]

 

53


 

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/ Scott Massengill

 

 

Name:

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/ Scott Massengill

 

 

Name:

Scott Massengill

 

 

Title:

Treasurer

 

 

 

 

 

 

 

Address:

225 Brae Boulevard

 

 

Park Ridge, NJ 07656

 

 

 

 

Attention:

Treasury Department

 

Telephone:

(201) 307-2000

 

Facsimile:

(201)307-2746

 

 

[SERIES 2009-1 NOTE PURCHASE AGREEMENT]

 



 

 

DEUTSCHE BANK AG, NEW YORK BRANCH , as the Administrative Agent

 

 

 

 

 

 

 

By:

/s/ Robert Sheldon

 

 

Name:

Robert Sheldon

 

 

Title:

Managing Director

 

 

 

 

 

 

 

By:

/s/ Ozan Kaya

 

 

Name:

Ozan Kaya

 

 

Title:

Vice President

 

 

 

 

 

 

 

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]

 



 

 

DEUTSCHE BANK AG, NEW YORK BRANCH, as a Funding Agent

 

 

 

 

 

By:

/s/ Robert Sheldon

 

Name:

Robert Sheldon

 

Title:

Managing Director

 

 

 

By:

/s/ Ozan Kaya

 

Name:

Ozan Kaya

 

Title:

Vice President

 

 

 

Address:

60 Wall Street

 

 

3rd Floor

 

 

New York, NY 10005

 

 

 

 

 

Attention:

Ozan Kaya

 

Telephone:

(212) 250-4998

 

Facsimile:

(212) 797-5300

 

Email:

ozan.kaya@db.com

 

[SERIES 2009-1 NOTE PURCHASE AGREEMENT]

 



 

 

SARATOGA FUNDING CORP., LLC, as a Conduit Investor

 

 

 

 

 

By:

/s/ Phillip A. Martone

 

 

Name:

Phillip A. Martone

 

 

Title:

Vice President

 

 

 

 

 

Address:

60 Wall Street

 

 

3rd Floor

 

 

New York, NY 10005

 

 

 

 

 

Attention:

Christopher Register / Rachel Wills

 

Telephone:

(904) 527-6113 / (904) 520-5359

 

Facsimile:

(904) 494-6831 / (904)520-8175

 

Email:

Christopher.Register@db.com /

 

 

Rachel.Wills@db.com

 

[SERIES 2009-1 NOTE PURCHASE AGREEMENT]

 



 

 

DEUTSCHE BANK AG, NEW YORK BRANCH, as a Committed Note Purchaser

 

 

 

 

 

By:

/s/ Robert Sheldon

 

 

Name:

Robert Sheldon

 

 

Title:

Managing Director

 

 

 

By:

/s/ Ozan Kaya

 

 

Name:

Ozan Kaya

 

 

Title:

Vice President

 

 

 

Address:

60 Wall Street, 3rd Floor

 

 

New York, NY 10005-2858

 

 

 

Attention:

Ozan Kaya

 

Telephone:

(212) 250-4998

 

Facsimile:

(212) 797-5300

 

Email:

ozan.kaya@db.com

 

 

 

 

 

COMMITMENT AMOUNT:

 

$501,641,479.00

 

 

 

 

 

COMMITMENT PERCENTAGE: 25.88%

 

[SERIES 2009-1 NOTE PURCHASE AGREEMENT]

 



 

 

BARCLAYS BANK PLC, as a Funding Agent

 

 

 

 

 

 

 

By:

/s/ Jeffrey Goldberg

 

 

Name:

Jeffrey Goldberg

 

 

Title:

Director

 

 

 

 

 

 

 

Address:

745 Seventh Avenue

 

 

5th Floor

 

 

New York, NY 10019

 

 

 

 

Attention:

Jeffrey Goldberg

 

Telephone:

(212) 528-7372

 

Facsimile:

(917) 265-1164

 

Email:

jeffrey.goldberg@barcap.com

 

 

[SERIES 2009-1 NOTE PURCHASE AGREEMENT]

 



 

 

SHEFFIELD RECEIVABLES CORPORATION, as a Conduit Investor

 

 

 

 

 

 

 

By: BARCLAYS BANK PLC, as Attorney-in-Fact

 

 

 

 

 

 

 

By:

/s/John McCarthy

 

 

Name:

John McCarthy

 

 

Title:

Vice President

 

 

 

 

 

 

 

Address:

745 Seventh Avenue

 

 

5th Floor

 

 

New York, NY 10019

 

 

 

 

Attention:

Jeffrey Goldberg

 

Telephone:

(212) 528-7372

 

Facsimile:

(917) 265-1164

 

Email:

jeffrey.goldberg@barcap.com

 

 

[SERIES 2009-1 NOTE PURCHASE AGREEMENT]

 


 

 

SHEFFIELD RECEIVABLES CORPORATION, as a Committed Note Purchaser

 

 

 

 

 

 

 

By: BARCLAYS BANK PLC, as Attorney-in-Fact

 

 

 

 

 

 

 

By:

/s/ John McCarthy

 

 

Name:

John McCarthy

 

 

Title:

Vice President

 

 

 

 

 

 

 

Address:

745 Seventh Avenue

 

 

5th Floor

 

 

New York, NY 10019

 

 

 

 

Attention:

Jeffrey Goldberg

 

Telephone:

(212) 528-7372

 

Facsimile:

(917) 265-1164

 

Email:

jeffrey.goldberg@barcap.com

 

 

 

 

COMMITMENT AMOUNT:

 

 

$285,280,212.00

 

 

 

 

COMMITMENT PERCENTAGE: 14.72%

 

 

[SERIES 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

 

 

26th Floor

 

 

New York, NY 10006

 

 

 

 

Attention:

Darren Ward

 

Telephone:

(212) 225-5264

 

Facsimile:

(212) 225-5274

 

Email:

darren_ward@scotiacapital.com

 

 

[SERIES 2009-1 NOTE PURCHASE AGREEMENT]

 



 

 

LIBERTY STREET FUNDING LLC, as a Conduit Investor

 

 

 

 

 

 

 

By:

/s/ Jill A. Russo

 

 

Name:

Jill A. Russo

 

 

Title:

Vice President

 

 

 

 

 

 

 

Address:

114 West 57th Street Suite 2310

 

 

New York, NY 10036

 

 

 

 

Attention:

Jill Russo

 

Telephone:

(212) 295-2742

 

Facsimile:

(212) 302-8767

 

Email:

jrusso@gssnyc.com

 

 

[SERIES 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

 

 

26th Floor

 

 

New York, NY 10006

 

 

 

 

Attention:

Darren Ward

 

Telephone:

(212) 225-5264

 

Facsimile:

(212) 225-5274

 

Email:

darren_ward@scotiacapital.com

 

 

 

 

 

COMMITMENT AMOUNT: $71,320,053.00

 

 

 

 

 

COMMITMENT PERCENTAGE: 3.68%

 

 

[SERIES 2009-1 NOTE PURCHASE AGREEMENT]

 



 

 

BANK OF AMERICA, N.A., as a Funding Agent

 

 

 

 

 

 

 

By:

/s/ Jeremy Grubb

 

 

Name:

Jeremy Grubb

 

 

Title:

Vice President

 

 

 

 

 

 

 

Address:

214 North Tryon Street, 21st Floor

 

 

NC1-027-21-04

 

 

Charlotte, NC 28255

 

 

 

 

Attention:

Jeremy Grubb

 

Telephone:

(980) 386-7261

 

Facsimile:

(704) 719-8315

 

Email:

jeremy.grubb@baml.com

 

 

[SERIES 2009-1 NOTE PURCHASE AGREEMENT]

 



 

 

BANK OF AMERICA, N.A., as a Committed Note Purchaser

 

 

 

 

 

 

 

By:

/s/ Jeremy Grubb

 

 

Name:

Jeremy Grubb

 

 

Title:

Vice President

 

 

 

 

 

 

 

Address:

214 North Tryon Street, 21st Floor

 

 

NC1-027-21-04

 

 

Charlotte, NC 28255

 

 

 

 

Attention:

Jeremy Grubb

 

Telephone:

(980) 386-7261

 

Facsimile:

(704) 719-8315

 

Email:

jeremy.grubb@baml.com

 

 

 

 

 

 

 

COMMITMENT AMOUNT:

 

 

$213,960,159.00

 

 

 

 

COMMITMENT PERCENTAGE: 11.04%

 

 

[SERIES 2009-1 NOTE PURCHASE AGREEMENT]

 



 

 

CREDIT AGRICOLE CORPORATE AND INVESTMENT BANK, as a Funding Agent

 

 

 

 

 

By:

/s/ Sam Pilcer

 

 

Name: Sam Pilcer

 

 

Title: Managing Director

 

 

 

By:

/s/ Kostantina Kourmpetis

 

 

Name: Kostantina Kourmpetis

 

 

Title: Managing Director

 

 

 

 

 

 

 

Address:

1301 Avenue of Americas

 

 

New York, NY 10019

 

 

 

 

 

 

 

Attention:

Linda Yeung / Kristen Kuo

 

Telephone:

(212) 261-7250 / (212) 261-7455

 

Facsimile:

(917) 849-5584

 

Email:

Conduitsec@ca-cib.com;

 

 

Conduit.Funding@ca-cib.com

 

 

[SERIES 2009-1 NOTE PURCHASE AGREEMENT]

 



 

 

ATLANTIC ASSET SECURITIZATION LLC, as a Conduit Investor

 

 

 

 

 

By: CREDIT AGRICOLE CORPORATE AND INVESTMENT BANK, as Attorney-in-Fact

 

 

 

 

 

By:

/s/ Sam Pilcer

 

 

Name: Sam Pilcer

 

 

Title: Managing Director

 

 

 

By:

/s/ Kostantina Kourmpetis

 

 

Name: Kostantina Kourmpetis

 

 

Title: Managing Director

 

 

 

 

Address:

1301 Avenue of the Americas

 

 

New York, NY 10019

 

 

 

 

Attention:

Tina Kourmpetis / Deric Bradford

 

Telephone:

(212) 261-7814 / (212) 261-3470

 

Facsimile:

(917) 849-5584

 

Email:

Conduitsec@ca-cib.com;

 

 

Conduit.Funding@ca-cib.com

 

 

[SERIES 2009-1 NOTE PURCHASE AGREEMENT]

 


 

 

CREDIT AGRICOLE CORPORATE AND INVESTMENT BANK, as a Committed Note Purchaser

 

 

 

 

 

By:

/s/ Sam Pilcer

 

 

Name: Sam Pilcer

 

 

Title:   Managing Director

 

 

 

By:

/s/ Kostantina Kourmpetis

 

 

Name: Kostantina Kourmpetis

 

 

Title:   Managing Director

 

 

 

Address:

1301 Avenue of Americas

 

 

New York, NY 10019

 

 

 

Attention:

Tina Kourmpetis / Deric Bradford

 

Telephone:

(212) 261-7814 / (212) 261-3470

 

Facsimile:

(917) 849-5584

 

Email:

Conduitsec@ca-cib.com;

 

 

Conduit.Funding@ca-cib.com

 

 

 

 

 

COMMITMENT AMOUNT:

 

$187,566,034.00

 

 

 

 

 

COMMITMENT PERCENTAGE: 9.68%

 

[SERIES 2009-1 NOTE PURCHASE AGREEMENT]

 



 

 

JPMORGAN CHASE BANK, N.A., as a Funding Agent

 

 

 

 

 

By:

/s/ Laura V. Chittick

 

 

Name:

Laura V. Chittick

 

 

Title:

Vice President

 

 

 

 

 

Address:

383 Madison Avenue, Floor 31

 

 

New York, NY 10179

 

 

 

 

Attention:

Laura Chittick

 

Telephone:

(212) 834-5101

 

Facsimile:

(212) 834-6657

 

Email:

laura.v.chittick@jpmorgan.com

 

[SERIES 2009-1 NOTE PURCHASE AGREEMENT]

 



 

 

JUPITER SECURITIZATION COMPANY LLC, as a Conduit Investor

 

 

 

 

 

By: JPMORGAN CHASE BANK, N.A., as Attorney-in-Fact

 

 

 

 

 

By:

/s/ Laura V. Chittick

 

 

Name:

Laura V. Chittick

 

 

Title:

Vice President

 

 

 

 

 

Address:

383 Madison Avenue, Floor 31

 

 

New York, NY 10179

 

 

 

 

Attention:

Laura Chittick

 

Telephone:

(212) 834-5101

 

Facsimile:

(212) 834-6657

 

Email:

laura.v.chittick@jpmorgan.com

 

[SERIES 2009-1 NOTE PURCHASE AGREEMENT]

 



 

 

JPMORGAN CHASE BANK, N.A., as a Committed Note Purchaser

 

 

 

 

 

By:

/s/ Laura V. Chittick

 

 

Name:

Laura V. Chittick

 

 

Title:

Vice President

 

 

 

 

 

Address:

383 Madison Avenue, Floor 31

 

 

New York, NY 10179

 

 

 

 

Attention:

Laura Chittick

 

Telephone:

(212) 834-5101

 

Facsimile:

(212) 834-6657

 

Email:

laura.v.chittick@jpmorgan.com

 

 

 

 

 

COMMITMENT AMOUNT:

 

$245,629,829.00

 

 

 

 

 

COMMITMENT PERCENTAGE: 12.67%

 

[SERIES 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, Senior Counsel

 

 

 

 

Address:

9 West 57th St.

 

 

 

New York, NY 10019

 

 

 

 

Attention:

Frank Fletcher

 

 

Telephone:

(212) 891-5878

 

 

Facsimile:

(212) 891-3335

 

 

Email:

Frank.fletcher@us.natixis.com;

 

 

versaillestransactions@us.natixis.com; rajesh.rampersaud@db.com; Fiona.chan@db.com

 

[SERIES 2009-1 NOTE PURCHASE AGREEMENT]

 



 

 

VERSAILLES ASSETS LLC, as a Conduit Investor

 

 

 

 

 

By: GLOBAL SECURITIZATION SERVICES, LLC, its Manager

 

 

 

 

 

By:

/s/ John L. Fridlington

 

 

Name: John L. Fridlington

 

 

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:

v ersailles_transactions@cm.natixis.com

 

[SERIES 2009-1 NOTE PURCHASE AGREEMENT]

 



 

 

VERSAILLES ASSETS LLC, as a Committed Note Purchaser

 

 

 

 

 

By: GLOBAL SECURITIZATION SERVICES, LLC, its Manager

 

 

 

 

 

By:

/s/ John L. Fridlington

 

 

Name:

John L. Fridlington

 

 

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:

v ersailles_transactions@cm.natixis.com

 

 

 

 

 

 

 

COMMITMENT AMOUNT:

 

$142,640,106.00

 

 

 

 

 

COMMITMENT PERCENTAGE: 7.36%

 

[SERIES 2009-1 NOTE PURCHASE AGREEMENT]

 



 

 

THE ROYAL BANK OF SCOTLAND PLC, as a Funding Agent

 

 

 

RBS SECURITIES INC., as agent

 

 

 

By:

/s/ David Viney

 

 

Name:

David Viney

 

 

Title:

Managing Director

 

 

 

 

 

Address:

550 West Jackson Blvd.

 

 

Chicago, IL 60661

 

 

 

Attention:

David Donofrio

 

Telephone:

(312) 338-6720

 

Facsimile:

(312) 338-0140

 

Email:

david.donofrio@rbs.com

 

[SERIES 2009-1 NOTE PURCHASE AGREEMENT]

 


 

 

AMSTERDAM FUNDING CORPORATION, as a Conduit Investor

 

 

 

 

 

By:

/s/ John L. Fridlington

 

 

Name:

John L. Fridlington

 

 

Title:

Vice President

 

 

 

 

 

Address:

600 Washington Blvd.

 

 

Stamford, CT 06901

 

 

 

 

Attention:

Mike Ballone

 

Telephone:

(203) 897-4750

 

Facsimile:

N/A

 

Email:

michael.ballone@rbs.com,

 

conduit.operations@rbs.com

 

[SERIES 2009-1 NOTE PURCHASE AGREEMENT]

 



 

 

THE ROYAL BANK OF SCOTLAND PLC, as a Committed Note Purchaser

 

 

 

RBS SECURITIES INC., as agent

 

 

 

By:

/s/ David Viney

 

 

Name:

David Viney

 

 

Title:

Managing Director

 

 

 

 

 

Address:

550 West Jackson Blvd.

 

 

Chicago, IL 60661

 

 

 

 

Attention:

David Donofrio

 

Telephone:

(312) 338-6720

 

Facsimile:

(312) 338-0140

 

Email:

david.donofrio@rbs.com

 

 

 

 

 

COMMITMENT AMOUNT:

 

$52,301,373.00

 

 

 

 

 

COMMITMENT PERCENTAGE: 2.70%

 

[SERIES 2009-1 NOTE PURCHASE AGREEMENT]

 



 

 

BMO CAPITAL MARKETS CORP., as a Funding Agent

 

 

 

 

 

 

 

By:

/s/ Keith J. Niebrugge

 

 

Name:

Keith J. 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

 

 

 

 

Attention:

Jeffrey BaCote

 

Telephone:

(312) 461-7449

 

Facsimile:

(312) 461-3189

 

Email:

jeff.bacote@bmo.com

 

 

[SERIES 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

 

 

27th Floor

 

 

New York, NY 10005

 

 

 

 

Attention:

Phil Martone

 

Telephone:

(212) 346-9008

 

Facsimile:

(212) 346-9012

 

Email:

pmartone@lordspv.com

 

 

[SERIES 2009-1 NOTE PURCHASE AGREEMENT]

 



 

 

BANK OF MONTREAL, as a Committed Note Purchaser

 

 

 

 

 

 

 

By:

/s/ Brian Zaban

 

 

Name:

Brian Zaban

 

 

Title:

Managing Director

 

 

 

 

 

 

 

 

 

Address:

115 S. LaSalle Street

 

 

Chicago, IL 60603

 

 

 

 

 

 

 

Attention:

Brian Zaban

 

Telephone:

(312) 461-2578

 

Facsimile:

(312) 259-7260

 

Email:

brian.zaban@bmo.com

 

 

 

 

 

 

 

COMMITMENT AMOUNT:

 

 

$95,093,404.00

 

 

 

 

 

COMMITMENT PERCENTAGE: 4.91%

 

 

[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 100 19

 

 

 

 

Attention:

Lenny Woo

 

Telephone:

(646) 424-6889

 

Facsimile:

(646) 424-6489

 

Email:

Leonard.Woo@americas.ing.com

 

[SERIES 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 100 19

 

 

 

 

Attention:

Dennis Strid

 

Telephone:

(646) 424-7908

 

Facsimile:

(646) 424-6489

 

Email:

dennis.strid@americas.ing.com

 

[SERIES 2009-1 NOTE PURCHASE AGREEMENT]

 



 

 

ING BANK N.V. (DUBLIN BRANCH), as a Committed Note Purchaser

 

 

 

 

 

By:

/s/ Aidan Neill

 

 

Name:

Aidan Neill

 

 

Title:

Director

 

 

 

 

 

By:

/s/ David Rea

 

 

Name:

David Rea

 

 

Title:

Vice President

 

 

 

 

 

Address:

Block 4, Dundrum Town Centre

 

 

Sandyford Road

 

 

Dundrum, Dublin 16, Ireland

 

 

 

 

Attention:

David Rea/Alan Maher

 

Telephone:

+353 1 638 4038

 

Facsimile:

+353 1 638 4020

 

Email:

david.rea@ingbank.com

 

 

 

 

 

COMMITMENT AMOUNT:

 

$142,640,106.00

 

 

 

 

 

COMMITMENT PERCENTAGE: 7.36%

 

[SERIES 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: $ 501,641,479.00

 

Commitment Percentage: 25.88%

 

Committed Note Purchaser Percentage: 100%

 

Maximum Investor Group Principal Amount: $ 501,641,479.00

 

DEUTSCHE BANK AG, NEW YORK BRANCH, as a Funding Agent and a Committed Note Purchaser, for SARATOGA FUNDING CORP., LLC, as a Conduit Investor

 

BANK OF AMERICA, N.A., as a Committed Note Purchaser

 

Commitment Amount: $ 213,960,159.00

 

Commitment Percentage: 11.04%

 

Committed Note Purchaser Percentage: 100%

 

Maximum Investor Group Principal Amount: $ 213,960,159.00

 

BANK OF AMERICA, N.A., as a Funding Agent and a Committed Note Purchaser

 

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: $ 71,320,053.00

 

Commitment Percentage: 3.68%

 

Committed Note Purchaser Percentage: 100%

 

Maximum Investor Group Principal Amount: $ 71,320,053.00

 

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

 

[SERIES 2009-1 NOTE PURCHASE AGREEMENT]

 



 

Investor

 

SHEFFIELD RECEIVABLES CORPORATION, as a Conduit Investor

 

SHEFFIELD RECEIVABLES CORPORATION, as a Committed Note Purchaser

 

Commitment Amount: $ 285,280,212.00

 

Commitment Percentage: 14.72%

 

Committed Note Purchaser Percentage: 100%

 

Maximum Investor Group Principal Amount: $ 285,280,212.00

 

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: $ 95,093,404.00

 

Commitment Percentage: 4.91%

 

Committed Note Purchaser Percentage: 100%

 

Maximum Investor Group Principal Amount: $ 95,093,404.00

 

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

 

CREDIT AGRICOLE CORPORATE AND INVESTMENT BANK, as a Committed Note Purchaser

 

Commitment Amount: $ 187,566,034.00

 

Commitment Percentage: 9.68%

 

Committed Note Purchaser Percentage: 100%

 

Maximum Investor Group Principal Amount: $ 187,566,034.00

 

[SERIES 2009-1 NOTE PURCHASE AGREEMENT]

 

 



 

CREDIT AGRICOLE CORPORATE AND INVESTMENT BANK, 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: $ 142,640,106.00

 

Commitment Percentage: 7.36%

 

Committed Note Purchaser Percentage: 100%

 

Maximum Investor Group Principal Amount: $ 142,640,106.00

 

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

 

JUPITER SECURITIZATION COMPANY LLC, as a Conduit Investor

 

JPMORGAN CHASE BANK, N.A., as a Committed Note Purchaser

 

Commitment Amount: $ 245,629,829.00

 

Commitment Percentage: 12.67%

 

Committed Note Purchaser Percentage: 100%

 

Maximum Investor Group Principal Amount: $ 245,629,829.00

 

JPMORGAN CHASE BANK, N.A., as a Funding Agent and a Committed Note Purchaser, for JUPITER SECURITIZATION COMPANY LLC, as a Conduit Investor

 

VERSAILLES ASSETS LLC, as a Conduit Investor

 

VERSAILLES ASSETS LLC, as a Committed Note Purchaser

 

Commitment Amount: $ 142,640,106.00

 

Commitment Percentage: 7.36%

 

Committed Note Purchaser Percentage: 100%

 

Maximum Investor Group Principal Amount: $ 142,640,106.00

 

[SERIES 2009-1 NOTE PURCHASE AGREEMENT]

 



 

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: $ 52,301,373.00

 

Commitment Percentage: 2.70%

 

Committed Note Purchaser Percentage: 100%

 

Maximum Investor Group Principal Amount: $ 52,301,373.00

 

THE ROYAL BANK OF SCOTLAND PLC , as a Funding Agent and a Committed Note Purchaser, for AMSTERDAM FUNDING CORPORATION, as a Conduit Investor

 

[SERIES 2009-1 NOTE PURCHASE AGREEMENT]

 


 

SCHEDULE II

 

Effect of Amendment and Restatement of Series 2009-1 Initial Notes

 

Series
2009-1
Noteholder

 

Commitment
Amount on
December 15, 2010

 

Commitment
Amount on
December 16, 2010

 

Reduction
of
Commitment
Amount

 

Maximum
Investor
Group
Principal
Amount on
December 15, 2010

 

Maximum
Investor
Group
Principal
Amount on
December 16, 2010

 

Reduction
in
Maximum
Investor
Group
Principal Amounts

 

Payments in
respect of
principal of
Series 2009-1
Initial Note

 

Increases

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

The Bank of Nova Scotia, acting through its New York Agency

 

$

75,000,000.00

 

$

71,320,053.00

 

$

3,679,947.00

 

$

75,000,000.00

 

$

71,320,053.00

 

$

3,679,947.00

 

N/A

 

$

1,803,766.76

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Barclays Bank PLC

 

$

300,000,000.00

 

$

285,280,212.00

 

$

14,719,788.00

 

$

300,000,000.00

 

$

285,280,212.00

 

$

14,719,788.00

 

N/A

 

$

7,215,067.05

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

BMO Capital Markets Corp.

 

$

100,000,000.00

 

$

95,093,404.00

 

$

4,906,596.00

 

$

100,000,000.00

 

$

95,093,404.00

 

$

4,906,596.00

 

N/A

 

$

2,405,022.35

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Deutsche Bank AG, New York Branch

 

$

627,525,000.00

 

$

501,641,479.00

 

$

125,883,521.00

 

$

627,525,000.00

 

$

501,641,479.00

 

$

125,883,521.00

 

$

36,329,011.82

 

N/A

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Bank of America, N.A.

 

$

225,000,000.00

 

$

213,960,159.00

 

$

11,039,841.00

 

$

225,000,000.00

 

$

213,960,159.00

 

$

11,039,841.00

 

N/A

 

$

5,411,300.29

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Credit Agricole Corporate and Investment Bank

 

$

197,244,000.00

 

$

187,566,034.00

 

$

9,677,966.00

 

$

197,244,000.00

 

$

187,566,034.00

 

$

9,677,966.00

 

N/A

 

$

4,743,762.40

 

 


 

Series
2009-1
Noteholder

 

Commitment
Amount on
December 15, 2010

 

Commitment
Amount on
December 16, 2010

 

Reduction
of
Commitment
Amount

 

Maximum
Investor
Group
Principal
Amount on
December 15, 2010

 

Maximum
Investor
Group
Principal
Amount on
December 16, 2010

 

Reduction
in
Maximum
Investor
Group
Principal Amounts

 

Payments in
respect of
principal of
Series 2009-1
Initial Note

 

Increases

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

ING Capital Markets , LLC

 

$

150,000,000.00

 

$

142,640,106.00

 

$

7,359,894.00

 

$

150,000,000.00

 

$

142,640,106.00

 

$

7,359,894.00

 

N/A

 

$

3,607,533.53

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

JPMorgan Chase Bank, N.A.

 

$

258,303,750.00

 

$

245,629,829.00

 

$

12,673,921.00

 

$

258,303,750.00

 

$

245,629,829.00

 

$

12,673,921.00

 

N/A

 

$

6,212,263.17

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Natixis Financial Products Inc.

 

$

150,000,000.00

 

$

142,640,106.00

 

$

7,359,894.00

 

$

150,000,000.00

 

$

142,640,106.00

 

$

7,359,894.00

 

N/A

 

$

3,607,533.53

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

The Royal Bank of Scotland plc

 

$

55,000,000.00

 

$

52,301,373.00

 

$

2,698,627.00

 

$

55,000,000.00

 

$

52,301,373.00

 

$

2,698,627.00

 

N/A

 

$

1,322,762.72

 

 

2


 

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 7.0 3 of that certain Amended and Restated Series 2009-1 Note Purchase Agreement, dated as of December  1 6 , 20 10 (as further 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 in the Definition List attached to the Base Indenture as 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 7.0 3 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 7.0 3 (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:

 

 



 

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, 19th Floor

New York, NY 10005-2858

Contact person:  C hristopher Register / Rachel Wills

Telephone number: (904) 527-6113 / (904) 520-5359

Fax number:  (904) 494-6831 / (904)520-8175

E-mail address:   Christopher.Register@db.com / Rachel.Wills@db.com

 

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

 

BANK OF AMERICA, N.A., as a Funding Agent and a Committed Note Purchaser

214 North Tryon Street, 21st Floor

NC1-027-21-04

Charlotte, NC 28255

Contact person: J eremy Grubb

Telephone number:

(980) 386-7261

Fax number:

             (704) 719-8315

E-mail address:

jeremy.grubb@baml.com

 

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:

 

Liberty Street Funding LLC

114 West 47th Street, Suite 2310

New York, NY 10036

Contact person:  Jill Russo

Telephone number:        (212) 295-2742

Fax number:  (212) 302-8767

E-mail address:    jrusso@gssnyc.com

 

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 number:                           (917) 265-1164

E-mail address:             jeffrey.goldberg@barcap.com

 

Or, in the case of Sheffield Receivables Corporation:

 

745 Seventh Avenue, 5th Floor

 



 

New York, NY 10019

Contact person:  Jeffrey Goldberg

Telephone number:       (212) 528-7372

Fax number:  (917) 265-1164

E-mail address: jeffrey.goldberg@barcap.com

 

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

Contact person:  Keith Niebrugge

Telephone number:       (312) 461-3134

Fax number:  (312) 293-4908

E-mail address:  keith.niebrugge@bmo.com

Contact person:  Jeffrey BaCote

Telephone number:       (312) 461-7449

Fax number:  (312) 461-3189

E-mail address:  jeff.bacote@bmo.com

 

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

E-mail address:  pmartone@lordspv.com

 

Or, in the case of Bank of Montreal:

 

Bank of Montreal

115 S. LaSalle Street

Chicago, IL 60603

Contact person: Brian Zaban

Telephone number:   (312) 461-2578

Fax number:  (312) 259-7260

E-mail address: brian.zaban@bmo.com

 

CREDIT AGRICOLE CORPORATE AND INVESTMENT BANK , as a Funding Agent and a Committed Note Purchaser, for ATLANTIC ASSET SECURITIZATION LLC, as a Conduit Investor

Credit Agricole Corporate and Investment Bank

1301 Avenue of the Americas

 



 

New York, NY 10019

Contact person: Linda Yeung / Kristen Kuo

Telephone number:      (212) 261-7250 / (212) 261-7455

Fax number:  (917) 849-5584

E-mail address: Conduitsec@ca-cib.com; Conduit.Funding@ca-cib.com

 

Or, in the case of Atlantic Asset Securitization LLC or Credit Agricole Corporate and Investment Bank, as a Committed Note Purchaser:

 

1301 Avenue of the Americas

New York, NY 10019

Contact person:  Tina Kourmpetis / Deric Bradford

Telephone number: (212) 261-7814 / (212) 261-3470

Fax number:  (917) 849-5584

E-mail address: Conduitsec@ca-cib.com; Conduit.Funding@ca-cib.com

 

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

ING Capital Markets, LLC

1325 Avenue of the Americas

New York, NY 10019

Contact person:

  Lenny Woo

Telephone number:

(646) 424-6889

Fax number:

(646) 424-6489

E-mail address:

Leonard.Woo@americas.ing.com

 

Or, in the case of Mont Blanc Capital Corp.

 

1325 Avenue of the Americas

New York, NY 10019

Contact person:

Dennis Strid

Telephone number:

(646) 424-7908

Fax number:

(646) 424-6489

E-mail address:

dennis.strid@americas.ing.com

 

Or, in the case of ING Bank N.V. ( Dublin Branch ) :

 

Block 4, Dundrum Town Centre

Sandyford Road

Dundrum, Dublin 16, Ireland

Contact person:

David Rea/Alan Maher

Telephone number:

+353 1 638 4038

Fax number:

             +353 1 638 4020

E-mail address:

david.rea@ingbank.com

 



 

JPMORGAN CHASE BANK, N.A., as a Funding Agent and a Committed Note Purchaser, for JUPITER SECURITIZATION COMPANY LLC , as a Conduit Investor

383 Madison Avenue, Floor 31

New York, NY 10179

Contact person:

Laura Chittick

Telephone number:

(212) 834-5101

Fax number:

(212) 834-6657

E-mail address:

laura.v.chittick@jpmorgan.com

 

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

E-mail address:  Frank.fletcher@us.natixis.com; versaillestransactions@us.natixis.com; rajesh.rampersaud@db.com; Fiona.chan@db.com

 

Or, in the case of Versailles Assets LLC:

 

c/o Global Securitization Services LLC

68 South Service Road

Suite 120

Melville, NY 11747

Attention:  Andrew Stidd

Telephone:  (212) 302-8767

Fax:  (631) 587-4700

E-mail address:

versailles_transactions@cm.natixis.com

 

THE ROYAL BANK OF SCOTLAND PLC , as a Funding Agent AND a Committed Note Purchase , for AMSTERDAM FUNDING CORPORATION, as a Conduit Investor

550 West Jackson Blvd.

Chicago, IL 60661

Contact person:

David Donofrio

Telephone number:

(312) 338-6720

Fax number:

(312) 338-0140

E-mail address:

david.donofrio@rbs.com

 

Or, in the case of Amsterdam Funding Corporation:

 

600 Washington Blvd

Stamford, CT 06901

 



 

Contact person:

Mike Ballone

Telephone number:

(203) 897-4750

Fax number:

N/A

E-mail address:

michael.ballone@rbs.com, conduit.operations@rbs.com

 


 

SCHEDULE II:

 

Funding Allocation by Funding Agent:

 

 

 

 

 

DEUTSCHE BANK AG, NEW YORK BRANCH

 

25.88

%

$

501,641,479.00

 

BANK OF AMERICA, N.A.

 

11.04

%

$

213,960,159.00

 

THE BANK OF NOVA SCOTIA

 

3.68

%

$

71,320,053.00

 

BARCLAYS BANK PLC

 

14.72

%

$

285,280,212.00

 

BMO CAPITAL MARKETS CORP.

 

4.91

%

$

95,093,404.00

 

CREDIT AGRICOLE CORPORATE AND INVESTMENT BANK

 

9.68

%

$

187,566,034.00

 

ING CAPITAL MARKETS , LLC

 

7.36

%

$

142,640,106.00

 

JPMORGAN CHASE BANK, N.A.

 

12.67

%

$

245,629,829.00

 

NATIXIS FINANCIAL PRODUCTS INC.

 

7.36

%

$

142,640,106.00

 

THE ROYAL BANK OF SCOTLAND PLC

 

2.70

%

$

52,301,373.00

 

 



 

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 Amended and Restated Series 2009-1 Note Purchase Agreement, dated as of December 16, 2010 (as from time to time further 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.

 

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

 

B-1



 

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 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

 

B-2



 

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 Amended and Restated Series 2009-1 Note Purchase Agreement, dated as of December 16 , 2010 (as from time to time further 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 Amended and Restated Series 2009-1 Note Purchase Agreement, dated as of December 16, 2010 (as from time to time further 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:

 

Schedule 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  E
TO
SERIES 2009-1 NOTE PURCHASE AGREEMENT

 

FLEET DATA REPORT

 

On file with The Hertz Corporation

 



 

EXHIBIT  F
TO
SERIES 2009-1 NOTE PURCHASE AGREEMENT

 

INVESTOR GROUP MAXIMUM PRINCIPAL INCREASE ADDENDUM

 

In order to effect an Investor Group Maximum Principal Increase with respect to its Investor Group, each of the undersigned:

 

(i) confirms that it has received a copy of the Amended and Restated Series 2009-1 Note Purchase Agreement, dated as of December 16, 2010 (as from time to time further 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 Investor Group Maximum Principal Increase Addendum;

 

(ii) reaffirms its appointment and authorization of 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) reaffirms its agreement to all of the provisions of the Series 2009-1 Note Purchase Agreement;

 

(iv) agrees to (1) the Investor Group Maximum Principal Increase described in this Investor Group Maximum Principal Increase Addendum and (2) an Investor Group Maximum Principal Increase Amount in an amount equal to $                                  ;

 

(v) agrees that the related Maximum Investor Group Principal Amount is $                                   and the related Committed Note Purchaser’s Committed Note Purchaser Percentage is        percent (    %) (in each case after giving effect to the Investor Group Maximum Principal Increase described in clause (iv)  above); and

 

(vi) each member of the Investor Group hereby represents and warrants that the representations and warranties contained in Section 6.03 of the Series 2010-1 Note Purchase Agreement are true and correct with respect to the Investor Group on and as of the date hereof and the 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 Investor Group is as follows:

 

[INSERT CONTACT INFORMATION FOR EACH ENTITY]

 



 

This Investor Group Maximum Principal Increase 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 Investor Group Maximum Principal Increase 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 Investor Group Maximum Principal Increase 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  G
TO
SERIES 2010-2 NOTE PURCHASE AGREEMENT

 

Form of Servicer Auditor Report

 


 

Attachment 1

 

A.          Monthly Noteholders’ Statement

 

We will obtain the Series 2009-1 Supplement dated September 18, 2009 (“the Supplement”), the Hertz Vehicle Financing LLC (“HVF” or the “Company”) April 2010 Monthly Noteholders’ Statement, Fleet Percentages Appendix, and Monthly Collateral Certificate (collectively referred to as “the Noteholders’ Statement”), and the Third Amended and Restated Base Indenture dated September 18, 2009 (“Base Indenture”). We will perform the procedures as indicated for each item in Section 6.2 of the Supplement:

 

Section 6.2 of the Supplement, item:

 

 

 

 

 

(i) the total amount available to be distributed to Series 2009-1 Noteholders on such Payment Date

 

1.        Confirm this item appears on the Noteholders’ Statement as the total in section V.E.

 

2.        Agree to the sum of the total of interest payments, principal payments, undrawn fee, program fee and administrative fees which appears on each of the April 2010 invoices received by the Company from Deutsche Bank AG, Bank of America, N.A., The Bank of Nova Scotia, Barclays Bank PLC, BMO Capital Markets Corp., Calyon New York Branch, ING Capital Markets LLC, JPMorgan Chase Bank, N.A., Natixis Financial Products Inc., and RBS Securities Inc. (the “Noteholders”).

 

 

 

(ii) the amount of such distribution allocable to the payment of principal of the Series 2009-1 Notes

 

3.        Confirm this item appears on the Noteholders’ Statement in section V.E(b).

 

4.        Agree to the sum of principal payments which appears on the April 2010 invoices received by the Company from the Noteholders.

 

 

 

(iii) the amount of such distribution allocable to the payment of interest on the Series 2009-1 Notes

 

5.        Confirm this item appears on the Noteholders’ Statement in section V.E(a).

 

6.        Agree to the sum of interest payments which appears on the April 2010 invoices received by the Company from the Noteholders.

 

 

 

(iv) the Series 2009-1 Controlled Amortization Amount, if any, for the related Series 2009-1 Controlled Amortization Payment Date

 

7.        Confirm this item appears on the Noteholders’ Statement in section V.B.

 

8.        Note this amount is zero in the Noteholders’ Statement.

 

 

 

(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

 

9.        Confirm the Series 2009-1 Invested Percentage with respect to Interest Collections appears on the Noteholders’ Statement in section I.A.

 

10.      Agree the following components used by management in the calculation of this item as follows:

(a)    Agree the aggregate Accrued Amounts of interest with respect to all series of notes to the April 2010 Noteholders’ Statements of the Series 2005-1, Series 2005-2,

 



 

 

 

Series 2009-2, and Series 2009-1 Notes.

(b)    Agree the Series 2009-1 payment of interest, Series 2009-1 Undrawn Fee, Series 2009-1 Program Fee, and Series 2009-1 Administrative Fee to the April 2010 invoices received by the Company from the Noteholders.

 

11.      Confirm the Invested Percentage with respect to Principal Collections appears in section I.B of the Noteholders’ Statement.

 

 

 

 

 

12.      Agree the following components used by management in the calculation of the Invested Percentage with respect to Principal Collections as follows:

(a)    Agree the components used by management in the Series 2009-1 Required Adjusted Asset calculation to the following:

a.      Agree the Series 2009-1 Principal Amount to item xxiv below.

b.      Agree the amount of cash and Permitted Investments on deposit in the Series 2009-1 Excess Collection and Series 2009-1 Collection Account to their respective Bank of New York April 2010 bank statements.

c.      Agree the Series 2009-1 Overcollateralization Amount to item xviii below.

(b)    Agree the Aggregate Asset Amount to item x below.

(c)    Agree the Aggregate Required Asset Amount to the sum of the Required Asset Amounts from the Series 2005-1, Series 2005-2, Series 2009-2, and Series 2009-1 Notes as reported on their respective April 2010 Noteholders’ Statements.

a.       Agree the Series 2009-1 Required Asset Amount to item xviii below.

 

 

 

(vi) 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 day of the Related Month

 

 

13.      Confirm the Series 2009-1 Enhancement Amount appears on the Noteholders’ Statement in section X.

 

14.      Agree the following components used by management in the calculation of this item as follows:

(a)    Agree the Series 2009-1 Overcollateralization Amount to item xviii below.

(b)    Agree the Series 2009-1 Letter of Credit Amount to item xxiii below.

(c)    Agree the Series 2009-1 Available Reserve Account Amount to item xix

 



 

 

 

below.

 

 

 

 

 

15.      Confirm the Series 2009-1 Adjusted Enhancement Amount appears on the Noteholders’ Statement in section X.

 

 

 

 

 

16.      Agree the following components used by management in the calculation of this item as follows:

(a)    Agree the Series 2009-1 Enhancement Amount to item vi.

(b)    Agree the Series 2009-1 Letter of Credit Amount to item xxiii below.

 

 

 

 

 

17.      Confirm the Series 2009-1 Liquidity Amount appears on the Noteholders’ Statement as section XIV(w).

 

 

 

 

 

18.      Agree the following components used by management in the calculation of this item as follows:

(a)    Agree the Series 2009-1 Letter of Credit Liquidity Attachment 1 Amount to item xxiii below.

(b)    Agree the Series 2009-1 Available Reserve Account Amount to item xix below.

 

 

 

 

 

19.      Confirm the Series 2009-1 Adjusted Liquidity Amount appears on the Noteholders’ Statement as section XIV(v).

 

 

 

 

 

20.      Agree the following components used by management in the calculation of this item as follows:

(a)    Agree the Series 2009-1 Liquidity Amount to item vi.

(b)    Agree the Series 2009-1 Letter of Credit Amount to item xxiii below.

 

 

 

(vii) whether, to the knowledge of the Administrator, any Lien exists on any of the Collateral (other than Permitted Liens)

 

21.      Observe the inclusion of this officer certification on the Noteholders’ Statement in the Monthly Collateral Certificate; however we will not perform any other procedures on this item.

 

 

 

(viii) whether, to the knowledge of the Administrator, any Operating Lease Event of Default has occurred

 

22.      Observe the inclusion of this officer certification on the Noteholders’ Statement; however we will not perform any other procedures on this item.

 

 

 

(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

 

23.      Observe the inclusion of this officer certification on the Noteholders’ Statement; however we will not perform any other procedures on this item.

 

 

 

(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

 

24.      Confirm the Aggregate Asset Amount appears in section II of the Noteholders’ Statement.

 

 



 

Related Month

 

25.      Agree the Aggregate Asset Amount and the amount of Aggregate Asset Deficiency to a management prepared schedule entitled “The Hertz Corporation (the Servicer) Estimated HVF Daily Aggregate Asset As of April 30, 2010” (the “HVF Asset Report”). Refer to Exhibit I, Section B for procedures to be performed on the HVF Asset Report.

 

 

 

 

 

26.      Confirm the Aggregate Asset Amount Deficiency appears in section IV of the Noteholders’ Statement.

 

27.      Agree the following components used by management in the calculation of this item as follows:

(a)    Agree the Aggregate Asset Amount to this section (x) above.

(b)    Agree the Aggregate Required Asset Amount to item v above (procedures 12).

 

 

 

(xi) 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

 

28.      Confirm these items appear in the Noteholders’ Statement as follows:

(a)    Confirm the Bankrupt Manufacturer Vehicle Amount, the Bankrupt Manufacturer Vehicle Percentage, the Category 1 Manufacturer Eligible Program Vehicle Amount, the Category 1 Manufacturer Eligible Program Vehicle Percentage, the Category 1 Manufacturer Non-Eligible Program Vehicle Amount, Attachment 1 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 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 3 Manufacturer Vehicle Amount, the Manufacturer Eligible Program Vehicle Amount, the Manufacturer Non-Eligible Program Vehicle Amount, the Manufacturer Non-Eligible Vehicle Amount, and the Non-Eligible Vehicle Amount appear in Section XIV of the Noteholders’ Statement.

(b)    Confirm the Capped Category 2 Manufacturer Program Vehicle Percentage and the Category 2 Manufacturer Program Vehicle Percentage appear in Section X of the Noteholders’ Statement.

(c)    Confirm 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 appear in the Fleet Percentages Appendix to the Noteholders’ Statement.

 

 

 

 

 

29.      Agree these items as follows:

(a)    Agree 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 to the HVF Asset Report.

(b)    Agree the following components used by management in the calculation of the Non- Investment Grade Manufacturer Program Vehicle Amount in the Fleet Percentages Appendix as follows:

a.      Agree the “Mfg Eligible Program Vehicle Amount” for Old Carco LLC, Chrysler Group LLC, Ford, Motors Liquidation Company, General Motors Company, Jaguar, Kia, Land Rover, Mazda, Mitsubishi, Porsche, Subaru, Suzuki, and Volvo to the HVF Asset Report.

(c)    Agree the following components used by management in the calculation of the Standard & Poor’s Ineligible Receivable Manufacturer Receivable Amount in the Fleet Percentages Appendix as follows:

a.      Agree the “Manufacturer Receivables” for Audi, BMW, Old Carco LLC (Old Chrysler), Chrysler Group LLC, Ford, Motors Liquidation Company (Old GM), General Motors Company, Hyundai, Jaguar, Kia, Land Rover, Mazda, Mercedes, Mitsubishi, Nissan, Porsche, Subaru, Suzuki, Volkswagon, Volvo to the HVF Asset Report

 

 

 

(xii) the Non-Eligible Manufacturer Amount as of the close of business on the last day of the Related Month

 

30.      Confirm this item appears in section XIIIaa of the Noteholders’ Statement.

 

 

 

 

 

31.      Agree the components used by management in the calculation of the Non-Eligible Manufacturer Amount as follows:

(a)    Agree the “Mfg Non-Eligible Vehicle Amount” for Acura and Porsche to the HVF Asset Report.

 

 

 

(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 2009-1 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 Related Month and the Market Value Average and Non- Program

 

32.      Confirm these items appear in the Noteholders’ Statement as follows:.

(a)    Confirm 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, and the Series 2009-1 Required Enhancement Percentage appear in Section X of the Noteholders’ Statement.

(b)    Confirm the Series 2009-1 Standard & Poor’s Enhancement Amount, Series

 



 

Vehicle Measurement Month Average and all calculations related thereto

 

2009-1 Standard & Poor’s Enhancement Percentage, Series 2009-1 Standard & Poor’s Additional Incremental Enhancement Amount, Series 2009-1 Standard & Poor’s Additional Enhancement Amount, the Market Value Average and Non-Program Vehicle Measurement Month Average appear in Section XV of the Noteholders’ Statement.

 

33.      Agree these items as follows:

(a)    Agree 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, and the Series 2009-1 Required Enhancement Percentage to the HVF Asset Report.

   

 

 

(b)    Agree the following components used by management in the calculation of the Series2009-1 Standard & Poor’s Enhancement Amount as follows:

a.      Agree the Series 2009-1 Enhancement Percentage to item xiii.

b.      Agree the Series 2009-1 Adjusted Principal Amount to item xxiv.

c.      Agree the Series 2009-1 Required Incremental Enhancement Amount to item xv.

d.      Agree the Series 2009-1 Standard & Poor’s Additional Incremental Enhancement Amount to item xiii below.

 

(c)    Agree the following components used by management in the calculation of the Series 2009-1 Standard & Poor’s Enhancement Percentage as follows:

a.  Agree the “Market Value Average” and “Non-Program Vehicle Measurement Month Average” to item xiii below.

(d)    Agree the following components used by management in the calculation of the Standard and Poor’s Additional Incremental Enhancement Amount as follows:

a.      Agree the Standard & Poor’s Ineligible Receivable Manufacturer Receivable Amount to item xi above.

b.      Agree the Ineligible Receivable Manufacturer Receivable Amount to

 



 

 

 

 

 

 

the Fleet Percentage Appendix.

i.       Agree the “Manufacturer Receivables” for Old Carco LLC (Old Chrysler), Chrysler Group LLC, Ford, Motors Liquidation Company (Old GM), General Motors Company, Jaguar, Kia, Land Rover, Mazda, Mitsubishi, Porsche, Subaru, Suzuki, and Volvo from the Fleet Percentage Appendix to the HVF Asset Report

(e)    Agree the following components used by management in the calculation of the Standard & Poor’s Additional Enhancement Amount as follows:

a.      Agree the Series 2009-1 Standard & Poor’s Enhancement Amount to item xiii above.

b.      Agree the Series 2009-1 Required Enhancement Amount to item xvii below.

(f)      Agree the “Market Value Average” and “Non- Program Vehicle Measurement Month Average” to a management prepared schedule entitled “Non- Program Vehicle Measurement Monthly Average as of April 30, 2010” (the “HVF Measurement Report”). Refer to Exhibit I, Section D for procedures to be performed on the HVF Measurement Report.

 

 

 

(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

 

34.      Confirm these items appear in the Noteholders’ Statement as follows:

(a)    Confirm 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 Subaru Amount, the Suzuki Amount, the Toyota Amount, the Volvo Amount and the Volkswagen Amount appear in Section XIII of the Noteholders’ Statement

(b)    Confirm the Old Chrysler Amount and the Old GM Amount appear in the Noteholders’ Statement in the Fleet Percentages Appendix.

 

 

 

 

 

35.      Agree the “Mfg Eligible Program Vehicle Amount” and “Mfg Non-Eligible Vehicle Amount” amounts for each “Manufacturer” from

 


 

 

 

the Fleet Percentage Appendix to the HVF Asset Report.

 

 

 

(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

 

36.      Confirm this item appears in section X of the Noteholders’ Statement.

 

37.      Agree the following components used by management in the calculation of this item as follows:

 

(a)    Agree the Series 2009-1 Required Incremental Enhancement Amount to the management prepared schedule entitled “Hertz Vehicle Financing Calculation of Enhancement Requirements as of April 30, 2010 (the “HVF Enhancement Report”). Refer to Exhibit I, Section C for procedures to be performed on the HVF Enhancement Report.

(b)    Agree the Series 2009-1 Adjusted Principal Amount to item xxiv below.

(c)    Agree the following components used by management in the Series 2009-1 Required Asset Amount Percentage calculation as follows:

a.      Agree the Series 2009-1 Required Asset Amount to item xviii.

b.      Agree the Aggregate Required Asset Amount to item v above (Procedure 12).

 

 

 

(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

 

38.      Confirm the Series 2009-1 Required Liquidity Amount appears in section XIVu of the Noteholders’ Statement.

 

39.      Agree the following components used by management in the calculation of this item as follows:

(a)    Agree the Series 2009-1 Adjusted Principal Amount to item xxiv below.

(b)    Agree the Series 2009-1 Required Liquidity Percentage of 6.25% to the definition as set forth in Article I of the Supplement.

 

 

 

 

 

40.      Observe the amount included in Section XIVv of the Noteholders’ Statement is greater than the amount included in Section XIVu of the the Noteholders’ Statement.

 

41.      Agree the following components used by management in the calculation of the Series 2009-1 Liquidity Deficiency amount as follows:

(a)    Agree the Series 2009-1 Required Liquidity Amount to item xvi above.

(b)    Agree the Series 2009-1 Adjusted Liquidity Amount to item vi above.

 



 

(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

 

42.      Confirm the Series 2009-1 Required Enhancement Amount appears in section X of the Noteholders’ Statement.

 

43.      Agree the following components used by management in the calculation of the Series 2009-1 Required Enhancement Amount as follows:

(a)    Agree the Series 2009-1 Required Enhancement Percentage to item xiii above.

(b)    Agree the Series 2009-1 Adjusted Principal Amount to item xxiv below.

(c)    Agree the Series 2009-1 Required Incremental Enhancement Amount to item xv above.

 

 

 

 

 

44.      Confirm the Series 2009-1 Enhancement Deficiency amount appears in section X of the Noteholders’ Statement.

 

45.      Agree the following components used by management in the calculation of the Series 2009-1 Enhancement Deficiency as follows:

(a)    Agree the Series 2009-1 Adjusted Enhancement Amount to item vi above.

(b)    Agree the Series 2009-1 Required Enhancement Amount to item xvii above.

 

 

 

(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

 

46.      Confirm the Series 2009-1 Required Overcollateralization Amount appears on the Noteholders’ Statement in section X.

 

47.      Agree the following components used by management in the calculation of the Series 2009-1 Required Overcollateralization Amount as follows:

(a)    Agree the Series 2009-1 Required Enhancement Amount to item xvii above.

(b)    Agree the Series 2009-1 Available Reserve Account Amount to the Series 2009-1 Reserve Account Bank of New York April 2010 bank statement.

(c)    Agree the Series 2009-1 Letter of Credit Amount to item xxiii below.

 

 

 

 

 

48.      Confirm the Series 2009-1 Overcollateralization Amount appears in section X(6) of the Noteholders’ Statement.

 

49.      Agree the following components used by management in the calculation of the Series 2009-1 Overcollateralization Amount as follows:

(a)    Agree the following components used by management in the Series 2009-1 Asset Amount calculation as follows:

 



 

 

 

a.      Agree the Aggregate Asset Amount to item x above.

b.      Agree the components used by management in the Series 2009-1 Asset Percentage calculation as follows:

i.       Agree the Series 2009-1 Required Asset Amount to item xviii below.

ii.      Agree the Aggregate Asset Amount to item x above.

iii.     Agree the Aggregate Required Asset Amount to item v above (Procedure 12).

(b)    Agree the Series 2009-1 Required Overcollateralization Amount to item xviii above.

(c)    Agree the Series 2009-1 Adjusted Principal Amount to item xxiv below.

 

 

 

 

 

50.      Confirm the Series 2009-1 Required Asset Amount appears in section III.C of the Noteholders’ Statement.

 

51.      Agree the following components used by management in the calculation of the Series 2009-1 Required Asset Amount as follows:

(a)    Agree the Series 2009-1 Adjusted Principal Amount to item xxiv below.

(b)    Agree the components used by management in the Series 2009-1 Required Overcollateralization Amount to item xviii above.

 

 

 

(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

 

52.      Confirm the Series 2009-1 Required Reserve Account Amount appears in section X(4) of the Noteholders’ Statement.

 

53.      Agree the following components used by management in the calculation of the Series 2009-1 Required Reserve Account Amount as follows:

(a)    Agree the Series 2009-1 Required Liquidity Amount to item xvi above.

(b)    Agree the Series 2009-1 Letter of Credit Liquidity Amount to item xxiii below.

(c)    Agree the amount available to be drawn under any Series 2009-1 Letter of Credit to the “Amendment to Our Irrevocable Letter of Credit No. DBS-18390” dated March 12, 2010 between The Hertz Corporation (“Hertz”) and Deutsche Bank AG New York (“Letter of Credit Agreement”)

(d)    Agree the Series 2009-1 Required Enhancement Amount to item xvii above.

(e)    Agree the Series 2009-1 Adjusted

 



 

 

 

Enhancement Amount to item vi above.

(f)     Agree the Series 2009-1 Available Reserve Account Amount to item xix below.

 

 

 

 

 

54.      the Series 2009-1 Available Reserve Account Amount appears in section X(5) of the Noteholders’ Statement.

 

55.      Agree the Series 2009-1 Available Reserve Account Amount to the Series 2009-1 Reserve Account April 2010 bank statement.

 

 

 

(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

 

56.      Confirm these items appear in the Fleet Percentages Appendix to the Noteholders’ Statement.

 

57.      Agree the “Mfg Eligible Program Vehicle Amount”, “Mfg Non-Eligible Vehicle Amount”, and “Credit Ratings - Moody’s” for each “Manufacturer” from the Fleet Percentages Appendix to the HVF Asset Report.

 

(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 business on the last day of the Related Month which were Program Vehicles manufactured by such Manufacturer

 

 

58.      Confirm these items appear in the Fleet Percentages Appendix to the Noteholders’ Statement.

 

59.      Agree the “Mfg Eligible Program Vehicle Amount”, “Mfg Non-Eligible Vehicle Amount”, and “Credit Ratings - Moody’s” for each “Manufacturer” from the Fleet Percentages Appendix to the HVF Asset Report.

 

(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

 

 

60.      Confirm these items appear in the Fleet Percentages Appendix to the Noteholders’ Statement.

 

61.      Agree the “Mfg Eligible Program Vehicle Amount”, “Mfg Non-Eligible Vehicle Amount”, and “Credit Ratings - Moody’s” for each “Manufacturer” from the Fleet Percentages Appendix to the HVF Asset Report.

 

(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

 

 

62.      Confirm the Series 2009-1 Letter of Credit Liquidity Amount appears on the Noteholders’ Statement as section XIV.s.

 

63.      Agree the following components used by management in the calculation of the Series 2009-1 Letter of Credit Liquidity Amount as follows:

(a)    Agree the amount available to be drawn under each Series 2009-1 Letter of Credit to the Letter of Credit Agreement.

(b)    Agree the Series 2009-1 Available Cash

 



 

 

 

Collateral Account Amount to the Series 2009-1 Cash Collateral Account Bank of New York April 2010 bank statement.

 

 

 

 

 

64.      Confirm the Series 2009-1 Demand Note Payment Amount appears on the Noteholders’ Statement in section XIV(x) and note this amount to be zero.

 

 

 

 

 

65.      Confirm the Series 2009-1 Letter of Credit Amount appears on the Noteholders’ Statement as section X(3).

 

66.      Agree the following components used by management in the calculation of this item as follows:

(a)    Agree the aggregate amount to be drawn under the Series 2009-1 Letter of Credit to the Letter of Credit Agreement.

(b)    Agree the Series 2009-1 Available Cash Collateral Account Amount to the Series 2009-1 Cash Collateral Account Bank of New York April 2010 bank statement.

 

 

 

(xxiv) the Series 2009-1 Principal Amount and the Series 2009-1 Adjusted Principal Amount, in each case, as of such Payment Date

 

67.      Confirm the Series 2009-1 Principal Amount appears on the Noteholders’ Statement in section V.A(2).

 

68.      Agree the Series 2009-1 Principal Amount to the HVF Enhancement Report.

 

 

 

 

 

69.      Confirm the Series 2009-1 Adjusted Principal Amount appears on the Noteholders’ Statement in section XV(i)(2).

 

70.      Agree the following components used by management in the calculation of the Series 2009-1 Adjusted Principal Amount as follows:

(a)    Agree the Series 2009-1 Principal Amount to above within this section (xxiv).

(b)    Agree the cash and Permitted Investments on deposit in the Series 2009-1 Excess Collection Account and the Series 2009-1 Collection Account to the Bank of New York April 2010 bank statements..

 



 

B.         HVF Asset Report

 

1.           Observe the report titled “VIURM054” (“Servicer Report”) and “ABSEligible” generated from Hertz’s Vision System.

 

2.           Observe the upload of the Servicer Report and ABSEligible into Hertz’s “April 2010 VIURM054 Recon Access Database”.

 

3.           Agree the query on the Servicer Report and ABSEligible titled “ HVF Monthly Reporting- Daily AAA” to the April 2010 VIURM054 Recon Access Database .

 

4.           Confirm that the “As of Date” of the “VIURD114” and “VIURD_Active” reports are labeled April 30, 2010 and confirm the “Modified Date” is equal to the “Run Date” from Hertz’s Vision System.

 

5.           Observe the upload of VIURD114, VIURD_Active, and ABSEligible into Hertz’s “April 30 Receivable Access database” and the “2C_ABSRecv Access Database.”

 

6.           Observe the query on VIURD114, VIURD_Active, and ABSEligible titled “Daily Program Receivables Summary Report” being generated from the April 30 Receivable Access Database.

 

7.           Observe the query on VIURD114, VIURD_Active, and ABSEligible titled “Receivable Amount” being generated from the 2C_ABSRecv Access Database.

 

8.           Observe the query on VIURD114, VIURD_Active, and ABSEligible titled “Unapplied Summary” being generated from the 2C_ABSRecv Access Database.

 

We will obtain the management prepared schedule titled “The Hertz Corporation (the Servicer) Estimated HVF Daily Aggregate Asset As of April 30, 2010” (the “HVF Asset Report”) contained in the file entitled “Daily AAA @ 2010043 and we will perform the following:

 

9.           Agree the “Net Book Value”, “Eligibility” and “Vehicle Type” by “Manufacturer” to the HVF Monthly Reporting- Daily AAA query.

 

10.         Agree the “Receivables” and “Type” by “Manufacturer” to the Daily Program Receivables Summary Report, Receivable Amount, and/or Unapplied Summary queries.

 

11.         Agree “Accrued and Unpaid Capitalized Cost Payments” to the “HVF Monthly Reporting- Cap Cost Adj” query generated from the “April 2010 Servicer Recon Access Database.”

 

12.         Agree “Accrued and Unpaid Casualty and Termination Payments” to “HVF Termination Reporting Summary” query generated from Hertz’s “004 - 04-2010 Termination Accrual Access Database.”

 

13.         Agree “Rejected Vehicles Due and Payable” to a management prepared schedule titled “Servicer Report Reconciliation as of 4/30/10.”

 

14.         Agree “Accrued Monthly Lease Payment” to management prepared schedule titled “The Hertz Corporation (the Servicer) HVF Lease Payment for the Month of April 2010” (the “HVF Lease Invoice”) included within the file entitled “April 2010 — HVF Lease Invoice.” Refer to Exhibit I, Section E for procedures to be performed on the HVF Lease Invoice.

 

15.         Agree “Ineligible Assets” by “Manufacturer” to the Daily Program Receivables Summary Report, Receivable Amount, and/or Unapplied Summary queries.

 



 

16.         Agree “Overdue receivables from Eligible Manufacturers” to the “Daily Program Overdue Receivables” query from the “2C_ABSRecv Access Database.”.

 

17.         Recalculate “Overdue Non-Return Incentive on Program Vehicles” as the sum of “Ineligible Assets” for each “Manufacturer” and “Overdue receivables from Eligible Manufacturers.”

 

18.         Recalculate “Total Vehicle Aggregate Asset Amount” as the sum of amounts identified in procedures 9-17 above.

 

19.         Agree “099 qryTermination — Eligibility” “MFG Name” and “SumofTermAmount” to the “099qry Termination- Eligibility” query generated from Hertz’s “004-04-2010 Termination Access Database.”

 

20.         Agree “HVF Monthly Reporting - Daily AAA - Lease Breakdown” “MFG Name”, “SumOfDepreciation Charge” and “Eligibility” to the “ HVF Monthly Reporting- Daily AAA- Lease Breakdown” query generated from Hertz’s “April 2010 Rent Access Database.”

 

21.         Agree “HVF Monthly Reporting - Cap Cost Adj” “MFG Name”, “Cap Cost Adjustments” and “Eligibility” to the “HVF Monthly Reporting - Cap Cost Adj” query generated from Hertz’s “April 2010 Servicer Recon Access Database.”

 

22.         Agree “NRB MFR Summary” “MFG” and “SumOfCurrent Month Bal” to the “ NRB MFR Summary” query generated from Hertz’s “April 2010 Servicer Recon Access Database.”

 

23.         Agree the components used by management in the “Mfg Eligible Program Vehicle Amount” and “Mfg Non- Eligible Vehicle Amount” by “Manufacturer” as follows:

 

a)          Agree the net book values to the HVF Monthly Reporting- Daily AAA,

 

b)          Agree the Receivable and Ineligible Asset amounts to the Daily Program Receivables Summary Report, Receivable Amount and Unapplied Summary queries

 

c)          Agree the termination payments to the 099qry Termination- Eligibility query

 

d)          Agree the deprecation charges to the HVF Monthly Reporting- Daily AAA- Lease Breakdown query

 

e)          Agree the capital cost adjustments to the HVF Monthly Reporting - Cap Cost Adj query

 

f)           Agree the NRB to the NRB MFR Summary query.

 

24.         Agree “Credit Rating — Moody’s” to information reported by the Company’s Bloomberg service as of April 30, 2010.

 

25.         Recalculate the “Total” “Mfg Eligible Program Vehicle Amount” and “Mfg Non-Eligible Program Vehicle Amount” by “Manufacturer” as the sum of the “Mfg Eligible Vehicle Amount” and “Mfg Non-Eligible Program Vehicle Amount” by “Manufacturer.”

 

26.         Recalculate the total “Mfg Eligible Program Vehicle Amount” as the sum of the “Mfg Eligible Vehicle Amount” for Acura, Audi, BMW, Chrysler, Ford, GM — NEW, GM — OLD, Honda, Hyundai, Jaguar, Kia, Land Rover, Lexus, Mazda, Mercedes, Mitsubishi, Nissan, Porsche, Subaru, Suzuki, Toyota, Volkswagon and Volvo.

 

27.         Recalculate the total “Mfg Non-Eligible Program Vehicle Amount” as the sum of the “Mfg Non-Eligible Vehicle Amount” for Acura, Audi, BMW, Chrysler, Ford, GM — NEW, GM — OLD, Honda, Hyundai, Jaguar, Kia, Land Rover, Lexus, Mazda, Mercedes, Mitsubishi, Nissan, Porsche, Subaru, Suzuki, Toyota, Volkswagon and Volvo.

 



 

28.         Recalculate the “Total” “Eligible Program / Non-Eligible Vehicle Amount” as the sum of the total “Mfg Eligible Program Vehicle Amount” and the total “Mfg Non-Eligible Program Vehicle Amount”

 

29.         Recalculate the “Maximum Mfg Non-Eligible Vehicle Amount (as a %)” for each “Manufacturer” as the “Mfg Non-Eligible Vehicle Amount” by “Manufacturer” divided by the total “Mfg Non-Eligible Program Vehicle Amount.”

 

30.         Recalculate the “Excess” of the “Maximum Mfg Non-Eligible Vehicle Amount (as a %)” for each “Manufacturer” as the “Maximum Mfg Non-Eligible Vehicle Amount (as a %)” for each “Manufacturer” if greater than 40%, otherwise 0%.

 

31.         Agree the “Required Liquidity Percentage” of 6.25% to the definition of Series 2009-1 Required Liquidity Percentage as set forth in the Series 2009-1 Supplement Article 1.

 

32.         Recalculate the “Category 1 Manufacturer Eligible Program Vehicle Amount” amount as the sum of the “Mfg Eligible Program Vehicle Amount” for Acura, Audi, BMW, Honda, Lexus, Mercedes, Nissan, Toyota, Volkswagon.

 

33.         Recalculate the “Category 1 Manufacturer Eligible Program Vehicle Amount” percentage as the “Category 1 Manufacturer Eligible Program Vehicle Amount” amount divided by the “Total” “Eligible Program / Non-Eligible Vehicle Amount”

 

34.         Recalculate the “Category 1 Manufacturer Non-Eligible Vehicle Amount” amount as the sum of the “Mfg Non- Eligible Vehicle Amount” for Acura, Audi, BMW, Honda, Lexus, Mercedes, Nissan, Toyota, Volkswagon.

 

35.         Recalculate the “Category 1 Manufacturer Non-Eligible Vehicle Amount” percentage as the “Category 1 Manufacturer Non-Eligible Vehicle Amount” amount divided by the “Total” “Eligible Program / Non-Eligible Vehicle Amount.”

 

36.         Recalculate the “Category 2 Manufacturer Eligible Program Vehicle Amount” amount as the “Mfg Eligible Program Vehicle Amount” for Hyundai.

 

37.         Recalculate the “Category 2 Manufacturer Eligible Program Vehicle Amount” percentage as the “Category 2 Manufacturer Eligible Program Vehicle Amount” amount divided by the “Total” “Eligible Program / Non-Eligible Vehicle Amount”

 

38.         Recalculate the “Category 2 Manufacturer Eligible Program Vehicle Percentage Excess” as the excess of the “Category 2 Manufacturer Eligible Program Vehicle Amount” percentage over 10%.

 

39.         Recalculate the “Category 2 Manufacturer Non-Eligible Vehicle Amount” amount as the “Mfg Non-Eligible Vehicle Amount” for Hyundai.

 

40.         Recalculate the “Category 2 Manufacturer Non-Eligible Vehicle Amount” percentage as the “Category 2 Manufacturer Non-Eligible Vehicle Amount” amount divided by the “Total” “Eligible Program / Non-Eligible Vehicle Amount.”

 

41.         Recalculate the “Category 3 Manufacturer Non-Eligible Vehicle Amount” amount as the sum of the “Mfg Non- Eligible Vehicle Amount” for Chrysler, Ford, GM — NEW, GM — OLD, Jaguar, Kia, Land Rover, Mazda, Mitsubishi, Porsche, Subaru, Suzuki, and Volvo.

 



 

42.         Recalculate the “Category 3 Manufacturer Non-Eligible Vehicle Amount” percentage as the “Category 3 Manufacturer Non-Eligible Vehicle Amount” amount divided by the “Total” “Eligible Program / Non-Eligible Vehicle Amount.”

 

43.         Recalculate the “Category 3 Manufacturer Vehicle Amount” amount as the sum of the “Total” “Mfg Eligible Program Vehicle Amount” and “Mfg Non-Eligible Program Vehicle Amount” by “Manufacturer” for Chrysler, Ford, GM — NEW, GM — OLD, Jaguar, Kia, Land Rover, Mazda, Mitsubishi, Porsche, Subaru, Suzuki, and Volvo.

 

44.         Recalculate the “Category 3 Manufacturer Vehicle Amount” percentage as the “Category 3 Manufacturer Vehicle Amount” amount divided by the “Total” “Eligible Program / Non-Eligible Vehicle Amount.”

 

45.         Recalculate the “Eligible Program Vehicle Amount” amount as the total “Mfg Eligible Program Vehicle Amount” less the Porsche “Mfg Eligible Program Vehicle Amount.”

 

46.         Recalculate the “Eligible Program Vehicle Amount” percentage as the “Eligible Program Vehicle Amount” amount divided by the “Total” “Eligible Program / Non-Eligible Vehicle Amount.”

 

47.         Recalculate the “Manufacturer Eligible Program Vehicle Amount” amount as the total “Mfg Eligible Program Vehicle Amount” less the Porsche “Mfg Eligible Program Vehicle Amount.”

 

48.         Recalculate the “Manufacturer Eligible Program Vehicle Amount” percentage as the “Manufacturer Eligible Program Vehicle Amount” amount divided by the “Total” “Eligible Program / Non-Eligible Vehicle Amount.”

 

49.         Agree the “Manufacturer Non-Eligible Program Vehicle Amount” to the Porsche “Mfg Eligible Program Vehicle Amount.”

 

50.         Recalculate the “Manufacturer Non-Eligible Program Vehicle Amount” percentage as the “Manufacturer Non- Eligible Program Vehicle Amount” amount divided by the “Total” “Eligible Program / Non-Eligible Vehicle Amount.”

 

51.         Recalculate the “Manufacturer Non-Eligible Vehicle Amount” amount as the total “Mfg Non-Eligible Vehicle Amount” plus the Porsche “Mfg Eligible Program Vehicle Amount.”

 

52.         Recalculate the “Manufacturer Non-Eligible Vehicle Amount” percentage as the “Manufacturer Non-Eligible Vehicle Amount” amount divided by the “Total” “Eligible Program / Non-Eligible Vehicle Amount.”

 

53.         Recalculate the “Non-Eligible Vehicle Amount” amount as the total “Mfg Non-Eligible Vehicle Amount.”

 

54.         Recalculate the “Non-Eligible Vehicle Amount” percentage as the “Non-Eligible Vehicle Amount” amount divided by the “Total” “Eligible Program / Non-Eligible Vehicle Amount.”

 

55.         Agree the “Non-Program Vehicle Amount” to the total “Mfg Non-Eligible Vehicle Amount.”

 

56.         Recalculate the “Non-Program Vehicle Amount” percentage as the “Non-Program Vehicle Amount” amount divided by the “Total” “Eligible Program / Non-Eligible Vehicle Amount.”

 

57.         Recalculate the “Capped Category 2 Manufacturer Program Vehicle Percentage” as the lesser of the “Category 2 Manufacturer Program Vehicle Amount” percentage and 10%.

 


 

58.         Recalculate the “Series 2009-1 Moody’s Lowest Enhancement Vehicle Percentage” as the sum of the “Category 1 Manufacturer Eligible Program Vehicle Amount” percentage, “Category 1 Manufacturer Non- Eligible Program Vehicle Amount” percentage and the “Capped Category 2 Manufacturer Program Vehicle Percentage.”

 

59.         Recalculate the “Series 2009-1 Moody’s Highest Enhancement Vehicle Percentage” as the sum of “Bankrupt Manufacturer Vehicle Amount” percentage and the “Non-Program Vehicle Amount” percentage plus 100% minus the lesser of “Non-Program Vehicle Measurement Month Percentage” and “Market Value Average.”

 

60.         Recalculate the “Series 2009-1 Moody’s Intermediate Enhancement Vehicle Percentage” as the excess of 100% over the sum of “Series 2009-1 Moody’s Lowest Enhancement Vehicle Percentage”, “Series 2009-1 Moody’s Highest Enhancement Vehicle Percentage” and 100% minus the lesser of “Non-Program Vehicle Measurement Month Percentage” and “Market Value Average.”

 

61.         Recalculate the “Series 2009-1 Moody’s Required Enhancement Percentage” as follows: (“Series 2009-1 Moody’s Lowest Enhancement Percentage” multiplied by “Series 2009-1 Moody’s Lowest Enhancement Vehicle Percentage”) plus (“Series 2009-1 Moody’s Intermediate Enhancement Percentage” multiplied by “Series 2009-1 Moody’s Intermediate Enhancement Vehicle Percentage”) plus (“Series 2009-1 Moody’s Highest Enhancement Percentage” multiplied by “Series 2009-1 Moody’s Highest Enhancement Vehicle Percentage”).

 

62.         Recalculate the “Series 2009-1 Required Enhancement Percentage” as the greater of “Series 2009-1 Moody’s Required Enhancement Percentage” and 50%.

 

63.         Agree the “Series 2009-1 Adjusted Principal Amount” to the HVF Enhancement Report.

 

64.         Agree the “Series 2005” and “Series 2009-1” adjusted principal amounts to the HVF Enhancement Report.

 

65.         Recalculate the total “Series 2005” and “Series 2009-1” adjusted principal amounts as the sum of the “Series 2005” and “Series 2009-1” adjusted principal amounts.

 

66.         Recalculate the “Series 2009-1 Required Incremental Enhancement” as the “Series 2009-1 Adjusted Principal Amount” divided by the sum of the “Series 2005” and “Series 2009-1” adjusted principal amounts multiplied by the total “Excess” enhancement “current percentage”

 

67.         Recalculate the “Series 2009-1 Required Enhancement Amount” as the sum of 1) “Series 2009-1 Required Enhancement Percentage” multiplied by “Series 2009-1 Adjusted Principal Amount” and 2) “Series 2009-1 Required Incremental Enhancement Amount.”

 

68.         Recalculate the “Series 2009-1 Enhancement Deficiency” as the excess of “The Series 2009-1 Adjusted Enhancement Amount” over “The Series 2009-1 Required Enhancement Amount.”

 

69.         Agree the “Maximum Percentage” by manufacturer grouping to the applicable definitions as set forth in Article I of the Supplement.

 

70.         Recalculate the “current percentage” for enhancement by each manufacturer grouping listed in “a.” through “t.” on the schedule as the sum of the “Total” “Mfg Non-Eligible Program Vehicle Amount” and “Mfg Eligible Program Vehicle Amount” by “Manufacturer” for each

 



 

             manufacturer within the manufacturer grouping divided by the “Total” “Eligible Program / Non-Eligible Vehicle Amount.”

 

71.         Recalculate the “current percentage” for enhancement of the “Non-Eligible Vehicle Amount” as the “Total” “Mfg Non-Eligible Program Vehicle Amount” divided by the “Total” “Eligible Program / Non-Eligible Vehicle Amount.”

 

72.         Recalculate the “current percentage” for enhancement of “Manufacturer Non-Eligible Vehicle Amount” as the maximum “Maximum Mfg Non-Eligible Vehicle Amount (as a %)” of Acura, Audi, BMW, Chrysler, Ford, GM —NEW, GM — OLD, Honda, Hyundai, Jaguar, Kia, Land Rover, Lexus, Mazda, Mercedes, Mitsubishi, Nissan, Porsche, Subaru, Suzuki, Volkswagon and Volvo.

 

73.         Recalculate the “current percentage” of “Manufacturer Non-Eligible Vehicle Amount — Toyota” as the Toyota “Mfg Non-Eligible Program Vehicle Amount” divided by the “Total” “Eligible Program / Non-Eligible Vehicle Amount.”

 

74.         Recalculate the “current percentage” of “Individual Non-Eligible Manufacturer Amount” as the Porsche “Mfg Non-Eligible Program Vehicle Amount” divided by the “Total” “Eligible Program / Non-Eligible Vehicle Amount.”

 

75.         Recalculate the “current percentage” of “Non-Eligible Manufacturer Amount” as the Porsche “Mfg Non-Eligible Program Vehicle Amount” divided by the “Total” “Eligible Program / Non-Eligible Vehicle Amount.”

 

76.         Recalculate the “current percentage” of “Non-Investment Grade Manufacturer Program Vehicle Amount” as the sum of the “Mfg Eligible Program Vehicle Amount” for Chrysler, Ford, GM — NEW, GM — OLD, Jaguar, Kia, Land Rover, Mazda, Mitsubishi, Porsche, Subaru, Suzuki, and Volvo divided by the “Total” “Eligible Program / Non-Eligible Vehicle Amount.”

 

77.         Recalculate the “Excess” enhancement percentage by grouping listed in “a.” through “z.” as the excess of the “current percentage” for each grouping over the “Maximum Amount.”

 

78.         Recalculate the total “Excess” enhancement “current percentage” as the sum of the “Excess” enhancement percentage by grouping listed in “a.” through “z.”

 

79.         Agree the “Series 2009-1 Required Asset Amount Percentage” to the HVF Enhancement Report.

 

80.         Recalculate the Series 2009-1 “Required Incremental Enhancement” as the “Series 2009-1 Required Asset Amount Percentage” multiplied by the total “Excess” enhancement “current percentage.”

 



 

C.          HVF Enhancement Report

 

We will obtain the schedule titled “Hertz Vehicle Financing Calculation of Enhancement Requirements as of April 30, 2010” (the “HVF Enhancement Report”) contained in the file entitled “Daily AAA @ 2010043 and we will perform the following:

 

1.           Agree the “Series 2009-1” “Principal Amount” to the sum of the April 2010 invoices received by the Company from the Noteholders.

 

2.           Agree the “Series 2009-1” “Series Cash Account” balance to the Bank of New York April 2010 bank statement.

 

3.           Recalculate the “Series 2009-1” “Adjusted Principal Amount” as the “Series 2009-1” “Principal Amount” less the “Series 2009-1” “Series Cash Account.”

 

4.           Agree the “Series 2009-1” “Required Liquidity Percentage” to the HVF Asset Report.

 

5.           Agree the “Series 2009-1” “Total Required Enhancement Percentage” to the HVF Asset Report.

 

6.           Recalculate the “Series 2009-1” “Required Car Enhancement Percentage” as the “Series 2009-1” “Total Required Enhancement Percentage” less “Series 2009-1” “Required Liquidity Percentage.”

 

7.           Recalculate the “Series 2009-1” “Required Car Enhancement Amount” as the “Series 2009-1” “Adjusted Principal Amount” multiplied by “Series 2009-1” “Required Car Enhancement Percentage.”

 

8.           Recalculate the “Series 2009-1” “Required Liquidity Amount” as the “Series 2009-1” “Adjusted Principal Amount” multiplied by “Series 2009-1” “Required Liquidity Percentage.”

 

9.           Recalculate the “Series 2009-1” “Total Required Enhancement Amount” as the sum of the “Series 2009-1” “Required Car Enhancement Amount” and “Series 2009-1” “Required Liquidity Amount.”

 

10.         Agree the “Series 2009-1” “Allocated LOC” to the Letter of Credit Agreement.

 

11.         Recalculate the “Series 2009-1” “Total Required Overcollateralization” as the sum of “Series 2009-1” “Total Required Enhancement Amount” and “Series 2009-1” “Allocated LOC.”

 

12.         Recalculate the “Series 2009-1” “Total Required Asset Amount” as the sum of “Series 2009-1” “Total Required Overcollateralization” and the “Series 2009-1” “Adjusted Principal Amount.”

 

13.         Recalculate the “Total” “Total Required Asset Amount” as the sum of the “Series 2005-1”, “Series 2005-2”, “Series 2009-1” and “Series 2009-2” “Total Required Asset Amount.”

 

14.         Recalculate the “Series 2009-1” “Required Asset Amount Percentage” as the “Series 2009-1” “Total Required Asset Amount” divided by “Total” “Total Required Asset Amount.”

 

15.         Agree “Aggregate Asset Amount” to the HVF Asset Report.

 

16.         Agree “HVF LKE Amount” to Bank of New York April 2010 bank statement..

 



 

17.         Recalculate total “Excess / (Shortfall)” of “Aggregate Asset Amount” as “Aggregate Asset Amount” plus “HVF LKE Amount” minus “Total” “Total Required Asset Amount.”

 

18.         Recalculate the “Series 2009-1” “Series Invested Percentage” as the sum of the “Series 2009-1” “Adjusted Principal Amount” and “Series 2009-1” “Total Required Overcollateralization” divided by the sum of “Aggregate Asset Amount” and “HVF LKE Amount.”

 

19.         Agree the “Series 2009-1” “Allocated Liquidity” to the “Series 2009-1” “Allocated LOC” amount.

 

20.         Recalculate total “Excess / (Shortfall)” of Liquidity for “Series 2009-1” as “Series 2009-1” “Allocated Liquidity” minus “Series 2009-1” “Required Liquidity Amount.”

 



 

D.          HVF Measurement Report

 

We will obtain the schedule titled “Non-Program Vehicle Measurement Monthly Average as of April 30, 2010” (the “HVF Measurement Report”) contained in the file entitled “April 10 Enhancement % - 2005” and we will perform the following:

 

1.           Agree “Sales Price / Transfer Price” and “Net Book Value of the Non Program Vehicles” for the “10th Measurement Month” and “11th Measurement Month” to a query titled “940 Measurement Month Amounts” from Hertz’s “February 2010 Enhancement Access Database” and Hertz’s “March 2010 Enhancement Access Database” respectively.

 

2.           Agree “Sales Price / Transfer Price” for the “12th Measurement Month” and to a query titled “940 Measurement Month Amounts” from Hertz’s “April 2010 Enhancement Access Database.”

 

3.           Agree the “940 Measurement Month Amounts” from the “April 2010 Enhancement Access Database” to the Servicer Report.

 

4.           Recalculate the “MV Average” as the lesser of 100% or the sum of the “Sales Price / Transfer Price” for the “10th Measurement Month”, “11th Measurement Month”, and “12th Measurement Month” divided by the sum of “Net Book Value of the Non Program Vehicles” for the “10th Measurement Month”, “11th Measurement Month”, and “12th Measurement Month.”

 

5.           Agree “Non Program Fleet Market Value” and “Net Book Value of the Non Program Vehicles” for “April” and “February” to the “920 Market Value as NBV” query generated from Hertz’s “April 2010 Enhancement Access Database” and Hertz’s “February 2010 Enhancement Access Database” respectively.

 

6.           Agree “April 2010 Enhancement Access Database” source files to the VIURM054 and ABSEligible reports.

 

7.           Observe the “VCAP0936” report for March 2010 generated from Hertz’s Vision System being downloaded from Hertz’s RDS system (document imaging system).

 

8.           Observe the import of the VCAP0936 report into the “HGI Transfer Vehicle Access Database.”

 

9.           Observe queries titled “106-Update Market Values - Salvages” and “108 Update Market Values - Conversions” from the HGI Transfer Vehicle Access Database.

 

10.         Observe the 106-Update Market Values - Salvages and 108 Update Market Values — Conversions being formatted and saved as a schedule titled “Daily Transfer Input.”

 

11.         Observe upload of “Daily Transfer Input” into Hertz’s National Automobile Dealers Association (NADA) software.

 

12.         Observe download from the NADA software titled “Daily Transfer Output.”

 

13.         Observe download from the NADA software titled “Daily Transfer Error” listing vehicles with no market value.

 

14.         For vehicles having no market value listed on “Daily Transfer Error” observe query titled “ALGCompare” from the “A2C_ALG Access Database”

 



 

15.         Observe “ALGCompare” and “Daily Transfer Output” being formatted and saved as a schedule titled “HGI Transfer Vehicle Schedule.”

 

16.         Agree “Non Program Fleet Market Value” for “March” to “920 Market Value vs NBV” query from the “March 2010 Enhancement Access Database”..

 

17.         Recalculate the “April MV Average” as the lesser of 100% or the sum of the “Non Program Fleet Market Value” for “February”, “March”, and “April” divided by the sum of “Net Book Value of the Non Program Vehicles” for “February”, “March”, and “April.”

 



 

E.          HVF Lease Invoice

 

We will obtain the schedule titled “The Hertz Corporation (the Servicer) HVF Lease Payment for the Month of April 2010” (the “HVF Lease Invoice”) contained in the file entitled “April 2010 — HVF Lease Invoice” and we will perform the following:

 

1.           Agree “Total Base Rent” to the sum of “E51” entries booked in April 2010 to the “HVF Rent/Depr” account in Hertz’s general ledger system (FMS).

 

2.           Agree “Total Monthly Program Termination Payments” to the “HVF Termination Reporting Summary” query generated from Hertz’s “004 - 04-2010 Termination Accrual Access Database.”

 

3.           Agree “Total Variable Month 2 % per Annum Fee” and “Total Monthly Non Eligible Program / Non-Program Vehicles” to the “HVF Monthly Reporting- Services Amount” query and the “HVF Monthly Reporting In- Transit Summary” query generated from Hertz’s “April 2010 VIURM054 Recon Access Database.”

 




Exhibit 4.8.1

 

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 2010-2 SUPPLEMENT

 

 

dated as of December 16, 2010

 

to

 

THIRD AMENDED AND RESTATED
BASE INDENTURE

 

 

dated as of September 18, 2009

 

 


 

$200,000,000   Series 2010-2 Variable Funding Rental Car Asset Backed Notes

 



 

TABLE OF CONTENTS

 

 

 

Page

 

 

 

Article I DEFINITIONS

 

1

 

 

 

Article II

 

61

 

 

 

Section 2.1.   Grant of Security Interest

 

61

 

 

 

Section 2.2.   Certain Rights and Obligations of HVF Unaffected

 

64

 

 

 

Section 2.3.   Performance of Series 2010-2 Collateral Agreements

 

65

 

 

 

Section 2.4.   Release of Series 2010-2 Collateral

 

66

 

 

 

Section 2.5.   Opinions of Counsel

 

67

 

 

 

Article III

 

67

 

 

 

REPORTS

 

67

 

 

 

Section 3.1.   Reports and Instructions to Trustee

 

67

 

 

 

Section 3.2.   Reports to Noteholders

 

69

 

 

 

Section 3.3.   Administration

 

69

 

 

 

Article IV

 

69

 

 

 

Section 4.1.   Series 2010-2 Series Accounts

 

69

 

 

 

With respect to the Series 2010-2 Notes only, the following shall apply:

 

69

 

 

 

Section 4.2.   Collections and Allocations

 

70

 

 

 

Article V Distributions

 

72

 

 

 

Section 5.1.   Distributions in General

 

72

 

 

 

Article VI Representations and Warranties.:

 

73

 

 

 

Section 6.1.   Existence and Power

 

73

 

 

 

Section 6.2.   Limited Liability Company and Governmental Authorization

 

73

 

 

 

Section 6.3.   No Consent

 

73

 

 

 

Section 6.4.   Binding Effect

 

73

 

 

 

Section 6.5.   Litigation

 

74

 

 

 

Section 6.6.   No ERISA Plan

 

74

 

 

 

Section 6.7.   Tax Filings and Expenses

 

74

 

 

 

Section 6.8.   Disclosure

 

74

 

 

 

Section 6.9.   Investment Company Act

 

75

 

 

 

Section 6.10.   Regulations T, U and X

 

75

 

i



 

TABLE OF CONTENTS

(continued)

 

 

 

Page

 

 

 

Section 6.11.   Solvency

 

75

 

 

 

Section 6.12.   Ownership of Limited Liability Company Interests; Subsidiary

 

75

 

 

 

Section 6.13.   Security Interests

 

75

 

 

 

Section 6.14.   Related Documents

 

77

 

 

 

Section 6.15.   Non-Existence of Other Agreements

 

77

 

 

 

Section 6.16.   Compliance with Contractual Obligations and Laws

 

78

 

 

 

Section 6.17.   Other Representations

 

78

 

 

 

Section 6.18.   Additional UCC Representations

 

78

 

 

 

Article VII COVENANTS

 

78

 

 

 

Section 7.1.   Payment of Series 2010-2 Notes

 

78

 

 

 

Section 7.2.   Maintenance of Office or Agency

 

78

 

 

 

Section 7.3.   Payment of Obligations

 

79

 

 

 

Section 7.4.   Conduct of Business and Maintenance of Existence

 

79

 

 

 

Section 7.5.   Compliance with Laws

 

79

 

 

 

Section 7.6.   [Reserved]

 

79

 

 

 

Section 7.7.   Actions under the Collateral Agreements

 

79

 

 

 

Section 7.8.   Notice of Defaults

 

80

 

 

 

Section 7.9.   Notice of Material Proceedings

 

81

 

 

 

Section 7.10.   Further Requests

 

81

 

 

 

Section 7.11.   Further Assurances

 

81

 

 

 

Section 7.12.   Liens

 

82

 

 

 

Section 7.13.   Other Indebtedness

 

82

 

 

 

Section 7.14.   No ERISA Plan

 

82

 

 

 

Section 7.15.   Mergers

 

83

 

 

 

Section 7.16.   Sales of Assets

 

83

 

 

 

Section 7.17.   Acquisition of Assets

 

83

 

 

 

Section 7.18.   Dividends, Officers’ Compensation, etc.

 

83

 

 

 

Section 7.19.   Legal Name; Location Under Section 9-301

 

83

 

 

 

Section 7.20.   [Reserved]

 

83

 

ii



 

TABLE OF CONTENTS

(continued)

 

 

 

Page

 

 

 

Section 7.21.   Investments

 

83

 

 

 

Section 7.22.   No Other Agreements

 

84

 

 

 

Section 7.23.   Other Business

 

84

 

 

 

Section 7.24.   Maintenance of Separate Existence

 

84

 

 

 

Section 7.25.   Series 2010-2 Manufacturer Programs

 

84

 

 

 

Section 7.26.   Disposition of Series 2010-2 Vehicles

 

85

 

 

 

Section 7.27.   Insurance

 

86

 

 

 

Article VIII INITIAL ISSUANCE AND INCREASES AND DECREASES OF PRINCIPAL AMOUNT OF SERIES 2010-2 NOTES

 

86

 

 

 

Section 8.1.   Initial Issuance; Procedure for Increasing the Series 2010-2 Principal Amount

 

86

 

 

 

Section 8.2.   Procedure for Decreasing the Series 2010-2 Principal Amount

 

88

 

 

 

Article IX SERIES 2010-2 ALLOCATIONS

 

90

 

 

 

Section 9.1.   Allocations with Respect to the Series 2010-2 Notes

 

90

 

 

 

Section 9.2.   Application of Series 2010-2 Interest Collections

 

94

 

 

 

Section 9.3.   Payment of Note Interest

 

97

 

 

 

Section 9.4.   Payment of Note Principal

 

97

 

 

 

Section 9.5.   Payment by Wire Transfer

 

104

 

 

 

Section 9.6.   The Series 2010-2 Administrator’s Failure to Instruct the Trustee to Make a Deposit or Payment

 

104

 

 

 

Section 9.7.   Series 2010-2 Reserve Account

 

104

 

 

 

Section 9.8.   Series 2010-2 Letters of Credit and Series 2010-2 Cash Collateral Accounts

 

106

 

 

 

Section 9.9.   Series 2010-2 Distribution Account

 

110

 

 

 

Section 9.10.   Trustee as Securities Intermediary

 

111

 

 

 

Section 9.11.   Series 2010-2 Interest Rate Caps

 

112

 

 

 

Section 9.12.   Series 2010-2 Demand Note Constitutes Additional Collateral for Series 2010-2 Notes

 

114

 

 

 

Article X

 

115

 

 

 

AMORTIZATION EVENTS

 

115

 

iii



 

TABLE OF CONTENTS

(continued)

 

 

 

Page

 

 

 

Section 10.1.   The following shall constitute “ Series 2010-2 Amortization Events ” with respect to the Series 2010-2 Notes:

 

115

 

 

 

Section 10.2.   Rights of the Trustee upon Amortization Event or Certain Other Events of Default

 

120

 

 

 

Section 10.3.   Other Remedies

 

124

 

 

 

Section 10.4.   Control by Series 2010-2 Required Noteholders

 

124

 

 

 

Section 10.5.   Collection Suit by the Trustee

 

124

 

 

 

Section 10.6.   The Trustee May File Proofs of Claim

 

125

 

 

 

Section 10.7.   Priorities

 

125

 

 

 

Section 10.8.   [Reserved]

 

125

 

 

 

Section 10.9.   Rights and Remedies Cumulative

 

125

 

 

 

Section 10.10.   Delay or Omission Not Waiver

 

126

 

 

 

Article XI FORM OF SERIES 2010-2 NOTES

 

126

 

 

 

Section 11.1.   Issuance of Series 2010-2 Notes

 

126

 

 

 

Section 11.2.   Transfer of Series 2010-2 Notes

 

127

 

 

 

Article XII GENERAL

 

128

 

 

 

Section 12.1.   Optional Redemption of Series 2010-2 Notes

 

128

 

 

 

Section 12.2.   Information

 

129

 

 

 

Section 12.3.   Exhibits

 

132

 

 

 

Section 12.4.   Ratification of Base Indenture

 

132

 

 

 

Section 12.5.   Notices to Funding Agents

 

132

 

 

 

Section 12.6.   Third Party Beneficiary

 

132

 

 

 

Section 12.7.   Counterparts

 

132

 

 

 

Section 12.8.   Governing Law

 

132

 

 

 

Section 12.9.   Amendments

 

133

 

 

 

Section 12.10.   Covenant Regarding Affiliate Issuers

 

134

 

 

 

Section 12.11.   Termination of Series Supplement

 

134

 

 

 

Section 12.12.   Discharge of Indenture

 

134

 

 

 

Section 12.13.   No Recourse

 

134

 

 

 

Section 12.14.   Administration of Accounts

 

134

 

iv



 

TABLE OF CONTENTS

(continued)

 

EXHIBITS

 

 

Exhibit A:

Form of Series 2010-2 Variable Funding Rental Car Asset Backed Notes

Exhibit B:

Form of Series 2010-2 Letter of Credit

Exhibit C:

Form of Lease Payment Deficit Notice

Exhibit D:

Form of Series 2010-2 Letter of Credit Reduction Notice

Exhibit E:

Form of Purchaser’s Letter

Exhibit F-1:

Form of Monthly Noteholders’ Statement

Exhibit G-1:

Form of Demand Notice

Exhibit G-2:

Form of Series 2010-2 Demand Note

Exhibit H:

Form of Estimated Interest Adjustment Notice

Exhibit I:

[Reserved]

Exhibit J:

Form of Manufacturer Program Officer’s Certificate

Exhibit K:

Maximum Manufacturer Amounts

Exhibit L:

Non-Program Vehicle Report

Exhibit M:

Title Verification Report

Exhibit N:

Additional UCC Representations

 

v



 

SERIES 2010-2 SUPPLEMENT dated as of December 16, 2010 (“ 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 Segregated Series of Notes;

 

NOW, THEREFORE, the parties hereto agree as follows:

 

DESIGNATION

 

There is hereby created a Segregated Series of Notes to be issued pursuant to the Base Indenture which shall be designated as Series 2010-2 Variable Funding Rental Car Asset Backed Notes.  On the Series 2010-2 Closing Date, one class of Series 2010-2 Variable Funding Rental Car Asset Backed Notes shall be issued, and be referred to herein as the “ Series 2010-2 Notes ”.  This Series Supplement shall be a Segregated Series Supplement and the Series 2010-2 Notes created hereby shall be a Segregated Series, a Segregated Nominee Series and a Segregated Collateral Agency Series.

 

The net proceeds from the sale of the Series 2010-2 Notes shall be deposited in the Series 2010-2 Excess Collection Account and paid to HVF and used (i) to acquire Eligible Vehicles from HGI pursuant to the Purchase Agreement or (ii) for other purposes permitted under the Series 2010-2 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 and, if not defined in Schedule I to the Base Indenture, shall have the meanings assigned thereto in the Series 2010-2 Note Purchase Agreement.  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 or the Series 2010-2 Note Purchase Agreement, the meaning given to such term herein shall apply for purposes of the Series 2010-2

 



 

Supplement.  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 2010-2 Notes and not to any other Series of Indenture Notes issued by HVF.  All references herein to the “Series 2010-2 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 2010-2 Notes (whether such words and phrases are used in this Series Supplement, the Base Indenture or any other Series 2010-2 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 2010-2 Notes ” has the meaning specified in Section 11.1 of this Series Supplement.

 

Adjusted Aggregate Asset Amount ” means, as of any day, the sum of (a) the Series 2010-2 Aggregate Asset Amount and (b) the sum of (1) the amount of cash and Series 2010-2 Permitted Investments on deposit in the Series 2010-2 Collection Account and available for reduction of the Series 2010-2 Principal Amount and (2) the amount of cash and Series 2010-2 Permitted Investments on deposit in the Series 2010-2 Excess Collection Account, in each case, on such day.

 

Administrative Agent ” has the meaning specified in the Series 2010-2 Note Purchase Agreement.

 

Aggregate Outstanding VFN Action ” means any amendment, modification, waiver, approval, consent or permission under, or any termination, surrender or assignment of any rights or obligations under, any Series 2010-2 Related Document with respect to which (i) HVF is required pursuant to Section 8.01(b) of the Series 2009-1 Note Purchase Agreement to obtain the consent of Series 2009-1 Noteholders holding more than 50% (and not a higher percentage) of the Series 2009-1 Principal Amount and (ii) such consent of the Series 2009-1 Noteholders has been obtained.

 

Aggregate Outstanding VFN Noteholders ” means, collectively, the Series 2009-1 Noteholders and the Series 2010-2 Noteholders.

 

Aggregate Outstanding VFN Principal Amount ” means the sum of (x) the Series 2009-1 Principal Amount and (y) the Series 2010-2 Principal Amount.

 

Aggregate Outstanding VFN Threshold Noteholders ” means Aggregate Outstanding VFN Noteholders holding in excess of 50% of the Aggregate Outstanding VFN Principal Amount.

 

2



 

Annual Series 2010-2 Noteholders’ Tax Statement ” has the meaning specified in Section 3.2(a)  of this Series Supplement.

 

Annualized Financing Cost ” means, with respect to any Series 2010-2 Interest Period, the amounts payable pursuant to Sections 9.2(a)(i)  and (ii)  of this Series Supplement with respect to such Series 2010-2 Interest Period, expressed as an annual percent of the Series 2010-2 Principal Amount.

 

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 (other than, in the event that the Nissan Condition is satisfied on such date of determination, any Bankrupt Manufacturer Vehicle Amounts with respect to Nissan) as of such date and the denominator of which is the excess of (A) the Series 2010-2 Aggregate Asset Amount over (B) the Series 2010-2 Exchange Account Amounts, in each case, as of such date.

 

BMW/Lexus/Mercedes/Audi Group ” means the group of Manufacturers comprised of BMW, Lexus, Mercedes and Audi which has a Series 2010-2 Manufacturer Percentage specified in Column B of Exhibit K hereto.

 

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%.

 

Carlyle ” means TC Group L.L.C. (which operates under the trade name The Carlyle Group) or any successor thereof.

 

Carlyle Investors ” means the collective reference to (a) Carlyle Partners IV, L.P., a Delaware limited partnership or any successor thereto, (b) CEP II Participations S.àr.l., a Luxembourg limited liability company or any successor thereto, (c) CP IV Co-investment L.P., a Delaware limited partnership or any successor thereto, (d) CEP II U.S. Investments, L.P., a Delaware limited partnership, or any successor

 

3



 

thereto, (e) CMC-Hertz Partners, L.P., a Delaware limited partnership, or any successor thereto and (f) any Affiliate of any thereof.

 

Category 1 Manufacturer ” means, as of any date of determination, each Series 2010-2 Eligible Manufacturer who as of such date (i) is not a Bankrupt Manufacturer or, in the event that the Nissan Condition is satisfied as of such date of determination, Nissan and (ii) has a long-term unsecured debt rating of at least “Baa2” from Moody’s; provided , that if a Series 2010-2 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 (or, in the case of Nissan, would have been a Category 1 Manufacturer but for the satisfaction of the Nissan Condition), 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 Series 2010-2 Administrator, HVF or the Series 2010-2 Servicer obtains actual knowledge of such withdrawal or downgrade and (ii) the date on which the Trustee or the Administrative Agent notifies the Series 2010-2 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 Series 2010-2 Aggregate Asset Amount over (B) the Series 2010-2 Exchange Account Amounts, 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 Series 2010-2 Aggregate Asset Amount over (B) the Series 2010-2 Exchange Account Amounts, in each case, as of such date.

 

Category 2 Manufacturer ” means, as of any date of determination, each Series 2010-2 Eligible Manufacturer who as of such date (i) is not a Bankrupt Manufacturer or, in the event that the Nissan Condition is satisfied as of such date of

 

4


 

determination, Nissan 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 a Series 2010-2 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 (or, in the case of Nissan, would have been a Category 1 Manufacturer but for the satisfaction of the Nissan Condition), 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 Series 2010-2 Administrator, HVF or the Series 2010-2 Servicer obtains actual knowledge of such downgrade and (ii) the date on which the Trustee or the Administrative Agent notifies the Series 2010-2 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 (or, in the case of Nissan, would have been a Category 2 Manufacturer but for the satisfaction of the Nissan Condition), 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 Series 2010-2 Administrator, HVF or the Series 2010-2 Servicer obtains actual knowledge of such withdrawal or downgrade and (ii) the date on which the Trustee or the Administrative Agent notifies the Series 2010-2 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 Series 2010-2 Aggregate Asset Amount over (B) the Series 2010-2 Exchange Account Amounts, 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 Series 2010-2 Aggregate Asset Amount over (B) the Series 2010-2 Exchange Account Amounts, in each case, as of such date.

 

5



 

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 Series 2010-2 Eligible Manufacturer that as of such date (i) is not a Bankrupt Manufacturer or, in the event that the Nissan Condition is satisfied as of such date of determination, Nissan and (ii) does not have a long-term unsecured debt rating of at least “Baa3” from Moody’s; provided that if a Series 2010-2 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 (or, in the case of Nissan, would have been a Category 1 Manufacturer or a Category 2 Manufacturer but for the satisfaction of the Nissan Condition), 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 Series 2010-2 Administrator, HVF or the Series 2010-2 Servicer obtains actual knowledge of such withdrawal or downgrade and (ii) the date on which the Trustee or the Administrative Agent notifies the Series 2010-2 Servicer of such withdrawal or downgrade.

 

CD&R ” means Clayton, Dubilier & Rice, LLC and any successor in interest thereto, and any successor to its investment management business.

 

CD&R Investors ”  means the collective reference to (i) Clayton, Dubilier & Rice Fund VII, L.P., a Cayman Islands exempted limited partnership or any successor thereto, (ii) CD&R CCMG Co-Investor L.P., a Cayman Islands exempted limited partnership, or any successor thereto, (iii) CD&R Parallel Fund VII, L.P., a Cayman Islands exempted limited partnership or any successor thereto and (iv) any Affiliate of any thereof.

 

Change of Control ”  means the occurrence of any of the following events:  (a) (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 shares of Voting Stock having less than 35% of the total voting power of all outstanding shares of the Relevant Parent Entity 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 or a Parent Entity, shall be the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act) of shares of Voting Stock having more than 35% of the total voting power of all outstanding shares of the Relevant Parent Entity, (b) the Continuing Directors shall cease to constitute a majority of the members of the board of directors of Hertz or (c) Hertz shall cease to own directly 100% of the Capital Stock of HVF.

 

6



 

Common Equity ” of any Person means Capital Stock of such Person that is generally entitled to (i) vote in the election of directors of such Person or (ii) if such Person is not a corporation, vote or otherwise participate in the selection of the governing body, partners, managers or others that will control the management or policies of such Person.

 

Common Stock means the Common Stock, par value $0.01 per share, of Holdings, or such other Capital Stock into which Holdings’s common stock is reclassified or changed.

 

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 Series 2010-2 Manufacturer Program (and all related Series 2010-2 Assignment Agreements), (B) at the time of such assumption, payment of all amounts relating to the Series 2010-2 Vehicles due and payable by the Manufacturer to HVF or any of its Affiliates under its Series 2010-2 Manufacturer Program, and (C) all actions and payments necessary to cure all existing defaults relating to the Series 2010-2 Vehicles by the Manufacturer with respect to HVF or any of its Affiliates under the Series 2010-2 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 Series 2010-2 Manufacturer Program under which HVF is an eligible fleet purchaser and having substantially the same terms and covering Series 2010-2 Vehicles with substantially the same characteristics as the Series 2010-2 Manufacturer Program in effect on the date the Proceeding was commenced and (y) new Series 2010-2 Assignment Agreements effecting the assignment of the benefits of such new Series 2010-2 Manufacturer Program from HVF to the Collateral Agent acknowledged by such Manufacturer, (B) payment of all amounts relating to the Series 2010-2 Vehicles due and payable by such Manufacturer to HVF or any of its Affiliates under the Series 2010-2 Manufacturer Program in effect on the date the Proceeding was commenced at the time of the execution and delivery of the new post-petition Series 2010-2 Manufacturer Program, and (C) all actions and payments necessary to cure all existing defaults relating to the Series 2010-2 Vehicles by the Manufacturer with respect to HVF or any of its Affiliates under the Series 2010-2 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 Hertz on the Series 2010-2 Closing Date and each other director whose election or nomination for election to the board of directors of Hertz is recommended by at least a majority of the then Continuing Directors or is approved by one or more Permitted Holders.

 

Credit Support Annex ” has the meaning set forth in Section 9.11(b)  of this Series Supplement.

 

7



 

Decrease ” means a Mandatory Decrease or a Voluntary Decrease, as applicable.

 

Demand Notice ” has the meaning specified in Section 9.4(b)(iii)  of this Series Supplement.

 

Eligible Interest Rate Cap Provider ” means a counterparty to a Series 2010-2 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 2010-2 Interest Rate Cap are guaranteed pursuant to a guarantee (in form and substance reasonably satisfactory to the Administrative Agent and satisfying the other requirements set forth in the related Series 2010-2 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 “Series 2010-2 Aggregate Asset Amount” for such date: (i) the Series 2010-2 Net Book Value of all Series 2010-2 Eligible Program Vehicles that are Series 2010-2 Eligible Vehicles as of such date and not turned in to and accepted by the Manufacturer thereof pursuant to its Series 2010-2 Manufacturer Program, not delivered and accepted for Series 2010-2 Auction pursuant to a Series 2010-2 Manufacturer Program or not otherwise sold or deemed to be sold under the Series 2010-2 Related Documents, plus (ii) the aggregate amount of Series 2010-2 Manufacturer Receivables (other than Series 2010-2 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 Series 2010-2 Eligible Program Manufacturers with respect to Series 2010-2 Vehicles that were Series 2010-2 Eligible Vehicles and Series 2010-2 Eligible Program Vehicles when turned in to and accepted by such Manufacturers or delivered and accepted for Series 2010-2 Auction, plus (iii) with respect to Series 2010-2 Eligible Vehicles that were Series 2010-2 Eligible Program Vehicles that have been delivered and accepted for Series 2010-2 Auction pursuant to a Series 2010-2 Manufacturer Program with a Manufacturer which is a Series 2010-2 Eligible Program Manufacturer, all amounts receivable (other than amounts specified in clause (ii)  above) from any person or entity in connection with the Series 2010-2 Auction of such Series 2010-2 Eligible Vehicles as of such date, plus (iv) with respect to Series 2010-2 Eligible Vehicles that were Series 2010-2 Eligible Program Vehicles that have been turned in to and accepted by the Manufacturer thereof, delivered and accepted for Series 2010-2 Auction, otherwise sold or become a Series 2010-2 Casualty, any accrued and unpaid Series 2010-2 Casualty Payments or Series 2010-2 Termination Payments with respect to such Series 2010-2 Eligible Vehicles as of such date under the Series 2010-2 Lease , plus (v) with respect to Series 2010-2 Eligible Vehicles that were Series 2010-2 Eligible Program Vehicle s that have been turned in to and accepted by the Manufacturer thereof, delivered for Series 2010-2 Auction or otherwise sold, any accrued and unpaid Series 2010-2 Monthly Base Rent with respect to such Series 2010-2 Eligible Vehicles as of such date under the Series 2010-2 Lease, plus

 

8



 

(vi) with respect to Series 2010-2 Eligible Vehicles that were Series 2010-2 Eligible Program Vehicles sold by HVF to a third party pursuant to Section 2.5(a) of the Series 2010-2 Lease, any non-return incentives payable to HVF under a Series 2010-2 Manufacturer Program by a Series 2010-2 Eligible Program Manufacturer in respect of the sale of such Series 2010-2 Vehicles outside of the related Series 2010-2 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 Series 2010-2 Monthly Base Rent payable on the next Payment Date with respect to all Series 2010-2 Eligible Vehicles that are Series 2010-2 Eligible Program Vehicles as of such date and that have not been turned in to and accepted by the Manufacturer thereof pursuant to its Series 2010-2 Manufacturer Program, not been delivered and accepted for Series 2010-2 Auction pursuant to a Series 2010-2 Manufacturer Program and not otherwise been sold or deemed to be sold under the Series 2010-2 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 9.2(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 2010-2 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 9.2(a)  of this Series Supplement.

 

Estimated Interest Period ” has the meaning specified in Section 9.2(a)  of this Series Supplement.

 

Eurodollar Rate ” has the meaning set forth in the Series 2010-2 Note Purchase Agreement.

 

Eurodollar Rate (Reserve Adjusted) ” has the meaning set forth in the Series 2010-2 Note Purchase Agreement.

 

Excluded Redesignated Vehicle ” means each Series 2010-2 Vehicle manufactured by a Manufacturer with respect to which an Event of Bankruptcy has occurred that becomes a Series 2010-2 Redesignated Vehicle prior to the Inclusion Date for such Vehicle, as of and from the date such Series 2010-2 Vehicle becomes a Series 2010-2 Redesignated Vehicle to and until the Inclusion Date for such Vehicle.

 

Expected Final Payment Date ” means March 25, 2013.

 

9



 

Fiat ” eans a Person designated by HVF and organized under the laws of the United States of America that distributes automobiles manufactured under the brand “Fiat”.

 

Financial Assets ” has the meaning specified in Section 9.10(b)(i)  of this Series Supplement.

 

Group of Manufacturers ” means the BMW/Lexus/Mercedes/Audi Group and/or the Kia/Subaru/Hyundai Group as the context may require.

 

Holdings ” means Hertz Global Holdings, Inc.

 

Inclusion Date ” means, with respect to any Series 2010-2 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 Series 2010-2 Vehicle became a Series 2010-2 Redesignated Vehicle and (ii) the date upon which such Event of Bankruptcy with respect to the Manufacturer of such Series 2010-2 Vehicle first occurred.

 

Increase ” has the meaning specified in Section 8.1(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 Intermediary under the Master Exchange Agreement, the Series 2010-2 Noteholders under the Series 2010-2 Note Purchase Agreement (other than any Program Fee or any Undrawn Fee) or the Nominee under the Indenture or the Series 2010-2 Related Documents plus any other operating expenses of HVF then payable by HVF (other than any such operating expenses that relate solely to any Series of Indenture Notes other than the Series 2010-2 Notes).

 

Ineligible Receivable Applicable Manufacturer Receivables ” means, as of any date of determination, the portion of the Ineligible Receivable Manufacturer Receivable Amount that does not constitute a portion of the Series 2010-2 Ineligible Non-Investment Grade Manufacturer Receivable Amount as of such date.

 

Ineligible Receivable Manufacturer ” means a Manufacturer that is a Category 2 Manufacturer, a Category 3 Manufacturer or a Bankrupt Manufacturer.

 

Ineligible Receivable Manufacturer Receivable Adjusted Amount ” means, as of any date of determination, the excess of (a) the Ineligible Receivable Manufacturer Receivable Amount over (b) the Ineligible Receivable Manufacturer Receivable Adjustment Total, in each case, as of such date of determination.

 

Ineligible Receivable Manufacturer Receivable Adjustment ” means, as of any date of determination, for each Manufacturer that is an Ineligible Receivable Manufacturer but not a Series 2010-2 Non-Investment Grade Manufacturer, the sum of (I) the product of (a) the Series 2010-2 Manufacturer Excess with respect to such

 

10



 

Manufacturer and (b) the quotient of (i) the Ineligible Receivable Manufacturer Receivable Amount with respect to such Manufacturer divided by (ii) the Series 2010-2 Manufacturer Amount for such Manufacturer and (II) in the event such Manufacturer is part of a Group of Manufacturers, the product of (a) the Series 2010-2 Manufacturer Excess with respect to such Group of Manufacturers, (b) the Series 2010-2 Manufacturer Ineligible Receivable Group Proportion with respect to such Manufacturer and (c) the quotient of (i) the Ineligible Receivable Manufacturer Receivable Amount with respect to such Manufacturer divided by (ii) the Series 2010-2 Manufacturer Amount for such Manufacturer, in each case, as of such date of determination.

 

Ineligible Receivable Manufacturer Receivable Adjustment Total ” means, as of any date of determination, the sum of (i) the aggregate Ineligible Receivable Manufacturer Receivable Adjustment for all Manufacturers and (ii) the product of (a) the amount determined pursuant to clause (ii)(2)  of the definition of “Series 2010-2 Required Incremental Enhancement Amount” and (b) the quotient of (I) the portion of the Non-Eligible Manufacturer Amount attributable to Ineligible Receivable Applicable Manufacturer Receivables over (II) the Non-Eligible Manufacturer Amount, in each case, as of such date of determination.

 

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, but only to the extent that such amounts are included in clauses (i)  through (x)  of the definition of Series 2010-2 Aggregate Asset Amount for such date: (a) the aggregate amount of Series 2010-2 Manufacturer Receivables (other than Series 2010-2 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 Series 2010-2 Vehicles that are Series 2010-2 Eligible Vehicles and Series 2010-2 Eligible Program Vehicles when turned in to and accepted by such Ineligible Receivable Manufacturer or delivered and accepted for Series 2010-2 Auction, plus (b) the aggregate amount of Series 2010-2 Manufacturer Receivables (other than Series 2010-2 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 Series 2010-2 Vehicles that were Series 2010-2 Eligible Vehicles but not Series 2010-2 Eligible Program Vehicles when turned in to and accepted by such Ineligible Receivable Manufacturer or delivered and accepted for Series 2010-2 Auction; provided , that the definition of “Ineligible Receivable Manufacturer Receivable Amount” may be amended by HVF with the consent of the Funding Agents; provided further that any Ineligible Receivable Manufacturer may be excluded from this definition by HVF with the consent of the Funding Agents.

 

Interest Rate Cap Provider ” means HVF’s counterparty under a Series 2010-2 Interest Rate Cap.

 

Investor Group Maximum Principal Increase ” has the meaning set forth in the Series 2010-2 Note Purchase Agreement.

 

11



 

Kia/Subaru/Hyundai Group ” means the group of Manufacturers comprised of Kia, Subaru and Hyundai which has a Series 2010-2 Manufacturer Percentage specified in Column B of Exhibit K hereto.

 

Lease Payment Deficit Notice ” has the meaning specified in Section 9.2(b)  of this Series Supplement.

 

Legal Final Payment Date ” means the one-year anniversary of the Expected Final Payment Date.

 

Management Investors ” means the collective reference to the officers, directors, employees and other members of the management of any Parent Entity, 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 Hertz or any Parent Entity.

 

Mandatory Decrease ” has the meaning specified in Section 8.2(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 “Series 2010-2 Aggregate Asset Amount” for such date: (i) the Series 2010-2 Net Book Value of all Series 2010-2 Eligible Program Vehicles that are Series 2010-2 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 Series 2010-2 Manufacturer Program, not delivered and accepted for Series 2010-2 Auction pursuant to its Series 2010-2 Manufacturer Program or not otherwise sold or deemed to be sold under the Series 2010-2 Related Documents, plus (ii) the aggregate amount of Series 2010-2 Manufacturer Receivables (other than Series 2010-2 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 Series 2010-2 Vehicles that were Series 2010-2 Eligible Vehicles and Series 2010-2 Eligible Program Vehicles when turned in to and accepted by such Manufacturer or delivered and accepted for Series 2010-2 Auction, plus (iii) with respect to Series 2010-2 Eligible Vehicles that were Series 2010-2 Eligible Program Vehicles that have been delivered and accepted for Series 2010-2 Auction pursuant to a Series 2010-2 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 Series 2010-2 Auction of such Series 2010-2 Eligible Vehicles as of such date, plus (iv) with respect to Series 2010-2 Eligible Vehicles that were Series 2010-2 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 Series 2010-2 Auction, otherwise sold or become a Series 2010-2 Casualty, any accrued and unpaid Series 2010-2 Casualty Payments or Series 2010-2 Termination Payments with respect to such Series 2010-2 Eligible Vehicles as of such date under the Series 2010-2 Lease, plus (v) with respect to Series 2010-2 Eligible Vehicles that were Series 2010-2 Eligible

 

12



 

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 Series 2010-2 Auction or otherwise sold, any accrued and unpaid Series 2010-2 Monthly Base Rent with respect to such Series 2010-2 Eligible Vehicles as of such date under the Series 2010-2 Lease plus (vi) with respect to Series 2010-2 Eligible Vehicles that were Series 2010-2 Eligible Program Vehicles sold by HVF to a third party pursuant to Section 2.5(a) of the Series 2010-2 Lease, any non-return incentives payable to HVF under a Series 2010-2 Manufacturer Program by such Manufacturer in respect of the sale of such Series 2010-2 Vehicles outside of the related Series 2010-2 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 Series 2010-2 Monthly Base Rent payable on the next Payment Date with respect to all Series 2010-2 Eligible Vehicles that are Series 2010-2 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 Series 2010-2 Manufacturer Program, not been delivered and accepted for Series 2010-2 Auction pursuant to its Series 2010-2 Manufacturer Program and not otherwise been sold or deemed to be sold under the Series 2010-2 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 Series 2010-2 Non-Eligible Program Vehicles.

 

Manufacturer Non-Eligible Vehicle Adjusted Amount ” means, as of any date of determination, with respect to any Manufacturer, an amount equal to the excess of (i) the Manufacturer Non-Eligible Vehicle Amount with respect to such Manufacturer over (ii) the Manufacturer Non-Eligible Vehicle Amount Adjustment with respect to such Manufacturer, in each case, as of such date of determination.

 

Manufacturer Non-Eligible Vehicle Amount Adjustment ” means, as of any date of determination, with respect to any Manufacturer, the sum of (I) the sum of (i) the Series 2010-2 Manufacturer Excess Reduction with respect to such Manufacturer and (ii) in the event that such Manufacturer is part of a Group of Manufacturers, the product of (A) the Series 2010-2 Manufacturer Excess Reduction with respect to such Group of Manufacturers and (B) the Series 2010-2 Manufacturer Non-Eligible Vehicle Group Proportion with respect to such Manufacturer and (II) in the event that such Manufacturer is not a Series 2010-2 Eligible Manufacturer, the product of (x) the amount determined pursuant to clause (ii)(2)  of the definition of “Series 2010-2 Required Incremental Enhancement Amount” and (y) the quotient expressed as a percentage of (i) the portion of the Non-Eligible Manufacturer Amount attributable to such Manufacturer and (ii) the Non-Eligible Manufacturer Amount, in each case, as of such date of determination.

 

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

 

13



 

the nearest $100,000, of the following amounts to the extent that such amounts are included in the definition of “Series 2010-2 Aggregate Asset Amount” for such date: (i) the Series 2010-2 Net Book Value of all Series 2010-2 Non-Eligible Program Vehicles or Series 2010-2 Non-Program Vehicles that are Series 2010-2 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 Series 2010-2 Manufacturer Program, not delivered and accepted for Series 2010-2 Auction pursuant to its Series 2010-2 Manufacturer Program or not otherwise sold or deemed to be sold under the Series 2010-2 Related Documents, plus (ii) the aggregate amount of Series 2010-2 Manufacturer Receivables (other than Series 2010-2 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 Series 2010-2 Eligible Vehicles and Series 2010-2 Non-Eligible Program Vehicles when turned in to and accepted by such Manufacturer or delivered and accepted for Series 2010-2 Auction, plus (iii) with respect to Series 2010-2 Eligible Vehicles that were Series 2010-2 Non-Eligible Program Vehicles that have been delivered and accepted for Series 2010-2 Auction pursuant to a Series 2010-2 Manufacturer Program with such Manufacturer, all amounts receivable (other than amounts specified in clause (ii)  above) from any Person in connection with the Series 2010-2 Auction of such Series 2010-2 Eligible Vehicles as of such date, plus (iv) with respect to Series 2010-2 Eligible Vehicles that were Series 2010-2 Non-Eligible Program Vehicles or Series 2010-2 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 Series 2010-2 Auction, otherwise sold or become a Series 2010-2 Casualty, any accrued and unpaid Series 2010-2 Casualty Payments or Series 2010-2 Termination Payments with respect to such Series 2010-2 Eligible Vehicles as of such date under the Series 2010-2 Lease, plus (v) with respect to Series 2010-2 Eligible Vehicles that were Series 2010-2 Non-Eligible Program Vehicles or Series 2010-2 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 Series 2010-2 Auction or otherwise sold, any accrued and unpaid Series 2010-2 Monthly Base Rent with respect to such Series 2010-2 Eligible Vehicles as of such date under the Series 2010-2 Lease, 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 Series 2010-2 Monthly Base Rent payable on the next Payment Date with respect to all Series 2010-2 Eligible Vehicles as of such date that are Series 2010-2 Non-Eligible Program Vehicles or Series 2010-2 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 Series 2010-2 Manufacturer Program, not been delivered and accepted for Series 2010-2 Auction pursuant to a Series 2010-2 Manufacturer Program and not otherwise been sold or deemed to be sold under the Series 2010-2 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 Program ” means a Series 2010-2 Manufacturer Program.

 

14


 

Market Value Average ” means, as of any day on or after the third Determination Date occurring after the Series 2010-2 Closing 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 the Determination Date preceding such day (or as of such day if such day is a Determination Date) and the two Determination Dates precedent thereto and the denominator of which is the average of the aggregate Series 2010-2 Net Book Value of all Series 2010-2 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 2010-2 Note Purchase Agreement.

 

Merrill Lynch Investors ” means the collective reference to (i) ML Global Private Equity Fund, L.P., a Cayman Islands exempted limited partnership, or any successor thereto, (ii) Merrill Lynch Ventures L.P. 2001, a Delaware limited partnership, or any successor thereto, (iii) CMC-Hertz Partners, L.P., a Delaware limited partnership, or any successor thereto, (iv) ML Hertz Co-Investor, L.P., a Delaware limited partnership, or any successor thereto and (v) any Affiliate of any thereof.

 

Mini ” means a Person designated by HVF and organized under the laws of the United States of America that distributes automobiles manufactured under the brand “MINI” or “MINI-Cooper”.

 

ML ” means Merrill Lynch Global Private Equity, Inc. (formerly known as Merrill Lynch Global Partners, Inc.), or any successor thereto.

 

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-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 9.10(b)(i) of this Series Supplement.

 

15



 

Nissan Condition ” means, as of any date of determination, a condition which will be satisfied in the event that, as of such date of determination, (i) the Nissan Percentage exceeds the Nissan Threshold and (ii) the Nissan Percentage has exceeded the Nissan Threshold for at least thirty consecutive days.

 

Nissan Enhancement Percentage ” means, as of any date of determination on which (1) the Nissan Condition is satisfied and the Nissan Program Percentage is greater than the Nissan Program Threshold (A) in the event that Nissan would be considered a Category 1 Manufacturer or a Category 2 Manufacturer but for the satisfaction of the Nissan Condition on such date of determination, 45%, (B) in the event that Nissan would be considered a Category 3 Manufacturer but for the satisfaction of the Nissan Condition on such date of determination, 50% or (C) in the event that Nissan is a Bankrupt Manufacturer, 55% or (2) the Nissan Condition is satisfied and the Nissan Program Percentage is less than or equal to the Nissan Program Threshold (A) in the event that Nissan would be considered a Category 1 Manufacturer or a Category 2 Manufacturer but for the satisfaction of the Nissan Condition on such date of determination, 50%, (B) in the event that Nissan would be considered a Category 3 Manufacturer but for the satisfaction of the Nissan Condition on such date of determination, 55% or (C) in the event that Nissan is a Bankrupt Manufacturer, 60%, in each case, as of such date of determination.  For the avoidance of doubt, on any date of determination on which the Nissan Condition is not satisfied, the Nissan Enhancement Percentage shall equal 0%.  The “Nissan Enhancement Percentage” may be modified in any manner with the consent of HVF and each Funding Agent.

 

Nissan Percentage ” means, as of any date of determination, the quotient (expressed as a percentage) of (i) the Series 2010-2 Manufacturer Amount with respect to Nissan divided by (ii) the excess of (A) the Series 2010-2 Aggregate Asset Amount over (B) the Series 2010-2 Exchange Account Amounts, in each case, as of such date

 

Nissan Program Percentage ” means, as of any date of determination, the quotient (expressed as a percentage) of (i) the sum of (a) the Manufacturer Non-Eligible Program Vehicle Amount with respect to Nissan and (b) the Manufacturer Eligible Program Vehicle Amount with respect to Nissan and (ii) the Series 2010-2 Manufacturer Amount with respect to Nissan, in each case, as of such date of determination.

 

Nissan Program Threshold ” means 33%.

 

Nissan Threshold ” means 35%.

 

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 “Series 2010-2 Aggregate Asset Amount” for such date: (i) the Series 2010-2 Net Book Value of all Series 2010-2 Vehicles that are Series 2010-2 Eligible Vehicles as of such date that were manufactured by Manufacturers other than Series 2010-2 Eligible Manufacturers and not turned in to and accepted by the Manufacturer thereof pursuant to its Series 2010-2 Manufacturer Program, not delivered and accepted for Series 2010-2

 

16



 

Auction pursuant to its Series 2010-2 Manufacturer Program or not otherwise sold or deemed to be sold under the Series 2010-2 Related Documents, plus (ii) the aggregate amount of Series 2010-2 Manufacturer Receivables (other than Series 2010-2 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 Series 2010-2 Eligible Manufacturers with respect to Series 2010-2 Vehicles that were Series 2010-2 Eligible Vehicles when turned in to and accepted by such Manufacturers or delivered and accepted for Series 2010-2 Auction, plus (iii) with respect to Series 2010-2 Eligible Vehicles that have been delivered and accepted for Series 2010-2 Auction pursuant to a Series 2010-2 Manufacturer Program with a Manufacturer other than a Series 2010-2 Eligible Manufacturer, all amounts receivable (other than amounts specified in clause (ii) above) from any Person in connection with the Series 2010-2 Auction of such Series 2010-2 Eligible Vehicles as of such date, plus (iv) with respect to Series 2010-2 Eligible Vehicles that were manufactured by Manufacturers other than Series 2010-2 Eligible Manufacturers that have been turned in to and accepted by the Manufacturer thereof, delivered and accepted for Series 2010-2 Auction, otherwise sold or become a Series 2010-2 Casualty, any accrued and unpaid Series 2010-2 Casualty Payments or Series 2010-2 Termination Payments with respect to such Series 2010-2 Eligible Vehicles as of such date under the Series 2010-2 Lease, plus (v) with respect to Series 2010-2 Eligible Vehicles that were manufactured by Manufacturers other than Series 2010-2 Eligible Manufacturers that have been turned in to and accepted by the Manufacturer thereof, delivered and accepted for Series 2010-2 Auction or otherwise sold, any accrued and unpaid Series 2010-2 Monthly Base Rent with respect to such Series 2010-2 Eligible Vehicles as of such date under the Series 2010-2 Lease, 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 Series 2010-2 Monthly Base Rent payable on the next Payment Date with respect to all Series 2010-2 Eligible Vehicles as of such date that were manufactured by Manufacturers other than Series 2010-2 Eligible Manufacturers and that have not been turned in to and accepted by the Manufacturer thereof pursuant to its Series 2010-2 Manufacturer Program, not been delivered and accepted for Series 2010-2 Auction pursuant to its Series 2010-2 Manufacturer Program and not otherwise been sold or deemed to be sold under the Series 2010-2 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 “Series 2010-2 Aggregate Asset Amount” for such date: (i) the Series 2010-2 Net Book Value of all Series 2010-2 Non-Eligible Program Vehicles and Series 2010-2 Non-Program Vehicles that are Series 2010-2 Eligible Vehicles as of such date and not turned in to and accepted by the Manufacturer thereof pursuant to its Series 2010-2 Manufacturer Program, not delivered and accepted for Series 2010-2 Auction pursuant to its Series 2010-2 Manufacturer Program or not otherwise sold or deemed to be sold under the Series 2010-2 Related Documents, plus (ii) the aggregate amount of Series 2010-2 Manufacturer Receivables (other than Series 2010-2 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 Series 2010-2 Eligible Vehicles and Series 2010-2 Non-Eligible Program Vehicles when turned in to and accepted by such

 

17



 

Manufacturers or delivered and accepted for Series 2010-2 Auction, plus (iii) with respect to Series 2010-2 Eligible Vehicles that were Series 2010-2 Non-Eligible Program Vehicles that have been delivered and accepted for Series 2010-2 Auction pursuant to a Series 2010-2 Manufacturer Program with a Manufacturer, all amounts receivable (other than amounts specified in clause (ii) above) from any Person in connection with the Series 2010-2 Auction of such Series 2010-2 Eligible Vehicles as of such date, plus (iv) with respect to Series 2010-2 Eligible Vehicles that were Series 2010-2 Non-Eligible Program Vehicles or Series 2010-2 Non-Program Vehicles that have been turned in to and accepted by the Manufacturer thereof, delivered and accepted for Series 2010-2 Auction, otherwise sold or become a Series 2010-2 Casualty, any accrued and unpaid Series 2010-2 Casualty Payments or Series 2010-2 Termination Payments with respect to such Series 2010-2 Eligible Vehicles as of such date under the Series 2010-2 Lease, plus (v) with respect to Series 2010-2 Eligible Vehicles that were Series 2010-2 Non-Eligible Program Vehicles or Series 2010-2 Non-Program Vehicles that have been turned in to and accepted by the Manufacturer thereof, delivered and accepted for Series 2010-2 Auction or otherwise sold, any accrued and unpaid Series 2010-2 Monthly Base Rent with respect to such Series 2010-2 Eligible Vehicles as of such date under the Series 2010-2 Lease, 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 Series 2010-2 Monthly Base Rent payable on the next Payment Date with respect to all Series 2010-2 Eligible Vehicles as of such date that are Series 2010-2 Non-Eligible Program Vehicles or Series 2010-2 Non-Program Vehicles and that have not been turned in to and accepted by the Manufacturer thereof pursuant to its Series 2010-2 Manufacturer Program, not been delivered and accepted for Series 2010-2 Auction pursuant to a Series 2010-2 Manufacturer Program and not otherwise been sold or deemed to be sold under the Series 2010-2 Related Documents.

 

Non-Investment Grade Manufacturer Program Vehicle Adjusted Amount ” means, as of any date of determination, the excess, if any, of (a) the Non-Investment Grade Manufacturer Program Vehicle Amount over (b) the sum of (i) the Non-Investment Grade Manufacturer Program Vehicle Amount Adjustment with respect to all Manufacturers and (ii) the product of (x) the amount determined pursuant to clause (ii)(2) of the definition of “Series 2010-2 Required Incremental Enhancement Amount” and (y) the quotient of (I) the portion of the Non-Eligible Manufacturer Amount attributable to Non-Investment Grade Manufacturer Program Vehicle Amounts over (II) the Non-Eligible Manufacturer Amount, in each case, as of such date of determination.

 

Non-Investment Grade Manufacturer Program Vehicle Amount ” means, as of any date of determination, the sum of the Manufacturer Eligible Program Vehicle Amounts and the Manufacturer Non-Eligible Program Vehicle Amounts for all Series 2010-2 Non-Investment Grade Manufacturers (other than, in the event that (x) the Nissan Condition is satisfied and (y) Nissan constitutes a Series 2010-2 Non-Investment Grade Manufacturer, Nissan), in each case, as of such date of determination.

 

Non-Investment Grade Manufacturer Program Vehicle Amount Adjustment ” means, as of any date of determination, with respect to any Manufacturer (other than, in the event that the Nissan Condition is satisfied on such date of

 

18



 

determination, Nissan) that is a Series 2010-2 Non-Investment Grade Manufacturer, the sum of (I) the product of (a) the Series 2010-2 Manufacturer Excess with respect to such Manufacturer and (b) the Series 2010-2 Manufacturer Non-Investment Grade Individual Proportion with respect to such Manufacturer, (II) in the event that such Manufacturer is part of a Group of Manufacturers, the product of (i) the Series 2010-2 Manufacturer Excess with respect to such Group of Manufacturers and (ii) the Series 2010-2 Manufacturer Non-Investment Grade Group Proportion with respect to such Manufacturer and (III) the product of (a) the amount determined with respect to such Manufacturer pursuant to clause (ii)(B)(3) of the definition of “Series 2010-2 Required Incremental Enhancement Amount” and (b) the Series 2010-2 Manufacturer Non-Investment Grade Individual Proportion with respect to such Manufacturer.

 

Non-Program Fleet Market Value ” means, with respect to all Series 2010-2 Non-Program Vehicles (excluding any Series 2010-2 Excluded Redesignated Vehicles) as of any date of determination, the sum of the respective Third-Party Market Values of each such Series 2010-2 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 Series 2010-2 Non-Program Vehicles.

 

Non-Program Vehicle Measurement Month Average ” means, as of any date of determination, (a) if no Series 2010-2 Measurement Month has occurred during the period from the Series 2010-2 Closing Date through such date, the average of the Series 2009-1 Non-Program Vehicle Measurement Month Percentages with respect to the three Measurement Months immediately preceding such date, (b) if one, but not more than one, Series 2010-2 Measurement Month has occurred during the period from the Series 2010-2 Closing Date through such date, the average of the Series 2010-2 Non-Program Vehicle Measurement Month Percentage with respect to such Series 2010-Measurement Month and the Series 2009-1 Non-Program Vehicle Measurement Month Percentages with respect to the two Measurement Months immediately preceding such date, (c) if two, but not more than two, Series 2010-2 Measurement Months have occurred during the period from the Series 2010-2 Closing Date through such date, the average of the Series 2010-2 Non-Program Vehicle Measurement Month Percentages with respect to such two Series 2010-2 Measurement Months and the Series 2009-1 Non-Program Vehicle Measurement Month Percentage with respect to the Measurement Month immediately preceding such date and (d) if three or more Series 2010-2 Measurement Months have occurred during the period from the Series 2010-2 Closing Date through such date, the average of the Series 2010-2 Non-Program Vehicle Measurement Month Percentages with respect to the three Series 2010-Measurement Months immediately preceding such date.

 

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 (other than, in the event that the Nissan Condition is satisfied on such date of determination, any Non-Program Vehicle Amounts with respect to Nissan) as of such date and the denominator of which is the excess of (A) the Series

 

19



 

2010-2 Aggregate Asset Amount over (B) the Series 2010-2 Exchange Account Amounts, in each case, as of such date; provided , that any portion of the Non-Program Vehicle Amount that, as of such date of determination, also constitutes a portion of the “Bankrupt Manufacturer Vehicle Amount” shall be excluded from such numerator.

 

Other Segregated Series of Notes ” means all Segregated Series of Notes other than the Series 2010-2 Notes.

 

Outstanding ” means with respect to the Series 2010-2 Notes, all Series 2010-2 Notes theretofore authenticated and delivered under the Indenture, except (a) Series 2010-2 Notes theretofore cancelled or delivered to the Registrar for cancellation, (b) Series 2010-2 Notes which have not been presented for payment but funds for the payment of which are on deposit in the Series 2010-2 Distribution Account and are available for payment of such Series 2010-2 Notes, and Series 2010-2 Notes which are considered paid pursuant to Section 7.1 hereof, or (c) Series 2010-2 Notes in exchange for or in lieu of other Series 2010-2 Notes which have been authenticated and delivered pursuant to the Indenture unless proof satisfactory to the Trustee is presented that any such Series 2010-2 Notes are held by a purchaser for value.

 

Parent Entity ” means any of Holdings, Hertz Investors, Inc., any Other Parent Entity and any other Person that becomes a direct or indirect Subsidiary of Holdings or any Other Parent Entity after the Series 2010-2 Closing Date and of which Hertz is a direct or indirect Subsidiary that is designated by Hertz as a “Parent Entity”.  As used herein, “Other Parent Entity” means a Person of which the then Relevant Parent Entity becomes a direct or indirect Subsidiary after the Series 2010-2 Closing Date (it being understood that, without limiting the application of the definition of Change of Control to the new Relevant Parent Entity, such existing Relevant Parent Entity so becoming such a Subsidiary shall not constitute a Change of Control.

 

Payment Date ” means the 25th day of each calendar month, or if such date is not a Business Day, the next succeeding Business Day, commencing on January 25, 2011.

 

Permitted Holders ” means, (a) any of the Equity Investors, Management Investors, CD&R, Carlyle, ML and any of their respective Affiliates; (b) any investment fund or vehicle managed, sponsored or advised by CD&R, Carlyle, ML 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, (d) any “group” (as such term is used in Sections 13(d) and 14(d) of the Exchange Act) of which any of the Persons specified in clauses (a), (b) or (c) above is a member, and any other Person that is a member of such “group”, provided that (without giving effect to the existence of such “group” or any other “group”) such Persons collectively have beneficial ownership, directly or indirectly, of more than 50% of the total voting power of the Voting Stock of the Relevant Parent Entity held by such “group” and (e) any Person acting in the capacity of an underwriter in connection with a public or private offering of Capital Stock of Hertz or any Subsidiary thereof or any Parent Entity.

 

20



 

Preference Amount ” means any amount previously paid by Hertz pursuant to the Series 2010-2 Demand Note and distributed to the Series 2010-2 Noteholders in respect of amounts owing under the Series 2010-2 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 2010-2 Notes, the Series 2010-2 Principal Amount.

 

Principal Deficit Amount ” means, on any date of determination, the excess, if any, of (a) the Series 2010-2 Adjusted Principal Amount on such date over (b) the Series 2010-2 Aggregate 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 Series 2010-2 Monthly Variable Rent required to be made under the Series 2010-2 Lease, shall mean the excess, if any, of (x) the Series 2010-2 Adjusted Principal Amount on such date over (y) the sum of (1) the Series 2010-2 Aggregate Asset Amount on such date and (2) the lesser of (a) the Series 2010-2 Liquidity Amount on such date and (b) the Series 2010-2 Required Liquidity Amount on such date.

 

Pro Rata Share ” means, with respect to any Series 2010-2 Letter of Credit Provider, as of any date, the fraction (expressed as a percentage) obtained by dividing (A) the available amount under such Series 2010-2 Letter of Credit Provider’s Series 2010-2 Letter of Credit as of such date by (B) an amount equal to the aggregate available amount under all Series 2010-2 Letters of Credit as of such date; provided , that only for purposes of calculating the Pro Rata Share with respect to any Series 2010-2 Letter of Credit Provider as of any date, if such Series 2010-2 Letter of Credit Provider has not complied with its obligation to pay the Trustee the amount of any draw under its Series 2010-2 Letter of Credit made prior to such date, the available amount under such Series 2010-2 Letter of Credit Provider’s Series 2010-2 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 2010-2 Letter of Credit Provider has paid such amount to the Trustee and been reimbursed by the Series 2010-2 Lessee for such amount (provided that the foregoing calculation shall not in any manner reduce a Series 2010-2 Letter of Credit Provider’s actual liability in respect of any failure to pay any demand under its Series 2010-2 Letter of Credit).

 

 “ Record Date ” means, with respect to any Payment Date, the last day of the Related Month.

 

Reference Banks ” means four major banks in the London interbank market selected by the Calculation Agent.

 

21



 

Relevant Parent Entity ”:  (i) Hertz, so long as Hertz is not a Subsidiary of a Parent Entity, and (ii) any Parent Entity, so long as Hertz is a Subsidiary thereof and such Parent Entity is not a Subsidiary of any other Parent Entity.

 

Relinquished Property Rights ” has the meaning specified in Section 2.1(a) here

 

Segregated Series 2010-2 Documents ” means each Series 2010-2 Related Document relating solely to the Segregated Series of Notes created hereby or the Series 2010-2 Collateral.

 

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, that certain Fourth Amendment to Credit Agreement, dated as of September 30, 2007 and that certain Fifth Amendment, dated as of September 17, 2010)), (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, 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 2009-1 Non-Program Vehicle Measurement Month Percentage ” 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

 

22



 

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%.  For the avoidance of doubt, capitalized terms used in this definition shall have the meanings assigned thereto in the Base Indenture.

 

Series 2009-1 Note Purchase Agreement ” has the meaning specified in the Series 2009-1 Supplement.

 

Series 2009-1 Noteholders ” has the meaning specified in the Series 2009-1 Supplement.

 

Series 2009-1 Notes ” means the variable funding asset-backed notes issued pursuant to the Series 2009-1 Supplement.

 

Series 2009-1 Principal Amount ” has the meaning specified in the Series 2009-1 Supplement.

 

Series 2009-1 Supplement ” means that certain Amended and Restated Series Supplement to the Base Indenture, dated as of the date hereof (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 2009-1 Notes.

 

Series 2010-2 Accrued Interest Account ” has the meaning specified in Section 4.1(a) of this Series Supplement.

 

Series 2010-2 Adjusted Enhancement Amount ” means, the Series 2010-2 Enhancement Amount, excluding from the calculation thereof the amount available to be drawn under any Series 2010-2 Letter of Credit if at the time of such calculation (A) such Series 2010-2 Letter of Credit shall not be in full force and effect, (B) an Event of Bankruptcy shall have occurred with respect to the Series 2010-2 Letter of Credit Provider of such Series 2010-2 Letter of Credit, (C) such Series 2010-2 Letter of Credit Provider shall have repudiated such Series 2010-2 Letter of Credit or failed to honor a draw thereon made in accordance with the terms thereof or (D) a Series 2010-2 Downgrade Event shall have occurred and be continuing for at least 30 days with respect to the Series 2010-2 Letter of Credit Provider of such Series 2010-2 Letter of Credit.

 

Series 2010-2 Adjusted Liquidity Amount ” means, the Series 2010-2 Liquidity Amount, excluding from the calculation thereof the amount available to be drawn under any Series 2010-2 Letter of Credit if at the time of such calculation (A) such Series 2010-2 Letter of Credit shall not be in full force and effect, (B) an Event of Bankruptcy shall have occurred with respect to the Series 2010-2 Letter of Credit Provider of such Series 2010-2 Letter of Credit, (C) such Series 2010-2 Letter of Credit Provider shall have repudiated such Series 2010-2 Letter of Credit or failed to honor a draw thereon made in accordance with the terms thereof or (D) a Series 2010-2 Downgrade Event shall have occurred and be continuing for at least 30 days with respect to the Series 2010-2 Letter of Credit Provider of such Series 2010-2 Letter of Credit.

 

23



 

 “ Series 2010-2 Adjusted Principal Amount ” means, as of any date of determination, the excess, if any, of (A) the Series 2010-2 Principal Amount as of such date over (B) the sum of (1) the amount of cash and Series 2010-2 Permitted Investments on deposit in the Series 2010-2 Excess Collection Account and (2) the amount of cash and Series 2010-2 Permitted Investments on deposit in the Series 2010-2 Collection Account and available for reduction of the Series 2010-2 Principal Amount, in each case, as of such date.

 

Series 2010-2 Administration Agreement means the Administration Agreement, dated as of the Series 2010-2 Closing Date, by and among the Series 2010-2 Administrator, HVF and the Trustee, as amended, modified or supplemented from time to time in accordance with its terms.

 

Series 2010-2 Administrator ” means Hertz, in its capacity as the administrator under the Series 2010-2 Administration Agreement , or any successor administrator thereunder.

 

Series 2010-2 Administrator Default ” means any of the events described in Section 8(c) of the Series 2010-2 Administration Agreement .

 

Series 2010-2 Aggregate Asset Amount ” means, as of any date, the amount equal to the sum, rounded to the nearest $100,000, of (i) the Series 2010-2 Net Book Value of all Series 2010-2 Program Vehicles that are Series 2010-2 Eligible Vehicles as of such date and not turned in to and accepted by the Manufacturer thereof pursuant to its Series 2010-2 Manufacturer Program, not delivered and accepted for Series 2010-2 Auction pursuant to a Series 2010-2 Manufacturer Program or not otherwise sold or deemed to be sold under the Series 2010-2 Related Documents, plus (ii) the Series 2010-2 Net Book Value of all Series 2010-2 Non-Program Vehicles that are Series 2010-2 Eligible Vehicles as of such date not sold or deemed to be sold under the Series 2010-2 Related Documents, plus (iii) the aggregate amount of Series 2010-2 Manufacturer Receivables (other than Series 2010-2 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 Series 2010-2 Vehicles that are Series 2010-2 Eligible Vehicles and Series 2010-2 Eligible Program Vehicles when turned in to and accepted by such Manufacturers or delivered and accepted for Series 2010-2 Auction, plus (iv) the aggregate amount of Series 2010-2 Manufacturer Receivables (other than Series 2010-2 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 Series 2010-2 Vehicles that were Series 2010-2 Eligible Vehicles but not Series 2010-2 Eligible Program Vehicles when turned in to and accepted by such Manufacturers or delivered and accepted for Series 2010-2 Auction, plus (v) with respect to Series 2010-2 Eligible Vehicles that have been delivered and accepted for Series 2010-2 Auction pursuant to a Series 2010-2 Manufacturer Program, all amounts receivable (other than amounts specified in clauses (iii) and (iv) above) from any Person in connection with the Series 2010-2 Auction of such Series 2010-2 Eligible Vehicles as of such date, plus (vi) with respect to Series 2010-2 Eligible Vehicles that have been turned in to and accepted by the Manufacturer, delivered and accepted for Series 2010-2 Auction or otherwise sold,

 

24


 

any accrued and unpaid Series 2010-2 Casualty Payments or Series 2010-2 Termination Payments with respect to such Series 2010-2 Eligible Vehicles as of such date under the Series 2010-2 Lease, plus (vii) with respect to Series 2010-2 Eligible Vehicles that have been turned in to and accepted by the Manufacturer, delivered and accepted for Series 2010-2 Auction or otherwise sold, any accrued and unpaid Series 2010-2 Monthly Base Rent with respect to such Series 2010-2 Eligible Vehicles under the Series 2010-2 Lease, plus (viii) with respect to Rejected Vehicles that were Series 2010-2 New 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 Series 2010-2 Eligible Vehicles that were Series 2010-2 Program Vehicles sold by HVF to a third party pursuant to Section 2.5(a) of the Series 2010-2 Lease, any non-return incentives payable to HVF under a Series 2010-2 Manufacturer Program by a Series 2010-2 Eligible Program Manufacturer in respect of the sale of such Series 2010-2 Vehicles outside of the related Series 2010-2 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 Series 2010-2 Monthly Base Rent payable on the next Payment Date with respect to all Series 2010-2 Eligible Vehicles as of such date that have not been turned in to and accepted by the Manufacturer thereof pursuant to its Series 2010-2 Manufacturer Program, not been delivered and accepted for Series 2010-2 Auction pursuant to a Series 2010-2 Manufacturer Program and not otherwise been sold or deemed to be sold under the Series 2010-2 Related Documents, plus (xi) the Series 2010-2 Exchange Account Amounts relating to Series 2010-2 Vehicles, minus (xii) any Series 2010-2 Ineligible Asset Amount on such date.

 

Series 2010-2 Aggregate Asset Amount Deficiency ” means, with respect to any date of determination, the amount, if any, by which the Series 2010-2 Required Asset Amount on such date exceeds the Series 2010-2 Aggregate Asset Amount on such date.

 

Series 2010-2 Amortization Events ” has the meaning specified in Section 10.1 hereof.

 

Series 2010-2 Assignment Agreement ” means the agreement with respect to each Manufacturer and its Series 2010-2 Manufacturer Program, entered into or to be entered into among Hertz, HGI, HVF and the Collateral Agent and acknowledged by such Manufacturer, (a) (i) assigning to HGI certain of Hertz’s rights, title and interest in and to such Manufacturer’s Series 2010-2 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 Series 2010-2 Manufacturer Program and (ii) assigning from HGI to HVF those rights, title and interest as they relate to passenger automobiles and light-duty trucks purchased by HVF from HGI pursuant to the Purchase Agreement, (b) assigning to the Collateral Agent on behalf of the Trustee for the benefit of the Series 2010-2 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.

 

25



 

Series 2010-2 Auction ” means the set of procedures specified in a Series 2010-2 Guaranteed Depreciation Program for sale or disposition of Series 2010-2 Program Vehicles through auctions and at auction sites designated by such Series 2010-2 Program Vehicles’ Manufacturer pursuant to such Series 2010-2 Guaranteed Depreciation Program.

 

Series 2010-2 Available Cash Collateral Account Amount ” means, as of any date of determination, the amount on deposit in the Series 2010-2 Cash Collateral Account (after giving effect to any deposits thereto and withdrawals and releases therefrom on such date).

 

Series 2010-2 Available Reserve Account Amount ” means, as of any date of determination, the amount on deposit in the Series 2010-2 Reserve Account.

 

Series 2010-2 Back-Up Administration Agreement ” means that certain Back-Up Administration Agreement dated as of the Series 2010-2 Closing Date by and among the Series 2010-2 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 2010-2 Note Purchase Agreement.

 

Series 2010-2 Back-Up Disposition Agent Agreement ” means that certain Back-Up Disposition Agent Agreement dated as of the Series 2010-2 Closing Date by and among Fiserv Automotive Solutions, Inc., the Series 2010-2 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 2010-2 Note Purchase Agreement.

 

Series 2010-2 Base Rate Tranche ” means that portion of the Series 2010-2 Principal Amount purchased or maintained with Series 2010-2 Advances which bear interest by reference to the Series 2010-2 Base Rate.

 

Series 2010-2 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 2010-2 Capitalized Cost ” means, with respect to each Series 2010-2 Vehicle, the sum of (a) the price paid for such Series 2010-2 Vehicle by HGI or the Intermediary to the Manufacturer, dealer or other Person selling such Series 2010-2 Vehicle, as established by the invoice delivered in connection with the purchase of such Series 2010-2 Vehicle and reflecting any adjustments made pursuant to Section 1.05(d)  of the Purchase Agreement plus, (b) if not otherwise included therein, with respect to any Series 2010-2 Program Vehicle, dealer profit to the extent included in the capitalized cost of such Series 2010-2 Program Vehicle under the terms of the applicable Series 2010-2 Manufacturer Program, or, with respect to any Series 2010-2 Non-Program Vehicle,

 

26



 

dealer profit to the extent included in the capitalized cost of Series 2010-2 Program Vehicle of the same make, model and model year under the terms of the applicable Series 2010-2 Manufacturer Program, plus (c) delivery charges for such Series 2010-2 Vehicle minus, in the case of any Series 2010-2 Non-Program Vehicle, the amount of any incentive fees paid or payable to HGI or the Intermediary by the Manufacturer of such Series 2010-2 Vehicle in respect of the purchase of such Series 2010-2 Vehicle.

 

Series 2010-2 Carrying Charges ” means for any Payment Date, without duplication, the sum of (a) the Series 2010-2 Monthly Servicing Fee payable by HVF to the Series 2010-2 Servicer pursuant to the Series 2010-2 Lease on such Payment Date in respect of the Related Month, (b) any fees or other costs, expenses and indemnity amounts owed to the Administrative Agent in respect of the Related Month, (c) $1,500, (d) all reasonable out-of-pocket costs and expenses of HVF incurred in connection with the issuance of the Series 2010-2 Notes, including any fees or commissions payable in connection with the sale of such Series 2010-2 Notes, during the Related Month, (e) 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 Segregated Series 2010-2 Documents during the Related Month, (f) any amounts payable by HVF to the Series 2010-2 Administrator under the Series 2010-2 Administration Agreement in respect of the Related Month, (g) any amounts payable to the Series 2010-2 Back-up Administrator under the Series 2010-2 Back-up Administration Agreement in respect of the Related Month, (h) any amounts payable to the Series 2010-2 Back-up Disposition Agent under the Series 2010-2 Back-up Disposition Agent Agreement in respect of the Related Month and (i) any accrued Series 2010-2 Carrying Charges that remain unpaid as of the immediately preceding Payment Date (after giving effect to all distributions in respect of such Payment Date).

 

Series 2010-2 Cash Collateral Account ” has the meaning specified in Section 9.8(f)  of this Series Supplement.

 

Series 2010-2 Cash Collateral Account Collateral ” has the meaning specified in Section 9.8(a)  of this Series Supplement.

 

Series 2010-2 Cash Collateral Account Interest and Earnings ” means with respect to a Series 2010-2 Cash Collateral Account all interest and earnings (net of losses and investment expenses) paid on funds on deposit in such Series 2010-2 Cash Collateral Account.

 

Series 2010-2 Cash Collateral Account Surplus ” means, with respect to any Payment Date, the lesser of (a) the Series 2010-2 Available Cash Collateral Account Amount and (b) the lesser of (i) the excess, if any, of the Series 2010-2 Adjusted Enhancement Amount (after giving effect to any withdrawal from the Series 2010-2 Reserve Account on such Payment Date) over the Series 2010-2 Required Enhancement Amount on such Payment Date and (ii) the excess, if any, of the Series 2010-2 Adjusted Liquidity Amount over the Series 2010-2 Required Liquidity Amount on such Payment Date.

 

27



 

Series 2010-2 Cash Collateral Percentage ” means, as of any date of determination, the percentage equivalent of a fraction, the numerator of which is the Series 2010-2 Available Cash Collateral Account Amount as of such date and the denominator of which is the Series 2010-2 Letter of Credit Liquidity Amount as of such date.

 

Series 2010-2 Casualty ” means, with respect to any Series 2010-2 Vehicle, that (a) such Series 2010-2 Vehicle is destroyed, seized or otherwise rendered permanently unfit or unavailable for use, (b) such Series 2010-2 Vehicle is lost or stolen and is not recovered for 180 days following the occurrence thereof or (c) in the case of a Series 2010-2 Program Vehicle not redesignated under Section 2.6 of the Series 2010-2 Lease, the return of such Series 2010-2 Vehicle cannot, prior to the end of the applicable Series 2010-2 Repurchase Period, be effected for any reason or the Manufacturer thereof did not accept such Series 2010-2 Vehicle for repurchase under the terms of the applicable Series 2010-2 Manufacturer Program, in either case, for any reason other than the Manufacturer’s willful refusal or inability to comply with its obligations under its Series 2010-2 Manufacturer Program.

 

Series 2010-2 Casualty Payment ” has the meaning specified in Section 6.2 of the Series 2010-2 Lease.

 

Series 2010-2 Certificate of Credit Demand ” means a certificate substantially in the form of Annex A to a Series 2010-2 Letter of Credit.

 

Series 2010-2 Certificate of Preference Payment Demand ” means a certificate substantially in the form of Annex C to a Series 2010-2 Letter of Credit.

 

Series 2010-2 Certificate of Termination Demand ” means a certificate substantially in the form of Annex D to a Series 2010-2 Letter of Credit.

 

Series 2010-2 Certificate of Unpaid Demand Note Demand ” means a certificate substantially in the form of Annex B to Series 2010-2 Letter of Credit.

 

Series 2010-2 Closing Date ” means December 16, 2010.

 

Series 2010-2 Collateral ” means the Series 2010-2 HVF Segregated Vehicle Collateral, the Series 2010-2 Indenture Collateral, the Series 2010-2 Interest Rate Caps, each Series 2010-2 Letter of Credit, the Series 2010-2 Cash Collateral Account Collateral, the Series 2010-2 Demand Note, the Series 2010-2 Distribution Account Collateral and the Series 2010-2 Reserve Account Collateral.

 

Series 2010-2 Collateral Agreements ” means, the Series 2010-2 Lease, the Series 2010-2 Supplemental Documents, the Series 2010-2 Assignment Agreements, the Purchase Agreement, the Series 2010-2 Administration Agreement , the Nominee Agreement, the Indemnification Agreement, the LLC Agreement, the HVF Credit Facility, the Master Exchange Agreement and the Escrow Agreement.

 

28



 

Series 2010-2 Collections ” means, without duplication, (a) all payments on the Series 2010-2 HVF Segregated Vehicle Collateral and Series 2010-2 Indenture Collateral, including, without limitation, (i) all payments by or on behalf of the Series 2010-2 Lessee under the Series 2010-2 Lease, (ii) all payments by Hertz to HVF under the Indemnification Agreement relating to Series 2010-2 Collateral, (iii) all proceeds of the Series 2010-2 Vehicles, including (A) all payments made by or on behalf of any Manufacturer or auction dealer, under the related Series 2010-2 Manufacturer Program with respect to the Series 2010-2 Vehicles, but excluding Series 2010-2 Excluded Payments, (B) all payments by or on behalf of any other Person as proceeds from the sale of Series 2010-2 Vehicles and (C) all insurance proceeds and warranty payments in respect of the Series 2010-2 Vehicles, but excluding Series 2010-2 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 relating to Series 2010-2 Collateral, including, without limitation (A) all payments of the Transfer Price by HGI in respect of Series 2010-2 Transferred Vehicles and Series 2010-2 Manufacturer Receivables relating to Series 2010-2 Vehicles pursuant to Section 1.06 of the Purchase Agreement and (B) all payments of the Rejected Vehicle Payment relating to Vehicles that were Series 2010-2 New Vehicles as of such rejection by the Series 2010-2 Lessee pursuant to Section 1.05(b)  of the Purchase Agreement, (v) all payments made from a Collateral Account (including the Joint Collection Account (as defined in the Master Exchange Agreement)) or a Series 2010-2 HVF Segregated Exchange Account to the Series 2010-2 Collection Account and (vii) all amounts earned on Series 2010-2 Permitted Investments of funds in the Series 2010-2 Series Accounts.

 

Series 2010-2 Collection Account ” has the meaning specified in Section 2.1(a)  of this Series Supplement.

 

Series 2010-2 Commercial Paper ” means the promissory notes of each Series 2010-2 Noteholder issued by such Series 2010-2 Noteholder in the commercial paper market and allocated to the funding of Series 2010-2 Advances in respect of the Series 2010-2 Notes.

 

Series 2010-2 Condition Report ” means a condition report with respect to a Series 2010-2 Program Vehicle, signed and dated by the Series 2010-2 Servicer and a Manufacturer or its agent in accordance with the applicable Series 2010-2 Manufacturer Program.

 

Series 2010-2 Controlled Amortization Amount ” means, with respect to each Series 2010-2 Controlled Amortization Payment Date, the lesser of (i) the result of (a) one third of the Series 2010-2 Outstanding Principal Amount as of the date of the commencement of the Series 2010-2 Controlled Amortization Period minus (b) the aggregate amount of any Voluntary Decreases effected pursuant to Section 8.2(b)  of this Series Supplement and paid to the Series 2010-2 Noteholders pursuant to Section 9.4(e)  of this Series Supplement during the Series 2010-2 Controlled Amortization Payment Period ending on such Series 2010-2 Controlled Amortization Payment Date and (ii) the Series 2010-2 Principal Amount.

 

29



 

Series 2010-2 Controlled Amortization Payment Date ” means each of the Payment Dates occurring in January, February and March 2013.

 

Series 2010-2 Controlled Amortization Payment Period ” means, with respect to any Series 2010-2 Controlled Amortization Payment Date, the period from but excluding the Determination Date immediately preceding the prior Series 2010-2 Controlled Amortization Payment Date (or, in the case of the first Series 2010-2 Controlled Amortization Payment Date, the period from and excluding the December 25, 2012 Payment Date) to but including the Determination Date immediately preceding such Series 2010-2 Controlled Amortization Payment Date; provided that any Series 2010-2 Monthly Base Rent paid by the Series 2010-2 Lessee under the Series 2010-2 Lease on a Series 2010-2 Controlled Amortization Payment Date shall be deemed to have been received during the Series 2010-2 Controlled Amortization Payment Period with respect to such Series 2010-2 Controlled Amortization Payment Date.

 

Series 2010-2 Controlled Amortization Period ” means the period commencing on December 26, 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 2010-2 Rapid Amortization Period, and (ii) the date on which the Series 2010-2 Notes are paid in full.

 

Series 2010-2 CP Tranche ” means that portion of the Series 2010-2 Principal Amount purchased or maintained with Series 2010-2 Advances which bear interest by reference to the CP Rate.

 

Series 2010-2 Daily Collection Report ” has the meaning specified in Section 3.1(a)  of this Series Supplement.

 

Series 2010-2 Daily Interest Amount ” means, for any day in a Series 2010-2 Interest Period, an amount equal to the result of (a) the product of (i) the Series 2010-2 Note Rate for such Series 2010-2 Interest Period and (ii) the Series 2010-2 Principal Amount as of the close of business on such date divided by (b) 360.

 

Series 2010-2 Defaulting Manufacturer ” has the meaning specified in Section 18(a) of the Series 2010-2 Lease.

 

Series 2010-2 Deficiency Amount ” has the meaning specified in Section 9.2(e)  of this Series Supplement.

 

Series 2010-2 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 2010-2 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 2010-2 Demand Note that were deposited into the Series 2010-2 Distribution Account and paid to the Series 2010-2 Noteholders during the one year

 

30



 

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 2010-2 LOC Preference Payment Disbursement (or any withdrawal from any Series 2010-2 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 2010-2 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 2010-2 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 2010-2 Deposit Date ” has the meaning specified in Section 9.1 of this Series Supplement.

 

Series 2010-2 Depreciation Charge ” means, with respect to (a) any Series 2010-2 Program Vehicle, the applicable depreciation charge set forth in the related Series 2010-2 Manufacturer Program for such Series 2010-2 Program Vehicle calculated on a daily basis and (b) any Series 2010-2 Non-Program Vehicle, the scheduled daily depreciation charge for such Series 2010-2 Non-Program Vehicle set forth by HVF in the Series 2010-2 Depreciation Schedule for such Series 2010-2 Non-Program Vehicle.  If such charge is expressed as a percentage, the daily Series 2010-2 Depreciation Charge for such Series 2010-2 Vehicle shall be such percentage multiplied by the Series 2010-2 Capitalized Cost for such Series 2010-2 Vehicle calculated on a daily basis.  For any such Series 2010-2 Vehicle not held for a full month in the month of acquisition, the Series 2010-2 Depreciation Charges shall be prorated by multiplying the applicable depreciation amount that would have accrued if such Series 2010-2 Vehicle had been held an entire month by a fraction, the numerator of which is the number of days from the Series 2010-2 In-Service Date with respect to such Series 2010-2 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 Series 2010-2 Program Vehicle is turned back to the applicable Manufacturer pursuant to a Series 2010-2 Manufacturer Program, the Series 2010-2 Depreciation Charge shall be prorated by multiplying the applicable depreciation amount that would have accrued if such Series 2010-2 Vehicle had been held an entire month by a fraction, the numerator of which is the number of days from the first day of such month to the Series 2010-2 Turnback Date for such Series 2010-2 Vehicle and the denominator of which is the number of days in such month.  In the event any such Series 2010-2 Vehicle is sold other than pursuant to the Series 2010-2 Manufacturer Program or suffers a Series 2010-2 Casualty, the Series 2010-2 Depreciation Charge shall be prorated by multiplying the applicable depreciation amount that would have accrued if such Series 2010-2 Vehicle had been held an entire month 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 Series

 

31



 

2010-2 Vehicle or the date such Series 2010-2 Vehicle suffers a Series 2010-2 Casualty, as the case may be, and the denominator of which is the number of days in such month.

 

Series 2010-2 Depreciation Schedule ” means the initial schedule of estimated daily depreciation prepared by HVF with respect to each type of Series 2010-2 Non-Program Vehicle, as revised from time to time by HVF, subject to Section 24 of the Series 2010-2 Lease.

 

Series 2010-2 Designated Account ” has the meaning specified in Section 9.10(a)  of this Series Supplement.

 

Series 2010-2 Disbursement ” shall mean any Series 2010-2 LOC Credit Disbursement, any Series 2010-2 LOC Preference Payment Disbursement, any Series 2010-2 LOC Termination Disbursement or any Series 2010-2 LOC Unpaid Demand Note Disbursement under the Series 2010-2 Letters of Credit or any combination thereof, as the context may require.

 

Series 2010-2 Disposition Date ” means with respect to any Series 2010-2 Vehicle, (i) if such Series 2010-2 Vehicle was sold at Series 2010-2 Auction pursuant to a Series 2010-2 Guaranteed Depreciation Program or returned to a Manufacturer for repurchase pursuant to a Series 2010-2 Repurchase Program, the Series 2010-2 Turnback Date, (ii) if such Series 2010-2 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 Segregated Vehicle is deposited into the Series 2010-2 Collection Account or a Series 2010-2 HVF Segregated Exchange Account, (iii) if such Series 2010-2 Vehicle was sold to any Person (other than to a Manufacturer pursuant to such Manufacturer’s Series 2010-2 Repurchase Program, to a third party through a Series 2010-2 Auction conducted by or through or arranged by the Manufacturer pursuant to its Series 2010-2 Guaranteed Depreciation Program or to HGI pursuant to the Purchase Agreement) the date on which the proceeds of such sale are deposited in the Series 2010-2 Collection Account or a Series 2010-2 HVF Segregated Exchange Account, (iv) if such Series 2010-2 Vehicle becomes a Series 2010-2 Casualty or a Series 2010-2 Ineligible Vehicle (except as a result of a sale thereof), the date on which the Series 2010-2 Casualty Payment is paid by the Series 2010-2 Lessee to the Trustee or (v) if such Series 2010-2 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.

 

Series 2010-2 Disposition Proceeds ” means the net proceeds (other than the portion of the Series 2010-2 Repurchase Price payable (i) by the Manufacturer pursuant to a Series 2010-2 Manufacturer Program or (ii) with respect to Series 2010-2 Non-Program Vehicles, by the Series 2010-2 Lessee pursuant to the Series 2010-2 Lease) from the sale or disposition of Series 2010-2 Vehicle to any Person, whether at a Series 2010-2 Auction or otherwise.

 

Series 2010-2 Distribution Account ” has the meaning specified in Section 9.9(a)  of this Series Supplement.

 

32



 

Series 2010-2 Distribution Account Collateral ” has the meaning specified in Section 9.9(d)  of this Series Supplement.

 

Series 2010-2 Downgrade Event ” has the meaning specified in Section 9.8(c)  of this Series Supplement.

 

Series 2010-2 Due Date ” means, with respect to any payment due from a Manufacturer or auction dealer in respect of a Series 2010-2 Program Vehicle turned back for repurchase or sale pursuant to the terms of the related Series 2010-2 Manufacturer Program, the thirtieth (30th) day after the Series 2010-2 Disposition Date for such Vehicle.

 

Series 2010-2 Early Termination Payment ” has the meaning specified in Section 13.4 of the Series 2010-2 Lease.

 

Series 2010-2 Eligible Letter of Credit Provider ” means a Person having, at the time of the issuance of the related Series 2010-2 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 2010-2 Eligible Manufacturer ” means (a) Ford, Old GM, GM, Chrysler, Old Chrysler, Toyota, Honda, Mazda, Nissan, Volvo, Jaguar, Audi, Volkswagen, Land Rover, Hyundai, Kia, Lexus, Mercedes, Suzuki, BMW, Mitsubishi, Smart, Mini, Fiat and Subaru and each other Manufacturer that becomes an Eligible Program Manufacturer, (b) any other Manufacturer that becomes an “Eligible Manufacturer” as such term is defined in, and pursuant to the terms of, the Base Indenture while one or more Series of Notes are rated by a Rating Agency; provided , that in the event that such Manufacturer becomes an “Eligible Manufacturer” solely by satisfying clause (b) of the definition thereof and a Rating Agency expressly requires HVF to effect any additional action with respect to a Series of Notes solely in order for such Rating Agency to confirm its rating with respect to such Series of Notes in connection therewith, HVF shall have effected action with respect to the Series 2010-2 Notes which it determines is reasonably comparable to such additional action and (c) any other Manufacturer with respect to which the Series 2010-2 Required Noteholders shall have provided written consent.

 

Series 2010-2 Eligible Manufacturer Program ” means at any time a Series 2010-2 Manufacturer Program that is in full force and effect with a Series 2010-2 Eligible Program Manufacturer.

 

Series 2010-2 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, Smart, Mini, Fiat and BMW, or (b) a Manufacturer (i) who, at the time that such Manufacturer is proposed for

 

33



 

consideration as a Series 2010-2 Eligible Program Manufacturer, has a long term unsecured debt rating of at least “BBB-” from S&P and at least “Baa3” from Moody’s, provided , that if a Manufacturer proposed for consideration under the preceding clause (b) has a long term unsecured debt rating from only one of S&P or Moody’s (the “ Applicable Rating Agency ”), then such Manufacturer shall only be required to have the required long term unsecured debt rating from the Applicable Rating Agency in order to satisfy this clause (b), or (ii) with respect to which the Series 2010-2 Required Noteholders have provided their consent or (c) any other Manufacturer that becomes an “Eligible Program Manufacturer” as such term is defined in, and pursuant to the terms of, the Base Indenture while one or more Series of Notes are rated by any Rating Agency, provided , that in the event that such Manufacturer becomes an “Eligible Program Manufacturer” solely by satisfying clause (b)(ii) of the definition thereof and a Rating Agency expressly requires HVF to effect any additional action with respect to a Series of Notes solely in order for such Rating Agency to confirm its rating with respect to such Series of Notes in connection therewith, HVF shall have effected action with respect to the Series 2010-2 Notes which it determines is reasonably comparable to such additional action; provided , however , that for so long as a Series 2010-2 Manufacturer Event of Default is occurring with respect to any such Manufacturer, such Manufacturer shall not qualify as a Series 2010-2 Eligible Program Manufacturer.

 

Series 2010-2 Eligible Program Vehicle ” means a Series 2010-2 Program Vehicle that is subject to a Series 2010-2 Eligible Manufacturer Program on the Series 2010-2 Vehicle Operating Lease Commencement Date for such Series 2010-2 Program Vehicle unless it has been redesignated as a Series 2010-2 Non-Program Vehicle pursuant to Section 2.6 of the Series 2010-2 Lease; provided , that if any such Vehicle that has been redesignated as a Series 2010-2 Non-Program Vehicle is subsequently redesignated as a Series 2010-2 Program Vehicle pursuant to Section 2.6 of the Series 2010-2 Lease, solely for purposes of determining whether such Vehicle is a Series 2010-2 Eligible Program Vehicle pursuant to this definition, the Series 2010-2 Vehicle Operating Lease Commencement Date for any such Vehicle shall be deemed to be the date of the most recent redesignation.

 

Series 2010-2 Eligible Vehicle ” means a Series 2010-2 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 (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 Segregated Vehicle leased under the Series 2010-2 Lease in accordance with the Collateral Agency Agreement.

 

Series 2010-2 Enhancement Amount ” means, as of any date of determination, the sum of (i) the Series 2010-2 Overcollateralization Amount as of such date, (ii) the Series 2010-2 Letter of Credit Amount as of such date and (iii) the Series 2010-2 Available Reserve Account Amount as of such date (after giving effect to any deposits thereto and withdrawals and releases therefrom on such date).

 

34


 

Series 2010-2 Enhancement Deficiency ” means, on any day, the amount by which the Series 2010-2 Adjusted Enhancement Amount is less than the Series 2010-2 Required Enhancement Amount.

 

Series 2010-2 Eurodollar Tranche ” means that portion of the Series 2010-2 Principal Amount purchased or maintained with Series 2010-2 Advances which bear interest by reference to the Eurodollar Rate (Reserve Adjusted).

 

Series 2010-2 Excess Collection Account ” has the meaning specified in Section 4.1(a)  of this Series Supplement.

 

Series 2010-2 Excess Damage Charges ” means, with respect to any Series 2010-2 Program Vehicle, the amount charged or deducted from the Series 2010-2 Repurchase Price by the Manufacturer of such Series 2010-2 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 Series 2010-2 Vehicle at the time that such Series 2010-2 Vehicle is turned in to such Manufacturer or its agent for repurchase or Series 2010-2 Auction pursuant to the applicable Series 2010-2 Manufacturer Program.

 

Series 2010-2 Excess Mileage Charges ” means, with respect to any Series 2010-2 Program Vehicle, the amount charged or deducted from the Series 2010-2 Repurchase Price, by the Manufacturer of such Series 2010-2 Vehicle due to the fact that such Series 2010-2 Vehicle has mileage over a prescribed limit at the time that such Series 2010-2 Vehicle is turned in to such Manufacturer or its agent for repurchase or Series 2010-2 Auction pursuant to the applicable Series 2010-2 Manufacturer Program.

 

Series 2010-2 Excess Principal Event ” shall be deemed to have occurred if, on any date, the Series 2010-2 Outstanding Principal Amount as of such date exceeds the Series 2010-2 Maximum Principal Amount as of such date.

 

Series 2010-2 Exchange Account Amounts ” means the amount of cash and Series 2010-2 Permitted Investments on deposit in any Series 2010-2 HVF Segregated Exchange Account as of the applicable date of determination.

 

Series 2010-2 Excluded Payments ” means (a) all incentive payments payable by a Manufacturer to purchase Series 2010-2 Vehicles (but not any amounts payable by a Manufacturer as an incentive for selling Series 2010-2 Program Vehicles outside of the related Series 2010-2 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 Series 2010-2 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 Series 2010-2 Vehicles.

 

Series 2010-2 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.

 

35



 

Series 2010-2 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 2.1(a)(i)  and (v) .

 

Series 2010-2 Guaranteed Depreciation Program ” means a guaranteed depreciation program pursuant to which a Manufacturer has agreed to (a) cause Series 2010-2 Vehicles manufactured by it or one of its Affiliates that are turned back during the specified Series 2010-2 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 Series 2010-2 Vehicle calculated as of the Series 2010-2 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.

 

Series 2010-2 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 and each Funding Agent) and (b) an amount equal to 100% minus the lower of (x) the lowest Non-Program Vehicle Measurement Month Average for any day (including such date of determination) within the preceding 12 calendar months (or such fewer number of months as have elapsed since the Series 2010-2 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 2010-2 Closing Date).

 

Series 2010-2 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 2010-2 HVF Segregated Exchange Account ” means any HVF Segregated Exchange Account that receives funds relating to Relinquished Property Proceeds from a Series 2010-2 Vehicle.  Each such HVF Segregated Exchange Account shall receive funds relating solely to the Series 2010-2 Collateral.

 

Series 2010-2 HVF Segregated Vehicle Collateral ” means the HVF Segregated Vehicle Collateral relating to the Series 2010-2 Vehicles.

 

Series 2010-2 Indenture Collateral ” has the meaning specified in Section 2.1(a) .

 

Series 2010-2 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 Series 2010-2 Aggregate Asset Amount for such date: (a) the aggregate amount of all Series 2010-2 Manufacturer Receivables (other than Series 2010-2 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

 

36



 

Series 2010-2 Manufacturer Event of Default specified in clause (i)  or (ii)  of the definition thereof is continuing with respect to Series 2010-2 Vehicles that were Series 2010-2 Eligible Vehicles when turned in to and accepted by such Manufacturer or delivered and accepted for Series 2010-2 Auction, plus (b) the aggregate amount of all Series 2010-2 Manufacturer Receivables (other than Series 2010-2 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 a Series 2010-2 Eligible Program Manufacturer with respect to Series 2010-2 Vehicles that were Series 2010-2 Eligible Vehicles when turned in to and accepted by such Manufacturer or delivered and accepted for Series 2010-2 Auction which amounts are unpaid more than one hundred (100) days past the applicable Series 2010-2 Due Date, plus (c) the aggregate of all amounts specified in clause (iv)  of the definition of “Series 2010-2 Aggregate Asset Amount” which are unpaid more than forty-five (45) days past the applicable Series 2010-2 Disposition Date, plus (d) the aggregate of all amounts specified in clause (v)  of the definition of “Series 2010-2 Aggregate Asset Amount” which are unpaid sixty (60) days or more past the applicable Series 2010-2 Disposition Date, plus (e) the aggregate of all amounts specified in clauses (vi), (vii)  and (x)  of the definition of “Series 2010-2 Aggregate Asset Amount” which are past due as of such date and in respect of which any grace period provided for in the Series 2010-2 Lease for the making of such payments has expired, plus (f) the aggregate of all amounts specified in clause (viii)  of the definition of “Series 2010-2 Aggregate Asset Amount” which are unpaid more than five Business Days past the date on which the related Rejected Vehicle was rejected by the Series 2010-2 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 “Series 2010-2 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 a Series 2010-2 Eligible Program Manufacturer with respect to which a Series 2010-2 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 “Series 2010-2 Aggregate Asset Amount” which are unpaid more than fifteen (15) days but less than sixty (60) days past the applicable Series 2010-2 Disposition Date exceeds (y) 1% of the Series 2010-2 Aggregate Asset Amount on such date plus (i) the Series 2010-2 Ineligible Non-Investment Grade Manufacturer Receivable Amount.

 

Series 2010-2 Ineligible Non-Investment Grade Manufacturer Receivable Amount ” means, as of any date of determination, with respect to each Series 2010-2 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 Series 2010-2 Aggregate Asset Amount for such date: (a) the aggregate amount of Series 2010-2 Manufacturer Receivables (other than Series 2010-2 Excluded Payments) payable to HVF or to the Intermediary pursuant to the Master Exchange Agreement, in each case, as of such date by such Series 2010-2 Non-Investment Grade Manufacturer with respect to Series 2010-2 Vehicles that are Series 2010-2 Eligible Vehicles and Series 2010-2 Eligible Program Vehicles when turned in to and accepted by such Series 2010-2 Non-Investment Grade Manufacturer or delivered

 

37



 

and accepted for Series 2010-2 Auction, plus (b) the aggregate amount of Series 2010-2 Manufacturer Receivables (other than Series 2010-2 Excluded Payments) payable to HVF or to the Intermediary pursuant to the Master Exchange Agreement, in each case, as of such date by such Series 2010-2 Non-Investment Grade Manufacturers with respect to Series 2010-2 Vehicles that were Series 2010-2 Eligible Vehicles but not Series 2010-2 Eligible Program Vehicles when turned in to and accepted by such Series 2010-2 Non-Investment Grade Manufacturer or delivered and accepted for Series 2010-2 Auction; provided , that the definition of “Series 2010-2 Ineligible Non-Investment Grade Manufacturer Receivable Amount” may be amended by HVF, with the prior written consent of the Series 2010-2 Required Noteholders; provided further that any Series 2010-2 Non-Investment Grade Manufacturer may be excluded from this definition by HVF with the prior written consent of the Series 2010-2 Required Noteholders.

 

Series 2010-2 Ineligible Vehicle ” means a Series 2010-2 Vehicle that is not a Series 2010-2 Eligible Vehicle.

 

Series 2010-2 Initial Determination Date ” means, with respect to any Series 2010-2 Vehicle, the Determination Date with respect to the Related Month in which a Series 2010-2 Vehicle Operating Lease Commencement Date for such Series 2010-2 Vehicle occurs.

 

Series 2010-2 Initial Principal Amount ” means the aggregate initial principal amount of the Series 2010-2 Notes, which is $0.

 

Series 2010-2 In-Service Date ” means, with respect to (i) any Series 2010-2 Vehicle subject to a Series 2010-2 Manufacturer Program, the date on which depreciation related to such Series 2010-2 Vehicle begins to accrue under such Series 2010-2 Manufacturer Program and (ii) any Series 2010-2 Vehicle not subject to a Series 2010-2 Manufacturer Program, the date designated by the Series 2010-2 Servicer in respect of such Series 2010-2 Non-Program Vehicle in the Series 2010-2 Monthly Servicing Certificate for the Related Month in which the Series 2010-2 Vehicle Operating Lease Commencement Date for such Series 2010-2 Non-Program Vehicle occurs.

 

Series 2010-2 Interest Collections ” means on any date of determination all Series 2010-2 Collections which represent payments of Series 2010-2 Monthly Variable Rent under the Series 2010-2 Lease plus any amounts earned on Series 2010-2 Permitted Investments in the Series 2010-2 Series Accounts which are available for distribution on such date.

 

Series 2010-2 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 2010-2 Interest Period shall commence on and include the Series 2010-2 Closing Date and end on and include January 24, 2011.

 

Series 2010-2 Interest Rate Cap ” means any interest rate cap entered into in accordance with the provisions of Section 9.11(a)  of this Series Supplement, including,

 

38



 

without limitation, the Series 2010-2 Interest Rate Cap Documents with respect thereto; provided that for the avoidance of doubt each Series 2010-2 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 Series 2010-2 Related Document.

 

Series 2010-2 Interest Rate Cap Documents ” means , with respect to any Series 2010-2 Interest Rate Cap, the ISDA Master Agreement which governs such Series 2010-2 Interest Rate Cap, together with the schedule and credit support annex thereto and the applicable confirmations thereunder.

 

Series 2010-2 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 and each Funding Agent) and (b) an amount equal to 100% minus the lower of (x) the lowest Non-Program Vehicle Measurement Month Average for any day (including such date of determination) within the preceding 12 calendar months (or such fewer number of months as have elapsed since the Series 2010-2 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 2010-2 Closing Date).

 

Series 2010-2 Intermediate Enhancement Vehicle Percentage ” means, as of any date of determination, the excess of (i) 100% over (ii) the sum of (x) the Series 2010-2 Lowest Enhancement Vehicle Percentage as of such date plus (y) the Series 2010-2 Highest Enhancement Vehicle Percentage as of such date plus (z) in the event that the Nissan Condition is satisfied as of such date of determination, the Nissan Percentage as of such date.

 

Series 2010-2 Investor Group ” has the meaning set forth in the Series 2010-2 Note Purchase Agreement.

 

Series 2010-2 Investor Group Principal Amount ” has the meaning set forth in the Series 2010-2 Note Purchase Agreement.

 

Series 2010-2 Lease ” means the Master Motor Vehicle Operating Lease and Servicing Agreement, dated as of December 16, 2010, 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.

 

Series 2010-2 Lease Payment Default ” means the occurrence of any event described in Section 17.1.1 of the Series 2010-2 Lease.

 

Series 2010-2 Lease Interest Payment Deficit ” means on any Payment Date an amount equal to the excess, if any, of (a) the aggregate amount of Series 2010-2 Interest Collections which pursuant to Section 9.1(a) , (b)  or (c)  of this Series Supplement would have been deposited into the Series 2010-2 Accrued Interest Account if all payments of Series 2010-2 Monthly Variable Rent required to have been made under the Series 2010-2 Lease from but excluding the preceding Payment Date to and including

 

39



 

such Payment Date were made in full over (b) the aggregate amount of Series 2010-2 Interest Collections which pursuant to Section 9.1(a) , (b)  or (c)  of this Series Supplement have been received for deposit into the Series 2010-2 Accrued Interest Account from but excluding the preceding Payment Date to and including such Payment Date.

 

Series 2010-2 Lease Payment Deficit ” means either a Series 2010-2 Lease Interest Payment Deficit or a Series 2010-2 Lease Principal Payment Deficit.

 

Series 2010-2 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 2010-2 Lease Principal Payment Deficit, if any, on the preceding Payment Date over (y) the amount deposited in the Series 2010-2 Distribution Account pursuant to Section 9.4(d)  of this Series Supplement on such preceding Payment Date on account of such Series 2010-2 Lease Principal Payment Deficit.

 

Series 2010-2 Lease Principal Payment Deficit ” means on any Payment Date the sum of (a) the Series 2010-2 Monthly Lease Principal Payment Deficit for such Payment Date and (b) the Series 2010-2 Lease Principal Payment Carryover Deficit for such Payment Date.

 

Series 2010-2 Lessee ” means Hertz, in its capacity as the lessee under the Series 2010-2 Lease.

 

Series 2010-2 Lessor ” means HVF, in its capacity as the lessor under the Series 2010-2 Lease.

 

Series 2010-2 Letter of Credit ” means an irrevocable letter of credit, substantially in the form of Exhibit B to this Series Supplement issued by a Series 2010-2 Eligible Letter of Credit Provider in favor of the Trustee for the benefit of the Series 2010-2 Noteholders.

 

Series 2010-2 Letter of Credit Agreement ” means the Series 2010-2 Letter of Credit Reimbursement Agreement and any other agreement pursuant to which a Series 2010-2 Letter of Credit is issued in favor of the Trustee for the benefit of the Series 2010-2 Noteholders.

 

Series 2010-2 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 2010-2 Letters of Credit, as specified therein, and (ii) if the Series 2010-2 Cash Collateral Account has been established and funded pursuant to Section 9.8 of this Series Supplement, the Series 2010-2 Available Cash Collateral Account Amount on such date and (b) the outstanding principal amount of the Series 2010-2 Demand Note on such date.

 

Series 2010-2 Letter of Credit Expiration Date ” means, with respect to any Series 2010-2 Letter of Credit, the expiration date set forth in such Series 2010-2 Letter of Credit, as such date may be extended in accordance with the terms of such Series 2010-2 Letter of Credit.

 

40



 

Series 2010-2 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 2010-2 Letter of Credit, as specified therein, and (b) if a Series 2010-2 Cash Collateral Account has been established and funded pursuant to Section 9.8 of this Series Supplement, the Series 2010-2 Available Cash Collateral Account Amount on such date.

 

Series 2010-2 Letter of Credit Provider ” means the issuer of a Series 2010-2 Letter of Credit.

 

Series 2010-2 Letter of Credit Reimbursement Agreement ” means any and each reimbursement agreement providing for the reimbursement of a Series 2010-2 Letter of Credit Provider for draws under its Series 2010-2 Letter of Credit, as the same may be amended, restated, modified or supplemented from time to time in accordance with its terms.

 

Series 2010-2 Limited Liquidation Event of Default ” means, so long as such event or condition continues, (1) 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) , (s) , (t) , (cc) or (dd) of Article X of this Series Supplement that continues for thirty (30) days (without double counting the cure period, if any, provided therein), (2) any event or condition of the type specified in clauses (b) , (e) , (f) , (u)  or (x)  of Article X of this Series Supplement, (3) any event or condition of the type specified in clause (y)  of Article X of this Series Supplement so long as (i) such event or condition shall have caused a Limited Liquidation Event of Default or Liquidation Event of Default with respect to the Series 2009-1 Notes and (ii) the Holders of such Series 2009-1 Notes shall have directed the Trustee to commence (either through its agents or otherwise) or cause the commencement of the liquidation or other disposition of HVF Vehicles as a result of such Limited Liquidation Event of Default or Liquidation Event of Default and (4) any event or condition of the type specified in clause (z)  of Article X of this Series Supplement which occurs as a result of a breach by the Series 2010-2 Lessor (or the Series 2010-2 Lessee on its behalf) of its agreements set forth in Section 18(a) of the Series 2010-2 Lease.

 

Series 2010-2 Liquidity Amount ” means, as of any date of determination, the sum of (a) the Series 2010-2 Letter of Credit Liquidity Amount and (b) the Series 2010-2 Available Reserve Account Amount on such date (after giving effect to any deposits thereto on such date).

 

Series 2010-2 Liquidity Deficiency ” means, as of any date of determination, the amount by which the Series 2010-2 Adjusted Liquidity Amount is less than the Series 2010-2 Required Liquidity Amount as of such date.

 

Series 2010-2 Liquidity Surplus ” means, with respect to any date of determination, the excess, if any, of the Series 2010-2 Adjusted Liquidity Amount over the Series 2010-2 Required Liquidity Amount, in each case, as of such date.

 

41



 

Series 2010-2 LOC Credit Disbursement ” means an amount drawn under a Series 2010-2 Letter of Credit pursuant to a Series 2010-2 Certificate of Credit Demand.

 

Series 2010-2 LOC Preference Payment Disbursement ” means an amount drawn under a Series 2010-2 Letter of Credit pursuant to a Series 2010-2 Certificate of Preference Payment Demand.

 

Series 2010-2 LOC Termination Disbursement ” means an amount drawn under a Series 2010-2 Letter of Credit pursuant to a Series 2010-2 Certificate of Termination Demand.

 

Series 2010-2 LOC Unpaid Demand Note Disbursement ” means an amount drawn under a Series 2010-2 Letter of Credit pursuant to a Series 2010-2 Certificate of Unpaid Demand Note Demand.

 

Series 2010-2 Lowest Enhancement Percentage ” means, with respect to any date of determination, 25% (or such lower percentage as may be agreed to by HVF and each Funding Agent).

 

Series 2010-2 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 2010-2 Manufacturer Amount ” means, as of any date of determination, for any Manufacturer or Group of Manufacturers set forth in Column A of Exhibit K hereto, the sum of the Manufacturer Non-Eligible Vehicle Amount and the Manufacturer Eligible Program Vehicle Amount, in each case, with respect to such Manufacturer or Group of Manufacturers, as applicable, as of such date.

 

Series 2010-2 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 Series 2010-2 Manufacturer Event of Default which occurs pursuant to this clause

 

42



 

(ii) shall be deemed to no longer be continuing on and after the date such Manufacturer assumes its Series 2010-2 Manufacturer Program in accordance with the Bankruptcy Code or (iii) the termination of such Manufacturer’s Series 2010-2 Manufacturer Program or the failure of such Manufacturer’s Series 2010-2 Repurchase Program or Series 2010-2 Guaranteed Depreciation Program to qualify as a Series 2010-2 Manufacturer Program.

 

Series 2010-2 Manufacturer Excess ” means, as of any date of determination, for (i) any Manufacturer listed in Column A of Exhibit K hereto, the excess (if any) of (a) the Series 2010-2 Manufacturer Amount for such Manufacturer over (b) the Series 2010-2 Manufacturer Maximum Amount for such Manufacturer, in each case, as of such date; (ii) the BMW/Lexus/Mercedes/Audi Group, the excess (if any) of (a) the Series 2010-2 Manufacturer Amount for such Group of Manufacturers over (b) the sum of (1) the Series 2010-2 Manufacturer Maximum Amount for such Group of Manufacturers and (2) any portion of the Series 2010-2 Manufacturer Amount with respect to BMW, Lexus, Mercedes and/or Audi which constitutes Series 2010-2 Manufacturer Excess with respect to such Manufacturer; and (iii) the Kia/Subaru/Hyundai Group, the excess (if any) of (a) the Series 2010-2 Manufacturer Amount for such Group of Manufacturers over (b) the sum of (1) the Series 2010-2 Manufacturer Maximum Amount for such Group of Manufacturers and (2) any portion of the Series 2010-2 Manufacturer Amount with respect to Kia, Subaru and/or Hyundai which constitutes Series 2010-2 Manufacturer Excess with respect to such Manufacturer, in each case, as of such date of determination.

 

Series 2010-2 Manufacturer Excess Reduction ” means, as of any date of determination, for any Manufacturer or Group of Manufacturers with respect to which a Series 2010-2 Manufacturer Excess exists as of such date, the product of (a) such Series 2010-2 Manufacturer Excess for such Manufacturer or Group of Manufacturers and (b) the Series 2010-2 Manufacturer Non-Eligible Vehicle Amount Portion for such Manufacturer or Group of Manufacturers, in each case, as of such date of determination.

 

Series 2010-2 Manufacturer Ineligible Receivable Group Proportion ” means, as of any date of determination, with respect to any Manufacturer in a Group of Manufacturers, the quotient (expressed as a percentage) of (a) the Ineligible Receivable Manufacturer Receivable Amount with respect to such Manufacturer as of such date and (b) the sum of the Ineligible Receivable Manufacturer Receivable Amounts with respect to all Manufacturers in such Group of Manufacturers, in each case, as of such date of determination.

 

Series 2010-2 Manufacturer Group Proportion ” means, as of any date of determination, with respect to any Manufacturer in a Group of Manufacturers, the quotient (expressed as a percentage) of (a) the Series 2010-2 Manufacturer Amount with respect to such Manufacturer and (b) the sum of the Series 2010-2 Manufacturer Amounts with respect to all Manufacturers in such Group of Manufacturers.

 

Series 2010-2 Manufacturer Maximum Amount ” means, as of any date of determination, for any Manufacturer or Group of Manufacturers listed in Column A of

 

43



 

Exhibit K hereto, an amount equal to the product of (x) the Series 2010-2 Manufacturer Percentage for such Manufacturer or Group of Manufacturers and (y) the Adjusted Aggregate Asset Amount on such date.

 

Series 2010-2 Manufacturer Non-Eligible Vehicle Amount Portion ” means, as of any date of determination, with respect to any Manufacturer or Group of Manufacturers, a fraction expressed as a percentage, (a) the numerator of which is the Manufacturer Non-Eligible Vehicle Amount with respect to such Manufacturer or Group of Manufacturers; provided that, in the event that such Manufacturer is Ford, Nissan, GM, Kia, Chrysler, Toyota or Honda (or such Manufacturer is included in such Group of Manufacturers), to the extent that an Event of Bankruptcy has occurred with respect to such Manufacturer, the Series 2010-2 Net Book Value of the Series 2010-2 Vehicles (other than Series 2010-2 Non-Program Vehicles manufactured by any such Manufacturer as of the date of the occurrence of such Event of Bankruptcy)) shall be excluded therefrom and (b) the denominator of which is the Series 2010-2 Manufacturer Amount with respect to such Manufacturer or Group of Manufacturers, as applicable, as of such date.

 

Series 2010-2 Manufacturer Non-Eligible Vehicle Group Proportion ” means, as of any date of determination, with respect to any Manufacturer in a Group of Manufacturers, the quotient (expressed as a percentage) of (a) the Manufacturer Non-Eligible Vehicle Amount with respect to such Manufacturer as of such date and (b) the sum of the Manufacturer Non-Eligible Vehicle Amounts with respect to all Manufacturers in such Group of Manufacturers, in each case, as of such date.

 

Series 2010-2 Manufacturer Non-Investment Grade Group Proportion ” means, as of any date of determination, with respect to any Manufacturer that is part of any Group of Manufacturers, the fraction (expressed as a percentage) of the quotient of (a) the Non-Investment Grade Manufacturer Program Vehicle Amount attributable to such Manufacturer divided by (b) the aggregate Non-Investment Grade Manufacturer Program Vehicle Amount attributable to all Manufacturers in such Group of Manufacturers.

 

Series 2010-2 Manufacturer Non-Investment Grade Individual Proportion ” means, as of any date of determination, with respect to any Manufacturer, the fraction (expressed as a percentage) of the quotient of (a) the Non-Investment Grade Manufacturer Program Vehicle Amount attributable to such Manufacturer divided by (b) the Series 2010-2 Manufacturer Amount with respect to such Manufacturer.

 

Series 2010-2 Manufacturer Percentage ” means, for any Manufacturer or Group of Manufacturers listed in Column A of Exhibit K hereto, the percentage set forth opposite such Manufacturer or Group of Manufacturers in Column B of Exhibit K hereto.

 

Series 2010-2 Manufacturer Program ” means at any time any Series 2010-2 Repurchase Program or Series 2010-2 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 Series 2010-2 Capitalized Cost of

 

44


 

each Series 2010-2 Vehicle, minus all Series 2010-2 Depreciation Charges accrued with respect to such Series 2010-2 Vehicle prior to the date that the Series 2010-2 Vehicle is submitted for repurchase, minus Series 2010-2 Excess Mileage Charges, minus Series 2010-2 Excess Damage Charges, (ii) that cannot be amended or terminated unilaterally by the related Manufacturer with respect to any Series 2010-2 Vehicle after the purchase of that Series 2010-2 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 a Series 2010-2 Assignment Agreement.

 

Series 2010-2 Manufacturer Receivable ” means an amount due from a Manufacturer or an auction dealer under a Series 2010-2 Manufacturer Program in respect of or in connection with a Series 2010-2 Program Vehicle disposed of in accordance with such Series 2010-2 Manufacturer Program.

 

Series 2010-2 Market Value ” means, with respect to any Series 2010-2 Vehicle as of any date of determination, the wholesale market value of such Series 2010-2 Vehicle as specified in the Related Month’s published NADA Guide for the model class and model year of such Series 2010-2 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 Series 2010-2 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 Series 2010-2 Vehicle, based on the Series 2010-2 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 Series 2010-2 Vehicle or a reasonably similar model class and model year is not included therein, the wholesale market value of such Series 2010-2 Vehicle shall be based on an independent third-party data source, and determined in accordance with a methodology, with respect to which the Series 2010-2 Required Noteholders shall have provided prior written consent; 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 Series 2010-2 Vehicle shall be equal to a reasonable estimate of the wholesale market value of such Series 2010-2 Vehicle as determined by the Series 2010-2 Servicer, based on the Series 2010-2 Net Book Value of such Series 2010-2 Vehicle and any other factors deemed relevant by the Series 2010-2 Servicer.

 

Series 2010-2 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;

 

2.             a material adverse effect on the ability of Hertz, Hertz Vehicles LLC, HGI, HVF or the Qualified Intermediary to perform its obligations under any of the Series 2010-2 Related Documents;

 

45



 

3.             a material adverse effect on HVF’s interest in the Series 2010-2 Vehicles or the related Series 2010-2 Manufacturer Receivables, in each case, that are included in the Series 2010-2 Aggregate Asset Amount; or

 

4.             an adverse effect on (i) the validity or enforceability of any Series 2010-2 Related Document or (ii) on the validity, status, perfection or priority of the Lien of the Trustee in the Series 2010-2 Indenture Collateral or of the Collateral Agent in the Series 2010-2 HVF Segregated Vehicle Collateral.

 

Series 2010-2 Maximum Lease Termination Date ” means, with respect to any Series 2010-2 Vehicle, the earlier of (x) the last Business Day of the month that is 36 months after the month in which the Series 2010-2 Vehicle Operating Lease Commencement Date occurs with respect to such Series 2010-2 Vehicle and (y) the last Business Day of the month that is 47 months after the date of original invoice for such Series 2010-2 Vehicle.

 

Series 2010-2 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, (y) with respect to Nissan, an amount equal to 100% of the Non-Eligible Vehicle Amount and (z) with respect to any other Manufacturer, an amount equal to 40% of the Non-Eligible Vehicle Amount.

 

Series 2010-2 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 2010-2 Maximum Principal Amount ” means, $200,000,000; provided that such amount may be (i) reduced at any time and from time to time by HVF upon notice to each Series 2010-2 Noteholder, the Administrative Agent, each Conduit Investor and each Committed Note Purchaser in accordance with the terms of the Series 2010-2 Note Purchase Agreement, or (ii) increased at any time and from time to time upon (a) an Additional Investor Group becoming party to the Series 2010-2 Note Purchase Agreement in accordance with the terms thereof or (b) the effective date for any Investor Group Maximum Principal Increase.

 

Series 2010-2 Measurement Month ” means, on any date, each calendar month, or the smallest number of consecutive calendar months, preceding such date, in which at least 600 Series 2010-2 Non-Program Vehicles were sold to third parties, at auction or otherwise (excluding salvage sales); provided , however , that no calendar month included in a single Series 2010-2 Measurement Month shall be included in any other Series 2010-2 Measurement Month.

 

Series 2010-2 Minimum Term ” has the meaning specified in Section 3.1 of the Series 2010-2 Lease.

 

Series 2010-2 Monthly Base Rent ” has the meaning specified in Section 4.1] of the Series 2010-2 Lease.

 

46



 

Series 2010-2 Monthly Default Interest Amount ” means, with respect to any Payment Date, the sum of (i) an amount equal to the product of (x) 2.0%, (y) the result of (a) the sum of the Series 2010-2 Principal Amount as of each day during the related Series 2010-2 Interest Period (after giving effect to any increases or decreases to the Series 2010-2 Principal Amount on such day) during which a Series 2010-2 Amortization Event has occurred and is continuing divided by (b) the actual number of days in the related Series 2010-2 Interest Period during which a Series 2010-2 Amortization Event has occurred and is continuing, and (z) the result of (a) the actual number of days in the related Series 2010-2 Interest Period during which a Series 2010-2 Amortization Event 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 2010-2 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 2010-2 Monthly Interest ” means, with respect to any Payment Date, the sum of (i) the Series 2010-2 Daily Interest Amount for each day in the related Series 2010-2 Interest Period, plus (ii) all previously due and unpaid amounts described in clause (i)  with respect to prior Series 2010-2 Interest Periods (together with interest on such unpaid amounts required to be paid in this clause (ii)  at the Series 2010-2 Note Rate), plus (iii) the Undrawn Fee for such Payment Date, calculated in accordance with Section 3.02(b) of the Series 2010-2 Note Purchase Agreement.

 

Series 2010-2 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 9.1(a) , (b) , or (c)  of this Series Supplement would have been deposited into the Series 2010-2 Collection Account if all payments required to have been made under the Series 2010-2 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 9.1(a) , (b) , or (c)  of this Series Supplement have been received for deposit into the Series 2010-2 Collection Account (without giving effect to any amounts deposited into the Series 2010-2 Accrued Interest Account pursuant to the proviso in Section 9.1(c)(ii)  of this Series Supplement) from but excluding the preceding Payment Date to and including such Payment Date.

 

Series 2010-2 Monthly Servicing Certificate ” has the meaning specified in Section 3.1(c) .

 

Series 2010-2 Monthly Servicing Fee ” has the meaning specified in Section 23 of the Series 2010-2 Lease.

 

Series 2010-2 Monthly Variable Rent ” has the meaning specified in Section 4.2 of the Series 2010-2 Lease.

 

Series 2010-2 Net Book Value ” means, (a) with respect to each Series 2010-2 New Vehicle, (i) as of any date of determination during the period from the Series 2010-2 Vehicle Operating Lease Commencement Date for such Series 2010-2 New

 

47



 

Vehicle to but excluding the Series 2010-2 Initial Determination Date for such New Vehicle, the Series 2010-2 Capitalized Cost of such Series 2010-2 New Vehicle, (ii) as of the Series 2010-2 Initial Determination Date for such Series 2010-2 New Vehicle, (A) the Series 2010-2 Capitalized Cost for such Series 2010-2 New Vehicle minus (B) the aggregate Series 2010-2 Depreciation Charges accrued with respect to such Series 2010-2 New Vehicle under such Series 2010-2 Lease through the last day of the Related Month in which the Series 2010-2 Vehicle Operating Lease Commencement Date for such Series 2010-2 New Vehicle under such Series 2010-2 Lease occurred and (iii) as of any Determination Date after the Series 2010-2 Initial Determination Date for such Series 2010-2 New Vehicle, (A) the Series 2010-2 Net Book Value of such Series 2010-2 New Vehicle as calculated on the immediately preceding Determination Date minus (B) the aggregate Series 2010-2 Depreciation Charges accrued with respect to such Series 2010-2 New Vehicle under such Series 2010-2 Lease during the Related Month (through the last day thereof), (b) with respect to each Series 2010-2 Transferred Vehicle subject to the Series 2010-2 Lease, (i) as of any date of determination during the period from the Series 2010-2 Vehicle Operating Lease Commencement Date for such Series 2010-2 Transferred Vehicle under the Series 2010-2 Lease to but excluding the Series 2010-2 Initial Determination Date for such Series 2010-2 Transferred Vehicle, the Transfer Price of such Series 2010-2 Transferred Vehicle paid by the Purchaser of such Series 2010-2 Transferred Vehicle pursuant to Section 1.07 of the Purchase Agreement, (ii) as of the Series 2010-2 Initial Determination Date for such Series 2010-2 Transferred Vehicle, (A) the Transfer Price of such Series 2010-2 Transferred Vehicle paid by the Purchaser of such Series 2010-2 Transferred Vehicle pursuant to Section 1.07 of the Purchase Agreement minus (B) the aggregate Series 2010-2 Depreciation Charges accrued with respect to such Series 2010-2 Transferred Vehicle under such Series 2010-2 Lease through the last day of the Related Month in which the Series 2010-2 Vehicle Operating Lease Commencement Date for such Series 2010-2 Transferred Vehicle under such Series 2010-2 Lease occurred and (iii) as of any Determination Date after the Series 2010-2 Initial Determination Date for such Series 2010-2 Transferred Vehicle, (A) the Series 2010-2 Net Book Value of such Series 2010-2 Transferred Vehicle as calculated on the immediately preceding Determination Date minus (B) the aggregate Series 2010-2 Depreciation Charges accrued with respect to such Series 2010-2 Transferred Vehicle under such Series 2010-2 Lease during the Related Month (through the last day thereof).  After the Series 2010-2 Initial Determination Date for any Series 2010-2 Vehicle subject to the Series 2010-2 Lease, on any day which is not a Determination Date, the Series 2010-2 Net Book Value of such Series 2010-2 Vehicle shall be the Series 2010-2 Net Book Value calculated for such Series 2010-2 Vehicle on the most recent Determination Date.  In connection with a redesignation of a Series 2010-2 Eligible Vehicle as either a Series 2010-2 Program Vehicle or a Series 2010-2 Non-Program Vehicle in accordance with Section 2.6 of the Series 2010-2 Lease, the Series 2010-2 Net Book Value of such Series 2010-2 Vehicle shall be recalculated on the next Determination Date following such redesignation as if such Series 2010-2 Vehicle had been designated as a Series 2010-2 Non-Program Vehicle (in the case of a redesignated Series 2010-2 Program Vehicle) or a Series 2010-2 Program Vehicle (in the case of a redesignated Series 2010-2 Non-Program Vehicle) on the Series 2010-2 Vehicle Operating Lease Commencement Date for such Series 2010-2 Vehicle.

 

48



 

Series 2010-2 New Vehicle ” means a New HVF Segregated Vehicle (as defined in the Purchase Agreement) that is specified, on the New Vehicle Schedule therefor, as relating to the Segregated Series of Notes created hereby.

 

Series 2010-2 Non-Eligible Program Vehicle ” means a Series 2010-2 Program Vehicle that is not a Series 2010-2 Eligible Program Vehicle on the Series 2010-2 Vehicle Operating Lease Commencement Date for such Series 2010-2 Program Vehicle unless it has been redesignated as a Series 2010-2 Non-Program Vehicle pursuant to Section 2.6 of the Series 2010-2 Lease; provided , if any such Series 2010-2 Vehicle that has been redesignated as a Series 2010-2 Non-Program Vehicle is subsequently redesignated as a Series 2010-2 Program Vehicle pursuant to Section 2.6 of the Series 2010-2 Lease, solely for purposes of determining whether a Vehicle is a Series 2010-2 Non-Eligible Program Vehicle pursuant to this definition, the Series 2010-2 Vehicle Operating Lease Commencement Date for any such Series 2010-2 Vehicle shall be deemed to be the date of any such subsequent redesignation.

 

Series 2010-2 Non-Investment Grade Manufacturer ” means, as of any date of determination, each Series 2010-2 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 Series 2010-2 Administrator, HVF or the Series 2010-2 Servicer obtains actual knowledge of such downgrade and (ii) the date on which the Trustee or the Administrative Agent notifies the Series 2010-2 Administrator of such downgrade.

 

Series 2010-2 Non-Program Vehicle ” means a Series 2010-2 Vehicle that is not subject to a Series 2010-2 Manufacturer Program on the Series 2010-2 Vehicle Operating Lease Commencement Date for such Series 2010-2 Vehicle or which is redesignated as a Series 2010-2 Non-Program Vehicle pursuant to Section 2.6 of the Series 2010-2 Lease unless, in either case, it has been redesignated as a Series 2010-2 Program Vehicle pursuant to Section 2.6 of the Series 2010-2 Lease; provided , that if any such Series 2010-2 Vehicle that has been redesignated as a Series 2010-2 Program Vehicle is subsequently redesignated as a Series 2010-2 Non-Program Vehicle pursuant to Section 2.6 of the Series 2010-2 Lease, solely for purposes of determining whether a Series 2010-2 Vehicle is a Series 2010-2 Non-Program Vehicle pursuant to this definition, the Series 2010-2 Vehicle Operating Lease Commencement Date for any such Series 2010-2 Vehicle shall be deemed to be the date of the most recent redesignation.

 

Series 2010-2 Non-Program Vehicle Measurement Month Percentage ” means, with respect to any Series 2010-2 Measurement Month, the lesser of (a) the percentage equivalent of a fraction, the numerator of which is the aggregate amounts of Series 2010-2 Disposition Proceeds paid or payable in respect of all Series 2010-2 Non-Program Vehicles (other than any Series 2010-2 Non-Program Vehicles that are returned to a Manufacturer pursuant to a Series 2010-2 Manufacturer Program in accordance with

 

49



 

Section 2.5(b) of the Series 2010-2 Lease) that are sold to third parties, at auction or otherwise (excluding salvage sales), during such Series 2010-2 Measurement Month and the denominator of which is the aggregate Series 2010-2 Net Book Values of such Series 2010-2 Non-Program Vehicles on the dates of their respective sales and (b) 100%.

 

Series 2010-2 Non-Program Vehicle Special Default Payments ” has the meaning specified in Section 13.3 of the Series 2010-2 Lease.

 

Series 2010-2 Note Obligations ” means all principal, interest and other amounts, at any time and from time to time, owing by HVF on the Series 2010-2 Notes and all costs, fees and expenses payable by, or obligations of, HVF under the Series 2010-2 Supplement and/or the Series 2010-2 Related Documents (other than any portions thereof relating solely to any Series of Indenture Notes other than the Series 2010-2 Notes).

 

Series 2010-2 Note Purchase Agreement ” means the Note Purchase Agreement, dated as of December 16, 2010, among HVF, the Series 2010-2 Noteholders, the Administrative Agent, the Series 2010-2 Administrator, the Series 2010-2 Funding Agents, the Conduit Investors and the Committed Note Purchasers, pursuant to which the Series 2010-2 Noteholders have agreed to purchase the Series 2010-2 Notes from HVF, subject to the terms and conditions set forth therein, as amended, supplemented, restated or otherwise modified from time to time.

 

Series 2010-2 Note Rate ” means, for any Series 2010-2 Interest Period, the sum of (i) the weighted average of the sum of (a) the weighted average of the CP Rates applicable to the Series 2010-2 CP Tranche, (b) the weighted average of the Eurodollar Rates (Reserve Adjusted) applicable to the Series 2010-2 Eurodollar Tranche and (c) the weighted average of the Series 2010-2 Base Rates applicable to the Series 2010-2 Base Rate Tranche, in each case, for such Series 2010-2 Interest Period and (ii) the weighted average of the daily weighted average Program Fee Rate for each Investor Group with respect to such Series 2010-2 Interest Period; provided , however , that the Series 2010-2 Note Rate will in no event be higher than the maximum rate permitted by applicable law.

 

Series 2010-2 Noteholder ” means each Person in whose name a Series 2010-2 Note is registered in the Note Register.

 

Series 2010-2 Notes ” means any one of the Series 2010-2 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 2010-2 Notice of Reduction ” means a notice in the form of Annex E to a Series 2010-2 Letter of Credit.

 

Series 2010-2 Operating Lease Commencement Date ” has the meaning specified in Section 3.2 of the Series 2010-2 Lease.

 

50



 

Series 2010-2 Operating Lease Event of Default ” has the meaning specified in Section 17.1 of the Series 2010-2 Lease.

 

Series 2010-2 Operating Lease Expiration Date ” has the meaning specified in Section 3.2 of the Series 2010-2 Lease.

 

Series 2010-2 Outstanding Principal Amount ” means, when used with respect to any date, an amount equal to (a) without duplication, the sum of (i) Series 2010-2 Initial Principal Amount plus (ii) the sum of the Additional Investor Group Initial Principal Amounts for each Additional Investor Group as of such date plus (iii) the sum of the Investor Group Maximum Principal Increase Amount for each Investor Group Maximum Principal Increase minus (b) the amount of principal payments (whether pursuant to a Decrease, a redemption or otherwise) made to the Series 2010-2 Noteholders on or prior to such date plus (c) any Increases in the Series 2010-2 Principal Amount pursuant to Section 8.1(a)  of this Series Supplement on or prior to such date; provided that at no time may the Series 2010-2 Outstanding Principal Amount exceed the Series 2010-2 Maximum Principal Amount.

 

Series 2010-2 Overcollateralization Amount ” means, as of any date of determination, (i) on which no Series 2010-2 Aggregate Asset Amount Deficiency exists, the Series 2010-2 Required Overcollateralization Amount as of such date or (ii) on which a Series 2010-2 Aggregate Asset Amount Deficiency exists, the excess, if any, of the Series 2010-2 Aggregate Asset Amount over the Series 2010-2 Adjusted Principal Amount as of such date.

 

Series 2010-2 Past Due Rent Payment ” has the meaning specified in Section 9.1(d)  of this Series Supplement.

 

Series 2010-2 Percentage ” means, as of any date of determination, a fraction, expressed as a percentage, the numerator of which is the Series 2010-2 Principal Amount as of such date and the denominator of which is the sum of (a) the Aggregate Principal Amount plus (b) the sum of the Principal Amounts with respect to all Segregated Series of Notes Outstanding, in each case, as of such date.

 

Series 2010-2 Permitted Check Payments ” means (i) payments of sales proceeds of Series 2010-2 Vehicles made by check by auction dealers under the Series 2010-2 Manufacturer Program with Chrysler and (ii) payments made by check by GM, Hyundai and Subaru under their respective Series 2010-2 Manufacturer Programs (if any).

 

Series 2010-2 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;

 

51



 

(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 and “A-1+” by S&P (or as otherwise agreed to by S&P) and subject to supervision and examination by 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) and a credit rating from Moody’s of “P-1” in the case of certificates of deposit or short-term deposits, or a rating from S&P not lower than “AA” and a rating from Moody’s not lower than “Aa2”;

 

(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) and a rating from Moody’s of “P-1”;

 

(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 and “Aaa” by Moody’s, or otherwise approved in writing by S&P or Moody’s, as applicable;

 

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

 

(vii)  repurchase agreements involving any of the Series 2010-2 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) and “P-1” by Moody’s; and

 

(viii)  any other instruments or securities, if (x) the Series 2010-2 Required Condition is satisfied or (y) the Administrative Agent shall have provided consent.

 

Series 2010-2 Potential Amortization Event ” means any occurrence or event which, with the giving of notice, the passage of time or both, would constitute a Series 2010-2 Amortization Event.

 

52



 

Series 2010-2 Potential Manufacturer Event of Default ” means any occurrence or event which, with the giving of notice, the passage of time or both, would constitute a Series 2010-2 Manufacturer Event of Default.

 

Series 2010-2 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 a Series 2010-2 Operating Lease Event of Default.

 

Series 2010-2 Principal Amount ” means when used with respect to any date, an amount equal to the Series 2010-2 Outstanding Principal Amount plus the amount of any principal payments made to Series 2010-2 Noteholders that have been rescinded or otherwise returned by the Series 2010-2 Noteholders for any reason; provided that, during the Series 2010-2 Revolving Period, for purposes of determining whether or not the Requisite Indenture Investors have given any consent, waiver, direction or instruction, the Series 2010-2 Principal Amount held by each Series 2010-2 Noteholder shall be deemed to include, without double counting, the undrawn portion of the “Maximum Purchaser Group Invested Amount” ( i.e ., the unutilized purchase commitments under the Series 2010-2 Note Purchase Agreement) for such Series 2010-2 Noteholder’s Investor Group.

 

Series 2010-2 Principal Allocation ” has the meaning specified in Section 9.1 (a)(ii)  of this Series Supplement.

 

Series 2010-2 Principal Collections ” means any Series 2010-2 Collections other than Series 2010-2 Interest Collections.

 

Series 2010-2 Program Vehicle ” means a Series 2010-2 Vehicle eligible under, and subject to, a Series 2010-2 Manufacturer Program.

 

Series 2010-2 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 Series 2010-2 Institution 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 (up to the then applicable legal limit).

 

Series 2010-2 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 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 and “Baa3” by Moody’s.

 

53



 

Series 2010-2 Program Vehicle Special Default Payments ” has the meaning specified in Section 13.3 of the Series 2010-2 Lease.

 

Series 2010-2 Rapid Amortization Payment Period ” means, with respect to any Payment Date during the Series 2010-2 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 2010-2 Rapid Amortization Period, the period from and including the date of the commencement of such Series 2010-2 Rapid Amortization Period) to and including the Determination Date immediately preceding such Payment Date; provided that any Series 2010-2 Monthly Base Rent paid by the Series 2010-2 Lessee under the Series 2010-2 Lease on a Payment Date during the Series 2010-2 Rapid Amortization Period shall be deemed to have been received during the Series 2010-2 Rapid Amortization Payment Period with respect to such Payment Date.

 

Series 2010-2 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 a Series 2010-2 Amortization Event is deemed to have occurred with respect to the Series 2010-2 Notes, and ending upon the earlier to occur of (i) the date on which (A) the Series 2010-2 Notes are fully paid and (B) the termination of the Indenture.

 

Series 2010-2 Redesignated Ineligible Program Vehicle ” has the meaning specified in Section 2.6 of the Series 2010-2 Lease.

 

Series 2010-2 Redesignated Vehicle ” means any Series 2010-2 Program Vehicle manufactured by a Manufacturer with respect to which an Event of Bankruptcy has occurred which has been redesignated as a Series 2010-2 Non-Program Vehicle pursuant to Section 18(b) of the Series 2010-2 Lease in accordance with Section 2.6 thereof; provided that for the avoidance of doubt, if a Series 2010-2 Redesignated Vehicle is subsequently redesignated as a Series 2010-2 Program Vehicle pursuant to Section 2.6 of the Series 2010-2 Lease, such Series 2010-2 Vehicle shall no longer constitute a Series 2010-2 Redesignated Vehicle following such subsequent redesignation.

 

Series 2010-2 Related Documents ” means, collectively, the Base Indenture, this Series Supplement, the Series 2010-2 Notes, the Series 2010-2 Lease, the Purchase Agreement, the Nominee Agreement, the Collateral Agency Agreement, the Indemnification Agreement, the LLC Agreement, the HVF Credit Facility, any Enhancement Agreement relating to the Series 2010-2 Notes, the Series 2010-2 Assignment Agreements, the Series 2010-2 Administration Agreement, each Depository Agreement relating to the Series 2010-2 Notes, any other agreements relating to the issuance or the purchase of the Series 2010-2 Notes, the Series 2010-2 Supplemental Documents, the Master Exchange Agreement and the Escrow Agreement.

 

Series 2010-2 Rent ” has the meaning specified in Section 4.3 of the Series 2010-2 Lease.

 

54


 

Series 2010-2 Repurchase Amount ” has the meaning specified in Section 12.1 of this Series Supplement.

 

Series 2010-2 Repurchase Period ” means, with respect to any Series 2010-2 Program Vehicle, the period during which such Series 2010-2 Vehicle may be turned in to the Manufacturer thereof for repurchase or sale at Series 2010-2 Auction pursuant to the applicable Series 2010-2 Manufacturer Program.

 

Series 2010-2 Repurchase Program means a program pursuant to which a Manufacturer has agreed to repurchase Series 2010-2 Vehicles manufactured by such Manufacturer or one of its Affiliates during the specified Series 2010-2 Repurchase Period.

 

Series 2010-2 Repurchase Price ” with respect to any Series 2010-2 Program Vehicle (i) subject to a Series 2010-2 Repurchase Program means the price paid or payable by the Manufacturer thereof to repurchase such Series 2010-2 Program Vehicle pursuant to its Series 2010-2 Manufacturer Program and (ii) subject to a Series 2010-2 Guaranteed Depreciation Program means the amount which the Manufacturer thereof guarantees will be paid to the seller of such Series 2010-2 Program Vehicle by such Manufacturer and/or the related auction dealers upon the disposition of such Series 2010-2 Program Vehicle pursuant to its Series 2010-2 Manufacturer Program.

 

Series 2010-2 Required Asset Amount ” means, as of any date of determination, the sum of (i) the Series 2010-2 Adjusted Principal Amount as of such date and (ii) the Series 2010-2 Required Overcollateralization Amount as of such date.

 

Series 2010-2 Required Condition ” means, with respect to the Series 2010-2 Notes, a condition that will be satisfied with respect to any action relating to the Series 2010-2 Notes in the event that, so long as the Series 2009-1 Notes are rated by a Rating Agency, (i) the Series 2009-1 Rating Agency Condition (as defined in the Series 2009-1 Supplement) is satisfied with respect to any corresponding action effected pursuant to the terms of the Base Indenture, the Series 2009-1 Supplement, the Series 2009-1 Shared Note Purchase Agreement or any other Related Document and (ii) in the event that a Rating Agency expressly requires HVF to effect any additional action with respect to the Series 2009-1 Notes solely in order for such Rating Agency to confirm its rating with respect to the Series 2009-1 Notes in connection with such corresponding action, HVF shall have effected action with respect to the Series 2010-2 Notes which it determines is reasonably comparable to such additional action.

 

Series 2010-2 Required Enhancement Amount ” means, as of any date of determination, the sum of (i) the product of (x) the Series 2010-2 Required Enhancement Percentage as of such date and (y) the Series 2010-2 Adjusted Principal Amount as of such date and (ii) the Series 2010-2 Required Incremental Enhancement Amount as of such date.

 

Series 2010-2 Required Enhancement Percentage ” means, as of any date of determination, the greater of (a) 47% and (b) sum of (i) the product of (A) the Series

 

55



 

2010-2 Lowest Enhancement Percentage as of such date times (B) the Series 2010-2 Lowest Enhancement Vehicle Percentage as of such date plus (ii) the product of (A) the Series 2010-2 Intermediate Enhancement Percentage as of such date times (B) the Series 2010-2 Intermediate Enhancement Vehicle Percentage as of such date plus (iii) the product of (A) the Series 2010-2 Highest Enhancement Percentage as of such date times (B) the Series 2010-2 Highest Enhancement Vehicle Percentage as of such date plus (iv) the product of (A) the Nissan Enhancement Percentage times (B) the Nissan Percentage.

 

Series 2010-2 Required Incremental Enhancement Amount ” means

 

(i)           as of the Series 2010-2 Closing Date, $0; and

 

(ii)           as of any date thereafter on which the Series 2010-2 Adjusted Principal Amount is greater than zero, the sum of (1) the aggregate Series 2010-2 Manufacturer Excesses for each Manufacturer and Group of Manufacturers set forth in Column A of Exhibit K hereto as of such immediately preceding Business Day, (2) the excess, if any, of the Non-Eligible Manufacturer Amount over the Series 2010-2 Maximum Non-Eligible Manufacturer Amount as of such immediately preceding Business Day, (3) the excess, if any, of the Manufacturer Non-Eligible Vehicle Adjusted 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 Series 2010-2 Net Book Value of the Series 2010-2 Vehicles (other than Series 2010-2 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 Series 2010-2 Vehicles due from such Manufacturer) over the Series 2010-2 Maximum Manufacturer Non-Eligible Vehicle Amount as of such immediately preceding Business Day, (4) the excess, if any, of the Ineligible Receivable Manufacturer Receivable Adjusted Amount over the Series 2010-2 Ineligible Non-Investment Grade Manufacturer Receivable Amount as of such immediately preceding Business Day, (5) an amount equal to the excess, if any, of (a) the lesser of (i) the Non-Investment Grade Manufacturer Program Vehicle Adjusted Amount and (ii) the Series 2010-2 Capped Excess Non-Investment Grade Manufacturer Program Vehicle Amount over (b) the Series 2010-2 First Maximum Non-Investment Grade Manufacturer Program Vehicle Amount, in each case, as of such immediately preceding Business Day and (6) the excess, if any, of the Non-Investment Grade Manufacturer Program Vehicle Adjusted Amount over the Series 2010-2 Second Maximum Non-Investment Grade Manufacturer Program Vehicle Amount as of such immediately preceding Business Day.  The Manufacturer Non-Eligible Vehicle Amounts with respect to Ford 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 2010-2 Maximum Manufacturer Non-Eligible Vehicle Amount for so long as Mazda is an Affiliate of Ford.

 

Series 2010-2 Required Liquidity Amount ” means, as of any date of determination, an amount equal to the product of (i) the Series 2010-2 Required Liquidity Percentage as of such date times (ii) the Series 2010-2 Adjusted Principal Amount as of such date.

 

56



 

Series 2010-2 Required Liquidity Percentage ” means, as of any date of determination, 4.50%.

 

Series 2010-2 Required Noteholders ” means (i) at any time at which there are fewer than four Investor Groups, Series 2010-2 Noteholders holding 100% of the Series 2010-2 Principal Amount (excluding any Series 2010-2 Notes held by HVF or any Affiliate of HVF (other than Series 2010-2 Notes held by an Affiliate Issuer if such Affiliate Issuer has assigned all voting, consent and control rights associated with such Series 2010-2 Notes to Persons that are not Affiliates of HVF)) or (ii) at any time at which there are at least four Investor Groups, Series 2010-2 Noteholders holding more than 66 2 / 3 % of the Series 2010-2 Principal Amount (excluding any Series 2010-2 Notes held by HVF or any Affiliate of HVF (other than Series 2010-2 Notes held by an Affiliate Issuer if such Affiliate Issuer has assigned all voting, consent and control rights associated with such Series 2010-2 Notes to Persons that are not Affiliates of HVF)).

 

Series 2010-2 Required Overcollateralization Amount ” means, as of any date of determination, the excess, if any, of (a) the Series 2010-2 Required Enhancement Amount as of such date over (b) the sum of (i) the Series 2010-2 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 2010-2 Letter of Credit Amount which constitutes part of the Series 2010-2 Adjusted Enhancement Amount as of such date.

 

Series 2010-2 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 2010-2 Required Liquidity Amount over the Series 2010-2 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 2010-2 Letter of Credit if at the time of such calculation (A) such Series 2010-2 Letter of Credit shall not be in full force and effect, (B) an Event of Bankruptcy shall have occurred with respect to the Series 2010-2 Letter of Credit Provider of such Series 2010-2 Letter of Credit, (C) such Series 2010-2 Letter of Credit Provider shall have repudiated such Series 2010-2 Letter of Credit or failed to honor a draw thereon made in accordance with the terms thereof or (D) a Series 2010-2 Downgrade Event shall have occurred and be continuing for at least 30 days with respect to the Series 2010-2 Letter of Credit Provider of such Series 2010-2 Letter of Credit and (b) the excess, if any, of the Series 2010-2 Required Enhancement Amount over the Series 2010-2 Adjusted Enhancement Amount (excluding therefrom the Series 2010-2 Available Reserve Account Amount), in each case, as of such date.

 

Series 2010-2 Reserve Account ” has the meaning specified in Section 9.7(a)  of this Series Supplement.

 

Series 2010-2 Reserve Account Collateral ” has the meaning specified in Section 9.7(d)  of this Series Supplement.

 

Series 2010-2 Reserve Account Surplus ” means, with respect to any date of determination, the excess, if any, of the Series 2010-2 Available Reserve Account

 

57



 

Amount (after giving effect to any deposits thereto and withdrawals and releases therefrom on such date) over the Series 2010-2 Required Reserve Account Amount, in each case, as of such date.

 

Series 2010-2 Revolving Period ” means the period from and including the Series 2010-2 Closing Date to the commencement of the earlier of (i) the Series 2010-2 Rapid Amortization Period or (ii) the Series 2010-2 Controlled Amortization Period.

 

Series 2010-2 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 2010-2 Series Account Collateral ” has the meaning specified in Section 2.1(a)  of this Series Supplement.

 

Series 2010-2 Series Accounts ” has the meaning specified in Section 4.1(a)  of this Series Supplement.

 

Series 2010-2 Servicer ” means Hertz, in its capacity as the servicer under the Series 2010-2 Lease, the Purchase Agreement and the Collateral Agency Agreement, as applicable, or any successor servicer thereunder.

 

Series 2010-2 Servicer Default ” has the meaning specified in Section 17.7 of the Series 2010-2 Lease.

 

Series 2010-2 Special Default Payments ” has the meaning specified in Section 13.3 of the Series 2010-2 Lease.

 

Series 2010-2 Special Term ” has the meaning specified in Section 3.1 of the Series 2010-2 Lease.

 

Series 2010-2 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) the Ineligible Receivable Manufacturer Receivable Amount as of such date.

 

Series 2010-2 Standard & Poor’s Additional Enhancement Amount ” means, as of any date of determination, the excess, if any, of (a) the Series 2010-2 Standard & Poor’s Enhancement Amount as of such date over (b) the Series 2010-2 Required Enhancement Amount as of such date.

 

Series 2010-2 Standard & Poor’s Enhancement Amount ” means, as of any date of determination, the sum of (i) the product of (x) the Series 2010-2 Standard & Poor’s Enhancement Percentage as of such date and (y) the Series 2010-2 Adjusted Principal Amount as of such date, (ii) the Series 2010-2 Required Incremental Enhancement Amount as of such date and (iii) the Series 2010-2 Standard & Poor’s Additional Incremental Enhancement Amount as of such date

 

58



 

Series 2010-2 Standard & Poor’s Enhancement Percentage ” means, as of any date of determination, the sum of (a) 47% and (b) an amount equal to 100% minus the lower of (x) the lowest Non-Program Vehicle Measurement Month Average for any Series 2010-2 Measurement Month within the preceding 12 calendar months (or such fewer number of months as have elapsed since the Series 2010-2 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 2010-2 Closing Date).

 

Series 2010-2 Supplemental Documents ” has the meaning specified in Section 2.1 of the Series 2010-2 Lease.

 

Series 2010-2 Term ” has the meaning specified in Section 3.2 of the Series 2010-2 Lease.

 

Series 2010-2 Termination Payment ” means the collective reference to Series 2010-2 Excess Damage Charges, Series 2010-2 Excess Mileage Charges, early turnback surcharges and any other similar charges and penalties charged under the Series 2010-2 Manufacturer Programs.

 

Series 2010-2 Termination Value ” means, with respect to (a) any Series 2010-2 Vehicle other than a Transferred HGI Vehicle, as of any date, an amount equal to (i) the Series 2010-2 Capitalized Cost of such Series 2010-2 Vehicle, minus (ii) all Series 2010-2 Depreciation Charges for such Series 2010-2 Vehicle accrued prior to such date under the Series 2010-2 Lease and (b) any Series 2010-2 Vehicle that is a Transferred HGI Vehicle, as of any date, an amount equal to (i) the Transfer Price previously paid by or on behalf of HVF for such Series 2010-2 Vehicle pursuant to Section 1.07 of the Purchase Agreement minus (ii) all Series 2010-2 Depreciation Charges for such Series 2010-2 Vehicle accrued under the Series 2010-2 Lease from the date such Series 2010-2 Vehicle was transferred pursuant to Section 1.06 of the Purchase Agreement to such date.

 

Series 2010-2 Transferred Vehicle ” means, as of any date of determination, a Series 2010-2 Vehicle which has been sold to HGI pursuant to Section 1.06 of the Purchase Agreement prior to such date.

 

Series 2010-2 Turnback Date ” means, with respect to any Series 2010-2 Program Vehicle, the date on which such Series 2010-2 Vehicle is accepted for return by a Manufacturer or its agent pursuant to its Series 2010-2 Manufacturer Program.

 

Series 2010-2 Vehicle ” means a passenger automobile or light-duty truck which is owned by HVF and leased by HVF to the Series 2010-2 Lessee pursuant to the Series 2010-2 Lease (including any such vehicle that constitutes Replacement Property under, and as defined in, the Master Exchange Agreement).

 

Series 2010-2 Vehicle Funding Date ” has the meaning specified in Section 3.1 of the Series 2010-2 Lease.

 

59



 

Series 2010-2 Vehicle Operating Lease Commencement Date ” has the meaning specified in Section 3.1 of the Series 2010-2 Lease.

 

Series 2010-2 Vehicle Operating Lease Expiration Date ” has the meaning specified in Section 3.1 of the Series 2010-2 Lease.

 

Series 2010-2 Vehicle Purchase Price ” has the meaning specified in Section 2.4 of the Series 2010-2 Lease.

 

Series 2010-2 Vehicle Return Default ” has the meaning specified in Section 17.6 of the Series 2010-2 Lease.

 

Series 2010-2 Vehicle Term ” has the meaning specified in Section 3.1 of the Series 2010-2 Lease.

 

Series 2010-2 Vehicle Turn-In Condition ” has the meaning specified in Section 13.1 of the Series 2010-2 Lease.

 

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 Series 2010-2 Servicer’s Senior Credit Facilities becoming immediately due and payable and that has not been waived by the lenders under such facilities.

 

Smart ” means smart USA Distributor, LLC, a Delaware limited liability company, and its successors.

 

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, but only to the extent that such amounts constitute a portion of the Series 2010-2 Aggregate Asset Amount for such date: (a) the aggregate amount of Series 2010-2 Manufacturer Receivables (other than Series 2010-2 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 Series 2010-2 Vehicles that are Series 2010-2 Eligible Vehicles and Series 2010-2 Eligible Program Vehicles when turned in to and accepted by such Standard & Poor’s Ineligible Receivable Manufacturer or delivered and accepted for Series 2010-2 Auction, plus (b) the aggregate amount of Series 2010-2 Manufacturer Receivables (other than Series 2010-2 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 Series 2010-2 Vehicles that were Series 2010-2 Eligible Vehicles but not Series 2010-2 Eligible Program Vehicles when turned in to and accepted by such Standard & Poor’s Ineligible Receivable Manufacturer or delivered and accepted for Series 2010-2 Auction.

 

60



 

Standard & Poor’s Ineligible Receivable Manufacturer ” means, as of any date of determination, each Series 2010-2 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 Series 2010-2 Administrator, HVF or the Series 2010-2 Servicer obtains actual knowledge of such withdrawal or downgrade and (ii) the date on which the Trustee or the Administrative Agent notifies the Series 2010-2 Servicer of such withdrawal or downgrade.

 

Terminated Purchaser ” has the meaning specified in the Series 2010-2 Note Purchase Agreement.

 

Voluntary Decrease ” has the meaning specified in Section 8.2(b)  of this Series Supplement.

 

Voting Stock ” means, with respect to any Person, shares of Capital Stock entitled to vote generally in the election of directors to the board of directors or equivalent governing body of such Person.

 

Wholly Owned Subsidiary ” means as to any Person, any Subsidiary of such Person of which such Person owns, directly or indirectly through one or more Wholly Owned Subsidiaries, all of the Capital Stock of such Subsidiary (other than director’s qualifying shares, shares held by nominees or such other de minimis portion thereof to the extent required by law).

 

ARTICLE II

 

Section 2.1.   Grant of Security Interest.

 

(a)           To secure the Series 2010-2 Note Obligations, HVF hereby pledges, assigns, conveys, delivers, transfers and sets over to the Trustee, for the benefit of the Series 2010-2 Noteholders, and hereby grants to the Trustee, for the benefit of such Series 2010-2 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 “ Series 2010-2 Indenture Collateral ”):

 

(i)            the Series 2010-2 Collateral Agreements as and solely to the extent they relate to the Series 2010-2 HVF Segregated Vehicle Collateral or the Series 2010-2 Note Obligations, including, without limitation, all monies relating to such

 

61



 

Series 2010-2 HVF Segregated Vehicle Collateral or the Series 2010-2 Note Obligations due and to become due to HVF under or in connection with the Series 2010-2 Collateral Agreements, whether payable as Series 2010-2 Rent, fees, expenses, costs, indemnities, insurance recoveries, damages for the breach of any of the Series 2010-2 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 Series 2010-2 Collateral Agreements (whether arising pursuant to the terms of such Series 2010-2 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 Series 2010-2 HVF Segregated Vehicle Collateral or the Series 2010-2 Note Obligations, the right to enforce any of the Series 2010-2 Collateral Agreements to the extent they relate to the Series 2010-2 HVF Segregated Vehicle Collateral or the Series 2010-2 Note Obligations and to give or withhold any and all consents, requests, notices, directions, approvals, extensions or waivers under or with respect to the Series 2010-2 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 Series 2010-2 HVF Segregated Vehicle Collateral or the Series 2010-2 Note Obligations;

 

(ii)           (A) the Series 2010-2 Series Accounts, including any security entitlement with respect to the financial assets credited thereto, (B) all funds on deposit therein from time to time, (C) all certificates and instruments, if any, representing or evidencing any or all of the Series 2010-2 Series Accounts or the funds on deposit therein from time to time; (D) all investments made at any time and from time to time with monies in the Series 2010-2 Series Accounts, whether constituting securities, instruments, general intangibles, investment property, financial assets or other property; (E) 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 2010-2 Series Accounts, the funds on deposit therein from time to time or the investments made with such funds; and (F) all proceeds of any and all of the foregoing, including cash the items in the foregoing clauses (A)  through (E)  are referred to, collectively, as the “ Series 2010-2 Series Account Collateral ”);

 

(iii)          [Reserved]

 

(iv)          all Investment Property relating solely to the Series 2010-2 HVF Segregated Vehicle Collateral;

 

(v)           all additional property (other than property relating solely to HVF Vehicle Collateral or HVF Segregated Vehicle Collateral that constitutes Series-Specific Collateral for any Other Segregated Series of Notes) that may from time to time hereafter (pursuant to the terms of the Series 2010-2 Supplement or otherwise) be subjected to the grant and pledge hereof by HVF or by anyone on its behalf; and

 

62



 

(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;

 

provided , that, in no event shall any of the foregoing include any right, title or interest in, to or under any Relinquished Property (as defined in the Master Exchange Agreement), the related identifiable Relinquished Property Proceeds or the related Rights (as defined in the Master Exchange Agreement) with respect to such Relinquished Property, if any (collectively, the “ Relinquished Property Rights ”), from the time such Relinquished Property Rights become Relinquished Property Rights as a result of the assignment of the related Relinquished Property and the related Rights with respect to such Relinquished Property to the Intermediary pursuant to the Master Exchange Agreement, unless and until, in the case of Relinquished Property Proceeds, such Relinquished Property Proceeds become Additional Subsidies.

 

(b)           To secure the Series 2010-2 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 Series 2010-2 Noteholders, of a continuing first priority perfected Lien on all right, title and interest of HVF in, to and under the Series 2010-2 HVF Segregated Vehicle Collateral.

 

(c)           The foregoing grant and each of the other grants set forth in this Series Supplement is made in trust to secure the Series 2010-2 Note Obligations and to secure compliance with the provisions of the Series 2010-2 Supplement, all as provided in this Series 2010-2 Supplement.  The Trustee, as trustee on behalf of the Series 2010-2 Noteholders, acknowledges such grants, accepts the trusts under this Series 2010-2 Supplement and subject to Section 10.1 and 10.2 of the Base Indenture, agrees to perform its duties required in this Series 2010-2 Supplement.  The Series 2010-2 Collateral shall secure the Series 2010-2 Notes equally and ratably without prejudice, priority or distinction.

 

(d)           For all purposes hereunder and for the avoidance of doubt, the Series 2010-2 Collateral will be held by the Trustee solely for the benefit of the Series 2010-2 Noteholders, and no Noteholder or Segregated Series Noteholder of any Other Segregated Series of Notes will have any right, title or interest in, to or under the Series 2010-2 Collateral.  For all purposes hereunder and for the avoidance of doubt, (i) any Series-Specific Collateral pledged to the Trustee for the benefit of any Other 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 (ii) any Collateral pledged to the Trustee for the benefit of the Notes will be held by the Trustee solely for the benefit of the Noteholders and, in each case, the Series 2010-2 Noteholders shall not have any right, title or interest in, to or under such Series-Specific Collateral or Collateral.  For the avoidance of doubt, if it is determined that (i) the Segregated Noteholders of any Other Segregated Series of Notes have any right, title or interest in, to or under the Series 2010-2 Collateral, then such Segregated Noteholders agree that

 

63



 

their right, title and interest in, to or under the Series 2010-2 Collateral shall be subordinate in all respects to the claims or rights of the Series 2010-2 Noteholders with respect to such Series 2010-2 Collateral, (ii) any Noteholders have any right, title or interest in, to or under the Series 2010-2 Collateral, then such Noteholders agree that their right, title and interest in, to or under such Series 2010-2 Collateral shall be subordinate in all respects to the claims or rights of the Series 2010-2 Noteholders or (iii) the Series 2010-2 Noteholders have any right, title or interest in, to or under the Collateral or any Series-Specific Collateral for any Other Segregated Series of Notes, then such Series 2010-2 Noteholders agree that their right, title and interest in, to or under such Collateral or Series-Specific Collateral, as applicable, shall be subordinate in all respects to the claims or rights of the Noteholders or the Segregated Noteholders of the Other Segregated Series of Notes to which such Series Specific Collateral relates, as applicable.  This Series 2010-2 Supplement shall constitute a subordination agreement for purposes of Section 510(a) of the Bankruptcy Code.

 

Section 2.2.   Certain Rights and Obligations of HVF Unaffected.

 

(a)           Notwithstanding the assignment and security interest so granted to the Trustee on behalf of the Series 2010-2 Noteholders, HVF shall nevertheless be permitted, subject to the Trustee’s right to revoke such permission with respect to the Series 2010-2 Collateral in the event of a Series 2010-2 Amortization Event and subject to the provisions of Section 2.3 , 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 Series 2010-2 Collateral Agreements or any of the Series 2010-2 Manufacturer Programs).

 

(b)           The assignment of the Series 2010-2 Collateral to the Trustee on behalf of the Series 2010-2 Noteholders shall not (i) relieve HVF from the performance of any term, covenant, condition or agreement relating to the Series 2010-2 Collateral on HVF’s part to be performed or observed under or in connection with any of the Series 2010-2 Collateral Agreements or any of the Series 2010-2 Manufacturer Programs or (ii) impose any obligation on the Trustee or any of the Series 2010-2 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 such Series 2010-2 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, 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 Series 2010-2 Supplement or preserving any of its rights to, or realizing upon, any of the Series 2010-2 Collateral;

 

64


 

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 2.2 shall survive the removal of, or a resignation by, such Person as Trustee as well as the termination of this Series Supplement.

 

Section 2.3.   Performance of Series 2010-2 Collateral Agreements.

 

Upon the occurrence of a default or breach by any Person party to a Series 2010-2 Collateral Agreement or a Series 2010-2 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 Series 2010-2 Supplement as the Trustee or the Collateral Agent may request to compel or secure the performance and observance by: (i) Hertz Vehicles LLC, HGI, the Series 2010-2 Administrator, the Series 2010-2 Servicer, the Series 2010-2 Lessee, the Intermediary or the Escrow Agent or any other party to any of the Series 2010-2 Collateral Agreements of its obligations to HVF, solely to the extent that such obligations relate to or otherwise affect the Series 2010-2 Collateral or the Series 2010-2 Note Obligations, and (ii) a Manufacturer under a Series 2010-2 Manufacturer Program of its obligations to HVF, solely to the extent that such obligations relate to or otherwise affect the Series 2010-2 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 Series 2010-2 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 Series 2010-2 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 such performance by such parties or any other party to the Series 2010-2 Collateral Agreements or by a Manufacturer under a Manufacturer Program; provided , that, without limiting the rights of the Trustee or the Series 2010-2 Lessor under the Series 2010-2 Lease, so long as no Series 2010-2 Servicer Default has occurred and is continuing and no Series 2010-2 Limited Liquidation Event of Default has occurred and is continuing, HVF shall not be required to take any such action or exercise any such rights, remedies, powers or privileges with respect to any Manufacturer unless the Series 2010-2 Servicer determines that such action or exercise is commercially reasonable.  Subject to the proviso in the immediately preceding sentence, 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 (and, in the event that the action is of the type described in the proviso to the preceding sentence and no Servicer Default has occurred and is continuing and no Series 2010-2 Limited Liquidation Event of Default has occurred and is continuing, the Servicer has notified the Trustee or the Collateral Agent, as applicable, that such action is commercially reasonable), then 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

 

65



 

under this Series 2010-2 Supplement (provided such action relates to the Series 2010-2 Collateral or the Series 2010-2 Note Obligations) that the Trustee or the Collateral Agent, as applicable, thereafter determines is appropriate (without the need under this provision or any other provision under this Series 2010-2 Supplement to direct HVF to take such action), on behalf of HVF and the Series 2010-2 Noteholders.

 

Section 2.4.   Release of Series 2010-2 Collateral.

 

(a)           The Trustee shall, when required by the provisions of this Series 2010-2 Supplement, execute instruments to release Series 2010-2 Collateral from the lien of this Series 2010-2 Supplement or convey the Trustee’s interest in the same, in a manner and under circumstances that are not inconsistent with the provisions of this Series 2010-2 Supplement.  No party relying upon an instrument executed by the Trustee as provided in this Section 2.4 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 Series 2010-2 Program Vehicle subject to a Series 2010-2 Repurchase Program, the Series 2010-2 Turnback Date for such Series 2010-2 Program Vehicle, (ii) in the case of a Series 2010-2 Program Vehicle subject to a Series 2010-2 Guaranteed Depreciation Program, the date of sale of such Series 2010-2 Program Vehicle by an auction dealer to a third party, (iii) in the case of a Series 2010-2 Non-Program Vehicle, the date of the deposit of the Series 2010-2 Disposition Proceeds of such Series 2010-2 Non-Program Vehicle by or on behalf of HVF into the Series 2010-2 Collection Account or a Series 2010-2 HVF Segregated Exchange Account, (iv) in the case of a Series 2010-2 Transferred Vehicle, the date the related Transfer Payment is deposited into the Series 2010-2 Collection Account or a Series 2010-2 HVF Segregated Exchange Account, (v) in the case of a Series 2010-2 Casualty, the date the related Series 2010-2 Casualty Payment is deposited into the Series 2010-2 Collection Account and (vi) in the case of a Rejected Vehicle that was a Series 2010-2 New Vehicle at the time of rejection, the date the related Rejected Vehicle Payment is deposited into the Series 2010-2 Collection Account, such Series 2010-2 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 Series 2010-2 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 Series 2010-2 Note Outstanding and no other Series 2010-2 Note Obligations remain unpaid, release any remaining portion of the Series 2010-2 Collateral from the lien of the Indenture and release to HVF any funds then on deposit in the Series 2010-2 Collection Account and any Series 2010-2 Series Accounts.  The Trustee shall release property from the lien of the Indenture pursuant to this Section 2.4(c)  only upon receipt of a Company Order accompanied by an Officer’s Certificate meeting the applicable requirements of Section 13.3 of the Base Indenture.

 

66



 

Section 2.5.   Opinions of Counsel.

 

The Trustee shall receive at least seven days’ notice when requested by HVF to take any action pursuant to Section 2.4(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 Series 2010-2 Notes or the rights of the Series 2010-2 Noteholders; provided , however that such Opinion of Counsel shall not be required to express an opinion as to the fair value of the Series 2010-2 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.

 

ARTICLE III

 

REPORTS

 

Section 3.1.   Reports and Instructions to Trustee.

 

(a)           Daily Collection Reports .  On each Business Day commencing on the Series 2010-2 Closing Date, HVF shall prepare and maintain, or cause to be prepared and maintained, a record (each, a “ Series 2010-2 Daily Collection Report ”) setting forth the aggregate of the amounts deposited in the Series 2010-2 Collection Account and the amounts relating to Series 2010-2 Vehicles deposited in the Series 2010-2 HVF Segregated 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 Series 2010-2 Manufacturer Programs related to Series 2010-2 Program Vehicles and in each case deposited in the Series 2010-2 Collection Account or a Series 2010-2 HVF Segregated 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 Series 2010-2 Vehicles and in each case deposited in the Series 2010-2 Collection Account or a Series 2010-2 HVF Segregated Exchange Account, plus (C) the aggregate amount of other Series 2010-2 Collections deposited in the Series 2010-2 Collection Account or Series 2010-2 HVF Segregated Exchange Account.  HVF shall deliver a copy of the Series 2010-2 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 Series 2010-2 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 “ Series 2010-2 Monthly Servicing Certificate ”).

 

(d)           [Reserved]

 

67



 

(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 Series 2010-2 Vehicles and all other Series 2010-2 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 3.1(e)  shall also contain a schedule describing all of the vicarious liability claims then outstanding against HVF.

 

(f)            Quarterly Compliance Certificates .  On or before the Payment Date in each of March, June, September and December, commencing in March 2011, 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 7.8 , no Series 2010-2 Amortization Event or Series 2010-2 Potential Amortization Event has occurred or is continuing and no Series 2010-2 Operating Lease Event of Default or Series 2010-2 Potential Operating Lease Event of Default has occurred or is continuing.

 

(g)           Non-Program Vehicle Report .  On or before the Payment Date in May of each year, commencing in May 2011, HVF shall cause a nationally recognized firm of independent certified public accountants to furnish a report (substantially in the form of Exhibit L ) to the Trustee to the effect that they have performed certain agreed upon procedures with respect to the calculations of (i) the Series 2010-2 Disposition Proceeds received by HVF from the sale or other disposition of all Series 2010-2 Non-Program Vehicles (other than Series 2010-2 Casualties) sold or otherwise disposed of during the Related Month, (ii) the respective Series 2010-2 Net Book Values of such Series 2010-2 Non-Program Vehicles and (iii) the Series 2010-2 Market Values of such Series 2010-2 Non-Program Vehicles on the date of such sale or other disposition.

 

(h)           Verification of Title .  On or before May 30 of each year, commencing May 30, 2011, HVF shall cause a nationally recognized firm of independent certified public accountants to furnish a report (substantially in the form of Exhibit M ) to the Trustee to the effect that they have performed certain agreed upon procedures on a statistical sample of the Certificates of Title of the Series 2010-2 Vehicles designed to provide a ninety-five percent (95%) confidence level confirming that the Series 2010-2 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; provided , that, any such report may be delivered along with the analogous report described in Section 4.1(h)  of the Base Indenture as a single report.

 

(i)            [Reserved]

 

(j)            Instructions as to Withdrawals and Payments.   HVF will furnish, or cause to be furnished, to the Trustee or the Paying Agent, as applicable,

 

68



 

written instructions to make withdrawals and payments from the Series 2010-2 Collection Account, any Series 2010-2 HVF Segregated Exchange Accounts and any other accounts specified herein and to make drawings under any Enhancement relating to the Series 2010-2 Notes, as contemplated herein.  The Trustee and the Paying Agent shall promptly follow any such written instructions.

 

Section 3.2.   Reports to Noteholders.

 

(a)           Annual Series 2010-2 Noteholders’ Tax Statement .  On or before January 31 of each calendar year, beginning with calendar year 2011, the Paying Agent shall furnish to each Person who at any time during the preceding calendar year was a Series 2010-2 Noteholder a statement prepared by HVF containing the information which is required to be contained in the Monthly Noteholders’ Statements aggregated for such calendar year or the applicable portion thereof during which such Person was a Series 2010-2 Noteholder, together with such other customary information (consistent with the treatment of the Series 2010-2 Notes as debt) as HVF deems necessary or desirable to enable the Series 2010-2 Noteholders to prepare their tax returns (each such statement, an “ Annual Series 2010-2 Noteholders’ Tax Statement ”).  Such obligations of HVF to prepare and the Paying Agent to distribute the Series 2010-2 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 3.3.   Administration .  Pursuant to the Series 2010-2 Administration Agreement, the Series 2010-2 Administrator has agreed to provide certain reports, instructions and other services on behalf of HVF.  The Series 2010-2 Noteholders, by their acceptance of the Series 2010-2 Notes, consent to the provision of such reports by the Series 2010-2 Administrator in lieu of HVF.

 

ARTICLE IV

 

Section 4.1.   Series 2010-2 Series Accounts.

 

With respect to the Series 2010-2 Notes only, the following shall apply:

 

(a)           Establishment of Series 2010-2 Series Accounts .  HVF shall establish and maintain in the name of the Trustee for the benefit of the Series 2010-2 Noteholders three accounts: the Series 2010-2 Collection Account (such account, the “ Series 2010-2 Collection Account ”), the Series 2010-2 Accrued Interest Account (such account, the “ Series 2010-2 Accrued Interest Account ”) and the Series 2010-2 Excess Collection Account (such account, the “ Series 2010-2 Excess Collection Account ” and, together with the Series 2010-2 Collection Account and the Series 2010-2 Accrued Interest Account, the “ Series 2010-2 Series Accounts ”).  Each Series 2010-2 Series Account shall bear a designation clearly indicating that the funds deposited therein are held for the benefit of the Series 2010-2 Noteholders.  Each Series 2010-2 Series Account shall be an Eligible Deposit Account.  If a Series 2010-

 

69



 

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 2010-2 Series Account is no longer an Eligible Deposit Account, establish a new Series 2010-2 Series Account that is an Eligible Deposit Account.  If a new Series 2010-2 Series Account is established, HVF shall instruct the Trustee in writing to transfer all cash and investments from the non-qualifying Series 2010-2 Series Account into the new Series 2010-2 Series Account.  Initially, each of the Series 2010-2 Series Accounts will be established with The Bank of New York Mellon.

 

(b)           [Reserved]

 

(c)           Earnings from Series 2010-2 Series Accounts .  All interest and earnings (net of losses and investment expenses) paid on funds on deposit in the Series 2010-2 Series Accounts shall be deemed to be on deposit therein and available for distribution unless previously distributed pursuant to the terms hereof.

 

Section 4.2.   Collections and Allocations.

 

(a)           Collections in General .  Until this Series Supplement is terminated pursuant to Section 12.11 , HVF shall, and the Trustee is authorized (upon written instructions) to, cause all Series 2010-2 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 Series 2010-2 HVF Segregated Vehicle Collateral, including, without limitation, amounts due from Manufacturers and their related auction dealers under their Series 2010-2 Manufacturer Programs with respect to the Series 2010-2 Vehicles, other than Series 2010-2 Excluded Payments and the Series 2010-2 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 Series 2010-2 Collection Account or, in the case of Relinquished Property Proceeds, a Series 2010-2 HVF Segregated 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 Series 2010-2 Vehicles to third parties, other than the Manufacturers or their auction dealers, and all amounts received by the Series 2010-2 Servicer in the form of Series 2010-2 Permitted Check Payments shall be deposited into a Collateral Account within two Business Days of receipt by the Series 2010-2 Servicer and shall be withdrawn from a Collateral Account and either deposited into the Series 2010-2 Collection Account or, in the case of Relinquished Property Proceeds, a Series 2010-2 HVF Segregated Exchange Account for application in accordance with Section 4.2 of the Master Exchange Agreement within seven Business Days of the deposit thereof into a Collateral Account;

 

70



 

(iii)          all insurance proceeds and warranty payments in respect of the Series 2010-2 Vehicles, other than Series 2010-2 Excluded Payments, shall be deposited into a Collateral Account within two Business Days of receipt by the Series 2010-2 Servicer and shall be withdrawn from a Collateral Account and deposited into the Series 2010-2 Collection Account within seven Business Days of the deposit thereof into a Collateral Account;

 

(iv)          all amounts payable to HVF pursuant to the Series 2010-2 Lease shall be paid directly to the Trustee for deposit into the Series 2010-2 Collection Account;

 

(v)           all payments of Transfer Price by HGI in respect of Series 2010-2 Transferred Vehicles and Series 2010-2 Manufacturer Receivables, all Rejected Vehicle Payments in respect of Vehicles that were Series 2010-2 Vehicles at the time of such rejection by the Series 2010-2 Lessee or the Series 2010-2 Servicer and all other amounts payable by HGI to HVF in respect of Series 2010-2 Vehicles pursuant to the Purchase Agreement shall be paid directly to the Trustee for deposit into the Series 2010-2 Collection Account;

 

(vi)          all amounts payable by the Nominee pursuant to Section 11(c) of the Nominee Agreement in respect of Series 2010-2 Vehicles shall be deposited directly into a Collateral Account by the Nominee and shall be withdrawn from a Collateral Account and deposited into the Series 2010-2 Collection Account within seven Business Days of the deposit thereof into a Collateral Account;

 

(vii)         all Series 2010-2 Collections from any other source shall be either paid directly into the Series 2010-2 Collection Account at such times as such amounts are due or deposited by the Series 2010-2 Servicer into the Series 2010-2 Collection Account within seven Business Days after deposit thereof into a Collateral Account.

 

Notwithstanding the foregoing, (x) unless a Series 2010-2 Amortization Event has occurred and is continuing, insurance proceeds and warranty payments with respect to the Series 2010-2 Vehicles shall not be required to be deposited in a Collateral Account or the Series 2010-2 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 with respect to a Series 2010-2 New Vehicle when due in accordance with Section 1.05(d) of the Purchase Agreement and such failure is continuing, payments by Manufacturers on account of such Invoice Adjustments shall not be required to be deposited in a Collateral Account or the Series 2010-2 Collection Account and may be held by HGI.  HVF agrees that if any Series 2010-2 Collections shall be received by HVF in an account other than a Collateral Account, a Series 2010-2 HVF Segregated Exchange Account or the Series 2010-2 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 Series 2010-2

 

71



 

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 Series 2010-2 Collection Account or a Series 2010-2 HVF Segregated Exchange Account and shall be applied as provided in this Article 4 or Article 4A .

 

ARTICLE 4A.  SERIES 2010-2 HVF SEGREGATED EXCHANGE ACCOUNT

 

Section 4A.1.  Series 2010-2 HVF Segregated Exchange Account. Prior to identifying or transferring any Relinquished Property (as defined in the Master Exchange Agreement) relating to the Series 2010-2 Collateral, the Trustee shall establish and maintain for the benefit of the Series 2010-2 Noteholders one or more Series 2010-2 HVF Segregated 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 Series 2010-2 HVF Segregated Exchange Account shall be maintained (i) with a Series 2010-2 Qualified Institution or (ii) as a segregated trust account with a Series 2010-2 Qualified Trust Institution.  If any Series 2010-2 HVF Segregated 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 Series 2010-2 HVF Segregated Exchange Account which complies with such sentence and transfer into the new Series 2010-2 HVF Segregated Exchange Account all funds from the non-qualifying Series 2010-2 HVF Segregated Exchange Account.  Initially, each Series 2010-2 HVF Segregated Exchange Account will be established with Deutsche Bank Trust Company Americas or the Trustee.

 

ARTICLE V           DISTRIBUTIONS

 

Section 5.1.   Distributions in General

 

(a)           On each Payment Date, the Paying Agent shall pay to the Series 2010-2 Noteholders of record on the preceding Record Date the amounts payable thereto hereunder to such Series 2010-2 Noteholder at the address for such Series 2010-2 Noteholder appearing in the Note Register; provided , however , that, the final principal payment due on a Series 2010-2 Note shall only be paid to the Series 2010-2 Noteholder on due presentment of such Series 2010-2 Note for cancellation in accordance with the provisions of the Series 2010-2 Note.

 

(b)           (i) All distributions to Series 2010-2 Noteholders of all Classes will have the same priority and (ii) in the event that on any date of determination the amount available to make payments to the Series 2010-2 Noteholders is not sufficient to pay all sums required to be paid to such Series 2010-2 Noteholders on such date, then each Class of Series 2010-2 Noteholders will receive its ratable share (based upon the aggregate amount due to such Class of Series 2010-2 Noteholders) of the aggregate amount available to be distributed in respect of the Series 2010-2 Notes.

 

72



 

ARTICLE VI  REPRESENTATIONS AND WARRANTIES.

 

HVF hereby represents and warrants, for the benefit of the Trustee and the Series 2010-2 Noteholders, as follows as of the Series 2010-2 Closing Date:

 

Section 6.1.   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 Series 2010-2 Related Documents make such qualification necessary, except to the extent that the failure to so qualify is not reasonably likely to result in a Series 2010-2 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 Series 2010-2 Supplement and the other Series 2010-2 Related Documents (other than any transaction relating solely to one or more Other Segregated Series of Notes and/or Series of Notes).

 

Section 6.2.   Limited Liability Company and Governmental Authorization.

 

The execution, delivery and performance by HVF of the Series 2010-2 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 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 Series 2010-2 Collateral, except for Permitted Liens.  Each Series 2010-2 Related Document to which HVF is a party has been executed and delivered by a duly authorized officer of HVF.

 

Section 6.3.   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 any Series 2010-2 Related Documents or for the performance by HVF 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 Series 2010-2 Closing Date or as contemplated in Section 6.13 .

 

Section 6.4.   Binding Effect.

 

Each Series 2010-2 Related Document 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

 

73



 

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 6.5.   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 any Series 2010-2 Related Document or the ability of HVF to perform its obligations hereunder or thereunder.

 

Section 6.6.   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 6.7.   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 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 Series 2010-2 Material Adverse Effect.

 

Section 6.8.   Disclosure .

 

All certificates, reports, statements, documents and other information (other than any certificates, reports, statements, documents or other information relating solely to one or more Other Segregated Series of Notes and/or Series of Notes) furnished to the Trustee by or on behalf of HVF (i) pursuant to any provision of any Series 2010-2 Related Document or (ii) in connection with or pursuant to any amendment or modification of, or waiver under, the Series 2010-2 Related Documents, in each case, at the time the same are so furnished, shall 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.

 

74


 

Section 6.9.   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 6.10.   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 6.11.   Solvency.

 

Both before and after giving effect to the transactions contemplated by the Series 2010-2 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 6.12.   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 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 6.13.   Security Interests.

 

(a)           HVF owns and has good and marketable title to the Series 2010-2 Collateral, free and clear of all Liens other than Permitted Liens.  The Series 2010-2 Manufacturer Receivables and HVF’s rights under the Series 2010-2 Collateral Agreements (to the extent relating solely to the Series 2010-2 Collateral) constitute general intangibles under the applicable UCC.  This Series 2010-2 Supplement constitutes a valid and continuing Lien on the Series 2010-2 Indenture Collateral and all Proceeds thereof in favor of the Trustee on behalf of the Series 2010-2 Noteholders, which Lien on the Series 2010-2 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 Series 2010-2 HVF Segregated Vehicle Collateral in favor of the Collateral Agent, which Lien on the Series 2010-2 HVF Segregated 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

 

75



 

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 Series 2010-2 Collateral to the pledge of the Series 2010-2 Collateral to the Trustee or the Collateral Agent, as the case may be.

 

(b)           Other than the security interest granted to the Trustee under the Series 2010-2 Supplement and the Collateral Agent under the Collateral Agency Agreement, HVF has not pledged, assigned, sold or granted a security interest in the Series 2010-2 Collateral.  All action necessary (including the filing of UCC-1 financing statements, the assignment of rights under the Series 2010-2 Manufacturer Programs (other than to the extent they relate solely to (i) HVF Segregated Vehicle Collateral of any Other Segregated Series of Notes or (ii) Collateral) to the Collateral Agent under the Series 2010-2 Assignment Agreements and the notation on the Certificates of Title for all Series 2010-2 Vehicles of the Collateral Agent’s Lien for the benefit of the Series 2010-2 Noteholders) to protect and perfect the Trustee’s security interest in the Series 2010-2 Indenture Collateral and the Collateral Agent’s security interest in the Series 2010-2 HVF Segregated 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 Series 2010-2 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 Series 2010-2 Noteholders in connection with the Series 2010-2 Supplement 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 7.19 , (i) HVF’s sole place of business and chief executive office shall be, and the place where its records concerning the Series 2010-2 Collateral are kept is: 225 Brae Boulevard, Park Ridge, New Jersey 07656 and (ii) HVF’s jurisdiction of organization is Delaware.  HVF does not transact, and has not transacted, business under any other name.

 

(e)           All authorizations in this Series 2010-2 Supplement 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 Series 2010-2 Indenture Collateral and to take such other actions with respect to the Series 2010-2 Indenture Collateral authorized by this Series 2010-2 Supplement are powers coupled with an interest and are irrevocable.

 

(f)            The Series 2010-2 Supplement creates a valid and continuing Lien (as defined in the New York UCC) in the Series 2010-2 Series Account Collateral,

 

76



 

the Series 2010-2 Collateral constituting Investment Property and the Series 2010-2 General Intangibles Collateral and all Proceeds thereof in favor of the Trustee on behalf of the Trustee for the benefit of the Series 2010-2 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 Series 2010-2 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 Series 2010-2 Series Account Collateral, the Series 2010-2 Collateral constituting Investment Property and the Series 2010-2 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 Series 2010-2 General Intangibles Collateral and the Series 2010-2 Collateral constituting Investment Property granted to the Trustee in favor of the Series 2010-2 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 Series 2010-2 Series Account Collateral, the Series 2010-2 Collateral constituting Investment Property or the Series 2010-2 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 Series 2010-2 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 6.14.   Related Documents.

 

The provisions of the Series 2010-2 Collateral Agreements relating to the Series 2010-2 Notes are in full force and effect.  There are no outstanding Series 2010-2 Servicer Defaults or Series 2010-2 Operating Lease Events of Default nor have events occurred which, with the giving of notice, the passage of time or both, would constitute a Series 2010-2 Servicer Default or Series 2010-2 Operating Lease Event of Default.

 

Section 6.15.   Non-Existence of Other Agreements.

 

Other than as permitted by the Indenture, (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

 

77



 

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 Series 2010-2 Related Documents and any other Related Document to which it is a party and the performance of the activities referred to in or contemplated by such agreements).

 

Section 6.16.   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 6.17.   Other Representations.

 

All representations and warranties of HVF made in each Series 2010-2 Document (other than any representations or warranties relating solely to one or more Other Segregated Series of Notes and/or Series of Notes) to which it is a party are true and correct and are repeated herein as though fully set forth herein.

 

Section 6.18.   Additional UCC Representations.

 

Without limiting any other representation or warranty given by HVF in this Series 2010-2 Supplement, the representations and warranties set forth in Exhibit N hereto are true and correct.

 

ARTICLE VII                        COVENANTS

 

Section 7.1.   Payment of Series 2010-2 Notes.

 

HVF shall pay the principal of (and premium, if any) and interest on the Series 2010-2 Notes when due pursuant to the provisions of this Series 2010-2 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 7.2.   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 Series 2010-2 Notes may be surrendered for registration of transfer or exchange, where notices and demands to or upon HVF in respect of the Series 2010-2 Notes and this Series 2010-2 Supplement 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 Series 2010-2 Notes, the Series 2010-2 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

 

78



 

with the address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office.

 

HVF may also from time to time designate one or more other offices or agencies where the Series 2010-2 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 7.3.   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 7.4.   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 Series 2010-2 Material Adverse Effect.

 

Section 7.5.   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 the Series 2010-2 Supplement or under any other Series 2010-2 Related Document 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 Series 2010-2 Collateral.

 

Section 7.6.   [Reserved]

 

Section 7.7.   Actions under the Collateral Agreements.

 

HVF will comply in all material respects with all of its obligations relating to the Series 2010-2 Collateral under the Series 2010-2 Manufacturer Programs.  HVF will not, except as otherwise permitted hereunder or under the Base Indenture, take any action (x) which would permit Hertz, Hertz Vehicles LLC, HGI, the Intermediary, the

 

79



 

Escrow Agent or any other Person to have the right to refuse to perform any of its respective obligations under any of the Series 2010-2 Collateral Agreements, the Series 2010-2 Manufacturer Programs or any other instrument or agreement included in the Series 2010-2 Collateral or (y) that would result in the amendment, hypothecation, subordination, termination or discharge of, or impair the validity or effectiveness of, any Series 2010-2 Collateral Agreement, Series 2010-2 Manufacturer Program or any such instrument or agreement, in each case, solely to the extent relating to or otherwise affecting the Series 2010-2 Collateral or the Series 2010-2 Note Obligations.

 

Except as otherwise provided in Section 2.2(a)  hereof, HVF agrees that it will not, without the prior written consent of the Trustee acting at the direction of the Series 2010-2 Required Noteholders, exercise any right, remedy, power or privilege available to it respect to any obligor under the Series 2010-2 Lease or the Series 2010-2 Administration Agreement, 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 12.9 hereof, HVF agrees that it will not, without the prior written consent of the Trustee, acting at the direction of the Series 2010-2 Required Noteholders, 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 Segregated Series 2010-2 Documents.  Notwithstanding the foregoing, HVF may terminate the Master Exchange Agreement and the Escrow Agreement pursuant to their respective terms at any time.

 

Upon the occurrence of a Series 2010-2 Servicer Default, HVF will not, without the prior written consent of the Trustee acting at the direction of the Series 2010-2 Required Noteholders, terminate the Series 2010-2 Servicer and appoint a successor Series 2010-2 Servicer in accordance with the Series 2010-2 Lease and the Collateral Agency Agreement and will terminate the Series 2010-2 Servicer and appoint a successor Series 2010-2 Servicer in accordance with the Series 2010-2 Lease and the Collateral Agency Agreement if and when so directed by the Trustee acting at the direction of the Series 2010-2 Required Noteholders.

 

Section 7.8.   Notice of Defaults.

 

Promptly (and in any event within five (5) Business Days) upon becoming aware of (i) any Series 2010-2 Potential Amortization Event or Series 2010-2 Amortization Event, any Series 2010-2 Potential Operating Lease Event of Default, any Series 2010-2 Operating Lease Event of Default or any Series 2010-2 Servicer Default or (ii) any default under any other Series 2010-2 Collateral Agreement, any Series 2010-2 Related Documents or under any Series 2010-2 Manufacturer Program, HVF shall give the Trustee 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.

 

80



 

Section 7.9.   Notice of Material Proceedings.

 

Promptly (and in any event within five (5) Business Days) upon becoming aware thereof, HVF shall give the Trustee 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 the Series 2010-2 Supplement or under any other Series 2010-2 Related Documents to which it is a party.

 

Section 7.10.   Further Requests.

 

HVF will promptly furnish to the Trustee such other information relating to the Series 2010-2 Notes as, and in such form as, the Trustee may reasonably request in connection with the transactions contemplated by the Series 2010-2 Supplement.

 

Section 7.11.   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 Series 2010-2 Indenture Collateral on behalf of the Series 2010-2 Noteholders and of the Collateral Agent in the Series 2010-2 HVF Segregated Vehicle Collateral as a perfected security interest subject to no prior Liens (other than Permitted Liens), to carry into effect the purposes of the Series 2010-2 Related Documents or to better assure and confirm unto the Trustee or the Series 2010-2 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 7.11(a) , HVF shall take all actions that are required to maintain the security interest of the Trustee in the Series 2010-2 Indenture Collateral and of the Collateral Agent in the Series 2010-2 HVF Segregated 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 Series 2010-2 HVF Segregated Vehicle Collateral and (iii) causing the Series 2010-2 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.  If HVF fails to perform any of its agreements or obligations under this Section 7.11(a) , the Trustee shall, at the direction of the Series 2010-2 Required Noteholders, 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 Series 2010-2 Indenture Collateral.

 

81



 

(b) If any amount payable under or in connection with any of the Series 2010-2 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 Series 2010-2 Indenture Collateral and the income, distributions and proceeds thereof, for the benefit of the Trustee on behalf of the Series 2010-2 Noteholders, against the claims and demands of all Persons whomsoever.

 

(d) On or before March 31 of each calendar year, commencing with March 31, 2012, 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 Series 2010-2 Supplement, 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 Series 2010-2 Supplement or the Collateral Agency Agreement in the Series 2010-2 Indenture 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 Series 2010-2 Supplement, 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 Series 2010-2 Supplement in the Series 2010-2 Indenture Collateral until March 31 in the following calendar year.

 

Section 7.12.   Liens.

 

HVF will not create, incur, assume or permit to exist any Lien upon any of its property (including the Series 2010-2 Collateral), other than (i) Liens in favor of the Trustee for the benefit of the Indenture Noteholders and (ii) other Permitted Liens.

 

Section 7.13.   Other Indebtedness .

 

HVF will not create, assume, incur, suffer to exist or otherwise become or remain liable in respect of any Indebtedness other than (i) Indebtedness under the Indenture, any Series 2010-2 Related Document or any other Related Document and (ii) Indebtedness under the HVF Credit Facility, the form of which is attached as Exhibit B to the Base Indenture.

 

Section 7.14.   No ERISA Plan.

 

HVF shall not establish or maintain or contribute to any Plan that is covered by Title IV of ERISA.

 

82



 

Section 7.15.   Mergers.

 

HVF will not merge or consolidate with or into any other Person.

 

Section 7.16.   Sales of Assets.

 

HVF will not sell, lease, transfer, liquidate or otherwise dispose of any of its property except as contemplated by the Indenture, any Series 2010-2 Related Document or any other Related Document.

 

Section 7.17.   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 Indenture, any Series 2010-2 Related Document or any other Related Document.

 

Section 7.18.   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 Series 2010-2 Amortization Event or Series 2010-2 Potential Amortization Event has occurred and is continuing 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 7.19.   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 Series 2010-2 Noteholders in the Series 2010-2 Indenture Collateral and the perfected interest of the Collateral Agent in the Series 2010-2 HVF Segregated Vehicle Collateral in 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 7.20.   [Reserved]

 

Section 7.21.   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 Series 2010-2 Related Documents or any other Related Documents and, in addition, without limiting

 

83



 

the generality of the foregoing, HVF will not direct the investment of funds in the Series 2010-2 Collection Account or any Series 2010-2 HVF Segregated 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 7.22.   No Other Agreements.

 

HVF will not enter into or be a party to any agreement or instrument other than any Series 2010-2 Related Document or any other 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 7.23.   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 Series 2010-2 Related Documents and any other 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 7.24.   Maintenance of Separate Existence.

 

HVF will comply with all of the covenants relating to the maintenance of its separate existence as set forth in Section 8.24 of the Base Indenture, except that all references therein to “Related Documents” shall be deemed to refer to the “Series 2010-2 Related Documents and any other Related Documents”.

 

Section 7.25.   Series 2010-2 Manufacturer Programs .

 

(a)           Prior to the leasing of any Series 2010-2 Program Vehicles under the Series 2010-2 Lease for any model year after the 2011 model year, HVF will cause the Series 2010-2 Lessee to deliver to the Trustee and the Series 2010-2 Lessor an Officer’s Certificate of the Series 2010-2 Lessee substantially in the form of Exhibit J hereto.

 

(b)           No later than six months following the leasing of any Series 2010-2 Program Vehicles under the Series 2010-2 Lease for any model year after the 2011 model year, HVF shall (x) deliver to the Trustee an executed copy of the Series 2010-2 Manufacturer Program for such model year and (y) have received an executed Series 2010-2 Assignment Agreement with respect to such Series 2010-2 Manufacturer Program for such model year.

 

(c)           Prior to the leasing of any Series 2010-2 Program Vehicles under the Series 2010-2 Lease subject to a Series 2010-2 Manufacturer Program of any Manufacturer with respect to which there has been no Series 2010-2 Manufacturer Program for any prior model year, HVF shall (i) have received an executed Series

 

84


 

2010-2 Assignment Agreement with respect to such Series 2010-2 Manufacturer Program and (ii) have (a) obtained the consent of the Series 2010-2 Required Noteholders (not to be unreasonably withheld) or (b) satisfied the Series 2010-2 Required Condition with respect to the leasing of Series 2010-2 Program Vehicles subject to such Series 2010-2 Manufacturer Program under the Series 2010-2 Lease.

 

(d)                                  HVF shall deliver to the Trustee and the Series 2010-2 Lessor promptly following the introduction of any prospective material change in any existing Series 2010-2 Manufacturer Program (including any material change in a Series 2010-2 Manufacturer Program for a new model year from the Series 2010-2 Manufacturer Program of such Manufacturer for the prior model year) or the introduction of any new Series 2010-2 Manufacturer Program by an existing Manufacturer (other than a Series 2010-2 Manufacturer Program for a new model year by a Manufacturer with respect to which there was a Series 2010-2 Manufacturer Program for any prior model year) notice of the same describing the principal terms thereof.  If there is a material change to a Series 2010-2 Manufacturer Program during a model year or a material change in a Series 2010-2 Manufacturer Program for a new model year from the Series 2010-2 Manufacturer Program of such Manufacturer for the prior model year HVF will (a) obtain the consent of the Series 2010-2 Required Noteholders (such consent not to be unreasonably withheld or delayed) or (b) satisfy the Series 2010-2 Required Condition with respect to the leasing of Series 2010-2 Program Vehicles subject to such Series 2010-2 Manufacturer Program, as so changed, pursuant to the Series 2010-2 Lease.

 

(e)                                   [Reserved]

 

(f)                                     Except as otherwise permitted herein, 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 Series 2010-2 Manufacturer Program, to any change in any Series 2010-2 Manufacturer Program that is reasonably likely to materially adversely affect its rights or the rights of the Series 2010-2 Noteholders with respect to any Series 2010-2 Program Vehicle previously purchased or financed under such Series 2010-2 Manufacturer Program.

 

Section 7.26.                              Disposition of Series 2010-2 Vehicles.

 

HVF will turn in, or cause to be turned in, each Series 2010-2 Program Vehicle to the relevant Manufacturer within the Series 2010-2 Repurchase Period therefor in accordance with the applicable Series 2010-2 Manufacturer Program unless, prior to the end of such Series 2010-2 Repurchase Period, HVF sells such Series 2010-2 Program Vehicle and receives sales proceeds thereof in cash plus, if the related Manufacturer is a Series 2010-2 Eligible Program Manufacturer, non-return incentives payable by such Manufacturer to HVF, in an amount at least equal to the Series 2010-2 Repurchase Price that HVF would have received with respect to such Series 2010-2 Program Vehicle if it had turned such Series 2010-2 Program Vehicle back to the Manufacturer.

 

85



 

If a Series 2010-2 Non-Program Vehicle is returned to HVF pursuant to Section 2.5(c) of the Series 2010-2 Lease, HVF will use commercially reasonable efforts to arrange for the prompt sale of such Series 2010-2 Non-Program Vehicle and to maximize the sale price thereof.

 

Section 7.27.                              Insurance .

 

HVF will obtain and maintain, or cause to be obtained and maintained, with respect to the Series 2010-2 Vehicles (i) comprehensive public liability and property damage protection in respect of the possession, condition, maintenance, operation and use of the Series 2010-2 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 Series 2010-2 Lessee is permitted to self-insure by applicable law.  All insurance policies (to the extent that such policies relate to Series 2010-2 Vehicles with respect to which the Collateral Agent is the lienholder pursuant to the Collateral Agency Agreement) obtained pursuant to this Section 7.27 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 insurance, as opposed to self-insurance, obtained by HVF shall be obtained from a Qualified Insurer only.

 

ARTICLE VIII

 

INITIAL ISSUANCE AND INCREASES AND DECREASES
OF PRINCIPAL AMOUNT OF SERIES 2010-2 NOTES

 

Section 8.1.                                    Initial Issuance; Procedure for Increasing the Series 2010-2 Principal Amount.

 

(a)                                   Subject to satisfaction of the conditions precedent set forth in subsection (b)  of this Section 8.1 (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 8.1 , as evidenced by an Advance Request delivered to the Trustee as to which the Trustee may rely) (i) on the Series 2010-2 Closing Date, HVF may issue Series 2010-2 Notes in the aggregate initial principal amount equal to the Series 2010-2 Initial Principal Amount, (ii) on any Business Day during the Series 2010-2 Revolving Period, issue Additional Series 2010-2 Notes in an aggregate initial principal amount equal to (a) the Additional Investor Group Initial Principal Amount with respect to the related Additional Investor Group or (b) in connection with any Investor Group Maximum Principal Increase for any Investor Group, the Investor Group Principal Amount for such Investor Group (immediately after giving effect to such Investor Group Maximum Principal Increase) and (iii) on any Business Day during the Series 2010-2 Revolving Period, HVF may, in accordance with the Series 2010-2 Note Purchase Agreement, increase the Series 2010-2 Principal Amount (such increase referred to as an “ Increase ”), by issuing, at

 

86



 

par, ratable amounts of additional principal amounts of the Series 2010-2 Notes; provided , that in the event that one or more Additional Investor Groups become party to the Series 2010-2 Note Purchase Agreement or one or more Investor Group Maximum Principal Increases for any Investor Group are given effect, any Increase occurring thereafter shall be allocated solely to such Additional Investor Groups and/or such Investor Groups, as applicable, until (and only until) the Series 2010-2 Principal Amount is allocated ratably among all Investor Groups (based upon each such Investor Groups’ Commitment Percentage after giving effect to any such Additional Investor Group becoming party to the Series 2010-2 Note Purchase Agreement and/or Investor Group Maximum Principal Increase, as applicable).  Each Increase shall be made in accordance with the provisions of Sections 2.02 and 2.03 of the Series 2010-2 Note Purchase Agreement and, subject to the proviso in the immediately preceding sentence, shall be ratably allocated among the Series 2010-2 Notes, based on their respective portion of the Series 2010-2 Principal Amount prior to giving effect to such Increase.  Proceeds from the initial issuance of the Series 2010-2 Notes, from any additional issuance of Additional Series 2010-2 Notes or from any Investor Group Maximum Principal Increase and from any Increase shall be deposited into the Series 2010-2 Collection Account and allocated in accordance with Article IX hereof.  Upon each Increase, the Trustee shall, or shall cause the Registrar to, indicate in the Note Register such Increase.

 

(b)                                  The initial Series 2010-2 Notes will be issued on the Series 2010-2 Closing Date, Additional Series 2010-2 Notes will be issued on any Business Day during the Series 2010-2 Revolving Period that an Additional Investor Group becomes a party to the Series 2010-2 Note Purchase Agreement or an effective date occurs with respect to any Investor Group Maximum Principal Increase, and the Series 2010-2 Principal Amount may be increased on any Business Day during the Series 2010-2 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 2010-2 Notes and each proposed Increase:

 

(i)                                      solely in connection with the initial issuance of the Series 2010-2 Notes on the Series 2010-2 Closing Date, the Issuer and Hertz shall have entered into, executed and delivered the Series 2010-2 Lease;

 

(ii)                                   other than in the case of the initial issuance of the Series 2010-2 Notes on the Series 2010-2 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 2010-2 Principal Amount shall not exceed the Series 2010-2 Maximum Principal Amount;

 

87



 

(iv)                               after giving effect to such issuance or Increase and the application of the proceeds thereof, no Series 2010-2 Enhancement Deficiency, Series 2010-2 Liquidity Deficiency or Series 2010-2 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 2010-2 Reserve Account shall be equal to or greater than the Series 2010-2 Required Reserve Account Amount;

 

(vi)                               no Series 2010-2 Amortization Event has occurred and is continuing and such issuance or Increase and the application of the proceeds thereof will not result in the occurrence of (1) a Series 2010-2 Amortization Event or a Series 2010-2 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 a Series 2010-2 Amortization Event or a Series 2010-2 Limited Liquidation Event of Default;

 

(vii)                            all representations and warranties set forth in Article 6 hereof 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 2010-2 Note Purchase Agreement shall have been satisfied;

 

(ix)                                 [Reserved]

 

(x)                                    no more than three Increases shall occur during any calendar week;

 

(xi)                                 [Reserved]; and

 

(xii)                              with respect to any Increase, HVF shall have acquired and shall be maintaining in force one or more Series 2010-2 Interest Rate Caps in accordance with Section 9.11 of this Series Supplement.

 

Section 8.2.                                    Procedure for Decreasing the Series 2010-2 Principal Amount.

 

(a)                                   Mandatory Decrease .  Whenever (i) a Series 2010-2 Enhancement Deficiency exists, then, on or before the Payment Date immediately following discovery of such Series 2010-2 Enhancement Deficiency, HVF shall allocate to and deposit in the Series 2010-2 Excess Collection Account to be applied  in accordance with Section 9.2(f)  of this Series Supplement, funds to make a pro rata reduction in the Series 2010-2 Principal Amount (subject to the limitations specified in Section 8.2(c)  below) in an amount equal to the lesser of (x) the amount necessary, so that after giving effect to all Decreases of the Series 2010-2 Principal Amount on such Payment Date, no such Series 2010-2 Enhancement Deficiency shall exist and (y) the Series 2010-2 Principal Amount as of the date of application of such funds, (ii) a Series

 

88



 

2010-2 Aggregate Asset Amount Deficiency exists, then, on or before the Payment Date immediately following discovery of such Series 2010-2 Aggregate Asset Amount Deficiency, HVF shall allocate to and deposit in the Series 2010-2 Excess Collection Account to be applied in accordance with Section 9.2(f)  of this Series Supplement, funds to make a pro rata reduction in the Series 2010-2 Principal Amount (subject to the limitations specified in Section 8.2(c)  below) in an amount equal to the lesser of (x) the amount of such Series 2010-2 Aggregate Asset Amount Deficiency and (y) the Series 2010-2 Principal Amount as of the date of application of such funds and (iii) a Series 2010-2 Excess Principal Event shall have occurred, then, on or before the Payment Date immediately following discovery of such Series 2010-2 Excess Principal Event, HVF shall allocate to and deposit in the Series 2010-2 Excess Collection Account to be applied in accordance with Section 9.2(f)  of this Series Supplement, funds to make a pro rata reduction in the Series 2010-2 Principal Amount (subject to the limitations specified in Section 8.2(c)  below) by the lesser of (x) the amount necessary, so that after giving effect to all Decreases of the Series 2010-2 Principal Amount on such Payment Date, no such Series 2010-2 Excess Principal Event shall exist and (y) the amount that would reduce the Series 2010-2 Principal Amount to zero (each reduction of the Series 2010-2 Principal Amount pursuant to this Section 8.2(a) , a “ Mandatory Decrease ”) plus, with respect to each clause above, any associated breakage costs (including Series 2010-2 Commercial Paper discounts and interest scheduled to accrue through the maturity of such Series 2010-2 Commercial Paper) incurred as a result of such decreased (calculated in accordance with the procedures outlined in Section 6.1 of this Series Supplement for optional repurchases and paid in accordance with Section 3.06 of the Series 2010-2 Note Purchase Agreement).  Such Mandatory Decrease shall be ratably allocated among the Series 2010-2 Noteholders, based on their respective portion of the Series 2010-2 Principal Amount prior to giving effect to such Mandatory Decrease.  Upon discovery of such a Series 2010-2 Enhancement Deficiency, Series 2010-2 Aggregate Asset Amount Deficiency or Series 2010-2 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 2010-2 Noteholder, each Conduit Investor, each Committed Note Purchaser and the Trustee, HVF may decrease the Series 2010-2 Principal Amount (each such reduction of the Series 2010-2 Principal Amount pursuant to this Section 8.2(b) , a “ Voluntary Decrease ”) by withdrawing from the Series 2010-2 Excess Collection Account or, after the conclusion of the Series 2010-2 Revolving Period, the Series 2010-2 Collection Account, an amount (subject to the last sentence of this Section 8.2(b) ) up to the sum of all Series 2010-2 Principal Collections (or, in the case of the Series 2010-2 Collection Account, up to the total amount available in such account for payment of principal of the Series 2010-2 Notes) on deposit in such accounts and, in the case of the Series 2010-2 Excess Collection Account, available for distribution to effect a Voluntary Decrease pursuant to Section 9.2(f)  of this Series Supplement, and distributing (x)  pro rata to the Series 2010-2 Noteholders in respect of principal of the Series 2010-2 Notes or (y) in the event that HVF, subject to Section 3.11 of the Series 2010-2 Note Purchase Agreement, elects to

 

89



 

prepay any Terminated Purchaser’s Investor Group Principal Amount, to such Terminated Purchaser up to the amount of its Investor Group Principal Amount, the amount of such withdrawal in accordance with Section 9.4(e)  of this Series Supplement, plus with respect to (x) and (y) above, in accordance with Section 3.06 of the Series 2010-2 Note Purchase Agreement, associated breakage costs (including Series 2010-2 Commercial Paper discounts and interest scheduled to accrue through the maturity of such Series 2010-2 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 8.2(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.  Subject to the immediately preceding sentence, such Voluntary Decrease shall be ratably allocated among the Series 2010-2 Noteholders, based on their respective portion of the Series 2010-2 Principal Amount.  Each such Voluntary Decrease shall be, in the aggregate for all Series 2010-2 Notes, in a minimum principal amount of $2,500,000 and integral multiples of $100,000 in excess thereof, unless such Voluntary Decrease is allocated to pay any Terminated Purchaser’s Investor Group Principal Amount in full.

 

(c)                                   Upon distribution to the Series 2010-2 Noteholders of principal of the Series 2010-2 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 2010-2 Excess Collection Account or the Series 2010-2 Collection Account and available for distribution to Series 2010-2 Noteholders in respect of principal of the Series 2010-2 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 2010-2 Collection Account and identified for payment to the Series 2010-2 Noteholders pursuant to Section 9.4(a)  of this Series Supplement shall not be “available for distribution to Series 2010-2 Noteholders”.

 

ARTICLE IX

 

SERIES 2010-2 ALLOCATIONS

 

With respect to the Series 2010-2 Notes only, the following shall apply:

 

Section 9.1.                                    Allocations with Respect to the Series 2010-2 Notes .  The net proceeds from the initial sale of the Series 2010-2 Notes will be deposited into the Series 2010-2 Collection Account and allocated in accordance with clause (a)(ii) of this Section 9.1 below.  All amounts payable to HVF under the Series 2010-2 Interest Rate Caps will be deposited into the Series 2010-2 Collection Account.  On each Business Day on which the proceeds of the initial sale of the Series 2010-2 Notes, any Increase or Series 2010-2 Collections are deposited into the Series 2010-2 Collection Account (each such date, a “ Series 2010-2 Deposit Date ”), the Series 2010-2 Administrator will direct the Trustee in writing pursuant to the Series 2010-2 Administration Agreement to apply

 

90



 

from all amounts deposited into the Series 2010-2 Collection Account in accordance with the provisions of this Section 9.1 :

 

(a)                                   Allocations of Series 2010-2 Collections During the Series 2010-2 Revolving Period .  During the Series 2010-2 Revolving Period, the Series 2010-2 Administrator will direct the Trustee in writing pursuant to the Series 2010-2 Administration Agreement, prior to 1:00 p.m. (New York City time) on each Series 2010-2 Deposit Date, to apply from all amounts deposited into the Series 2010-2 Collection Account as set forth below:

 

(i)                                      allocate to and deposit in the Series 2010-2 Accrued Interest Account an amount equal to the sum of (A) the aggregate amount of Series 2010-2 Interest Collections on such day and (B) any amounts received by the Trustee in respect of the Series 2010-2 Interest Rate Caps; and

 

(ii)                                   allocate to and deposit in the Series 2010-2 Excess Collection Account (A) the aggregate amount of Series 2010-2 Principal Collections on such day, (B) on the Series 2010-2 Closing Date, the net proceeds from the issuance of the Series 2010-2 Notes and (C) on the date of any Increase, the proceeds of such Increase (for any such day, the “ Series 2010-2 Principal Allocation ”).

 

(b)                                  Allocation of Series 2010-2 Collections During the Series 2010-2 Controlled Amortization Period .   During the Series 2010-2 Controlled Amortization Period, the Series 2010-2 Administrator will direct the Trustee in writing pursuant to the Series 2010-2 Administration Agreement, prior to 1:00 p.m. (New York City time) on any Series 2010-2 Deposit Date, to apply from all amounts deposited into the Series 2010-2 Collection Account as set forth below:

 

(i)                                      allocate to and deposit in the Series 2010-2 Accrued Interest Account an amount determined as set forth in Section 9.1(a)(i)  above for such day; and

 

(ii)                                   an amount equal to the sum of (x) all Series 2010-2 Principal Allocations for such day plus (y) any amounts allocated from the Series 2010-2 Excess Collection Account to the Series 2010-2 Collection Account pursuant to Section 9.1(f)  of this Series Supplement or allocated to the Series 2010-2 Collection Account pursuant Section 9.2(f)  of this Series Supplement, shall be used to make principal payments on a pro rata basis in respect of the Series 2010-2 Notes on the Series 2010-2 Controlled Amortization Payment Date related to the Series 2010-2 Controlled Amortization Payment Period in which such allocations and deposits, as applicable, have been made in an amount equal to the Series 2010-2 Controlled Amortization Amount for such Series 2010-2 Controlled Amortization Payment Date; provided , however , that if, during any Series 2010-2 Controlled Amortization Payment Period, the aggregate amount of such daily Series 2010-2 Principal Allocations (together with the amount deposited in the Series 2010-2 Collection Account from the Series 2010-2 Excess Collection Account pursuant to Section 9.1(f)  of this Series Supplement or deposited in the

 

91



 

Series 2010-2 Collection Account pursuant to Section 9.2(f)  of this Series Supplement) exceeds the Series 2010-2 Controlled Amortization Amount for the related Series 2010-2 Controlled Amortization Payment Date, then the amount of such excess shall be deposited in the Series 2010-2 Excess Collection Account.

 

(c)                                   Allocations of Collections During the Series 2010-2 Rapid Amortization Period .  During the Series 2010-2 Rapid Amortization Period, the Series 2010-2 Administrator will direct the Trustee in writing pursuant to the Series 2010-2 Administration Agreement, prior to 1:00 p.m. (New York City time) on any Series 2010-2 Deposit Date, to apply from all amounts deposited into the Series 2010-2 Collection Account as set forth below:

 

(i)                                      allocate to and deposit in the Series 2010-2 Accrued Interest Account an amount determined as set forth in Section 9.1(a)(i)  above for such day; and

 

(ii)                                   an amount equal to the Series 2010-2 Principal Allocation for such day shall, on the applicable Payment Date, be used to make principal payments on a pro rata basis in respect of the Series 2010-2 Notes until the Series 2010-2 Notes have been paid in full; provided that if on any Determination Date (A) the Series 2010-2 Administrator determines that the amount anticipated to be available from Series 2010-2 Interest Collections, any amounts payable to the Trustee in respect of any Series 2010-2 Interest Rate Caps and other amounts available pursuant to Section 9.2 of this Series Supplement to pay Series 2010-2 Monthly Interest on the next succeeding Payment Date will be less than the sum of the Series 2010-2 Monthly Interest for such Payment Date and (B) the Series 2010-2 Enhancement Amount is greater than zero, then the Series 2010-2 Administrator shall direct the Trustee in writing to withdraw from the Series 2010-2 Collection Account a portion of (but in no event an amount in excess of) such Series 2010-2 Principal Collections received during the related Series 2010-2 Rapid Amortization Payment Period) equal to the lesser of such insufficiency and the Series 2010-2 Enhancement Amount and deposit such amount into the Series 2010-2 Accrued Interest Account to be treated as Series 2010-2 Interest Collections on such Payment Date.

 

(d)                                  Past Due Rental Payments .  Notwithstanding the foregoing, if, after the occurrence of a Series 2010-2 Lease Payment Deficit, the Series 2010-2 Lessee shall make a payment of Series 2010-2 Rent or other amount payable by the Series 2010-2 Lessee under the Series 2010-2 Lease on or prior to the fifth Business Day after the occurrence of such Series 2010-2 Lease Payment Deficit (a “ Series 2010-2 Past Due Rent Payment ”), the Series 2010-2 Administrator shall direct the Trustee in writing pursuant to the Series 2010-2 Administration Agreement to allocate to and deposit in the Series 2010-2 Collection Account the amount of such Series 2010-2 Past Due Rent Payment.  The Series 2010-2 Administrator shall instruct the Trustee in writing pursuant to the Series 2010-2 Administration Agreement to withdraw from the Series 2010-2 Collection Account and apply the Series 2010-2 Past Due Rent Payment in the following order:

 

92



 

(i)                                      if the occurrence of the related Series 2010-2 Lease Payment Deficit resulted in one or more Series 2010-2 LOC Credit Disbursements being made under the Series 2010-2 Letters of Credit, pay to each Series 2010-2 Letter of Credit Provider who made such a Series 2010-2 LOC Credit Disbursement for application in accordance with the provisions of the applicable Series 2010-2 Letter of Credit Reimbursement Agreement an amount equal to the lesser of (x) the unreimbursed amount of such Series 2010-2 Letter of Credit Provider’s Series 2010-2 LOC Credit Disbursement and (y) such Series 2010-2 Letter of Credit Provider’s pro rata share, calculated on the basis of the unreimbursed amount of each such Series 2010-2 Letter of Credit Provider’s Series 2010-2 LOC Credit Disbursement, of the amount of the Series 2010-2 Past Due Rent Payment;

 

(ii)                                   if the occurrence of such Series 2010-2 Lease Payment Deficit resulted in a withdrawal being made from the Series 2010-2 Cash Collateral Account, deposit in the Series 2010-2 Cash Collateral Account an amount equal to the lesser of (x) the amount of the Series 2010-2 Past Due Rent Payment remaining after any payments pursuant to clause (i)  above and (y) the amount withdrawn from the Series 2010-2 Cash Collateral Account on account of such Series 2010-2 Lease Payment Deficit;

 

(iii)                                if the occurrence of such Series 2010-2 Lease Payment Deficit resulted in a withdrawal being made from the Series 2010-2 Reserve Account pursuant to Section 9.2(d)  of this Series Supplement, deposit in the Series 2010-2 Reserve Account an amount equal to the lesser of (x) the amount of the Series 2010-2 Past Due Rent Payment remaining after any payments pursuant to clauses (i)  and (ii)  above and (y) the excess, if any, of the Series 2010-2 Required Reserve Account Amount over the Series 2010-2 Available Reserve Account Amount on such day;

 

(iv)                               deposit into the Series 2010-2 Accrued Interest Account the amount, if any, by which the Series 2010-2 Lease Interest Payment Deficit, if any, relating to such Series 2010-2 Lease Payment Deficit exceeds the amount of the Series 2010-2 Past Due Rent Payment applied pursuant to clauses (i)  through (iii)  above; and

 

(v)                                  deposit into the Series 2010-2 Excess Collection Account and treat as Series 2010-2 Principal Collections the remaining amount of the Series 2010-2 Past Due Rent Payment.

 

(e)                                   [Reserved]

 

(f)                                     Series 2010-2 Excess Collection Account .  Amounts deposited into the Series 2010-2 Excess Collection Account on any Series 2010-2 Deposit Date prior to the commencement of the Series 2010-2 Rapid Amortization Period will be (i)  first , withdrawn and deposited in the Series 2010-2 Reserve Account in an amount up to the excess, if any, of the Series 2010-2 Required Reserve Account Amount for such date over the Series 2010-2 Available Reserve Account Amount for such date, (ii)

 

93



 

second , used to make a Mandatory Decrease, if applicable, in accordance with Sections 8.2(a)  and 9.4(e)  of this Series Supplement, (iii)  third , at the option of HVF to make a Voluntary Decrease in accordance with Sections 8.2(b)  and 9.4(e)  of this Series Supplement and (iv)  fourth , any remaining funds may be released to HVF; provided , that (x) the application of such funds pursuant to clauses (iii)  through (iv)  above may be made only to the extent that no Series 2010-2 Enhancement Deficiency or other Series 2010-2 Amortization Event would result therefrom or exist immediately thereafter.  Notwithstanding the foregoing, on the first day of the Series 2010-2 Controlled Amortization Period and, subject to the proviso to Section 9.1(b)(ii) , on each Business Day thereafter or, if earlier, the first day of the Series 2010-2 Rapid Amortization Period, all funds on deposit in the Series 2010-2 Excess Collection Account (including amounts allocated thereto pursuant to Section  10 .1(a)(ii) , (b)(ii) , (c)(ii)  or (d)(v)  of this Series Supplement) will be withdrawn from the Series 2010-2 Excess Collection Account and deposited into the Series 2010-2 Collection Account and applied in accordance with Section 9.1(b)(ii)  or 9.1(c)(ii)  of this Series Supplement, as the case may be.

 

Section 9.2.                                    Application of Series 2010-2 Interest Collections.

 

On the fourth Business Day prior to each Payment Date, as provided below, the Series 2010-2 Administrator shall instruct the Trustee in writing pursuant to the Series 2010-2 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 2010-2 Accrued Interest Account pursuant to Section 9.2(a)  below in respect of all funds available from any Series 2010-2 Interest Rate Caps and Series 2010-2 Interest Collections processed since the preceding Payment Date and allocated to the holders of the Series 2010-2 Notes.

 

(a)                                   Note Interest with respect to the Series 2010-2 Notes .  On the fourth Business Day prior to each Payment Date, the Series 2010-2 Administrator shall instruct the Trustee in writing pursuant to the Series 2010-2 Administration Agreement as to the amount to be withdrawn from the Series 2010-2 Accrued Interest Account to the extent funds are anticipated to be available from Series 2010-2 Interest Collections processed from but not including the Payment Date immediately preceding such Payment Date through such Payment Date and any amounts payable to HVF under any Series 2010-2 Interest Rate Cap during that period in respect of (i) (I)  first , an amount equal to the sum of (A) the Series 2010-2 Monthly Interest (excluding amounts referenced in clause (ii)  of the definition thereof to the extent duplicative of Series 2010-2 Deficiency Amounts payable under clause (ii)  below) for such Payment Date (the portion of such amount of Series 2010-2 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 2010-2 Monthly Interest with respect to any such Estimated Interest Period, the “ Estimated Interest ”) shall be estimated by the Series 2010-2 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 2010-2 Noteholders and unpaid as of

 

94


 

such Payment Date which are not included in the definition of Series 2010-2 Monthly Interest, (ii)  second , an amount equal to the unpaid Series 2010-2 Deficiency Amounts, if any, as of the preceding Payment Date (together with any accrued interest on such Series 2010-2 Deficiency Amounts as calculated in accordance with Section 9.2(e)) and (iii)  third , an amount equal to the Series 2010-2 Monthly Default Interest Amount, if any, for such Payment Date.  On or before 10:00 a.m. (New York City time) on such Payment Date, the Trustee shall withdraw the amounts described in the first sentence of this Section 9.2(a) , from the Series 2010-2 Accrued Interest Account and deposit such amounts into the Series 2010-2 Distribution Account.

 

On or before 4:00 p.m. (New York City time) on the Business Day immediately preceding each Determination Date, the Series 2010-2 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 Series 2010-2 Administrator shall notify the Trustee of the amount of any Series 2010-2 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 2010-2 Reserve Account .  If the Series 2010-2 Administrator determines on any Payment Date that the amounts available from the Series 2010-2 Accrued Interest Account are insufficient to pay the sum of the amounts described in clauses (i)  and (ii)  of Section 9.2(a)  of this Series Supplement on such Payment Date, the Series 2010-2 Administrator shall instruct the Trustee in writing to withdraw from the Series 2010-2 Reserve Account and deposit in the Series 2010-2 Distribution Account on such Payment Date an amount equal to the lesser of the Series 2010-2 Available Reserve Account Amount and such insufficiency.  The Trustee shall withdraw such amount from the Series 2010-2 Reserve Account and deposit such amount in the Series 2010-2 Distribution Account.

 

(d)                                  Draws on Series 2010-2 Letters of Credit .  If the Series 2010-2 Administrator determines on any Payment Date that there exists a Series 2010-2 Lease Interest Payment Deficit, the Series 2010-2 Administrator shall instruct the Trustee in writing to draw on the Series 2010-2 Letters of Credit, if any, and, upon receipt of such notice by the Trustee on or prior to 10:30 a.m. (New York City time) on such Payment Date, the Trustee shall, by 12:00 p.m. (New York City time) on such Payment Date draw an amount, as set forth in such notice, equal to the least of (i) such Series 2010-2 Lease Interest Payment Deficit, (ii) the excess, if any, of the sum of the amounts described in clauses (i)  and (ii)  of Section 9.2(a)  of this Series Supplement on such Payment Date over the amounts available from the Series 2010-2 Accrued Interest Account plus the amount withdrawn from the Series 2010-2 Reserve Account pursuant to Section 9.2(c)  of this Series Supplement on such Payment Date and (iii) the Series 2010-2 Letter of Credit Liquidity Amount on the Series 2010-2 Letters of Credit by presenting to each Series 2010-2 Letter of Credit Provider a draft accompanied by a

 

95



 

Series 2010-2 Certificate of Credit Demand and shall cause the Series 2010-2 LOC Credit Disbursements to be deposited in the Series 2010-2 Distribution Account on such Payment Date; provided , however , that if the Series 2010-2 Cash Collateral Account has been established and funded, the Trustee shall withdraw from the Series 2010-2 Cash Collateral Account and deposit in the Series 2010-2 Distribution Account an amount equal to the lesser of (x) the Series 2010-2 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 2010-2 Available Cash Collateral Account Amount on such Payment Date and draw an amount equal to the remainder of such amount on the Series 2010-2 Letters of Credit.

 

(e)                                   Deficiency Amounts .  If the amounts described in Sections 9.2(a) , (b) , (c)  and (d)  of this Series Supplement are insufficient to pay the Series 2010-2 Monthly Interest for any Payment Date, payments of interest to the Series 2010-2 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 2010-2 Notes shall be referred to as the “ Series 2010-2 Deficiency Amount ”.  Interest shall accrue on the Series 2010-2 Deficiency Amount at the applicable Series 2010-2 Note Rate.

 

(f)                                     Balance .  On the fourth Business Day prior to each Payment Date, the Series 2010-2 Administrator shall instruct the Trustee in writing pursuant to the Series 2010-2 Administration Agreement to pay, on such Payment Date, the balance (after making the payments required in Section 9.3 of this Series Supplement), if any, of the amounts available from the Series 2010-2 Accrued Interest Account as follows:

 

(i)                                      first , to the Series 2010-2 Administrator, in an amount equal to the Series 2010-2 Monthly Administration Fee for such Series 2010-2 Interest Period;

 

(ii)                                   second , to the Trustee, in an amount equal to the Series 2010-2 Percentage as of the beginning of the Series 2010-2 Interest Period ending on the day preceding such Payment Date of the Trustee’s fees for such Series 2010-2 Interest Period;

 

(iii)                                third , on a pro rata basis, to pay any Indenture Carrying Charges (other than any Indenture Carrying Charges relating solely to one or more Series of Notes and/or Other Segregated Series of Notes) to the Persons to whom such amounts are owed, in an amount equal to the Series 2010-2 Percentage as of the beginning of the Series 2010-2 Interest Period ending on the day preceding such Payment Date of such Indenture Carrying Charges (other than Indenture Carrying Charges provided for above (which, for the avoidance of doubt, shall include the Indenture Carrying Charges owed to the Series 2010-2 Noteholders)) for such Series 2010-2 Interest Period;

 

(iv)                               fourth , on a pro rata basis, to pay any Series 2010-2 Carrying Charges (other than Indenture Carrying Charges provided for above) to the

 

96



 

Persons to whom such amounts are owed for such Series 2010-2 Interest Period; and

 

(v)                                  fifth , the balance, if any, shall be withdrawn from the Series 2010-2 Accrued Interest Account by the Trustee and (A) during the Series 2010-2 Revolving Period, deposited into the Series 2010-2 Excess Collection Account or (B) during the Series 2010-2 Controlled Amortization Period or the Series 2010-2 Rapid Amortization Period, deposited into the Series 2010-2 Collection Account and treated as Series 2010-2 Principal Collections;

 

provided , that, it is understood and agreed that any payments of Indenture Carrying Charges made pursuant to clauses (ii) and (iii) above with respect to any Payment Date shall be deemed made prior to the determination and payment of any “Indenture Carrying Charges” (as defined in the applicable Series Supplement) pursuant to any Series Supplement relating to a Series of Notes in respect of such Payment Date.

 

(g)                                  Trustee Fees . If, on any Payment Date after the occurrence and during the continuance of a Series 2010-2 Limited Liquidation Event of Default, (x) the funds available to pay the Trustee fees pursuant to Section 9.2(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 9.2(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 Series 2010-2 Administrator shall instruct the Trustee in writing to withdraw from the Series 2010-2 Reserve Account and pay to itself on such Payment Date an amount equal to the least of (A) the Series 2010-2 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 2010-2 Required Asset Amount as of the date of the occurrence of such Series 2010-2 Limited Liquidation Event of Default over (ii) the aggregate of the amounts previously withdrawn from the Series 2010-2 Reserve Account under this Section 9.2(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 2010-2 Reserve Account and pay or reimburse itself.

 

Section 9.3.                                    Payment of Note Interest .   On each Payment Date, the Trustee shall, in accordance with Section 5.1 hereof, pay to the Series 2010-2 Noteholders from the Series 2010-2 Distribution Account the amount deposited in the Series 2010-2 Distribution Account for the payment of all amounts payable to the Series 2010-2 Noteholders pursuant to Section 9.2 of this Series Supplement.

 

Section 9.4.                                    Payment of Note Principal.

 

(a)                                   Monthly Payments During Series 2010-2 Controlled Amortization Period or Series 2010-2 Rapid Amortization Period .  Commencing on

 

97



 

the earlier to occur of (i) the Determination Date immediately preceding the first Series 2010-2 Controlled Amortization Payment Date, or (ii) the first Determination Date after the commencement of the Series 2010-2 Rapid Amortization Period and on each Determination Date thereafter, the Series 2010-2 Administrator shall instruct the Trustee in writing pursuant to the Series 2010-2 Administration Agreement as to (v) the amount allocated to the Series 2010-2 Notes pursuant to Section 9.1(b)(ii)  or 9.1(c)(ii)  of this Series Supplement, as the case may be, and any amounts allocated from the Series 2010-2 Excess Collection Account to the Series 2010-2 Collection Account pursuant to Section 9.1(f)  of this Series Supplement and/or allocated to the Series 2010-2 Collection Account pursuant to Section 9.2(f)  of this Series Supplement, in each case, prior to such date and not previously deposited into the Series 2010-2 Distribution Account for payment to the Series 2010-2 Noteholders and the amount any Series 2010-2 Monthly Base Rent that will be allocated to the Series 2010-2 Notes pursuant to Section 9.1(b)(ii)  or 9.1(c)(ii)  of this Series Supplement, as the case may be, (w) any amounts to be withdrawn from the Series 2010-2 Reserve Account and deposited into the Series 2010-2 Distribution Account, (x) any amounts to be drawn on the Series 2010-2 Letters of Credit (and/or withdrawn from the Series 2010-2 Cash Collateral Account) and (y) the amount of any demand to be made under the Series 2010-2 Demand Note.  On each Series 2010-2 Controlled Amortization Payment Date and the Expected Final Payment Date, the Trustee shall withdraw such amounts from the Series 2010-2 Collection Account allocated to pay principal of the Series 2010-2 Notes during the related Series 2010-2 Controlled Amortization Payment Period and deposit such amount together with the proceeds of any demand made on the Series 2010-2 Demand Note received during the period from but excluding the immediately preceding Payment Date to and including such Payment Date into the Series 2010-2 Distribution Account, which amount and any other amounts deposited in the Series 2010-2 Distribution Account for the payment of principal of such Series 2010-2 Notes pursuant to Section 9.4(b)  of this Series Supplement during the related Series 2010-2 Controlled Amortization Payment Period shall be paid to the Series 2010-2 Noteholders in accordance with Section 9.4(e)(ii)  or 9.4(e)(iii)  of this Series Supplement, as the case may be.  On the Payment Date following each such Determination Date during the Series 2010-2 Rapid Amortization Period, the Trustee shall withdraw such amounts allocated to pay principal of the Series 2010-2 Notes from the Series 2010-2 Collection Account and deposit such amount together with the proceeds of any demand made on the Series 2010-2 Demand Note received during the period from but excluding the immediately preceding Payment Date to and including such Payment Date into the Series 2010-2 Distribution Account along with any other amounts deposited in the Series 2010-2 Distribution Account for the payment of principal of such Series 2010-2 Notes pursuant to Section 9.4(b)  of this Series Supplement and any amounts deposited in the Series 2010-2 Distribution Account pursuant to Section 9.4(c)  of this Series Supplement, in each case, during the related Series 2010-2 Rapid Amortization Payment Period, which amount shall be paid to the Series 2010-2 Noteholders until the Series 2010-2 Noteholders have been paid the Series 2010-2 Principal Amount in full.

 

(b)                                  Principal Deficit Amount .  If the Principal Deficit Amount is greater than zero on any date or the Series 2010-2 Administrator determines that there

 

98



 

exists a Series 2010-2 Lease Principal Payment Deficit, the Series 2010-2 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 2010-2 Lease Principal Payment Deficit exists, amounts shall be transferred to the Series 2010-2 Distribution Account as follows:

 

(i)                                      Series 2010-2 Reserve Account Withdrawal .  On each Payment Date on which the Principal Deficit Amount is greater than zero, the Series 2010-2 Administrator shall instruct the Trustee in writing prior to 12:00 noon (New York City time) on such Payment Date, in the case of a Principal Deficit Amount resulting from a Series 2010-2 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 2010-2 Reserve Account, an amount equal to the lesser of (x) such Principal Deficit Amount and (y) the Series 2010-2 Available Reserve Account Amount on such Payment Date (after giving effect to any withdrawals from the Series 2010-2 Reserve Account on such Payment Date pursuant to Section 9.2(c)  of this Series Supplement), and deposit such withdrawal in the Series 2010-2 Distribution Account on such Payment Date.

 

(ii)                                   Principal Draws on Series 2010-2 Letters of Credit .  If the Series 2010-2 Administrator determines on any Payment Date that there exists a Series 2010-2 Lease Principal Payment Deficit that exceeds the amount, if any, withdrawn from the Series 2010-2 Reserve Account in accordance with clause (i)  of this Section 9.4(b) , then the Series 2010-2 Administrator shall instruct the Trustee in writing to draw on the Series 2010-2 Letters of Credit, if any, in an amount equal to the least of (1) the excess of the Series 2010-2 Lease Principal Payment Deficit over the amount, if any, withdrawn from the Series 2010-2 Reserve Account in accordance with clause (i)  of this Section 9.4(b) , (2) the Series 2010-2 Letter of Credit Liquidity Amount (after giving effect to any drawings on the Series 2010-2 Letters of Credit on such Payment Date pursuant to Section 9.2(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 Series 2010-2 Monthly Variable Rent required to be made under the Series 2010-2 Lease, the excess, if any, of the Principal Deficit Amount over the amount, if any, withdrawn from the Series 2010-2 Reserve Account in accordance with clause (i)  of this Section 9.4(b) .  Upon receipt of a notice by the Trustee from the Series 2010-2 Administrator in respect of a Series 2010-2 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 Series 2010-2 Letters of Credit by presenting to each Series 2010-2 Letter of Credit Provider a draft accompanied by a Series 2010-2 Certificate of Credit Demand and shall cause the Series 2010-2 LOC Credit Disbursements to be deposited in the Series 2010-2 Distribution Account

 

99



 

on such Payment Date; provided , however , that if the Series 2010-2 Cash Collateral Account has been established and funded, the Trustee shall withdraw from the Series 2010-2 Cash Collateral Account and deposit in the Series 2010-2 Distribution Account an amount equal to the lesser of (x) the Series 2010-2 Cash Collateral Percentage on such Payment Date of the amount set forth in the notice provided to the Trustee by the Series 2010-2 Administrator and (y) the Series 2010-2 Available Cash Collateral Account Amount on such Payment Date and draw an amount equal to the remainder of such amount on the Series 2010-2 Letters of Credit.

 

(iii)                                Demand Note Draw .                                      If on any Determination Date, the Series 2010-2 Administrator determines that the Principal Deficit Amount on the next succeeding Payment Date (after giving effect to the withdrawal from the Series 2010-2 Reserve Account on such Payment Date pursuant to clause (i)  of this Section 9.4(b)  of this Series Supplement and any drawings on the Series 2010-2 Letters of Credit on such Payment Date pursuant to clause (ii)  of this Section 9.4(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 Series 2010-2 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 2010-2 Demand Note in an amount equal to the lesser of (i) the Principal Deficit Amount less the amount to be deposited in the Series 2010-2 Distribution Account in accordance with clauses (i)  and/or (ii)  of this Section 9.4(b)  of this Series Supplement and (ii) the principal amount of the Series 2010-2 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 2010-2 Demand Note to be deposited into the Series 2010-2 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 9.4(b)(iii)  of this Series Supplement and Hertz shall have failed to pay to the Trustee or deposit into the Series 2010-2 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, (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 2010-2 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

 

100



 

Series 2010-2 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 2010-2 Letter of Credit Amount on such Business Day, by presenting to each Series 2010-2 Letter of Credit Provider a draft accompanied by a Series 2010-2 Certificate of Unpaid Demand Note Demand or, in the case of a Preference Amount, a Series 2010-2 Certificate of Preference Payment Demand; provided , however that if the Series 2010-2 Cash Collateral Account has been established and funded, the Trustee shall withdraw from the Series 2010-2 Cash Collateral Account and deposit in the Series 2010-2 Distribution Account an amount equal to the lesser of (x) the Series 2010-2 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 2010-2 Available Cash Collateral Account Amount on such Business Day and draw an amount equal to the remainder of such amount on the Series 2010-2 Letters of Credit.  The Trustee shall deposit, or cause the deposit of, the proceeds of any such draw on the Series 2010-2 Letters of Credit and the proceeds of any such withdrawal from the Series 2010-2 Cash Collateral Account into the Series 2010-2 Distribution Account and such proceeds shall be treated as Series 2010-2 Principal Collections.

 

(c)                                   Legal Final Payment Dates .  The Series 2010-2 Principal Amount shall be due and payable on the Legal Final Payment Date.  In connection therewith:

 

(i)                                      Series 2010-2 Reserve Account Withdrawal .  If the amount to be deposited in the Series 2010-2 Distribution Account in accordance with Section 9.4(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 9.4(b)  of this Series Supplement on the Legal Final Payment Date, in each case, to pay principal of the Series 2010-2 Notes, is less than the Series 2010-2 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 Series 2010-2 Administrator shall instruct the Trustee to withdraw from the Series 2010-2 Reserve Account, an amount equal to the lesser of (i) the Series 2010-2 Available Reserve Account Amount (after giving effect to any withdrawals from the Series 2010-2 Reserve Account pursuant to Section 9.2(c)  and Section 9.4(b)(i)  of this Series Supplement), and (ii) such insufficiency, and deposit such withdrawn amounts in the Series 2010-2 Distribution Account on the Legal Final Payment Date.  The Trustee shall withdraw such amounts from the Series 2010-2 Reserve Account and deposit such amounts in the Series 2010-2 Distribution Account on or prior to the Legal Final Payment Date.

 

(ii)                                   Demand Note Draw .                                      If the amount to be deposited in the Series 2010-2 Distribution Account pursuant to Section 9.4(a)  of this Series Supplement together with any amounts to be deposited therein in accordance with Section 9.4(b)  and Section 9.4(c)(i)  of this Series Supplement on the Legal Final Payment Date is less than the Series 2010-2 Principal Amount, then, prior to 10:00 a.m. (New York City time) on the second Business Day prior to the Legal

 

101



 

Final Payment Date, the Series 2010-2 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 2010-2 Demand Note in an amount equal to the lesser of (i) such insufficiency and (ii) the principal amount of the Series 2010-2 Demand Note.  The Trustee shall, prior to 12:00 noon (New York City time) on the second Business Day preceding the Legal Final Payment Date, deliver such Demand Notice to Hertz; provided , however , that if an Event of Bankruptcy (or the occurrence of an event described in clause (a)  of the definition thereof, without the lapse of a period of 60 consecutive days) with respect to Hertz shall have occurred and be continuing, the Trustee shall not be required to deliver such Demand Notice to Hertz.  The Trustee shall cause the proceeds of any demand on the Series 2010-2 Demand Note to be deposited into the Series 2010-2 Distribution Account, and such proceeds shall be treated as Series 2010-2 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 9.4(c)(ii)  of this Series Supplement and Hertz shall have failed to pay to the Trustee or deposit into the Series 2010-2 Distribution Account the amount specified in such Demand Notice referred to in Section 9.4(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 2010-2 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 2010-2 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 2010-2 Letter of Credit Amount on such Business Day, by presenting to each Series 2010-2 Letter of Credit Provider a draft accompanied by a Series 2010-2 Certificate of Unpaid Demand Note Demand or, in the case of a Preference Amount, a Series 2010-2 Certificate of Preference Demand; provided , however that if the Series 2010-2 Cash Collateral Account has been established and funded, the Trustee shall withdraw from the Series 2010-2 Cash Collateral Account and deposit in the Series 2010-2 Distribution Account an amount equal to the lesser of (x) the Series 2010-2 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 2010-2 Available Cash Collateral Account Amount on such Business Day and draw an amount equal to the remainder of such amount on the Series 2010-2 Letters of Credit.  The Trustee shall deposit, or cause the deposit of, the proceeds of any such draw on the Series 2010-2 Letters of Credit and the proceeds of any such withdrawal from the Series 2010-2 Cash Collateral Account into the Series 2010-2 Distribution Account and such proceeds shall be treated as Series 2010-2 Principal Collections.

 

 

102



 

(d)                                  Distribution .  On each Payment Date occurring on or after the date a withdrawal is made pursuant to Section 9.4(a)  of this Series Supplement and any amounts are deposited in the Series 2010-2 Distribution Account for the payment of principal of such Series 2010-2 Notes pursuant to Section 9.4(b)  of this Series Supplement and/or Section 9.4(c)  of this Series Supplement, the Trustee shall, in accordance with Section 5.1 hereof, pay to the Series 2010-2 Noteholders the amount deposited in the Series 2010-2 Distribution Account for the payment of principal of the Series 2010-2 Notes held by such Series 2010-2 Noteholders pursuant to Section 9.4(a)  of this Series Supplement and Section 9.4(e)(ii)  or 9.4(e)(iii)  of this Series Supplement, as applicable.  After the commencement of the Series 2010-2 Controlled Amortization Period or the Series 2010-2 Rapid Amortization Period and the payment in full of the Series 2010-2 Principal Amount, any remaining Series 2010-2 Principal Collections shall be withdrawn from the Series 2010-2 Collection Account and/or the Series 2010-2 Excess Collection Account and used to pay any remaining amounts payable by the Issuer pursuant to this Series Supplement or the Series 2010-2 Note Purchase Agreement in accordance with the priorities set forth in Sections 9.2(a)  and (f)  of this Series Supplement.

 

(e)                                   Decreases .  (i)  On any Business Day on which (a) a Mandatory Decrease pursuant to Section 8.2(a)  of this Series Supplement shall be declared, the Trustee shall withdraw from the Series 2010-2 Excess Collection Account in accordance with the written instructions of the Series 2010-2 Administrator an amount equal to the lesser of (x) the funds then allocated to the Series 2010-2 Excess Collection Account and available for payment of such Mandatory Decrease pursuant to Section 9.1(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 2010-2 Noteholders as a payment of principal of the Series 2010-2 Notes or (b) a Voluntary Decrease pursuant to Section 8.2(b)  of this Series Supplement shall be declared, the Trustee shall distribute the amounts withdrawn from the Series 2010-2 Excess Collection Account (and available for payment of such Voluntary Decrease pursuant to Section 9.1(f)  of this Series Supplement) and/or the Series 2010-2 Collection Account (and available in such account for payment of principal of the Series 2010-2 Notes) (x) to any Terminated Purchaser up to such Terminated Purchaser’s Investor Group Principal Amount or (y) otherwise, on a pro rata basis to the Series 2010-2 Noteholders, in each case, as a payment of principal of the Series 2010-2 Notes.

 

(ii)                                   On each Series 2010-2 Controlled Amortization Payment Date other than the Expected Final Payment Date, after giving effect to deposits in the Series 2010-2 Distribution Account pursuant to Sections 9.4(a)  and 9.4(b)  of this Series Supplement, the Trustee shall withdraw from the Series 2010-2 Distribution Account an amount equal to the lesser of (x) the funds on deposit in the Series 2010-2 Distribution Account and available for payment of principal of the Series 2010-2 Notes and (y) the Series 2010-2 Controlled Amortization Amount in respect of such Series 2010-2 Controlled Amortization Payment Date, and distribute such amount to the Series 2010-2 Noteholders on a pro rata basis as payment of principal of the Series 2010-2 Notes.

 

103



 

(iii)                                On the Expected Final Payment Date, after giving effect to deposits in the Series 2010-2 Distribution Account pursuant to Sections 9.4(a)  and 9.4(b)  of this Series Supplement, the Trustee shall withdraw from the Series 2010-2 Distribution Account an amount equal to the lesser of (x) the funds on deposit in the Series 2010-2 Distribution Account and available for payment of principal of the Series 2010-2 Notes and (y) the Series 2010-2 Principal Amount on such date, and distribute such amount to the Series 2010-2 Noteholders on a pro rata basis as payment of principal of the Series 2010-2 Notes until the Series 2010-2 Noteholders have been paid the Series 2010-2 Principal Amount in full.

 

Section 9.5.                                    Payment by Wire Transfer .   On each Payment Date, pursuant to Section 5.1 and Sections 9.3 and 9.4 hereof, the Trustee shall cause the amounts (to the extent received by the Trustee) set forth in Section 9.3 or 9.4 of this Series Supplement to be paid by wire transfer of immediately available funds released from the Series 2010-2 Distribution Account no later than 4:30 p.m. (New York City time) for credit to the account designated by the Series 2010-2 Noteholders.

 

Section 9.6.                                    The Series 2010-2 Administrator’s Failure to Instruct the Trustee to Make a Deposit or Payment .  If the Series 2010-2 Administrator fails to give notice or instructions to make any payment from or deposit into any Series 2010-2 Series Account required to be given by the Series 2010-2 Administrator, at the time specified in the Series 2010-2 Administration Agreement or any other Series 2010-2 Related Document (including applicable grace periods), the Trustee shall make such payment or deposit into or from such Series 2010-2 Series Account without such notice or instruction from the Series 2010-2 Administrator, provided that the Series 2010-2 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 Series 2010-2 Related Document is required to be made by the Trustee at or prior to a specified time, the Series 2010-2 Administrator shall deliver any applicable written instructions with respect thereto reasonably in advance of such specified time.  If the Series 2010-2 Administrator fails to give instructions to draw on any Series 2010-2 Letters of Credit with respect to a Class of Series 2010-2 Notes required to be given by the Series 2010-2 Administrator, at the time specified in this Series Supplement, the Trustee shall draw on such Series 2010-2 Letters of Credit with respect to such Class of Series 2010-2 Notes without such instruction from the Series 2010-2 Administrator, provided that the Series 2010-2 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 2010-2 Letter of Credit.

 

Section 9.7.                                    Series 2010-2 Reserve Account.

 

(a)                                   Establishment of Series 2010-2 Reserve Account .  HVF shall establish and maintain in the name of the Trustee for the benefit of the Series 2010-2 Noteholders an account (the “ Series 2010-2 Reserve Account ”), bearing a designation clearly indicating that the funds deposited therein are held for the benefit of the Series 2010-2 Noteholders.  The Series 2010-2 Reserve Account shall be an Eligible Deposit

 

104


 

Account. If the Series 2010-2 Reserve Account is at any time no longer an Eligible Deposit Account, HVF shall, within 10 Business Days of obtaining knowledge that the Series 2010-2 Reserve Account is no longer an Eligible Deposit Account, establish a new Series 2010-2 Reserve Account that is an Eligible Deposit Account.  If a new Series 2010-2 Reserve Account is established, HVF shall instruct the Trustee in writing to transfer all cash and investments from the non-qualifying Series 2010-2 Reserve Account into the new Series 2010-2 Reserve Account.  Initially, the Series 2010-2 Reserve Account will be established with the Trustee.

 

(b)            [Reserved]

 

(c)            Earnings from Series 2010-2 Reserve Account .  All interest and earnings (net of losses and investment expenses) paid on funds on deposit in the Series 2010-2 Reserve Account shall be deemed to be on deposit therein and available for distribution unless previously distributed pursuant to the terms hereof.

 

(d)            Series 2010-2 Reserve Account Constitutes Additional Collateral for Series 2010-2 Notes .   In order to secure and provide for the repayment and payment of the Series 2010-2 Note Obligations with respect to the Series 2010-2 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 2010-2 Noteholders, all of HVF’s right, title and interest in and to the following (whether now or hereafter existing or acquired):  (i) the Series 2010-2 Reserve Account, including any security entitlement with respect to financial assets credited 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 2010-2 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 2010-2 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 2010-2 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 2010-2 Reserve Account Collateral ”).

 

(e)            Series 2010-2 Reserve Account Surplus .  In the event that the Series 2010-2 Reserve Account Surplus on any Payment Date is greater than zero, the Trustee, acting in accordance with the written instructions of the Series 2010-2 Administrator (with a copy to the Administrative Agent), shall withdraw from the Series 2010-2 Reserve Account an amount equal to the Series 2010-2 Reserve Account Surplus and pay such Series 2010-2 Reserve Account Surplus to HVF.

 

(f)             Termination of Series 2010-2 Reserve Account .  On or after the date on which the Series 2010-2 Notes are fully paid, the Trustee, acting in accordance with the written instructions of the Series 2010-2 Administrator, shall

 

105



 

withdraw from the Series 2010-2 Reserve Account all remaining amounts on deposit therein and pay such amounts to HVF.

 

Section 9.8.   Series 2010-2 Letters of Credit and Series 2010-2 Cash Collateral Accounts.

 

(a)            Series 2010-2 Cash Collateral Account Constitutes Additional Collateral for Series 2010-2 Notes .  In order to secure and provide for the repayment and payment of the Series 2010-2 Note Obligations with respect to the Series 2010-2 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 2010-2 Noteholders, all of HVF’s right, title and interest in and to the following (whether now or hereafter existing or acquired): (i) the Series 2010-2 Cash Collateral Account, including any security entitlement with respect to financial assets credited thereto; (ii) all funds on deposit in the Series 2010-2 Cash Collateral Account from time to time; (iii) all certificates and instruments, if any, representing or evidencing any or all of the Series 2010-2 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 2010-2 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 2010-2 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 2010-2 Cash Collateral Account Collateral ”).

 

(b)            Series 2010-2 Letter of Credit Expiration Date . If prior to the date which is sixteen (16) Business Days prior to the then scheduled Series 2010-2 Letter of Credit Expiration Date with respect to any Series 2010-2 Letter of Credit, excluding the amount available to be drawn under such Series 2010-2 Letter of Credit but taking into account each substitute Series 2010-2 Letter of Credit which has been obtained from a Series 2010-2 Eligible Letter of Credit Provider and is in full force and effect on such date, (i) the Series 2010-2 Adjusted Enhancement Amount would be equal to or greater than the Series 2010-2 Required Enhancement Amount, (ii) the Series 2010-2 Adjusted Liquidity Amount would be equal to or greater than the Series 2010-2 Required Liquidity Amount, or (iii) the Series 2010-2 Letter of Credit Liquidity Amount would be equal to or greater than the Series 2010-2 Demand Note Payment Amount, then the Series 2010-2 Administrator shall notify the Trustee and the Administrative Agent in writing no later than fifteen (15) Business Days prior to such Series 2010-2 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 2010-2 Letter of Credit Expiration Date with respect to any Series 2010-2 Letter of Credit, excluding such Series 2010-2 Letter of Credit but taking into account any substitute Series 2010-2 Letter of Credit which has been obtained from a Series 2010-2 Eligible Letter of Credit Provider and is in full force and effect on such date, (i) the Series 2010-2 Aggregate Asset Amount would be less than the Series 2010-2 Required Asset

 

106



 

Amount, (ii) the Series 2010-2 Adjusted Liquidity Amount would be less than the Series 2010-2 Required Liquidity Amount, or (iii) the Series 2010-2 Letter of Credit Liquidity Amount would be less than the Series 2010-2 Demand Note Payment Amount, then the Series 2010-2 Administrator shall notify the Trustee and the Administrative Agent in writing no later than fifteen (15) Business Days prior to such Series 2010-2 Letter of Credit Expiration Date of (x) the greatest of (A) the excess, if any, of the Series 2010-2 Required Asset Amount over the Series 2010-2 Aggregate Asset Amount, excluding such Series 2010-2 Letter of Credit but taking into account any substitute Series 2010-2 Letter of Credit which has been obtained from a Series 2010-2 Eligible Letter of Credit Provider and is in full force and effect on such date, (B) the excess, if any, of the Series 2010-2 Required Liquidity Amount over the Series 2010-2 Adjusted Liquidity Amount, excluding such Series 2010-2 Letter of Credit but taking into account each substitute Series 2010-2 Letter of Credit which has been obtained from a Series 2010-2 Eligible Letter of Credit Provider and is in full force and effect on such date, and (C) the excess, if any, of the Series 2010-2 Demand Note Payment Amount over the Series 2010-2 Letter of Credit Liquidity Amount, excluding such Series 2010-2 Letter of Credit but taking into account each substitute Series 2010-2 Letter of Credit which has been obtained from a Series 2010-2 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 2010-2 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 2010-2 Letter of Credit by presenting a draft accompanied by a Series 2010-2 Certificate of Termination Demand and shall cause the Series 2010-2 LOC Termination Disbursements to be deposited in the Series 2010-2 Cash Collateral Account.  If the Trustee does not receive the notice from the Series 2010-2 Administrator described above on or prior to the date that is fifteen (15) Business Days prior to each Series 2010-2 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 2010-2 Letter of Credit by presenting a draft accompanied by a Series 2010-2 Certificate of Termination Demand and shall cause the Series 2010-2 LOC Termination Disbursements to be deposited in the applicable Series 2010-2 Cash Collateral Account.

 

(c)            Series 2010-2 Letter of Credit Providers .  The Series 2010-2 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 2010-2 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 2010-2 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 2010-2 Letter of Credit Provider, a “ Series 2010-2 Downgrade Event ”).  On the thirtieth (30th) day after the occurrence of a Series 2010-2 Downgrade Event with respect to any Series 2010-2 Letter of Credit Provider, the Series 2010-2

 

107



 

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 2010-2 Required Asset Amount over the Series 2010-2 Aggregate Asset Amount, excluding the available amount under the Series 2010-2 Letter of Credit issued by such Series 2010-2 Letter of Credit Provider, on such date, (B) the excess, if any, of the Series 2010-2 Required Liquidity Amount over the Series 2010-2 Adjusted Liquidity Amount, excluding the available amount under such Series 2010-2 Letter of Credit, on such date, and (C) the excess, if any, of the Series 2010-2 Demand Note Payment Amount over the Series 2010-2 Letter of Credit Liquidity Amount, excluding the available amount under such Series 2010-2 Letter of Credit, on such date, and (ii) the amount available to be drawn on such Series 2010-2 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 2010-2 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 2010-2 Certificate of Termination Demand and shall cause the Series 2010-2 LOC Termination Disbursement to be deposited in a Series 2010-2 Cash Collateral Account.

 

(d)            Reductions in Stated Amounts of the Series 2010-2 Letters of Credit.   If the Trustee receives a written notice from the Series 2010-2 Lessee, substantially in the form of Exhibit D , requesting a reduction in the stated amount of any Series 2010-2 Letter of Credit, the Trustee shall within two Business Days of the receipt of such notice deliver to the Series 2010-2 Letter of Credit Provider who issued such Series 2010-2 Letter of Credit a Series 2010-2 Notice of Reduction requesting a reduction in the stated amount of such Series 2010-2 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 2010-2 Letter of Credit, (i) the Series 2010-2 Aggregate Asset Amount will equal or exceed the Series 2010-2 Required Asset Amount, (ii) the Series 2010-2 Adjusted Liquidity Amount will equal or exceed the Series 2010-2 Required Liquidity Amount, and (iii) the Series 2010-2 Letter of Credit Liquidity Amount will equal or exceed the Series 2010-2 Demand Note Payment Amount.

 

(e)            Draws on the Series 2010-2 Letters of Credit.   If there is more than one Series 2010-2 Letter of Credit on the date of any draw on the Series 2010-2 Letters of Credit pursuant to the terms of this Series Supplement (other than pursuant to Sections 9.8(b)  and (c)  of this Series Supplement), the Series 2010-2 Administrator shall instruct the Trustee, in writing, to draw on each Series 2010-2 Letter of Credit in an amount equal to the Pro Rata Share of the Series 2010-2 Letter of Credit Provider issuing such Series 2010-2 Letter of Credit of the amount of such draw on the Series 2010-2 Letters of Credit.

 

(f)             Establishment of Series 2010-2 Cash Collateral Account.   On or prior to the date of any drawing under a Series 2010-2 Letter of Credit pursuant to

 

108



 

Section 9.8(b)  or (c)  of this Series Supplement, HVF shall establish and maintain in the name of the Trustee for the benefit of the Series 2010-2 Noteholders, an account (the “ Series 2010-2 Cash Collateral Account ”), bearing a designation clearly indicating that the funds deposited therein are held for the benefit of the Series 2010-2 Noteholders.  The Series 2010-2 Cash Collateral Account shall be an Eligible Deposit Account.  If the Series 2010-2 Cash Collateral Account is at any time no longer an Eligible Deposit Account, HVF shall, within 10 Business Days of obtaining knowledge that the Series 2010-2 Cash Collateral Account is no longer an Eligible Deposit Account, establish a new Series 2010-2 Cash Collateral Account that is an Eligible Deposit Account.  If a new Series 2010-2 Cash Collateral Account is established, HVF shall instruct the Trustee in writing to transfer all cash and investments from the non-qualifying Series 2010-2 Cash Collateral Account into the new Series 2010-2 Cash Collateral Account.

 

(g)            [Reserved]

 

(h)            Earnings from Series 2010-2 Cash Collateral Account .  All Series 2010-2 Cash Collateral Account Interest and Earnings shall be deemed to be on deposit therein and available for distribution unless previously distributed pursuant to the terms hereof.

 

(i)             Series 2010-2 Cash Collateral Account Surplus .  In the event that the Series 2010-2 Cash Collateral Account Surplus on any Payment Date is greater than zero, the Series 2010-2 Administrator may direct the Trustee to, and the Trustee, acting in accordance with the written instructions of the Series 2010-2 Administrator (with a copy to the Administrative Agent), shall, subject to the limitations set forth in this Section 9.8(i) , withdraw the amount specified by the Series 2010-2 Administrator from the Series 2010-2 Cash Collateral Account specified by the Series 2010-2 Administrator and apply such amount in accordance with the terms of this Section 9.8(i) .  The amount of any such withdrawal from the Series 2010-2 Cash Collateral Account shall be limited to the least of (a) the Series 2010-2 Available Cash Collateral Account Amount on such Payment Date, (b) the Series 2010-2 Cash Collateral Account Surplus on such Payment Date and (c) the excess, if any, of the Series 2010-2 Letter of Credit Liquidity Amount on such Payment Date over the Series 2010-2 Demand Note Payment Amount on such Payment Date.  Any amounts withdrawn from the Series 2010-2 Cash Collateral Account pursuant to this Section 9.8(i)  shall be paid first , to the Series 2010-2 Letter of Credit Providers, to the extent that there are unreimbursed Series 2010-2 Disbursements due and owing to such Series 2010-2 Letter of Credit Providers in respect of the Series 2010-2 Letters of Credit, for application in accordance with the provisions of the respective Series 2010-2 Letters of Credit, and second , to HVF any remaining amounts.

 

(j)             Termination of Series 2010-2 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 Series 2010-2 Administrator, after the prior payment of all amounts due and owing to the Series 2010-2 Noteholders and payable from the Series 2010-2 Cash Collateral Account as provided herein, shall withdraw from such Series 2010-2 Cash Collateral Account all amounts on deposit

 

109



 

therein and shall pay such amounts first , pro rata to the Series 2010-2 Letter of Credit Providers, to the extent that there are unreimbursed Series 2010-2 Disbursements due and owing to such Series 2010-2 Letter of Credit Providers, for application in accordance with the provisions of the respective Series 2010-2 Letters of Credit, and second , to HVF any remaining amounts.

 

Section 9.9.   Series 2010-2 Distribution Account.

 

(a)            Establishment of Series 2010-2 Distribution Account .  The Trustee shall establish and maintain in the name of the Trustee for the benefit of the Series 2010-2 Noteholders an account (the “ Series 2010-2 Distribution Account ”), bearing a designation clearly indicating that the funds deposited therein are held for the benefit of the Series 2010-2 Noteholders.  The Series 2010-2 Distribution Account shall be an Eligible Deposit Account.  If the Series 2010-2 Distribution Account is at any time no longer an Eligible Deposit Account, HVF shall, within 10 Business Days of obtaining knowledge that the Series 2010-2 Distribution Account is no longer an Eligible Deposit Account, establish a new Series 2010-2 Distribution Account that is an Eligible Deposit Account.  If a new Series 2010-2 Distribution Account is established, HVF shall instruct the Trustee in writing to transfer all cash and investments from the non-qualifying Series 2010-2 Distribution Account into the new Series 2010-2 Distribution Account.  Initially, the Series 2010-2 Distribution Account will be established with the Trustee.

 

(b)            [Reserved]

 

(c)            Earnings from Series 2010-2 Distribution Account .  All interest and earnings (net of losses and investment expenses) paid on funds on deposit in the Series 2010-2 Distribution Account shall be deemed to be on deposit and available for distribution unless previously distributed pursuant to the terms hereof.

 

(d)            Series 2010-2 Distribution Account Constitutes Additional Collateral for Series 2010-2 Notes .  In order to secure and provide for the repayment and payment of the Series 2010-2 Note Obligations with respect to the Series 2010-2 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 2010-2 Noteholders, all of HVF’s right, title and interest in and to the following (whether now or hereafter existing or acquired): (i) the Series 2010-2 Distribution Account, including any security entitlement with respect to financial assets credited 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 2010-2 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 2010-2 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 2010-2 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

 

110



 

all of the foregoing, including cash (the items in the foregoing clauses (i)  through (vi)  are referred to, collectively, as the “ Series 2010-2 Distribution Account Collateral ”).

 

Section 9.10.   Trustee as Securities Intermediary.

 

(a)            The Trustee or other Person holding the Series 2010-2 Collection Account, the Series 2010-2 Excess Collection Account, the Series 2010-2 Accrued Interest Account, the Series 2010-2 Reserve Account, the Series 2010-2 Cash Collateral Account or the Series 2010-2 Distribution Account (each a “ Series 2010-2 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 2010-2 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 9.10 .

 

(b)            The Securities Intermediary agrees that:

 

(i)             The Series 2010-2 Designated Accounts are accounts to which “financial assets” within the meaning of Section 8-102(a)(9)  (“ Financial Assets ”) of the New York UCC will be credited;

 

(ii)            All securities or other property underlying any Financial Assets credited to any Series 2010-2 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 2010-2 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 2010-2 Designated Account;

 

(iv)           Each item of property (whether investment property, security, instrument or cash) credited to a Series 2010-2 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 2010-2 Designated Accounts, the Securities Intermediary shall comply with such entitlement order without further consent by HVF or the Series 2010-2 Administrator;

 

(vi)           The Series 2010-2 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

 

111



 

Securities Intermediary’s jurisdiction and the Series 2010-2 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 2010-2 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 9.10(b)(v)  of this Series Supplement; and

 

(viii)         Except for the claims and interest of the Trustee and HVF in the Series 2010-2 Designated Accounts, the Securities Intermediary knows of no claim to, or interest in, the Series 2010-2 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 2010-2 Designated Account or in any Financial Asset carried therein, the Securities Intermediary will promptly notify the Trustee, the Series 2010-2 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 2010-2 Designated Accounts and in all Proceeds thereof, and shall be the only person authorized to originate entitlement orders in respect of the Series 2010-2 Designated Accounts.

 

Section 9.11.   Series 2010-2 Interest Rate Caps.

 

(a)            On the Series 2010-2 Closing Date (or, if the Series 2010-2 Initial Principal Amount is zero, on or prior to the first Increase hereunder), HVF shall acquire one or more Series 2010-2 Interest Rate Caps from an Eligible Interest Rate Cap Provider.  At the time of the acquisition of the initial Series 2010-2 Interest Rate Caps, the aggregate notional amount of all Series 2010-2 Interest Rate Caps shall equal the Series 2010-2 Maximum Principal Amount, and the aggregate notional amount of all Series 2010-2 Interest Rate Caps may be reduced to the extent that the Series 2010-2 Maximum Principal Amount is reduced after the acquisition of the initial Series 2010-2 Interest Rate Caps but shall not at any time be less than the Series 2010-2 Maximum Principal Amount at such time.  HVF shall acquire one or more additional Series 2010-2 Interest Rate Caps in connection with any increase of the Series 2010-2 Maximum Principal Amount such that the aggregate notional amounts of all Series 2010-2 Interest Rate Caps shall equal the Series 2010-2 Maximum Principal Amount after giving effect to such increase. The strike rate of each Series 2010-2 Interest Rate

 

112



 

Cap shall not be greater than 5%. Each Series 2010-2 Interest Rate Cap shall have a term of at least until the Legal Final Payment Date.  Prior to obtaining any replacement Series 2010-2 Interest Rate Cap after the Series 2010-2 Closing Date, HVF shall obtain the prior consent of the Administrative Agent; provided , that HVF shall not be required to obtain such consent from the Administrative Agent in the event that such replacement Series 2010-2 Interest Rate Cap is based on 1-month LIBOR, contains substantially identical terms to the Series 2010-2 Interest Rate Cap being replaced with respect to the posting of collateral by the Interest Rate Cap Provider and the ratings requirements of the Interest Rate Cap Provider (and any guarantor thereof) and contains a substantially identical rate of scheduled amortization to the Series 2010-2 Interest Rate Cap being replaced.

 

(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 2010-2 Interest Rate Cap are guaranteed pursuant to a guarantee (in form and substance satisfactory to the Administrative Agent and satisfying the other requirements set forth in the related Series 2010-2 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 2010-2 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 2010-2 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 2010-2 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 2010-2 Interest Rate Cap (or with such modifications as are acceptable to the Administrative Agent) from an Eligible Interest Rate Cap Provider and, simultaneously with such replacement, HVF shall terminate the Series 2010-2 Interest Rate Cap being replaced; provided that no termination of the Series 2010-2 Interest Rate Cap shall occur until HVF has entered into a replacement Series 2010-2 Interest Rate Cap. Each Series 2010-2 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 2010-2 Interest Rate Cap, then the Interest Rate Cap Provider must, until such replacement is obtained or such Interest Rate Cap Provider again becomes an Eligible Interest Rate Cap Provider, collateralize its obligations under such Series 2010-2 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 9.11(c)  after making commercially reasonable efforts, HVF will obtain a replacement Series 2010-2 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 Series 2010-2 Carrying Charges and paid solely from Series 2010-2 Interest Collections available pursuant to Section 9.2(f)  of this Series Supplement).

 

113



 

(d)            Each Series 2010-2 Noteholder by its acceptance of a Series 2010-2 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 2010-2 Interest Rate Cap, (B) does not constitute collateral for the Series 2010-2 Notes (provided that in order to secure and provide for the payment of the Series 2010-2 Note Obligations, HVF has pledged each Series 2010-2 Interest Rate Cap and its security interest in any collateral posted in connection therewith as collateral for the Series 2010-2 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 2010-2 Interest Rate Cap and such collateral is applied in accordance with the terms of such Series 2010-2 Interest Rate Cap to satisfy such defaulted obligations of such Interest Rate Cap Provider.

 

(e)            HVF shall require all proceeds of each Series 2010-2 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 Series 2010-2 Collection Account, and the Trustee shall allocate all such proceeds to the Series 2010-2 Accrued Interest Account in accordance with Section 9.1 of this Series Supplement.

 

(f)             To secure payment of the Series 2010-2 Note Obligations, HVF hereby grants a security interest in, and assigns, pledges, grants, transfers and sets over to the Trustee, for the benefit of the Series 2010-2 Noteholders, all of HVF’s right, title and interest, whether now or hereafter existing or acquired, in the Series 2010-2 Interest Rate Caps and all Proceeds thereof.

 

Section 9.12.   Series 2010-2 Demand Note Constitutes Additional Collateral for Series 2010-2 Notes.

 

(a)            In order to secure and provide for the repayment and payment of the Series 2010-2 Note Obligations, HVF hereby grants a security interest in and assigns, pledges, grants, transfers and sets over to the Trustee, for the benefit of the Series 2010-2 Noteholders, all of HVF’s right, title and interest in and to the following (whether now or hereafter existing or acquired): (i) the Series 2010-2 Demand Note; (ii) all certificates and instruments, if any, representing or evidencing the Series 2010-2 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 2010-2 Noteholders, the Series 2010-2 Demand Note, endorsed in blank.  The Trustee, for the benefit of the Series 2010-2 Noteholders, shall be the only Person authorized to make a demand for payment on the Series 2010-2 Demand Note.  HVF shall deliver to the Trustee all original copies of the Series 2010-2 Demand Note.

 

(b)            [Reserved]

 

114


 

(c)            Other than pursuant to a demand thereon pursuant to Section 9.4(b)  or (c)  of this Series Supplement, HVF shall not reduce the amount of the Series 2010-2 Demand Note or forgive amounts payable thereunder so that the outstanding principal amount of the Series 2010-2 Demand Note after such forgiveness or reduction is less than the greater of (i) the Series 2010-2 Letter of Credit Liquidity Amount and (ii) an amount equal to 3% of the Series 2010-2 Principal Amount.

 

(d)            HVF shall not amend the Series 2010-2 Demand Note without the prior written consent of Series 2010-2 Noteholders holding 100% of the Series 2010-2 Principal Amount; provided , that (i) HVF shall be permitted to reduce the amount of the Series 2010-2 Demand Note or forgive amounts payable thereunder in a manner which complies with clause (c)  above without the consent of any Series 2010-2 Noteholder or any other Person and (ii) HVF shall be permitted to increase the amount of the Series 2010-2 Demand Note at any time without the consent of any Series 2010-2 Noteholder or any other Person.

 

ARTICLE X

 

AMORTIZATION EVENTS

 

Section 10.1.   The following shall constitute “ Series 2010-2 Amortization Events ” with respect to the Series 2010-2 Notes:

 

(a)            HVF defaults in the payment of any interest on, or other amount payable in respect of, the Series 2010-2 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 2010-2 Notes when the same becomes due and payable on the applicable Legal Final Payment Date;

 

(c)            a Series 2010-2 Enhancement Deficiency shall exist and continue to exist for at least three (3) Business Days;

 

(d)            a Series 2010-2 Liquidity Deficiency shall exist and continue to exist for at least three (3) Business Days;

 

(e)            all principal of and interest on the Series 2010-2 Notes is not paid in full on or before the Expected Final Payment Date;

 

(f)             the Series 2010-2 Controlled Amortization Amount required to be paid in respect of any Series 2010-2 Controlled Amortization Payment Date is not paid on such Series 2010-2 Controlled Amortization Payment Date and, other than with respect to the final Series 2010-2 Controlled Amortization Payment Date, such failure continues for a period of three (3) Business Days;

 

115



 

(g)            the Series 2010-2 Aggregate Asset Amount shall be less than the Series 2010-2 Required Asset Amount for a period of at least three (3) Business Days;

 

(h)            the Principal Deficit Amount shall be greater than zero;

 

(i)             the Series 2010-2 Collection Account, any Collateral Account containing amounts relating to Series 2010-2 Vehicles, any Series 2010-2 Series Account, the Series 2010-2 Distribution Account or any Series 2010-2 HVF Segregated 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 2010-2 Reserve Account shall be subject to an injunction, estoppel or other stay or a Lien (other than a Permitted Lien) for a period of 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 2010-2 Reserve Account Collateral (or any of the Series 2010-2 Lessee, HVF or any Affiliate of either so asserts in writing) and, in each case, either (x) a Series 2010-2 Enhancement Deficiency would result from excluding the Series 2010-2 Available Reserve Account Amount from the Series 2010-2 Enhancement Amount or (y) the Series 2010-2 Adjusted Liquidity Amount, excluding therefrom the Series 2010-2 Available Reserve Account Amount, would be less than the Series 2010-2 Required Liquidity Amount;

 

(k)            from and after the funding of the Series 2010-2 Cash Collateral Account, (A) the Series 2010-2 Cash Collateral Account shall be subject to an injunction, estoppel or other stay or a Lien (other than a Permitted Lien) for a period of 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 2010-2 Cash Collateral Account Collateral (or any of the Series 2010-2 Lessee, HVF or any Affiliate of either so asserts in writing) and, in each case, either (x) a Series 2010-2 Enhancement Deficiency would result from excluding the Series 2010-2 Available Cash Collateral Account Amount from the Series 2010-2 Enhancement Amount or (y) the Series 2010-2 Adjusted Liquidity Amount, excluding therefrom the Series 2010-2 Available Cash Collateral Account Amount, would be less than the Series 2010-2 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 2010-2 Interest Rate Caps at the times and in the notional amounts required by the terms of Section 9.11 of this Series Supplement and such failure continues for at least 3 Business Days;

 

(n)            the Trustee shall for any reason cease to have a valid and perfected first priority security interest in the Series 2010-2 Collateral (other than the Series 2010-2 Reserve Account Collateral and the Series 2010-2 Cash Collateral

 

116



 

Account Collateral) or any of the Series 2010-2 Lessee, HVF or any Affiliate of either so asserts in writing;

 

(o)            the occurrence of a Series 2010-2 Servicer Event of Default;

 

(p)            the occurrence of a Series 2010-2 Servicer Default or a Series 2010-2 Administrator Default;

 

(q)            HVF fails to comply with any of its other agreements or covenants (other than any agreements or covenants relating solely to one or more Other Segregated Series of Notes and/or Series of Notes) in any Series 2010-2 Related Document and the failure to so comply materially and adversely affects the interests of the Series 2010-2 Noteholders and continues to materially and adversely affect the interests of the Series 2010-2 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 Administrative Agent;

 

(r)             any representation (other than any representation relating solely to one or more Other Segregated Series of Note and/or Series of Notes) made by HVF in the Base Indenture, this Series Supplement or any other Series 2010-2 Related Document is false and such false representation materially and adversely affects the interests of the Series 2010-2 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 Administrative Agent;

 

(s)            (I) HVF or Hertz in its capacity as Series 2010-2 Administrator shall fail to comply with their respective obligations under the Series 2010-2 Back-Up Administration Agreement in any material respect and the failure to so comply materially and adversely affects the interests of the Series 2010-2 Noteholders and continues to materially and adversely affect the interests of the Series 2010-2 Noteholders for a period of thirty (30) days after the earlier of (i) the date on which HVF or the Series 2010-2 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 Series 2010-2 Administrator by the Trustee or to HVF, the Series 2010-2 Administrator and the Trustee by the Administrative Agent or (II) the Series 2010-2 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 Series 2010-2 Administrator, as applicable, obtains knowledge thereof or (ii) the date on which written notice thereof shall have been given to HVF and the Series 2010-2 Administrator by the Trustee or to HVF, the Series 2010-2 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 Series 2010-2 Back-Up Administration Agreement or any portion thereof by HVF or the

 

117



 

Series 2010-2 Administrator, in which case such thirty (30) day grace period shall not apply);

 

(t)             (I) Hertz, in its capacity as Series 2010-2 Servicer, shall fail to comply with its obligations under the Series 2010-2 Back-Up Disposition Agreement in any material respect and the failure to so comply materially and adversely affects the interests of the Series 2010-2 Noteholders and continues to materially and adversely affect the interests of the Series 2010-2 Noteholders for a period of thirty (30) days after the earlier of (i) the date on which the Series 2010-2 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 Series 2010-2 Administrator and HVF by the Trustee or to the Series 2010-2 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 Series 2010-2 Administrator, as applicable, obtains knowledge thereof or (ii) the date on which written notice thereof shall have been given to HVF and the Series 2010-2 Administrator by the Trustee or to HVF, the Series 2010-2 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 Series 2010-2 Back-Up Disposition Agreement or any portion thereof by the Series 2010-2 Administrator, in its capacity as Series 2010-2 Servicer, in which case such thirty (30) day grace period shall not apply);

 

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

 

(v)            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;

 

(w)           the Series 2010-2 Lease is terminated for any reason;

 

(x)             any Series 2010-2 Lease Payment Default shall have occurred;

 

(y)            an Amortization Event with respect to the Series 2009-1 Notes shall have occurred and be continuing;

 

(z)             any Series 2010-2 Operating Lease Event of Default (other than a Series 2010-2 Lease Payment Default) shall have occurred and be continuing;

 

(aa)          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

 

118



 

other Lien (other than a Permitted Lien) that could reasonably be expected to attach to the assets of Hertz Vehicles LLC, HVF or any Series 2010-2 HVF Segregated Exchange Account and 30 days shall have elapsed without such notice having been effectively withdrawn or such Lien having been released or discharged;

 

(bb)          subject to Section 8.7(b) of the Base Indenture and Section 7.7 hereof, any of the Series 2010-2 Related Documents or any material portion thereof relating to the Series 2010-2 Notes shall cease, for any reason, to be in full force and effect, enforceable in accordance with its terms or Hertz, Hertz Vehicles LLC, HGI or HVF shall so assert in writing;

 

(cc)          except as otherwise set forth in clause (dd) below, the Series 2010-2 Administrator fails to comply with any of its other agreements or covenants (other than any agreements or covenants relating solely to one or more Other Segregated Series of Notes or Series of Notes) in any Series 2010-2 Related Document or any representation made by the Series 2010-2 Administrator in any Series 2010-2 Related Document 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 2010-2 Noteholders and continues to materially and adversely affect the interests of the Series 2010-2 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 Series 2010-2 Administrator by the Trustee or to the Series 2010-2 Administrator and the Trustee by the Administrative Agent; or

 

(dd)          HVF or the Series 2010-2 Administrator shall fail to comply with Section 8.01(b) of the Series 2010-2 Note Purchase Agreement ( provided that, if the Series 2010-2 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 Series 2010-2 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 Series 2010-2 Administrator, as applicable, by the Trustee or to HVF or the Series 2010-2 Administrator, as applicable, and the Trustee by any Series 2010-2 Noteholder before such failure shall constitute a Series 2010-2 Amortization Event).

 

In the case of

 

(i)             any event described in clauses (a)  through (n)  or (u)  through (x)  above, a Series 2010-2 Amortization Event will immediately occur without any notice or other action on the part of the Trustee or any Series 2010-2 Noteholder or

 

(ii)            any event described in clauses (o)  through (t)  or (y)  through (dd) above, so long as such event is continuing, either the Trustee may, by written notice to HVF or the Series 2010-2 Required Noteholders may, by written notice

 

119



 

to HVF and the Trustee declare that a Series 2010-2 Amortization Event has occurred as of the date of the notice.

 

A Series 2010-2 Amortization Event described in clauses (a)  through (l) , (n) , (o) , (p) , (q)  (with respect to any agreement, covenant or provision in the Series 2010-2 Notes, the Base Indenture, this Series Supplement or any other Series 2010-2 Related Document the amendment or modification of which requires the consent of Series 2010-2 Noteholders holding 100% of the Series 2010-2 Principal Amount or which otherwise prohibits HVF from taking any action without the consent of Series 2010-2 Noteholders holding 100% of the Series 2010-2 Principal Amount), (s)  through (x)  and (cc) above, and any Series 2010-2 Potential Amortization Event relating to any such Series 2010-2 Amortization Event, may be waived solely with the written consent of Series 2010-2 Noteholders holding 100% of the Series 2010-2 Principal Amount.  Any other Series 2010-2 Amortization Event described in clauses (m) , (q)  (other than with respect to any agreement, covenant or provision in the Series 2010-2 Notes, the Base Indenture, this Series Supplement or any other Series 2010-2 Related Document, the amendment or modification of which requires the consent of Series 2010-2 Noteholders holding 100% of the Series 2010-2 Principal Amount or which prohibits HVF from taking any action without the consent of Series 2010-2 Noteholders holding more than 100% of the Series 2010-2 Principal Amount), (r) , (y)  through (bb) and (dd) above may be waived with the written consent of the Series 2010-2 Required Noteholders.

 

Notwithstanding anything herein to the contrary, a Series 2010-2 Amortization Event described in clauses (i) , (j) , (k)  and (n)  above shall be curable at any time.

 

Section 10.2.   Rights of the Trustee upon Amortization Event or Certain Other Events of Default.

 

(a)            General .  If and whenever a Series 2010-2 Amortization Event shall have occurred and be continuing, the Trustee may and, at the written direction of the Series 2010-2 Required Noteholders shall, exercise (or direct the Collateral Agent to exercise) from time to time any rights and remedies available to it on behalf of the Series 2010-2 Noteholders under applicable law or any Series 2010-2 Related Documents (other than any portion thereof relating solely to one or more Series of Notes and/or Other Segregated Series of Notes); provided , however , that the Trustee’s rights and remedies pursuant to the provisions of this Section 10.2 shall be exercised only to the extent that (i) such exercise is not detrimental to the rights of the holders of the Notes or the Segregated Notes of any Other Segregated Series of Notes and (ii) such rights and remedies relate to the Series 2010-2 Collateral or the Series 2010-2 Note Obligations.  Any amounts relating to the Series 2010-2 Collateral or the Series 2010-2 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 Series 2010-2 Note Obligations and shall be applied as provided in Article 4 .

 

(b)            Series 2010-2 Limited Liquidation Event of Default .  If a Series 2010-2 Limited Liquidation Event of Default shall have occurred and be

 

120



 

continuing, the Trustee, at the written direction of the Series 2010-2 Required Noteholders, shall direct HVF and the Collateral Agent to exercise (and HVF agrees to exercise) all rights, remedies, powers, privileges and claims of HVF relating to the Series 2010-2 Collateral against any party to any Series 2010-2 Related Documents arising as a result of the occurrence of such Series 2010-2 Limited Liquidation Event of Default, 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 Series 2010-2 Collateral and the right to terminate all or a portion of the Series 2010-2 Lease and take possession of Series 2010-2 Vehicles and to give any consent, request, notice, direction, approval, extension or waiver in respect of such Series 2010-2 Lease, and any right of HVF to take such action independent of such direction shall be suspended.  If and whenever a Series 2010-2 Limited Liquidation Event of Default shall have occurred and be continuing, the Trustee may and, at the written direction of the Series 2010-2 Required Noteholders, 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 and/or (b) the Power of Attorney granted to Hertz pursuant to Section 2.6(b) of the Collateral Agency Agreement, in each case, solely to the extent such powers of attorney relate to the Series 2010-2 Collateral.

 

(c)            Series 2010-2 Manufacturer Programs and Series 2010-2 Vehicles .  (i)  Upon the occurrence of a Series 2010-2 Limited Liquidation Event of Default, the Trustee, at the written direction of the Series 2010-2 Required Noteholders, 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 Series 2010-2 Program Vehicles to the related Manufacturers (after the minimum holding period specified in the Manufacturer’s Series 2010-2 Manufacturer Program and, unless otherwise directed by the Series 2010-2 Required Noteholders, so long as a Series 2010-2 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 Series 2010-2 Program Vehicles under the terms of the applicable Series 2010-2 Manufacturer Program (or, unless otherwise directed by the Series 2010-2 Required Noteholders, if a Series 2010-2 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 Series 2010-2 Program Vehicles in accordance with the rights of HVF under the Series 2010-2 Related Documents and to otherwise sell or cause to be sold to third parties all Series 2010-2 Non-Program Vehicles.

 

(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 Series 2010-2 Limited Liquidation Event of Default shall have occurred and be continuing, the Trustee may, and at the written direction of the Series 2010-2 Required Noteholders 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,

 

121



 

privileges and claims relate to the Series 2010-2 Collateral, against the Manufacturers under or in connection with the Series 2010-2 Manufacturer Programs.

 

(iii)           In the event that either (A) an Event of Bankruptcy with respect to any Manufacturer of Series 2010-2 Program Vehicles shall have occurred and is continuing and such Manufacturer shall fail to repurchase any Series 2010-2 Program Vehicles in accordance with the terms of the related Series 2010-2 Manufacturer Program and a Trust Officer has actual knowledge thereof or (B) if there has occurred and is continuing any other Series 2010-2 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 Series 2010-2 Program Vehicles covered by the related Series 2010-2 Manufacturer Program of such Manufacturer for the highest purchase price offered and, promptly upon receipt, to deposit the proceeds of such sale into the Series 2010-2 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 Series 2010-2 Program Vehicles as Series 2010-2 Non-Program Vehicles in accordance with, and subject to the terms and conditions of, Section 2.6 of the Series 2010-2 Lease before the Trustee may direct the Collateral Agent to sell any such Series 2010-2 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) subject to the proviso set forth in clause (c)(iii) , the Trustee reasonably determines that such action must be taken immediately, the Trustee may (and at the written direction of the Series 2010-2 Required Noteholders shall) take such previously directed action (and any related action as permitted under the Series 2010-2 Supplement thereafter determined by the Trustee to be appropriate without the need under this provision or any other provision under the Series 2010-2 Supplement 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 possession of the Series 2010-2 Vehicles pending the sale thereof pursuant either to the powers of sale granted by the this Series 2010-2 Supplement, the Collateral Agency Agreement and the other Series 2010-2 Related Documents or to a judgment, order or decree made in any judicial proceeding for the foreclosure or involving the enforcement of the Series 2010-2 Supplement.

 

(e)            Sale of Series 2010-2 Collateral .  Upon any sale of any of the Series 2010-2 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 10.2 or under judgment, order or decree in any judicial proceeding for the

 

122



 

foreclosure or involving the enforcement of the Base Indenture or this Series Supplement:

 

(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 Series 2010-2 Vehicles shall be sold, now or at any time hereafter in force, which may delay, prevent or otherwise affect the performance or enforcement of the Series 2010-2 Supplement.

 

(f)             Additional Remedies .  In addition to any rights and remedies now or hereafter granted hereunder or under applicable law with respect to the Series 2010-2 Collateral, the Trustee shall (subject to the foregoing provisions in respect of the Series 2010-2 Vehicles) have all of the rights and remedies of a secured party under the UCC as enacted in any applicable jurisdiction.

 

(g)            Series 2010-2 Amortization Event .  Upon the occurrence of a Series 2010-2 Amortization Event, the Trustee shall exercise all rights and remedies relating to the Series 2010-2 Collateral permitted under the Series 2010-2 Supplement to the extent necessary to pay all interest on and principal of the Series 2010-2 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 and shall not adversely

 

123



 

affect in any material respect the interests of the Segregated Noteholders of any Other Segregated Series of Notes Outstanding.

 

Section 10.3.   Other Remedies.

 

Subject to the terms and conditions of this Indenture, if a Series 2010-2 Amortization Event occurs and is continuing, the Trustee may pursue any remedy available to it on behalf of the Series 2010-2 Noteholders under applicable law or in equity to collect the payment of principal of or interest on the Series 2010-2 Notes or to enforce the performance of any provision of such Series 2010-2 Notes or the Series 2010-2 Supplement.  In addition, the Trustee may, or shall at the written direction of the Series 2010-2 Required Noteholders, direct the Collateral Agent or HVF to exercise any rights or remedies available under any Series 2010-2 Related Documents or under applicable law or in equity with respect to the Series 2010-2 Notes, in each case, to the extent relating to the Series 2010-2 Collateral; provided that any such actions shall not adversely affect in any material respect the interests of the Noteholders of any Series of Notes Outstanding and shall not adversely affect in any material respect the interests of the Segregated Noteholders of any Other Segregated Series of Notes Outstanding.

 

The Trustee may maintain a proceeding even if it does not possess any of the Series 2010-2 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 10.4.   Control by Series 2010-2 Required Noteholders.

 

The Series 2010-2 Required Noteholders may direct the time, method and place of conducting any proceeding for any remedy available to the Trustee on behalf of the Series 2010-2 Noteholders or exercising any trust or power conferred on the Trustee relating to the Series 2010-2 Note Obligations or the Series 2010-2 Collateral.  However, subject to Section 10.1 of the Base Indenture, the Trustee may refuse to follow any direction that conflicts with law or the 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 10.5.   Collection Suit by the Trustee.

 

If any Series 2010-2 Amortization Event arising from the failure to make a payment in respect of the Series 2010-2 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 Series 2010-2 Notes 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 Collateral or any Series-Specific Collateral relating to any Other Segregated Series of Notes Outstanding.

 

124


 

Section 10.6.   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 Series 2010-2 Noteholders relating to the Series 2010-2 Collateral or the Series 2010-2 Note Obligations allowed in any judicial proceedings relative to HVF (or any other obligor upon the Series 2010-2 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 Series 2010-2 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 Series 2010-2 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 of the Base Indenture.  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 of the Base Indenture 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 Series 2010-2 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 such Series 2010-2 Noteholder any plan of reorganization, arrangement, adjustment or composition affecting the Series 2010-2 Notes of such Series 2010-2 Noteholders or the rights of any such Series 2010-2 Noteholder thereof, or to authorize the Trustee to vote in respect of the claim of any such Series 2010-2 Noteholder in any such proceeding.

 

Section 10.7.   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 4 and Article 8 .

 

Section 10.8.   [Reserved]

 

Section 10.9.   Rights and Remedies Cumulative.

 

No right or remedy herein conferred upon or reserved to the Trustee or to the holders of Series 2010-2 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 the Series 2010-2 Supplement or now or hereafter existing at law or in equity or otherwise.  The assertion or employment of any right or remedy under the Series 2010-2 Supplement, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy.

 

125



 

Section 10.10.   Delay or Omission Not Waiver.

 

No delay or omission of the Trustee or of any holder of any Series 2010-2 Note to exercise any right or remedy accruing upon any Series 2010-2 Amortization Event shall impair any such right or remedy or constitute a waiver of any such Series 2010-2 Amortization Event or an acquiescence therein.  Every right and remedy given by this Article 10 or Article 9 of the Base Indenture or by law to the Trustee or to the holders of Series 2010-2 Notes may be exercised from time to time, and as often as may be deemed expedient, by the Trustee or by the holders of Series 2010-2 Notes, as the case may be.

 

ARTICLE XI

 

FORM OF SERIES 2010-2 NOTES

 

Section 11.1.   Issuance of Series 2010-2 Notes .   The Series 2010-2 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 2010-2 Noteholders pursuant to and in accordance with the Series 2010-2 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 2010-2 Note Purchase Agreement, the Series 2010-2 Notes will not be permitted to be transferred, assigned, exchanged or otherwise pledged or conveyed by the Series 2010-2 Noteholders.  The initial Series 2010-2 Notes issued on the Series 2010-2 Closing Date shall bear a face amount equal to up to the Series 2010-2 Maximum Principal Amount as of the Series 2010-2 Closing Date, and shall be initially issued in a principal amount equal to the Series 2010-2 Initial Principal Amount.  Additional Series 2010-2 Notes (“ Additional Series 2010-2 Notes ”) may be issued subsequent to the Series 2010-2 Closing Date in accordance with Section 8.1 hereof in connection with the addition of an Additional Investor Group pursuant to Section 9.16(a) of the Series 2010-2 Note Purchase Agreement or in connection with the effectuation of an Investor Group Maximum Principal Increase pursuant to Section 9.16(b) of the Series 2010-2 Note Purchase Agreement.  Additional Series 2010-2 Notes issued in connection with (x) the addition of an Additional Investor Group 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 and (y) an Investor Group Maximum Principal Increase shall bear a face amount equal to up to the Maximum Investor Group Principal Amount with respect to the related Investor Group (immediately after giving effect to such Investor Group Maximum Principal Increase) and shall initially be issued in a principal amount equal to the Investor Group Principal Amount for such Investor Group (immediately after giving effect to such Investor Group Maximum Principal Increase); provided , that in the case of (y) above, no such Additional Series 2010-2 Note shall be delivered to the applicable Investor Group until such Investor Group’s previous Series 2010-2 has been delivered to the Registrar for cancellation.  Upon the issuance of any Additional Series 2010-2 Notes, the Series 2010-2 Maximum Principal Amount shall be increased by an

 

126



 

amount equal to (x) in connection with the addition of an Additional Investor Group, the Maximum Investor Group Principal Amount with respect to such Additional Investor Group or (y) in connection with an Investor Group Maximum Principal Increase, the amount by which the Maximum Investor Group Principal Amount with respect to such Investor Group was increased pursuant to such Investor Group Maximum Principal Increase.  The Trustee shall, or shall cause the Registrar, to record any Increases, Decreases or additional issuances with respect to the Series 2010-2 Principal Amount such that the principal amount of the Series 2010-2 Notes that are outstanding accurately reflects all such Increases, Decreases and additional issuances.

 

The Series 2010-2 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 2010-2 Notes, as evidenced by their execution of the Series 2010-2 Notes.  The Series 2010-2 Notes may be produced in any manner, all as determined by the officers executing such Series 2010-2 Notes, as evidenced by their execution of such Series 2010-2 Notes. The initial sale of the Series 2010-2 Notes is limited to Persons who have executed the Series 2010-2 Note Purchase Agreement.  The sale of Additional Series 2010-2 Notes shall be limited to Persons who become a party to the Series 2010-2 Note Purchase Agreement and Persons who increase their Maximum Investor Group Principal Amount pursuant to an Investor Group Maximum Principal Increase, in each case, in accordance with Section 9.16 thereof.

 

Section 11.2.   Transfer of Series 2010-2 Notes.

 

(a)            Subject to the terms of the Indenture and the Series 2010-2 Note Purchase Agreement, the holder of any Series 2010-2 Note may transfer the same in whole or in part, in an amount equivalent to an authorized denomination, by surrendering such Series 2010-2 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 2010-2 Note transfers, in whole or in part, its interest in any Series 2010-2 Note Pursuant to (i) an Assignment and Assumption Agreement substantially in the form of Exhibit B to the Series 2010-2 Note Purchase Agreement or (ii) an Investor Group Supplement substantially in the form of Exhibit C to the Series 2010-2 Note Purchase Agreement, then such Series 2010-2 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 2010-2 Note.  In exchange for any Series 2010-2 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 2010-2 Notes for the same aggregate principal amount as was transferred.  In the case of the transfer of any Series 2010-2 Note in part, HVF shall execute and the Trustee shall promptly authenticate and deliver or cause to be authenticated and delivered to the

 

127



 

transferor at such office, or send by mail (at the risk of the transferor) to such address as the transferor may request, Series 2010-2 Notes for the aggregate principal amount that was not transferred.  No transfer of any Series 2010-2 Note shall be made unless the request for such transfer is made by the Series 2010-2 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 2010-2 Notes, the Trustee shall recognize the Holders of such Series 2010-2 Note as Series 2010-2 Noteholders.

 

(b)            Each Series 2010-2 Note shall bear the following legend:

 

THIS SERIES 2010-2 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 2010-2 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 2010-2 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 2010-2 Notes except as provided herein.

 

ARTICLE XII

 

GENERAL

 

Section 12.1.   Optional Redemption of Series 2010-2 Notes .  The Series 2010-2 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 6.2 of the Base Indenture at any time.  The repurchase price for any Series 2010-2 Note (in each case, the “ Series 2010-2 Repurchase Amount ”) shall equal sum of (a) the aggregate

 

128



 

outstanding principal balance of such Series 2010-2 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 12.1 ) plus (b)(i) with respect to the portion of such principal balance which was funded with Series 2010-2 Commercial Paper issued at a discount, all accrued and unpaid discount on such Series 2010-2 Commercial Paper from the issuance date(s) thereof to the date of purchase under this Section 12.1 and the aggregate discount to accrue on such Series 2010-2 Commercial Paper from the date of purchase under this Section 12.1 to the maturity date of such Series 2010-2 Commercial Paper, or (ii) with respect to the portion of such principal balance which was funded with Series 2010-2 Commercial Paper that was not issued at a discount, all accrued and unpaid interest on such Series 2010-2 Commercial Paper from the issuance date(s) thereof to the date of purchase under this Section 12.1 (and any breakage costs associated with the prepayment of such interest-bearing Series 2010-2 Commercial Paper), or (iii) with respect to the portion of such principal balance which was funded other than with Series 2010-2 Commercial Paper, all accrued and unpaid interest on such principal balance through the date of purchase under this Section 12.1 , plus (c) any other amounts then due and payable to the holders of such Series 2010-2 Notes pursuant hereto and pursuant to the Series 2010-2 Note Purchase Agreement.

 

Section 12.2.   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 Series 2010-2 Administrator to furnish to the Trustee a Monthly Noteholders’ Statement with respect to the Series 2010-2 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 2010-2 Noteholders on such Payment Date;

 

(ii)            the amount of such distribution allocable to the payment of principal of the Series 2010-2 Notes;

 

(iii)           the amount of such distribution allocable to the payment of interest on the Series 2010-2 Notes;

 

(iv)           the Series 2010-2 Controlled Amortization Amount, if any, for the related Series 2010-2 Controlled Amortization Payment Date;

 

(v)            the Series 2010-2 Enhancement Amount, the Series 2010-2 Adjusted Enhancement Amount, the Series 2010-2 Liquidity Amount, the Series 2010-2 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 Series 2010-2 Administrator, any Lien exists on any of the Series 2010-2 Collateral (other than Permitted Liens);

 

(vii)          whether, to the knowledge of the Series 2010-2 Administrator, any Series 2010-2 Operating Lease Event of Default has occurred;

 

129



 

(viii)         whether, to the knowledge of the Series 2010-2 Administrator, any Series 2010-2 Amortization Event or Series 2010-2 Potential Amortization Event has occurred;

 

(ix)            the Series 2010-2 Aggregate Asset Amount and the amount of the Series 2010-2 Aggregate Asset Amount Deficiency, if any, as of the close of business on the last day of the Related Month and whether a Series 2010-2 Enhancement Deficiency existed and the amount thereof, in each case, 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-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;

 

(xi)            the Non-Eligible Manufacturer Amount as of the close of business on the last day of the Related Month;

 

(xii)           the Series 2010-2 Bankrupt Manufacturer Enhancement Percentage, the Series 2010-2 Highest Enhancement Percentage, the Series 2010-2 Intermediate Enhancement Percentage, the Series 2010-2 Lowest Enhancement Percentage, Series 2010-2 Intermediate Enhancement Vehicle Percentage, the Series 2010-2 Required Enhancement Percentage, Series 2010-2 Standard & Poor’s Enhancement Amount, the Nissan Percentage, the Nissan Program Percentage, the Nissan Enhancement Percentage, Series 2010-2 Standard & Poor’s Enhancement Percentage, Series 2010-2 Standard & Poor’s Additional Incremental Enhancement Amount and Series 2010-2 Standard & Poor’s Additional Enhancement Amount as of the close of business on the last day of the Related Month and the Market Value Average and Non-Program Vehiclxxxxe Measurement Month Average and all calculations related thereto;

 

(xiii)          each of the Series 2010-2 Manufacturer Amounts as of the close of business on the last day of the Related Month;

 

130



 

(xiv)         the Series 2010-2 Required Incremental Enhancement Amount, if any, as of the close of business on the last day of the Related Month;

 

(xv)          the Series 2010-2 Required Liquidity Amount, if any, as of the close of business on the last day of the Related Month, and whether a Series 2010-2 Liquidity Deficiency with respect to any Class of Series 2010-2 Notes existed and the amount thereof, in each case, as of the close of business on the last day of the Related Month;

 

(xvi)         the Series 2010-2 Required Enhancement Amount as of the close of business on the last day of the Related Month;

 

(xvii)        the Series 2010-2 Required Overcollateralization Amount, the Series 2010-2 Overcollateralization Amount and the Series 2010-2 Required Asset Amount, in each case, as of the close of business on the last day of the Related Month;

 

(xviii)       the Series 2010-2 Required Reserve Account Amount and the Series 2010-2 Available Reserve Account Amount, in each case, as of the close of business on the last day of the Related Month;

 

(xix)          the percentage, Manufacturer Eligible Program Vehicle Amount and rating of the related Manufacturer of all Series 2010-2 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 Series 2010-2 Eligible Program Vehicles manufactured by such Manufacturer;

 

(xx)           the percentage, Manufacturer Non-Eligible Vehicle Amount and rating of the related Manufacturer of all Series 2010-2 Vehicles, with respect to each Manufacturer which is not a Series 2010-2 Eligible Program Manufacturer, as of the close of business on the last day of the Related Month which were Series 2010-2 Program Vehicles manufactured by such Manufacturer;

 

(xxi)          the percentage, Manufacturer Non-Eligible Program Vehicle Amount and rating of the related Manufacturer of all Series 2010-2 Vehicles, with respect to each Manufacturer, as of the close of business on the last day of the Related Month that were Series 2010-2 Non-Program Vehicles manufactured by such Manufacturer;

 

(xxii)         the Series 2010-2 Letter of Credit Liquidity Amount, the Series 2010-2 Demand Note Payment Amount and the Series 2010-2 Letter of Credit Amount, in each case, as of the close of business on the last day of the Related Month; and

 

131



 

(xxiii)        the Series 2010-2 Principal Amount and the Series 2010-2 Adjusted Principal Amount, in each case, as of such Payment Date.

 

The Trustee shall provide to the Series 2010-2 Noteholders, or their designated agent, copies of each Monthly Noteholders’ Statement.

 

Section 12.3.   Exhibits .  The following exhibits attached hereto supplement the exhibits included in the Indenture.

 

Exhibit A-1:

 

Series 2010-2 Variable Funding Rental Car Asset Backed Notes

Exhibit B:

 

Form of Series 2010-2 Letter of Credit

Exhibit C:

 

Form of Lease Payment Deficit Notice

Exhibit D:

 

Form of Series 2010-2 Letter of Credit Reduction Notice

Exhibit E:

 

Form of Purchaser’s Letter

Exhibit F-1:

 

Form of Monthly Noteholders’ Statement

Exhibit G-1:

 

Form of Demand Notice

Exhibit G-2:

 

Form of Series 2010-2 Demand Note

Exhibit H:

 

Form of Estimated Interest Adjustment Notice

 

Section 12.4.   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 12.5.   Notices to Funding Agents .  The Trustee shall provide to each Funding Agent a copy of each notice to the Series 2010-2 Noteholders, Opinion of Counsel delivered to the Trustee and Officer’s Certificate delivered to the Trustee pursuant to this Series Supplement or any other Series 2010-2 Related Document.  Each such Opinion of Counsel to be delivered to each Funding Agent shall be addressed to each Funding Agent, shall be from counsel reasonably acceptable to the Administrative Agent and shall be in form and substance reasonably acceptable to the Administrative Agent.  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 2010-2 Note Purchase Agreement.

 

Section 12.6.   Third Party Beneficiary .  The Administrative Agent is an express third party beneficiary of (i) the Base Indenture and (ii) this Series Supplement.

 

Section 12.7.   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 12.8.   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.

 

132



 

Section 12.9.   Amendments . (a) The provisions of this Series Supplement may be modified, waived 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 of this Series of Indenture 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 Series 2010-2 Required Noteholders; provided , further, that, any amendment or other modification to this Series Supplement or any of the Series 2010-2 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 2010-2 Notes (or reduce the principal amount of or rate of interest on the Series 2010-2 Notes), alter any provisions (including any relevant definitions) relating to the pro rata treatment of payments to the Series 2010-2 Noteholders, the Conduit Investors and the Committed Note Purchasers, amend or modify this Section 12.9 or otherwise amend or modify any provision relating to the amendment or modification of this Series Supplement, or, pursuant to the Series 2010-2 Related Documents, would require the consent of 100% of the Series 2010-2 Noteholders or each Series 2010-2 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.

 

(b) Notwithstanding the foregoing (but subject to the first proviso in the first sentence of Section 12.2(a) of the Base Indenture):

 

(i) Any change in the definition of the terms “Series 2010-2 Aggregate Asset Amount”, “Series 2010-2 Aggregate Asset Amount Deficiency”, “Series 2010-2 Eligible Manufacturer Program”, “Series 2010-2 Eligible Manufacturer”, “Series 2010-2 Eligible Program Manufacturer”, “Series 2010-2 Ineligible Asset Amount”, “Series 2010-2 Limited Liquidation Event of Default” or “Series 2010-2 Manufacturer Program” or the applicable amount of Enhancement with respect to the Series 2010-2 Notes shall require the consent of each Series 2010-2 Noteholder affected thereby;

 

(ii) Any amendment, waiver or other modification that would amend or otherwise modify any Series 2010-2 Amortization Event shall require the consent of each Series 2010-2 Noteholder affected thereby; and

 

(iii) Any amendment, waiver or other modification that would (A) approve the assignment or transfer by HVF of any of its rights or obligations under any Segregated Series 2010-2 Document to which it is a party, except pursuant to the express terms thereof; or (B) release any obligor under any Segregated Series 2010-2 Document to which it is a party, except pursuant to the express terms thereof, shall require in each case the consent of Series 2010-2 Noteholders holding not less than 66⅔% of the Series 2010-2 Outstanding Principal Amount.

 

133



 

No failure or delay on the part of any Series 2010-2 Noteholder or the Trustee in exercising any power or right under the Indenture or any other Series 2010-2 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.

 

Section 12.10.   Covenant Regarding Affiliate Issuers .  HVF shall not issue or sell Series 2010-2 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 Series 2010-2 Notes to Persons that are not Affiliates of HVF.

 

Section 12.11.   Termination of Series Supplement .  This Series Supplement shall cease to be of further effect when (i) all Outstanding Series 2010-2 Notes theretofore authenticated and issued have been delivered (other than destroyed, lost, or stolen Series 2010-2 Notes which have been replaced or paid) to the Trustee for cancellation, (ii) HVF has paid all sums payable hereunder and (iii) the Series 2010-2 Demand Note Payment Amount is equal to zero or the Series 2010-2 Letter of Credit Liquidity Amount is equal to zero.

 

Section 12.12.   Discharge of Indenture .  Notwithstanding anything to the contrary contained in the Base Indenture, so long as this Series Supplement shall be in effect in accordance with Section 12.11 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 2010-2 Notes without the consent of the Series 2010-2 Required Noteholders.

 

Section 12.13.   No Recourse .  The obligations of HVF hereunder 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 Series 2010-2 Supplement 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 Series 2010-2 Related Documents.  In the event that HVF 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, HVF. Nothing in this Section 12.13 shall be construed to limit the Trustee from exercising its rights hereunder with respect to the Series 2010-2 Collateral.

 

Section 12.14.   Administration of Accounts .  HVF may instruct (by standing instructions or otherwise) the institution maintaining each of the Series 2010-2 Accounts, the Series 2010-2 Reserve Account, the Series 2010-2 Cash Collateral Accounts and the Series 2010-2 Distribution Account (together, the “ Accounts ”) to invest funds on deposit in such Account from time to time in Series 2010-2 Permitted Investments; provided , however, that (x) any such investment in the Series 2010-2 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 Series 2010-2 Permitted Investment made with funds on deposit in the Series 2010-2

 

134



 

Collection Account) and (y) any such investment in the Series 2010-2 Collection Account, the Series 2010-2 Accrued Interest Account, the Series 2010-2 Reserve Account, any Series 2010-2 Cash Collateral Account or the Series 2010-2 Distribution 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 Series 2010-2 Permitted Investment made with funds on deposit in such Account), unless any such Series 2010-2 Permitted Investment 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 Series 2010-2 Permitted Investments prior to the maturity date thereof to the extent such disposal would result in a loss of the initial purchase price of such Series 2010-2 Permitted Investment.  In the absence of written investment instructions hereunder, funds on deposit in the Accounts shall remain uninvested.

 

135



 

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/ Scott Massengill

 

 

Name: 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

 

136




Exhibit 4.8.2

 

Execution Copy

 

 

SERIES 2010-2 NOTE PURCHASE AGREEMENT

 

(SERIES 2010-2 VARIABLE FUNDING RENTAL CAR ASSET BACKED NOTES)

 

dated as of December 16, 2010,

 

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 2010-2 NOTES

11

 

 

SECTION 2.01   The Initial Note Purchase

11

SECTION 2.02   Advances

11

SECTION 2.03   Borrowing Procedures

13

SECTION 2.04   The Series 2010-2 Notes

14

SECTION 2.05   Commitment Terms

15

SECTION 2.06   Selection of Interest Rates

15

SECTION 2.07   Reduction in Commitment Amount

15

SECTION 2.08  Extensions of Commitments

15

 

 

ARTICLE III INTEREST AND FEES

16

 

 

SECTION 3.01   Interest

16

SECTION 3.02   Fees

17

SECTION 3.03   Eurodollar Lending Unlawful

17

SECTION 3.04   Deposits Unavailable

18

SECTION 3.05   Increased or Reduced Costs, etc.

18

SECTION 3.06   Funding Losses

19

SECTION 3.07   Increased Capital Costs

20

SECTION 3.08   Taxes

20

SECTION 3.09   Indenture Carrying Charges; Survival

22

SECTION 3.10   Minimizing Costs and Expenses

22

SECTION 3.11   Replacement of Investor Group

22

 

 

ARTICLE IV OTHER PAYMENT TERMS

24

 

 

SECTION 4.01   Time and Method of Payment

24

 

 

ARTICLE V THE ADMINISTRATIVE AGENT AND THE FUNDING AGENTS

24

 

 

SECTION 5.01   Authorization and Action of the Administrative Agent

24

SECTION 5.02   Delegation of Duties

24

SECTION 5.03   Exculpatory Provisions

25

SECTION 5.04   Reliance

25

SECTION 5.05   Non-Reliance on the Administrative Agent and Other Purchasers

25

SECTION 5.06   The Administrative Agent in its Individual Capacity

26

SECTION 5.07   Successor Administrative Agent

26

SECTION 5.08   Authorization and Action of Funding Agents

26

SECTION 5.09   Delegation of Duties

27

 

i



 

TABLE OF CONTENTS

(continued)

 

 

Page

SECTION 5.10   Exculpatory Provisions

27

SECTION 5.11   Reliance

27

SECTION 5.12   Non-Reliance on the Funding Agent and Other Purchasers

28

SECTION 5.13   The Funding Agent in its Individual Capacity

28

SECTION 5.14   Successor Funding Agent

28

 

 

ARTICLE VI REPRESENTATIONS AND WARRANTIES

28

 

 

SECTION 6.01   HVF

28

SECTION 6.02   Administrator

29

SECTION 6.03   Conduit Investors

30

 

 

ARTICLE VII CONDITIONS

31

 

 

SECTION 7.01   Conditions to Issuance

31

SECTION 7.02   Conditions to Initial Borrowing

33

SECTION 7.03   Conditions to Each Borrowing

33

 

 

ARTICLE VIII COVENANTS

34

 

 

SECTION 8.01   Covenants

34

 

 

ARTICLE IX MISCELLANEOUS PROVISIONS

38

 

 

SECTION 9.01   Amendments

38

SECTION 9.02   No Waiver; Remedies

39

SECTION 9.03   Binding on Successors and Assigns

39

SECTION 9.04   Survival of Agreement

40

SECTION 9.05   Payment of Costs and Expenses; Indemnification

41

SECTION 9.06   Characterization as Related Document; Entire Agreement

43

SECTION 9.07   Notices

44

SECTION 9.08   Severability of Provisions

44

SECTION 9.09   Tax Characterization

44

SECTION 9.10   No Proceedings; Limited Recourse

44

SECTION 9.11   Confidentiality

46

SECTION 9.12   Governing Law

47

SECTION 9.13   Jurisdiction

47

SECTION 9.14   Waiver of Jury Trial

47

SECTION 9.15   Counterparts

47

SECTION 9.16   Additional Investor Groups

47

SECTION 9.17   Assignment

49

 

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 Data Report

 

EXHIBIT F

Form of Investor Group Maximum Principal Increase Addendum

 

EXHIBIT G

Form of Servicer Audit Report

 

 

iii



 

SERIES 2010-2 NOTE PURCHASE AGREEMENT

 

THIS SERIES 2010-2 NOTE PURCHASE AGREEMENT, dated as of December 16, 2010 (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, in its capacity as administrator hereunder, 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 2010-2 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 2010-2 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 2010-2 Supplement, the “ Indenture ”), between HVF and the Trustee, pursuant to which HVF issued one or more Series 2010-2 Variable Funding Rental Car Asset Backed Notes (the “ Series 2010-2 Notes ”).

 

2.             HVF wishes to issue the Series 2010-2 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 2010-2 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 2010-2 Notes purchased in connection herewith and will constitute purchases of Series 2010-2 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 2010-2 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 2010-2 Controlled Amortization Period, or, if earlier, the commencement of the Series 2010-2 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 2010-2 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) .

 

Action ” has the meaning set forth in Section 3.11 .

 

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 2010-2 Closing Date pursuant to Section 9.16(a)  in connection with an increase in the Series 2010-2 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 2010-2 Maximum Principal Amount when such Additional Investor Group becomes a party hereto and Additional Series 2010-2 Notes are issued pursuant to Sections 2.1 and 5.1 of the Series 2010-2 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

 

2



 

Maximum Investor Group Principal Amount of any such “Additional Investor Group” shall not include any portion of the Maximum Investor Group Principal Amount of such Investor Group acquired pursuant to an assignment to such Investor Group as an Acquiring Investor Group, whereas references to the Maximum Investor Group Principal Amount of such “Investor Group” shall include the entire Maximum Investor Group Principal Amount of such Investor Group as both as Additional Investor Group and an Acquiring Investor Group).

 

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, an amount up to the product of (a) the Drawn Percentage (immediately prior to such Additional Investor Group becoming a party hereto) and (b) the Maximum Investor Group Principal Amount of such Additional Investor Group on such date (immediately after such Additional Investor Group has become a party hereto).

 

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 2010-2 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

 

3



 

force of law) made, issued or occurring after the Series 2010-2 Closing Date.

 

Commitment ” means, the obligation of the Committed Note Purchasers included in each Investor Group to fund Advances pursuant to Section 2.02(a)  in an aggregate stated amount up to the Maximum Investor Group Principal Amount for such Investor Group.

 

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 2010-2 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 .

 

Controlled Amortization Deposit Amount ” means, during the Series 2010-2 Controlled Amortization Period, the excess of (x) the Series 2010-2 Controlled Amortization Amount for the next succeeding Series 2010-2 Controlled Amortization Payment Date over (y) the amount then on deposit in the Series 2010-2 Collection Account and available to pay the Series 2010-2 Controlled Amortization Amount for the next succeeding Series 2010-2 Controlled Amortization Payment Date.

 

CP Rate ” means, with respect to each Conduit Investor (i) for any day during any Series 2010-2 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

 

4



 

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 2010-2 Principal Amount or that are issued by such Conduits specifically to fund or maintain the Series 2010-2 Principal Amount, in each case, during such period, as determined by their respective Funding Agent (on behalf of such Conduits), including (x) the commissions of placement agents and dealers in respect of such promissory notes, to the extent such commissions are allocated, in whole or in part, to such promissory notes by the related Committed Note Purchasers (on behalf of such Conduits), (y) all reasonable costs and expenses of any issuing and paying agent or other person responsible for the administration of such Conduits’ commercial paper programs in connection with the preparation, completion, issuance, delivery or payment of Series 2010-2 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 2010-2 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.

 

Drawn Percentage ” means, as of any date of determination, a fraction expressed as a percentage, the numerator of which is the Series 2010-2 Outstanding Principal Amount and the denominator of which is the Series 2010-2 Maximum Principal Amount, in each case as of such date.

 

Election Period ” has the meaning set forth in Section 2.08 .

 

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

 

5



 

the immediately preceding 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 March 2013 Payment Date; and

 

(ii)                                   upon the occurrence and during the continuation of the Series 2010-2 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 2010-2 Base Rate Tranches or included in the Series 2010-2 CP Tranche until payment in full of the Series 2010-2 Notes.

 

Eurodollar Office ” means, the office of the related Funding Agent designated as such below its name on the signature page hereof, if any, or such other office of such Funding Agent as designated from time to time by written notice from such Funding Agent to HVF, whether or not outside the United States, which shall be making 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

 

6



seven days.

 

Eurodollar Rate (Reserve Adjusted) ” means, for any Eurodollar Interest Period, an interest rate per annum (rounded upward to the nearest 1/100th of 1%) determined pursuant to the following formula:

 

 

 

Eurodollar Rate =

 

Eurodollar Rate

 

 

 

(Reserve Adjusted)

 

1.00 – Eurodollar Reserve Percentage

 

 

The Eurodollar Rate (Reserve Adjusted) for any Eurodollar Interest Period for Eurodollar Advances will be determined by the related Funding Agent on the basis of the Eurodollar Reserve Percentage in effect one (1) Business Day before the first day of such Eurodollar Interest Period.

 

Eurodollar Reserve Percentage ” means, for any Eurodollar Interest Period, the reserve percentage (expressed as a decimal) equal to the maximum aggregate reserve requirements (including all basic, emergency, supplemental, marginal and other reserves and taking into account any transitional adjustments or other scheduled changes 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.

 

Extension Length ” has the meaning set forth in Section 2.08 .

 

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 2010-2 Principal Amount occurs.

 

7



 

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 2010-2 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 Maximum Principal Increase ” has the meaning set forth in Section 9.16(b) .

 

Investor Group Maximum Principal Increase Addendum ” means an addendum substantially in the form of Exhibit F .

 

Investor Group Maximum Principal Increase Amount ” means, on the effective date of any Investor Group Maximum Principal Increase with respect to any Investor Group, an amount up to the product of (a) the Drawn Percentage (immediately prior to the effectiveness of such Investor Group Maximum Principal Increase) and (b) the amount of such Investor Group Maximum Principal Increase.

 

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 2010-2 Closing Date, such Investor Group’s Commitment Percentage of the Series 2010-2 Initial Principal Amount and (ii) when used with respect to any other date, an amount equal to (v) the Investor Group Principal Amount with respect to such Investor Group on the immediately preceding Business Day plus (w) in the event that an Investor Group Maximum Principal Increase occurs with respect to such Investor Group on such date, the Investor Group Maximum Principal Increase Amount in connection therewith 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 2010-2 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 (v) the Investor Group Principal Amount with respect to such Additional Investor Group on the immediately preceding Business Day plus (w) in the event that an Investor Group Maximum Principal Increase occurs with respect to such Additional Investor Group on such date, the Investor Group Maximum Principal Increase Amount in connection therewith plus (x) the Investor Group Increase Amount with respect to such Additional Investor Group on such date minus (y) the amount of principal payments

 

8


 

made to such Investor Group pursuant to the Series 2010-2 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 in accordance with the terms hereof as evidenced by a written agreement among the Committed Note Purchasers included in such Investor Group on Schedule I hereto, the Administrator and HVF; provided that, on any day after the occurrence and during the continuance of a Series 2010-2 Amortization Event, the Maximum Investor Group Principal Amount with respect to each Investor Group shall not exceed the Investor Group Principal Amount for such Investor Group.

 

Non-Consenting Purchaser ” has the meaning set forth in Section 3.11 .

 

Potential Terminated Purchaser ” has the meaning set forth in Section 3.11 .

 

Prime Rate ” means the rate announced by the Reference Lender from time to time as its prime rate in the United States, such rate to change as and when such designated rate changes.  The Prime Rate is not intended to be the lowest rate of interest charged by the Reference Lender in connection with extensions of credit to debtors.

 

Program Fee ” has the meaning set forth in Section 3.02(a) .

 

Program Fee Letter ” means that certain fee letter, dated as of the date hereof, by and among each initial Conduit Purchaser, each initial Committed Note Purchaser, the Administrative Agent and HVF setting forth the definition of Program Fee Rate and the definition of Undrawn Fee.

 

Program Fee Rate ” has the meaning set forth in the Program Fee Letter.

 

Program Support Agreement ” means and includes any agreement entered into by any Program Support Provider in respect of any Series 2010-2 Commercial Paper and/or Series 2010-2 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

 

9



 

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 2010-2 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 2010-2 Commercial Paper and/or Series 2010-2 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 2010-2 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.

 

Replacement Purchaser ” has the meaning set forth in Section 3.11 .

 

Securities Act ”:  The U.S. Securities Act of 1933, as amended.

 

Series 2010-2 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 2010-2 Base Rate due to a change in the Prime Rate or the Federal Funds Rate shall be effective as of the opening of business on the effective day of such change in the Prime Rate or the Federal Funds Rate, respectively.  Changes in the rate of interest on that portion of any Advances maintained as Series 2010-2 Base Rate Tranches will take effect simultaneously with each change in the Series 2010-2 Base Rate.

 

Series 2010-2 Commitment Termination Date ” means December 26, 2012 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 2010-2 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

 

10



 

Bank of New York Trust Company, N.A.), as Trustee, relating to, among other things, the issuance by HVF of its Series 2010-2 Notes.

 

Taxes ” has the meaning set forth in Section 3.08 .

 

Term ” has the meaning set forth in Section 2.05 .

 

Terminated Purchaser ” has the meaning set forth in Section 3.11 .

 

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.

 

Up-Front Fee Letter ” means that certain fee letter dated as of the date hereof, by and among each Committed Note Purchaser, the Administrative Agent and HVF setting forth the definition of Up-Front Fee for each such Committed Note Purchaser.

 

Weighted Average CP Rate ” means, with respect to any Series 2010-2 Interest Period, the weighted average of the CP Rates applicable to each Advance funded or maintained during such Series 2010-2 Interest Period through the issuance of Series 2010-2 Commercial Paper.

 

ARTICLE II
PURCHASE AND SALE OF SERIES 2010-2 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 2010-2 Notes on the Series 2010-2 Closing Date.  Such Series 2010-2 Notes for each Investor Group will be dated the Series 2010-2 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 .  Subject to the terms and conditions of this Agreement and the Series 2010-2 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 2010-2 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

 

11



 

precedent thereto, make Advances from time to time during the Series 2010-2 Revolving Period; provided , that, subject to Section 2.03(a)  such Advances shall be made ratably based on, with respect to any portion of such Advance funded by (x) a Conduit Investor, the Commitment Percentage of such Conduit Investor’s Investor Group or (y) a Committed Note Purchaser, such Committed Note Purchaser’s Percentage of the Commitment Percentage with respect to the related Investor Group; provided , further 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 2010-2 Principal Amount would exceed the Series 2010-2 Maximum Principal Amount, (iii) a Series 2010-2 Aggregate Asset Amount Deficiency exists or would exist as a result of such Advance, or (iv) a Series 2010-2 Amortization Event, Series 2010-2 Potential Amortization Event, or Series 2010-2 Limited Liquidation Event of Default 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 2010-2 Initial Principal Amount (or, (x) 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 and (y) in the case of a Conduit Investor in any Investor Group with respect to which an Investor Group Maximum Principal Increase occurs, the Investor Group Maximum Principal Increase Amount with respect to such 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 2010-2 Initial Principal Amount (or, (x) 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 and (y) in the case of a Committed Note Purchaser in any Investor Group with respect to which an Investor Group Maximum Principal Increase occurs, the applicable portion of the Investor Group Maximum Principal Increase Amount with respect to such Investor Group) or such Increase, as the case may be, not funded by such Conduit Investor.

 

(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 2010-2 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 2010-2 Commercial Paper at any time that (x) a Series 2010-2 Amortization Event has occurred and is continuing or (y) the funding of such Advance through the issuance of Series 2010-2 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 2010-2 Commercial Paper, and (iii) notwithstanding anything herein or in any other Series 2010-2 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.

 

12



 

(c)           The proceeds of all Advances on any date shall be allocated according to the provisions of Article IX of the Series 2010-2 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 2010-2 Supplement, the aggregate principal amount of the Advances represented by the Series 2010-2 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 by providing 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; provided that in the event that one or more Additional Investor Groups become party to this Agreement in accordance with Section 9.16(a)  or one or more Investor Group Maximum Principal Increases are effected in accordance with Section 9.16(b) , any subsequent Borrowings shall be allocated solely to such Additional Investor Groups and/or such Investor Groups, as applicable, until (and only until) the Series 2010-2 Principal Amount is allocated ratably among all Investor Groups (based upon each such Investor Group’s Commitment Percentage after giving effect to each such Additional Investor Group becoming party hereto and/or each such Investor Group Maximum Principal Increase, as applicable); provided further that on or prior to the Payment Date immediately following the date on which any such Additional Investor Group becomes party hereto or an Investor Group Maximum Principal Increase occurs, HVF shall use commercially reasonable efforts to request Advances and/or effect Voluntary Decreases to the extent necessary to cause (after giving effect to such Advances and Voluntary Decreases) the Series 2010-2 Principal Amount to be allocated ratably among all Investor Groups (based upon each such Investor Group’s Commitment Percentage after giving effect to such Additional Investor Group becoming party hereto or Investor Group Maximum Principal Increase, as applicable).  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(s), 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

 

13



 

2010-2 Supplement, each Conduit Investor or its related Committed Note Purchaser(s), as the case may be, and each Committed Note Purchaser with respect to any Investor Group that does not include a Conduit Investor, shall make 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 2010-2 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 2010-2 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 2010-2 Base Rate plus 1% per annum.

 

SECTION 2.04   The Series 2010-2 Notes .  On each date an Advance is funded under the Series 2010-2 Notes pursuant to the Series 2010-2 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

 

14



 

maintained by the Trustee pursuant to the Indenture, such discrepancy shall be resolved by such Funding Agent, the Administrative Agent and the Trustee.

 

SECTION 2.05   Commitment Terms .  The “ Term ” of the Commitment hereunder shall be for a period commencing on the Series 2010-2 Closing Date and ending on the Series 2010-2 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 2010-2 Notes or to its related Committed Note Purchaser(s) 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 2010-2 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 2010-2 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 2010-2 Supplement, and (ii) must be in a minimum amount of $5,000,000 and (y) after giving effect to such reduction, the Series 2010-2 Maximum Principal Amount equals or exceeds $50,000,000, 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 Amounts.

 

SECTION 2.08  Extensions of Commitments .

 

(a)           So long as no Amortization Event has occurred and is continuing, HVF may request, through the Administrative Agent, that each Funding Agent, for the account of the related Investor Group, consents to an extension of the Series  2010-2 Commitment Termination Date for such period as HVF may specify (the “ Extension Length ”), which decision will be made by each Funding Agent, for the account of the related Investor Group, in its sole discretion. Upon receipt of any such request, the Administrative Agent shall promptly notify each Funding Agent thereof who shall notify each Conduit Investor, if any, and each Committed Note Purchaser in its Investor Group thereof.  Not later than the first Business Day following the 45th day after such request for an extension (such period, the “ Election Period ”), each Committed Note Purchaser shall notify HVF and the Administrative Agent of its willingness or refusal to consent to such extension and each Conduit Investor shall notify the Funding Agent for its Investor Group of its willingness or refusal to consent to such extension, and such Funding Agent shall notify HVF and the Administrative Agent of such willingness or refusal by each such Conduit Investor (any

 

15



 

such Conduit Investor or Committed Note Purchaser which refuses to consent to such extension, a “ Non-Extending Purchaser ”).  Any Committed Note Purchaser which does not expressly notify HVF and the Administrative Agent that it is willing to consent to an extension of the Series 2010-2 Commitment Termination Date during the applicable Election Period and each Conduit Investor which does not expressly notify such Funding Agent that it is willing to consent to an extension of the Series 2010-2 Commitment Termination Date during the applicable Election Period shall be deemed to be a Non-Extending Purchaser.  If a Committed Note Purchaser or a Conduit Investor has agreed to extend its Series 2010-2 Commitment Termination Date, and, at the end of the applicable Election Period no Series 2010-2 Amortization Event shall be continuing, the Series 2010-2 Commitment Termination Date for such Committed Note Purchaser or Conduit Investor then in effect shall be extended to the date which is the last day of the Extension Length (which shall begin running on the day after its then current Series 2010-2 Commitment Termination Date).

 

ARTICLE III
INTEREST AND FEES

 

SECTION 3.01   Interest .  (a) Each related Advance funded or maintained by an Investor Group during the related Series 2010-2 Interest Period (i) through the issuance of Series 2010-2 Commercial Paper shall bear interest at the CP Rate for such Series 2010-2 Interest Period and (ii) through means other than the issuance of Series 2010-2 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 2010-2 Interest Period or Eurodollar Interest Period, as the case may be (including the applicable CP Rate, the Eurodollar Rate (Reserve Adjusted) and/or Series 2010-2 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.

 

(b)           Interest (including all amounts described in Section 3.01(a)  above and any Series 2010-2 Monthly Default Interest Amount) shall be due and payable on each Payment Date in accordance with the provisions of the Series 2010-2 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 2010-2 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.

 

16



 

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 2010-2 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 2010-2 Interest Period and (z) the number of days in the related Series 2010-2 Interest Period divided by 360 (or in the case of the first Payment Date occurring following the Series 2010-2 Closing Date, the number of days in the period from and including the Series 2010-2 Closing Date to but excluding such first Payment Date).

 

(b)           On each Payment Date on or prior to the Series 2010-2 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 2010-2 Interest Period, (b) the excess of (i) the daily average 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 2010-2 Interest Period, and (c) the number of days in the related Series 2010-2 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.

 

(d)           On the Series 2010-2 Closing Date, HVF shall pay the applicable 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 2010-2 Eurodollar Tranche of such Advance, the obligation of such Person to make, continue or maintain any such Advance as, or to convert any such Advance into, the Series 2010-2 Eurodollar Tranche of such Advance shall, upon such

 

17



 

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 2010-2 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 2010-2 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 2010-2 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 2010-2 Eurodollar Tranche of such Advance for such Eurodollar Interest Period,

 

then, upon notice from such Conduit Investor, such Committed Note Purchaser or the related Majority Program Support Providers to such Funding Agent and HVF, the obligations of such Conduit Investor, such Committed Note Purchaser and all of the relevant Program Support Providers to make or continue any Advance as, or to convert any Advances into, the Series 2010-2 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 2010-2 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 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

 

18



 

Series 2010-2 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 2010-2 CP Tranche or Series 2010-2 Eurodollar Tranche, or to convert any portion of the principal amount of any Advance into, the Series 2010-2 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 2010-2 CP Tranche or Series 2010-2 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 2010-2 CP Tranche or Series 2010-2 Eurodollar Tranche on a date other than the scheduled last day of the Series 2010-2 Interest Period or Eurodollar Interest Period applicable thereto;

 

(ii)           any Advance not being made as an Advance under the Series 2010-2 CP Tranche or Series 2010-2 Eurodollar Tranche after a request for such an Advance has been made in accordance with the terms contained herein;

 

(iii)          any Advance not being continued as a Series 2010-2 CP Tranche or Series 2010-2 Eurodollar Tranche, or converted into an Advance under the Series 2010-2 Eurodollar Tranche after a request for such an Advance has been made in accordance with the terms contained herein;

 

(iv)          any failure of HVF to make a Decrease after giving notice thereof pursuant to Section 2.2(b) of the Series 2010-2 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; provided , that in no event shall HVF be required to pay to any Affected Person any amounts in respect of any such losses or expenses which result from any repayment or prepayment described in clause (i)  above

 

19



 

which occurs on any Payment Date.  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 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 hereunder 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 Change in Law, 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 to the extent that the increased costs for which such Affected Person is being compensated are allocable to the existence of such Affected Person’s Commitment hereunder.  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 , 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.  HVF shall not be under any obligation to compensate any Affected Person under this Section 3.07 with respect to any such increased costs that arose during any period prior to the date that is 180 days prior to such Affected Person’s notice being delivered to HVF, except that the foregoing limitation shall not apply to any increased costs arising out of the retroactive application of any Change in Law within such 180-day period.  If, after the payment of any amounts on account of increased costs by HVF, any applicable law, rule or regulation in respect of which a payment was made is thereafter determined to be invalid or inapplicable to such Affected Person, then such Affected Person shall, within 60 days after such determination, repay any amounts paid to it by HVF hereunder in respect of such Change in Law.

 

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 from such Affected Person having executed, delivered or performed its obligations or received a payment under, or enforced by, this Agreement), (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

 

20


 

Foreign Affected Person at the time the Foreign Affected Person becomes a party (or acquires a Participation) 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 and (z) United States federal withholding taxes that would not have been imposed but for a failure by an Affected Person (or any financial institution through which any payment is made to such Affected Person) to comply with the procedures, certifications, information reporting, disclosure or other related requirements of current Sections 1471-1474 of the Code (and any amended or successor version that is substantively comparable) or any published administrative guidance implementing such law to establish relief or exemption from the tax imposed by such provisions (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 amounts paid under this Section 3.08 with respect to the Taxes giving rise to such refund), net of all

 

21



 

out-of-pocket expenses of the Affected Person and without interest (other than any interest paid by the relevant governmental authority with respect to such refund), provided that HVF, upon the request of the Affected Person, agrees to repay the amount paid over to HVF ( plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the Affected Person in the event the Affected Person is required to repay such refund to such governmental authority. This Section 3.08 shall not be construed to require the Affected Person to make available its tax returns (or any other information relating to its taxes which it deems confidential) to HVF or any other Person.

 

SECTION 3.09   Indenture Carrying Charges; Survival .  Any amounts payable by HVF under Sections 3.05 , 3.06 , 3.07 or 3.08 shall constitute Indenture Carrying Charges within the meaning of the Series 2010-2 Supplement.  The agreements in Sections 3.05 , 3.06 , 3.07 , 3.08 and 3.10 shall survive the termination of this Series 2010-2 Note Purchase Agreement, the Series 2010-2 Supplement and the Base Indenture and the payment of all amounts payable hereunder and thereunder.

 

SECTION 3.10   Minimizing Costs and Expenses; Equivalent Treatment .  Each Affected Person shall be deemed to have agreed that it shall, as promptly as practicable after it becomes aware of any circumstance referred to in Sections 3.05 , 3.06 , 3.07 or 3.08 , use commercially reasonable efforts (to the extent not inconsistent with its internal policies of general application) to minimize the costs, expenses, taxes or other liabilities incurred by it and payable to it by HVF pursuant to such Section 3.05 , 3.06 , 3.07 or 3.08 .

 

In determining any amounts payable to it by HVF pursuant to Sections 3.05 , 3.06 , 3.07 or 3.08 , each Affected Person shall treat HVF the same as all similarly situated Persons (as determined by such Affected Person in its reasonable discretion) and 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 3.11   Replacement of Investor Group .  Notwithstanding anything to the contrary contained herein or in any other Series 2009-1 Related Document, in the event that (a) any Affected Person shall request reimbursement for amounts owing pursuant to Sections 3.05 , 3.06 , 3.07 or 3.08 , (b) a Committed Note Purchaser shall become a Defaulting Committed Note Purchaser, and such Defaulting Committed Note Purchaser shall fail to pay any amounts in accordance with Section 2.03 within five (5) Business days after demand from the applicable Funding Agent, (c) any Committed Note Purchaser or Conduit Investor shall become a Non-Extending Purchaser or (d) any Committed Note Purchaser or Conduit Investor fails to give its consent to any amendment, modification, termination or waiver of any Series 2010-2 Related Document (an “ Action ”) by the date specified by HVF or the Administrator on behalf of HVF, for which (I) in the case of any Action which is an Aggregate Outstanding VFN Action (A) at least half of the percentage of Aggregate Outstanding VFN Noteholders required for such Action have consented to such Action and (B) the Aggregate Outstanding VFN Threshold Noteholders have not consented to such Action (or provided written notice that they intend to consent) or (II) in the case of any Action which is not an Aggregate

 

22



 

Outstanding VFN Action (A) at least half of the percentage of Series 2010-2 Noteholders required for such Action have consented to such Action and (B) the percentage of the Series 2010-2 Noteholders required for such Action have not consented to such Action (or provided written notice that they intend to consent) (each, a “ Non-Consenting Purchaser ”), (each such Committed Note Purchaser or Conduit Investor described in paragraphs (a), (b), (c) or (d), a “ Potential Terminated Purchaser ”), HVF shall be permitted, upon no less than ten (10) days notice to the Administrative Agent, a Potential Terminated Purchaser and its related Funding Agent, to (i)(1) elect to terminate the Commitment (if any) of such Potential Terminated Purchaser on the date specified in such termination notice, and (2) prepay on the date of such termination such Potential Terminated Purchaser’s Investor Group Principal Amount and all accrued and unpaid interest thereon of such Potential Terminated Purchaser, or (ii) elect to cause such Potential Terminated Purchaser to (and the Potential Terminated Purchaser must) assign its Commitment (if any) to a replacement purchaser (a “ Replacement Purchaser ”) (any such Potential Terminated Purchaser with respect to which HVF has made any such election, a “ Terminated Purchaser ”).  In the event that any Committed Note Purchaser or Conduit Investor becomes a Potential Terminated Purchaser hereunder, HVF shall be permitted to deem any other member of such Committed Note Purchaser’s or Conduit Investor’s Investor Group to be a Potential Terminated Purchaser for all purposes hereunder.

 

HVF shall not make an election described in the preceding paragraph unless (a) no Series 2010-2 Amortization Event or Series 2010-2 Potential Amortization Event shall have occurred and be continuing at the time of such election (unless such Series 2010-2 Amortization Event or Series 2010-2 Potential Amortization Event would no longer be continuing after giving effect to such election), (b) in respect of an election described in clause (ii)  of the immediately preceding paragraph only, on or prior to the effectiveness of the applicable assignment, the Terminated Purchaser shall have been paid its Investor Group Principal Amount and all accrued and unpaid interest thereon by or on behalf of the related Replacement Purchaser, (c) in the event that the Terminated Purchaser is a Non-Extending Purchaser, the Replacement Purchaser (if any) shall have agreed to the applicable extension of the Series 2010-2 Commitment Termination Date and (d) in the event that the Terminated Purchaser is a Non-Consenting Purchaser, the Replacement Purchaser (if any) shall have consented to the applicable amendment, modification, termination or waiver.  Each Terminated Purchaser hereby agrees to take all actions reasonably necessary, at the expense of HVF, to permit a Replacement Purchaser to succeed to its rights and obligations hereunder.  Notwithstanding the foregoing, the consent of each then-current member of an existing Investor Group (other than any Terminated Purchaser) shall be required in order for a Replacement Purchaser to join any such Investor Group.  Upon the effectiveness of any such assignment to a Replacement Purchaser, (i) such Replacement Purchaser shall become a “Committed Note Purchaser” or “Conduit Investor”, as applicable, hereunder for all purposes of this Agreement and the Series 2010-2 Related Documents, (ii) such Replacement Purchaser shall have a Commitment in the amount not less than the Terminated Purchaser’s Commitment assumed by it and (iii) the Commitment of the Terminated Purchaser shall be terminated in all respects.

 

23



 

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 2010-2 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 2010-2 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 2010-2 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 to take any action that exposes the Administrative Agent to personal liability or that is contrary to this Agreement, the Series 2010-2 Supplement or Applicable Law.  The appointment and authority of the Administrative Agent hereunder shall terminate upon the indefeasible payment in full of the Series 2010-2 Notes and all other amounts owed by HVF hereunder and under the Series 2010-2 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.

 

24



 

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 Series 2010-2 Amortization Event, Series 2010-2 Potential Amortization Event or Series 2010-2  Limited Liquidation Event of Default unless the Administrative Agent has received notice from HVF, any Conduit Investor, any Committed Note Purchaser or any Funding Agent.

 

SECTION 5.04   Reliance .  The Administrative Agent shall in all cases be entitled to rely, and shall be fully protected in relying, upon any document or conversation believed by it to be genuine and correct and to have been signed, sent or made by the proper Person or Persons and upon advice and statements of legal counsel (including, without limitation, counsel to HVF), independent accountants and other experts selected by the Administrative Agent.  The Administrative Agent shall in all cases be fully justified in failing or refusing to take any action under this Agreement or any other document furnished in connection herewith unless it shall first receive such advice or concurrence of any Conduit Investor, any Committed Note Purchaser or any Funding Agent as it deems appropriate or it shall first be indemnified to its satisfaction by any Conduit Investor, any Committed Note Purchaser or any Funding Agent, provided that unless and until the Administrative Agent shall have received such advice, the Administrative Agent may take or refrain from taking any action, as the Administrative Agent shall deem advisable and in the best interests of the Conduit Investors, the Committed Note Purchasers and the Funding Agents.  The Administrative Agent shall in all cases be fully protected in acting, or in refraining from acting, in accordance with a request of the Series 2010-2 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

 

25



 

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 2010-2 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 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

 

26



 

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 Series 2010-2 Amortization Event, Series 2010-2 Potential Amortization Event or Series 2010-2 Limited Liquidation Event of Default unless such Funding Agent has received notice from HVF or the related Investor Group.

 

SECTION 5.11   Reliance .  Each Funding Agent shall in all cases be entitled to rely, and shall be fully protected in relying, upon any document or conversation believed by it to be genuine and correct and to have been signed, sent or made by the proper Person or Persons and upon advice and statements of the Administrative Agent and legal counsel (including, without limitation, counsel to HVF), independent accountants and other experts selected by such Funding Agent.  Each Funding Agent shall in all cases be fully justified in failing or refusing to take any action under this Agreement or any other document furnished in connection herewith unless it shall first receive such advice or concurrence of the related Investor Group as it deems appropriate or it shall first be indemnified to its satisfaction by the related Investor Group, provided that unless and until such Funding Agent shall have received such advice, such Funding Agent may take or refrain from taking any action, as such Funding Agent shall deem advisable and in the best interests of the related Investor Group.  Each Funding Agent shall in all cases be fully protected in acting, or in refraining from acting, in accordance with a request of the related Investor Group and such request and any action taken or failure to act pursuant thereto shall be binding upon the related Investor Group.

 

27



 

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.

 

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 Series 2010-2 Supplement and, other than any such representation or warranty relating solely to any Other Segregated Series of Notes or to any Series of Notes, the other Series 2010-2 Related Documents is true and correct and further represents and warrants to such parties that:

 

(a)           no Series 2010-2 Amortization Event or Series 2010-2 Limited Liquidation Event of Default 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;

 

28



 

(b)           assuming each Conduit Investor or other purchaser of the Series 2010-2 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 2010-2 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 Series 2010-2 Related Documents to which it is a party as of the Series 2010-2 Closing Date, all of which Series 2010-2 Related Documents are in full force and effect as of the Series 2010-2 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 2010-2 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 Series 2010-2 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 Series 2010-2 Related Document to which it is a party (other than any such representation or warranty relating solely to one or more Other Segregated Series of Notes and/or Series of Notes) is true and correct in all material respects as of the date originally made, as of the date hereof and as of the Series 2010-2 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, 2009 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 September 30, 2010 and the related statements of income, stockholders equity and cash flows for the nine months ending on such date (including in each case the schedules and notes thereto) (the “ Financial Statements ”), have been prepared in accordance with

 

29



 

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 2010-2 Notes;

 

(c)           it is purchasing the Series 2010-2 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 2010-2 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 2010-2 Notes, and that any transfer must comply with provisions of Section 2.8 of the Base Indenture;

 

(e)           it understands that the Series 2010-2 Notes will bear the legend set out in the form of Series 2010-2 Notes attached as Exhibit A to the Series 2010-2 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 2010-2 Notes;

 

(g)           it understands that the Series 2010-2 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

 

30



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 2010-2 Notes will be pledged by each Conduit Investor pursuant to its related commercial paper program documents, and the Series 2010-2 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 2010-2 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 2010-2 Notes will be required to deliver a certificate, as described in the Series 2010-2 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 2010-2 Notes (and all securities issued in exchange therefor or substitution thereof) shall bear a legend substantially in the form set forth in the Series 2010-2 Notes included as an exhibit to the Series 2010-2 Supplement.  Each Conduit Investor understands that the registrar and transfer agent for the Series 2010-2 Notes will not be required to accept for registration of transfer the Series 2010-2 Notes acquired by it, except upon presentation of an executed letter in the form required by the Series 2010-2 Supplement; and

 

(i)            it will obtain from any purchaser of the Series 2010-2 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 2010-2 Notes hereunder on the Series 2010-2 Closing Date unless:

 

(a)           the Base Indenture and the Series 2010-2 Supplement shall be in full force and effect as of such Series 2010-2 Closing Date;

 

31



 

(b)           as of such Series 2010-2 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 2010-2 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)           [Reserved]

 

(d)           as of such Series 2010-2 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) and (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;

 

(e)           as of such Series 2010-2 Closing Date, each Conduit Investor and each Committed Note Purchaser shall have received copies of the documents specified in Section 2.2(b) of the Base Indenture relating to the issuance of the Series 2010-2 Notes;

 

(f)            at the time of such issuance, all conditions to the issuance of the Series 2010-2 Notes under the Series 2010-2 Supplement and under Section 2.2 of the Base Indenture shall have been satisfied or waived;

 

(g)           as of such Series 2010-2 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 Series 2010-2 Collateral, the proceeds thereof and the security interests granted pursuant to the Series 2010-2 Supplement and the Collateral Agency Agreement;

 

(h)           as of such Series 2010-2 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

 

32


 

liens that are not permitted by the Base Indenture, the Series 2010-2 Supplement, this Agreement or the other Series 2010-2 Related Documents; and

 

(i)                                      each Committed Note Purchaser shall have received payment of the Up-Front Fee owing to it, in each case, as of the Series 2010-2 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 2010-2 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 2010-2 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(b)  and 6.01(d) , which shall have been true and accurate in all respects on the Series 2010-2 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 Series 2010-2 Related Documents (other than this Agreement) to which each is a party (other than any representations or warranties relating solely to any Other Segregated Series of Notes or any Series of Notes), 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 2010-2 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 Series 2010-2 Aggregate Asset Amount and the Series 2010-2 Enhancement Amount and (ii) in the case of any Borrowing occurring on or after the date the Monthly Noteholder Statement relating to the January 1, 2011 Payment Date is required to be delivered, the Monthly

 

33



 

Noteholders’ Statement for the Series 2010-2 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 and Section 7.7 of the Series 2010-2 Supplement, the Series 2010-2 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 2010-2 Interest Rate Caps in accordance with Section 9.11 of the Series 2010-2 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 2010-2 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 Series 2010-2 Related Document to which it is a party (other than any such covenants relating solely to any Other Segregated Series of Notes or any Series of Notes);

 

(b)                                  not effect any Aggregate Outstanding VFN Action which affects the Series 2010-2 Noteholders unless the Aggregate Outstanding VFN Threshold Noteholders shall have consented to such Aggregate Outstanding VFN Action; provided that prior to giving effect to any Aggregate Outstanding VFN Action without the consent of the Aggregate Outstanding VFN Threshold Noteholders, 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 Aggregate Outstanding VFN Action does not affect the Series 2010-2 Noteholders.

 

(c)                                   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 Other Segregated Series of Notes or any Series of Notes) is provided to the Trustee, or caused to be provided, by HVF or the Administrator under the Base Indenture or under the Series 2010-2 Supplement or this Agreement, provide the Administrative Agent (who shall provide a copy thereof to the Committed Note

 

34



 

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 for the avoidance of doubt, 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 2010-2 Notes;

 

(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 2010-2 Collateral on the same terms as are provided to the Trustee under Section 8.6 of the Base Indenture (but excluding making copies of or abstracts from any information that the Administrator or HVF reasonably determines to be proprietary or confidential; provided that, for the avoidance of doubt, all data and information used to calculate the Non-Program Vehicle Measurement Month Average or the Market Value Average shall be deemed to be proprietary and confidential), and (ii) upon reasonable notice, 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 2010-2 Collateral, or the administration and performance of the Base Indenture, the Series 2010-2 Supplement and the other Series 2010-2 Related Documents with any of the officers, or other nominees as such officers specify, of the Administrator, Hertz, HVF, the Intermediary and/or the Nominee, as applicable, having knowledge of such matters, in each case as may reasonably be requested; provided that (i) prior to the occurrence of a Series 2010-2 Amortization Event or Series 2010-2 Potential Amortization Event, in each case, with respect to the Series 2010-2 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) during the continuance of a Series 2010-2 Amortization Event or Series 2010-2 Potential Amortization Event, 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)                                   will not consent to any Supplement to the Base Indenture for any of the purposes described in Sections 12.1(a)(iv), (vii) or (viii) of the Base Indenture unless the Administrative Agent shall have provided its prior written consent (such consent not to be unreasonably withheld or delayed); provided , that such consent shall not be required in the event such Supplement does not affect the Series 2010-2 Noteholders.

 

35



 

(f)                                     On or prior to the Payment Date occurring in May of each year, the Series 2010-2 Administrator shall cause a firm of independent certified public accountants (reasonably acceptable to both the Administrative Agent and the Series 2010-2 Administrator, which may be the Series 2010-2 Administrator’s accountants) to deliver to the Administrative Agent and each Funding Agent, a report in substantially the form set forth hereto as Exhibit G hereto with such changes as may reasonably be necessary in order to conform the terms thereof to the provisions of the Series 2010-2 Supplement (a “ Servicer Audit ”); provided that such Servicer Audits shall be at HVF’s sole cost and expense (i) so long as no Series 2010-2 Amortization Event or Series 2010-2 Potential Amortization Event is continuing for no more than one such Servicer Audit per annum and (ii) for each such Servicer Audit after the occurrence and during the continuance of a Series 2010-2 Amortization Event or Series 2010-2 Potential Amortization Event, in each case, with respect to the Series 2010-2 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 2010-2 Notes to be secured, directly or indirectly, by any Margin Stock;

 

(i)                                      promptly provide such additional financial and other information with respect to the Series 2010-2 Related Documents, the Series 2010-2 Collateral, the Series 2010-2 Notes, HVF, Hertz, the Intermediary or the Series 2010-2 Manufacturer Programs as the Administrative Agent or any Funding Agent may from time to time reasonably request;

 

(j)                                      [Reserved]

 

(k)                                   [Reserved]

 

(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 Series 2010-2 Limited Liquidation Event of Default is continuing, furnish or cause the Servicer to furnish to the Administrative Agent and each Series 2010-2 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 a subordinated Series of Indenture Notes which is wholly subordinated to each Series of Indenture Notes

 

36



 

Outstanding without the prior written consent of Series 2010-2 Noteholders holding more than 50% of the Series 2010-2 Principal Amount;

 

(p)                                  [Reserved]

 

(q)                                  not appoint or agree to the appointment of any successor Series 2010-2 Administrator (other than the Back-Up Administrator (as defined in the Series 2010-2 Back-up Administration Agreement)) without the prior written consent of Series 2010-2 Noteholders holding more than 50% of the Series 2010-2 Principal Amount;

 

(r)                                     not amend the Series 2010-2 Back-Up Disposition Agent Agreement in a manner that materially adversely affects the Series 2010-2 Noteholders, as determined by the Administrative Agent in its sole discretion, without the prior written consent of Series 2010-2 Noteholders holding more than 50% of the Series 2010-2 Principal Amount;

 

(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 the LLC Agreement or the HVF LLC Agreement, as applicable and (ii) obtaining the prior written consent of the Administrative 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 Administrative 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; provided , that, for the avoidance of doubt, in the event that an Independent Director of the Nominee or HVF (as defined in the LLC Agreement or the HVF LLC Agreement, respectively) is removed in connection with any such replacement, HVF and the Administrator shall be required to effect such removal in accordance with clause (x)  above ;

 

(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 substantially the information set forth in Exhibit E hereto;

 

(u)                                  [Reserved]

 

37



 

(v)                                  for so long as any Series 2010-2 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 2010-2 Series Account, the Series 2010-2 Cash Collateral Account or the Series 2010-2 Reserve Account in a Series 2010-2 Permitted Investment that is a Series 2010-2 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 2010-2 Commercial Paper being rated by Standard & Poor’s to be reduced or withdrawn;

 

(w)                                not appoint any successor Back-up Disposition Agent without the prior written consent of Series 2010-2 Noteholders holding more than 50% of the Series 2010-2 Principal Amount (such consent not to be unreasonably withheld or delayed).

 

ARTICLE IX
MISCELLANEOUS PROVISIONS

 

SECTION 9.01   Amendments .  Subject to any provision of the Base Indenture or the Series 2010-2 Supplement requiring the consent of each affected Series 2010-2 Noteholder or of a higher percentage of Series 2010-2 Noteholders, no amendment to or waiver of any provision of this Agreement, nor consent to any departure by the Administrator or HVF, shall in any event be effective unless the same shall be in writing and signed by the Administrator, HVF, Conduit Investors and Committed Note Purchasers holding more than 66 2 / 3 % of the Series 2010-2 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 2010-2 Commercial Paper that such amendment will not result in the reduction or withdrawal of the then current ratings in respect of the Series 2010-2 Commercial Paper; provided , however , that the consent of each Conduit Investor and each Committed Note Purchaser shall be required for any 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 2010-2 Notes (or reduces the principal amount of or rate of interest on the Series 2010-2 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 otherwise amends or modifies any provision relating to the amendment or modification of this Agreement, or, pursuant to the Series 2010-2 Related Documents, would require the consent of 100% of the Series 2010-2 Noteholders or each Series 2010-2 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

 

38



 

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 any 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 2010-2 Base Rate”, “Series 2010-2 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 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 2010-2 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

 

39



 

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 2010-2 Notes (and its rights hereunder and under the Series 2010-2 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 2010-2 Note and all Series 2010-2 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 2010-2 Commercial Paper or the Series 2010-2 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 2010-2 Commercial Paper or the Series 2010-2 Notes or (v) any collateral trustee or collateral agent for any of the foregoing; provided , however , any such security interest or lien shall be released upon assignment of its Series 2010-2 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 2010-2 Note, this Agreement and the Series 2010-2 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 2010-2 Note and the Series 2010-2 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 2010-2 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 2010-2 Notes and shall continue in full force and effect until all interest on and principal of the Series 2010-2 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 2010-2 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 , 3.10 , 9.05 , 9.10(b)  and 9.11 shall survive the termination of this Agreement.

 

40



 

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 2010-2 Commercial Paper) in connection with

 

(i)                                      the negotiation, preparation, execution, delivery and administration of this Agreement and of each other Series 2010-2 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 2010-2 Notes and any amendments, waivers, consents, supplements or other modifications to this Agreement or any other Series 2010-2 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 Series 2010-2 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 and (ii) all reasonable costs 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) in enforcing this Agreement.  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 Series 2010-2 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 Series 2010-2 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 2010-2 Notes pursuant to Section 9.17 ; provided , however , that HVF shall reimburse each Committed Note Purchaser and/or Conduit Investor who purchased Series 2010-2 Notes on the Series 2010-2 Closing Date for its reasonable legal and administrative fees and expenses (excluding any fees and/or

 

41



 

expenses payable to any rating agency) 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 2010-2 Notes within 180 days of the Series 2010-2 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 2010-2 Notes), including reasonable attorneys’ fees and disbursements (collectively, the “ Indemnified Liabilities ”), incurred by the Indemnified Parties or any of them (whether in prosecuting or defending against such actions, suits or claims) to the extent resulting from, or arising out of, or relating to

 

(i)                                      any transaction financed or to be financed in whole or in part, directly or indirectly, with the proceeds of any Advance; or

 

(ii)                                   the entering into and performance of this Agreement and any other Series 2010-2 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 ).

 

(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 2010-2 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

 

42



 

Series 2010-2 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 ).

 

(ii)                                   In consideration of the execution and delivery of this Agreement by the Administrative Agent, each Funding Agent and each Committed Note Purchaser, ratably according to its respective Commitment, hereby indemnifies and holds the Administrative Agent and each of its officers, directors, employees and agents (collectively, the “ Administrative Agent Indemnified Parties ”) and each Funding Agent and each of its officers, directors, employees and agents (collectively, the “ Funding Agent Indemnified Parties ”, and together with the Administrative Agent Indemnified Parties, the “ Agent Indemnified Parties ”) harmless from and against any and all actions, causes of action, suits, losses, costs, liabilities and damages, and reasonable expenses incurred in connection therewith (solely to the extent not reimbursed by or on behalf of HVF) (irrespective of whether any such Agent Indemnified Party is a party to the action for which indemnification hereunder is sought and including, without limitation, any liability in connection with the offering and sale of the Series 2010-2 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 Series 2010-2 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 ).

 

SECTION 9.06   Characterization as Series 2010-2 Related Document; Entire Agreement .  This Agreement shall be deemed to be a Series 2010-2 Related Document for all purposes of the Series 2010-2 Supplement and the other Series 2010-2 Related Documents.  This Agreement, together with the Base Indenture, the Series 2010-2 Supplement, the Program Fee Letter, the Up-Front Fee Letter, the documents delivered pursuant to Section 7.01 and the other Series 2010-2 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

 

43



 

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.

 

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 2010-2 Notes will be treated as evidence of indebtedness, (b) agrees to treat the Series 2010-2 Notes for all such purposes as indebtedness and (c) agrees that the provisions of the Series 2010-2 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 2010-2 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

 

44


 

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 2010-2 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 2010-2 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 2010-2 Supplement or the Base Indenture.  In the event that HVF, the Administrator, a Committed Note Purchaser (solely in its capacity as such) or Hertz takes action in violation of this Section 9.10(b) , such related Conduit Investor may file an answer with the bankruptcy court or otherwise properly contest the filing of such a petition by any such Person against such Conduit Investor or the commencement of such action and raise the defense that such Person has agreed in writing not to take such action and should be estopped and precluded therefrom and such other defenses, if any, as its counsel advises that it may assert.  The provisions of this Section 9.10(b)  shall survive the termination of this Agreement.  Nothing contained herein shall preclude participation by HVF, the Administrator, a Committed Note Purchaser or Hertz in assertion or defense of its claims in any such proceeding involving a Conduit Investor.  The obligations of the Conduit Investors under this Agreement are solely the corporate obligations of the Conduit Investors.  No recourse shall be had for the payment of any amount owing in respect of this Agreement, including any obligation or claim arising out of or based upon this Agreement, against any stockholder, employee, officer, agent, director, member, affiliate or incorporator of any Conduit Investor; provided , however , nothing in this Section 9.10(b)  shall relieve any of the foregoing Persons from any liability which any such Person may otherwise have for its gross negligence or willful misconduct.

 

Notwithstanding any provisions contained in this Agreement to the contrary, the Conduit Investors shall not, and shall not be obligated to, fund or pay any amount pursuant to this Agreement or the Series 2010-2 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

 

45



 

Conduit Investor for any such insufficiency.

 

SECTION 9.11   Confidentiality .  Each Committed Note Purchaser and each Conduit Investor, each Funding Agent and the Administrative Agent 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 Conduit’s debt, (d) in the course of litigation with HVF, the Administrator or Hertz, (e) any Series 2010-2 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 professional advisors of any party hereto, (i) to any Person to the extent such Committed Note Purchaser, Conduit Investor, Funding Agent or the Administrative Agent 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 2010-2 Notes, the Indenture or any other Series 2010-2 Related Document or (j) to a nationally-recognized rating agency that requires access to information to effect compliance with any disclosure obligations under applicable laws or regulations.

 

Confidential Information ” means information that HVF or the Administrator furnishes to a Committed Note Purchaser, a Conduit Investor, a Funding Agent or the Administrative Agent, 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, a Conduit Investor, a Funding Agent or the Administrative Agent or other Person to which a Committed Note Purchaser, a Conduit Investor, a Funding Agent or the Administrative Agent delivered such information, (ii) any such information that was in the possession of a Committed Note Purchaser, a Conduit Investor, a Funding Agent or the Administrative Agent prior to its being furnished to such Committed Note Purchaser, such Conduit Investor, such Funding Agent or the Administrative Agent by HVF or the Administrator, or (iii) that is or becomes available to a Committed Note Purchaser, a Conduit Investor, a Funding Agent or the Administrative Agent 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, a Conduit Investor, a Funding Agent or the Administrative Agent 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, a Conduit Investor, a Funding Agent or the Administrative Agent to be otherwise prohibited from transmitting the information by a contractual, legal or fiduciary obligation.

 

46



 

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 2010-2 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 2010-2 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 2010-2 Note PURCHASE AGREEMENT.

 

SECTION 9.14   Waiver of Jury Trial ALL PARTIES HEREUNDER HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHTS THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS Series 2010-2 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 2010-2 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 and Investor Group Maximum Principal Amount Increases . (a) Unless a Series 2010-2 Amortization Event or a Series 2010-2 Potential Amortization Event shall have occurred and be continuing, HVF may request that an Additional Investor Group and its related Funding Agent, Conduit Purchasers, if any, and Committed Note Purchasers become parties to this Agreement and increase the Series 2010-2 Maximum Principal Amount by complying with the provisions of this Section 9.16(a)  and Sections 8.1 and 11.1 of the Series 2010-2 Supplement upon execution of an Addendum by such Additional Investor Group, the

 

47



 

Administrative Agent and HVF, and HVF shall provide at least three (3) Business Days’ prior written notice to each Funding Agent and the Administrative Agent of any such addition.  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 Additional Investor Group Initial 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 revise Schedule I hereto in accordance with the information provided in the notice described above.  Notwithstanding anything herein or in any other Series 2010-2 Related Document to the contrary, no consent of any existing Investor Group or its related Funding Agent, Conduit Purchasers, if any, or Committed Note Purchasers is required for HVF to cause Additional Investor Group to become party to this Agreement.

 

(b)           Unless a Series 2010-2 Amortization Event or a Series 2010-2 Potential Amortization Event shall have occurred and be continuing, HVF and any Investor Group and its related Funding Agent, Conduit Purchaser(s), if any, and Committed Note Purchasers may increase such Investor Group’s Maximum Investor Group Principal Amount and effect a corresponding increase to the Series 2010-2 Maximum Principal Amount by complying with the provisions of this Section 9.16(b)  and Sections 8.1 and 11.1 of the Series 2010-2 Supplement (any such increase, an “ Investor Group Maximum Principal Increase ”) and upon the execution of an Investor Group Maximum Principal Increase Addendum. In connection with any such Investor Group Maximum Principal Increase, HVF shall provide at least three (3) Business Days’ prior written notice to each Funding Agent and the Administrative Agent of any such increase.  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 Investor Group, the Maximum Investor Group Principal Amount with respect to such Investor Group after giving effect to such Investor Group Maximum Principal Increase, the Investor Group Maximum Principal Increase Amount in connection with such Investor Group Maximum Principal Increase, the related Committed Note Purchaser’s Committed Note Purchaser Percentage after giving effect to such Investor Group Maximum Principal Increase and the desired effective date of such Investor Group Maximum Principal Increase.  Upon the execution of an Investor Group Maximum Principal Increase Addendum by such Investor Group, the Administrative Agent and HVF, the Administrative Agent shall revise Schedule I hereto in accordance with the information provided in the notice described above.  Notwithstanding anything herein or in any other Series 2010-2 Related Document to the contrary, no consent of any other existing Investor Group or its related Funding Agent, Conduit Purchasers, if any, or Committed Note Purchasers is required for HVF to cause the Investor Group Maximum Principal Increase to occur or to modify the related Maximum Investor Group Principal Amount set forth in Schedule I hereto to reflect such Investor Group Maximum Principal

 

48



 

Increase.

 

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 2010-2 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 a Series 2010-2 Amortization Event or (ii) if such Acquiring Committed Note Purchaser is an Affiliate of such assigning Committed Note Purchaser.

 

An assignment by a Committed Note Purchaser that is part of an Investor Group that includes a Conduit Investor to an Investor Group that does not include a Conduit Investor may be made pursuant to this Section 9.17(a) ; provided , that immediately prior to such assignment each Conduit Investor that is part of the assigning Investor Group shall be deemed to have assigned all of its rights and obligations in the Series 2010-2 Notes (and its rights and obligations hereunder and under the Series 2010-2 Related Documents) in respect of such assigned interest to its related Committed Note Purchaser pursuant to Section 9.03(b) .  Notwithstanding anything to the contrary herein, any assignment by a Committed Note Purchaser to a different Investor Group that includes a Conduit Investor shall be made pursuant to Section 9.17(c) , and not this Section 9.17(a) .

 

(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 Series 2010-2 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 Series 2010-2 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 2010-2 Commercial Paper and/or the Series 2010-2 Notes, shall have the benefit of all the rights and protections provided to such Conduit Investor herein and in the other Series 2010-2 Related Documents (including, without limitation, any limitation on recourse against such Conduit Assignee), (iv) such Conduit Assignee shall assume all of such Conduit Investor’s obligations, if any, hereunder or under the Indenture or under any other Series 2010-2 Related Document with respect to such portion of the Investor Group

 

49



 

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 Series 2010-2 Related Documents shall be interpreted in accordance with the foregoing, and (viii) if reasonably 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 (or, with respect to any Investor Group without a Conduit Investor, the related Committed Note Purchaser) may at any time sell all or any part of their respective (or, with respect to an Investor Group without a Conduit Investor, its) rights and obligations under this Agreement and the Series 2010-2 Notes, with the prior written consent of HVF, which consent shall not be unreasonably withheld, to an Investor Group with respect to which each acquiring Conduit Investor is 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 that includes one or more financial institutions providing support to such multi-seller commercial paper conduit (an “ Acquiring Investor Group ”) pursuant to a transfer supplement, substantially in the form of Exhibit C (the “ Investor Group Supplement ”), executed by such Acquiring Investor Group, the Funding Agent with respect to such Acquiring Investor Group (including each Conduit Investor (if any) 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 a Series 2010-2 Amortization Event; 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 2010-2 Notes.

 

50



 

(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 2010-2 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 2010-2 Supplement or any other Series 2010-2 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.  Each such Participant shall be deemed to have agreed to the provisions set forth in Section 3.10 hereof 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 Series 2010-2 Collateral, the Administrator and the Series 2010-2 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 Series 2010-2 Collateral and the Administrator.

 

[Remainder of Page Intentionally Blank]

 

51



 

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/ Scott Massengill

 

 

Name: 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 2010-2 Note PURCHASE AGREEMENT]

 


 

 

THE HERTZ CORPORATION

 

 

 

 

 

By:

/s/ Scott Massengill

 

 

Name: Scott Massengill

 

 

Title: Treasurer

 

 

 

 

 

Address:

225 Brae Boulevard

 

 

Park Ridge, NJ 07656

 

 

 

Attention:

Treasury Department

 

Telephone:

(201) 307-2000

 

Facsimile:

(201)307-2746

 

[Series 2010-2 Note PURCHASE AGREEMENT]

 



 

 

DEUTSCHE BANK AG, NEW YORK BRANCH,

 

as the Administrative Agent

 

 

 

 

 

By:

/s/ Robert Sheldon

 

 

Name: Robert Sheldon

 

 

Title: Managing Director

 

 

 

 

 

 

 

By:

/s/ Ozan Kaya

 

 

Name: Ozan Kaya

 

 

Title: Vice President

 

 

 

 

 

 

Address:

60 Wall Street, 3rd Floor

 

 

 

New York, NY 10005-2858

 

 

 

 

Attention:

Ozan Kaya

 

 

Telephone:

(212) 250-4998

 

 

Facsimile:

(212) 797-5300

 

 

 

 

 

 

With electronic copy to abs.conduits@db.com

 

[Series 2010-2 Note PURCHASE AGREEMENT]

 



 

 

DEUTSCHE BANK AG, NEW YORK BRANCH,

 

as a Funding Agent

 

 

 

 

 

 

 

By:

/s/ Robert Sheldon

 

 

Name: Robert Sheldon

 

 

Title: Managing Director

 

 

 

 

 

 

 

By:

/s/ Ozan Kaya

 

 

Name: Ozan Kaya

 

 

Title: Vice President

 

 

 

Address:

60 Wall Street, 3rd Floor

 

 

New York, NY 10005-2858

 

 

 

 

Attention:

Ozan Kaya

 

Telephone:

(212) 250-4998

 

Facsimile:

(212) 797-5300

 

Email:

ozan.kaya@db.com

 

[Series 2010-2 Note PURCHASE AGREEMENT]

 



 

 

DEUTSCHE BANK AG, NEW YORK BRANCH, as a Committed Note Purchaser

 

 

 

By:

/s/ Robert Sheldon

 

 

Name: Robert Sheldon

 

 

Title: Managing Director

 

 

 

 

 

By:

/s/ Ozan Kaya

 

 

Name: Ozan Kaya

 

 

Title: Vice President

 

 

 

 

 

Address:

60 Wall Street, 3rd Floor

 

 

New York, NY 10005-2858

 

 

 

 

Attention:

Ozan Kaya

 

Telephone:

(212) 250-4998

 

Facsimile:

(212) 797-5300

 

Email:

ozan.kaya@db.com

 

 

 

 

 

COMMITMENT AMOUNT:

 

$100,000,000.00

 

 

 

COMMITMENT PERCENTAGE: 50.0%

 

[Series 2010-2 Note PURCHASE AGREEMENT]

 



 

 

THE ROYAL BANK OF SCOTLAND PLC,

 

as a Funding Agent

 

 

 

RBS SECURITIES INC., as agent

 

 

 

 

 

By:

/s/ David Viney

 

 

Name: David Viney

 

 

Title: Managing Director

 

 

 

 

 

Address:

5 5 0 West Jackson Blvd.

 

 

Chicago, IL 60661

 

 

 

 

 

Attention:

David Donofrio

 

Telephone:

(312) 338-6720

 

Facsimile:

(312) 338-0140

 

Email:

david.donofrio@rbs.com

 

[Series 2010-2 Note PURCHASE AGREEMENT]

 



 

 

AMSTERDAM FUNDING CORPORATION, as a Conduit Investor

 

 

 

 

 

By:

/s/ Jill A. Russo

 

 

Name:

Jill A. Russo

 

 

Title:

Vice President

 

 

 

Address:

6 00 Washington Blvd

 

 

Stamford, CT 06901

 

 

 

Attention:

Mike Ballone

 

Telephone:

(203) 897-4750

 

Facsimile:

N/A

 

Email:

michael.ballone@rbs.com,

 

 

conduit.operations@rbs.com

 

[Series 2010-2 Note PURCHASE AGREEMENT]

 



 

 

THE ROYAL BANK OF SCOTLAND PLC, as a Committed Note Purchaser

 

 

 

RBS SECURITIES INC., as agent

 

 

 

By:

/s/ David Viney

 

 

Name: David Viney

 

 

Title: Managing Director

 

 

 

Address:

540 West Jackson Blvd.

 

 

Chicago, IL 60661

 

 

 

 

 

Attention:

David Donofrio

 

Telephone:

(312) 664-6582

 

Facsimile:

(203) 873-5744

 

Email:

david.donofrio@rbs.com

 

 

 

 

 

COMMITMENT AMOUNT:

 

$100,000,000.00

 

 

 

COMMITMENT PERCENTAGE: 50.0%

 

[Series 2010-2 Note PURCHASE AGREEMENT]

 



 

SCHEDULE I

 

DEUTSCHE BANK AG, NEW YORK BRANCH, as a Committed Note Purchaser

 

Commitment Amount: $100,000,000

 

Commitment Percentage: 50%

 

Committed Note Purchaser Percentage: 100%

 

Maximum Investor Group Principal Amount: $100,000,000

 

DEUTSCHE BANK AG, NEW YORK BRANCH, as a Funding Agent 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: $ 100,000,000

 

Commitment Percentage: 50%

 

Committed Note Purchaser Percentage: 100%

 

Maximum Investor Group Principal Amount: $ 100,000,000

 

THE ROYAL BANK OF SCOTLAND PLC, as a Funding Agent and a Committed Note Purchaser, for AMSTERDAM FUNDING CORPORATION, as a Conduit Investor

 

[Series 2010-2 Note PURCHASE AGREEMENT]

 




Exhibit 12

HERTZ GLOBAL HOLDINGS, INC. AND SUBSIDIARIES
COMPUTATION OF CONSOLIDATED RATIO OF EARNINGS
TO FIXED CHARGES (UNAUDITED)
(In Millions of Dollars Except Ratios)

 
  Years ended December 31,  
 
  2010   2009   2008   2007   2006  

Income (loss) before income taxes

  $ (13.6 ) $ (171.0 ) $ (1,382.8 ) $ 386.8   $ 200.6  

Interest expense

    773.4     680.3     870.0     916.7     943.3  

Portion of rent estimated to represent the interest factor

    141.9     149.9     155.7     165.1     147.8  
                       

Earnings (loss) before income taxes and fixed charges

  $ 901.7   $ 659.2   $ (357.1 ) $ 1,468.6   $ 1,291.7  
                       

Interest expense (including capitalized interest)

  $ 774.3   $ 681.5   $ 872.8   $ 921.6   $ 949.4  

Portion of rent estimated to represent the interest factor

    141.9     149.9     155.7     165.1     147.8  
                       

Fixed charges

  $ 916.2   $ 831.4   $ 1,028.5   $ 1,086.7   $ 1,097.2  
                       

Ratio of earnings to fixed charges

    (a )   (a )   (a )   1.4     1.2  
                       

(a)
Earnings (loss) before income taxes, noncontrolling interest and fixed charges for the years ended December 31, 2010, 2009 and 2008 were inadequate to cover fixed charges for the period by $14.5 million, $172.2 million and $1,385.6 million, respectively.



Exhibit 21.1

Subsidiaries of Hertz Global Holdings, Inc.

Companies Listed by Country
  State or Jurisdiction
of Incorporation
  Doing Business As

United States

       

HDTMS, Inc. 

  Delaware    

Hertz Investors, Inc. 

  Delaware    

The Hertz Corporation

  Delaware   Hertz Car Sales, Hertz Rent-A-Car

Brae Holding Corp. 

  Delaware    

Executive Ventures, Ltd. 

  Delaware    

EVZ LLC

  Delaware    

Hertz Aircraft, LLC

  Delaware    

Hertz Claim Management Corporation

  Delaware    

HCM Marketing Corporation

  Delaware    

Hertz Equipment Rental Corporation

  Delaware    

CCMG HERC Sub, Inc. 

  Delaware    

Hertz Entertainment Services Corporation

  Delaware    

Hertz Fleet Funding LLC

  Delaware    

Hertz Equipment Rental Mexico LLC

  Delaware    

Hertz Vehicle Financing LLC

  Delaware    

Hertz Funding Corp. 

  Delaware    

Hertz General Interest LLC

  Delaware    

Hertz Global Services Corporation

  Delaware    

Hertz International, Ltd. 

  Delaware    

Hertz Equipment Rental International, Ltd. 

  Delaware    

Hertz Investments, Ltd. 

  Delaware    

Hertz France LLC

  Delaware    

Hertz Local Edition Corp. 

  Delaware    

Hertz Local Edition Transporting, Inc. 

  Delaware    

Hertz NL Holdings, Inc. 

  Delaware    

Hertz System, Inc. 

  Delaware    

Hertz Technologies, Inc. 

  Delaware    

Hertz Transporting, Inc. 

  Delaware    

Hertz Vehicles LLC

  Delaware    

Hertz Vehicle Sales Corporation

  Delaware    

Navigation Solutions, L.L.C.—Joint Venture Owned 65% by The Hertz Corporation

  Delaware    

Simply Wheelz LLC

  Delaware   Advantage Rent A Car

Smartz Vehicle Rental Corporation

  Delaware    

Eileo, Inc. 

  Delaware    

Australia

       

Hertz Investment (Holdings) Pty. Limited

  Australia    

Hertz Australia Pty. Limited

  Australia    

HA Fleet Pty. Limited

  Australia    

HA Lease Pty. Limited

  Australia    

Hertz Car Sales Pty. Ltd. 

  Australia    

Hertz Asia Pacific Pty. Ltd. 

  Australia    

Hertz Superannuation Pty. Limited

  Australia    

Hertz Note Issuer Pty. Limited

  Australia    

1


Companies Listed by Country
  State or Jurisdiction
of Incorporation
  Doing Business As

Bermuda

       

HIRE (Bermuda) Limited

  Bermuda    

Brazil

       

Car Rental Systems Do Brasil Locacao De Veiculos Ltda. 

  Brazil    

Hertz Do Brasil Ltda. 

  Brazil    

Canada

       

CMGC Canada Acquisition ULC

  Nova Scotia, Canada    

Hertz Canada Limited

  Ontario, Canada    

HC Limited Partnership

  Ontario, Canada    

Hertz Canada Vehicles Partnership

  Delaware    

Hertz Canada Finance Co., Ltd. 

  Ontario, Canada    

Hertz Canada (N.S.) Company

  Nova Scotia, Canada    

Matthews Equipment Limited

  Ontario, Canada    

Hertz Canada Equipment Rental Partnership

  Ontario, Canada    

Western Shut-Down (1995) Limited

  Ontario, Canada    

3216173 Nova Scotia Company

  Nova Scotia, Canada    

3222434 Nova Scotia Company

  Nova Scotia, Canada    

HCE Limited Partnership

  Ontario, Canada    

China

       

Hertz International Car Rental Consulting (Shanghai) Co., Ltd. 

  People's Republic of China    

Hertz Rent A Car (Beijing) Co., Ltd. 

  People's Republic of China    

Hertz Rent A Car (Shanghai) Co. Ltd. 

  People's Republic of China    

Hertz Equipment Rental Company Limited. 

  People's Republic of China    

Hong Kong

       

Hertz Equipment Rental Holdings (H. K.) Limited

  Hong Kong    

Hertz Hong Kong Limited

  Hong Kong    

Hertz Rent A Car Holdings (H. K.) Limited

  Hong Kong    

Japan

       

Hertz Asia Pacific (Japan), Ltd. 

  Japan    

Mexico

       

Hertz Latin America, S.A. de C.V. 

  Mexico    

New Zealand

       

Hertz New Zealand Holdings Limited

  New Zealand    

Hertz New Zealand Limited

  New Zealand    

Puerto Rico

       

Puerto Ricancars, Inc. 

  Puerto Rico    

Puerto Ricancars Transporting, Inc. 

  Puerto Rico    

Puerto Ricancars Fleet, LLC

  Puerto Rico    

Hertz Puerto Rico Holdings, Inc. 

  Puerto Rico    

Saudi Arabia

       

Hertz Equipment Rental Limited—Joint Venture Owned 51% by Hertz Equipment Rental Company Holdings Netherlands B.V. 

  Saudi Arabia    

Singapore

       

Hertz Asia Pacific Pte. Ltd. 

  Singapore    

2


Companies Listed by Country
  State or Jurisdiction
of Incorporation
  Doing Business As

Belgium

       

Hertz Belgium bvba

  Belgium    

Hertz Claim Management bvba

  Belgium    

Czech Republic

       

Hertz Autopujcovna s.r.o

  Czech Republic    

France

       

Hertz France SAS

  France    

Eileo SAS

  France    

Hertz Claim Management SAS

  France    

Hertz Equipement Finance SAS

  France    

Hertz Equipement France SAS

  France    

RAC Finance SAS

  France    

Germany

       

Hertz Autovermietung GmbH

  Germany    

Hertz Claim Management GmbH

  Germany    

Hertz Germany Fleet GmbH

  Germany    

Ireland

       

Apex Processing Limited

  Ireland    

Dan Ryan Car Rentals Ltd. 

  Ireland    

Hertz Europe Service Centre Limited

  Ireland    

Hertz Fleet Limited

  Ireland    

Hertz Finance Centre Limited

  Ireland    

Hertz International RE Ltd. 

  Ireland    

Hertz International Treasury Limited

  Ireland    

Probus Insurance Company Europe Ltd. 

  Ireland    

Italy

       

Hertz Fleet (Italiana) Srl

  Italy    

Hertz Claim Management Srl

  Italy    

Hertz Holdings South Europe Srl

  Italy    

Hertz Italiana SpA

  Italy    

Hertz Italy Holdings Limited

  Italy    

Hertz Funding Srl

  Italy    

Rent One Italia Srl

  Italy    

Luxembourg

       

Hertz Luxembourg, SARL

  Luxembourg    

Norway

       

Upstart AS

  Norway    

Monaco

       

Hertz Monaco, SAM

  Monaco    

3


Companies Listed by Country
  State or Jurisdiction
of Incorporation
  Doing Business As

The Netherlands

       

Hertz Holdings Netherlands B.V. 

  The Netherlands    

International Fleet Financing No. 1 BV

  The Netherlands    

International Fleet Financing No. 2 BV

  The Netherlands    

Hertz Claim Management B.V. 

  The Netherlands    

Stuurgroep Holland B.V. 

  The Netherlands    

Hertz Automobielen Nederland B.V. 

  The Netherlands    

Van Wijk Beheer B.V. 

  The Netherlands    

Van Wijk European Car Rental Service B.V. 

  The Netherlands    

Stuurgroep Fleet (Netherlands) B.V. 

  The Netherlands    

Stuurgroep Holdings C.V. 

  The Netherlands    

Hertz Equipment Rental Company Holdings Netherlands B.V

  The Netherlands    

Slovakia

       

Hertz Autopozicovna s.r.o

  Slovakia    

Spain

       

Hertz Alquiler de Maquinaria SA

  Spain    

Hertz Claim Management SL

  Spain    

Hertz de Espana SL

  Spain    

Simply Wheelz SL

  Spain    

Sweden

       

Swedish Vehicle Services AB

  Sweden    

Switzerland

       

Hertz GmbH

  Switzerland    

Hertz Claim Management GmbH

  Switzerland    

S.I. Fair-Play GmbH

  Switzerland    

Zuri-Leu Garage GmbH

  Switzerland    

Hertz Management Services Sarl

  Switzerland    

United Kingdom

       

Hertz Holdings UK Limited

  United Kingdom    

Hertz Holdings III UK Limited

  United Kingdom    

Hertz Holdings II UK Limited

  United Kingdom    

Hertz (UK) Limited

  United Kingdom    

Daimler Hire Limited

  United Kingdom    

Hertz Car Sales Ltd. 

  United Kingdom    

Hertz Rent A Car Limited

  United Kingdom    

Hertz Europe Limited

  United Kingdom    

Hertz Claim Management Limited

  United Kingdom    

4




Exhibit 23.1

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

We hereby consent to the incorporation by reference in the Registration Statements on Form S-8 (File Nos. 333-168808, 333-138812 and 333-151103) and on Form S-3 (File No. 333-159348) of Hertz Global Holdings, Inc. of our report dated February 25, 2011 relating to the financial statements, financial statement schedules, and the effectiveness of internal control over financial reporting, which appears in this Form 10-K.


/s/ PricewaterhouseCoopers LLP

Florham Park, New Jersey
February 25, 2011

 

 

 

 



EXHIBIT 31.1

CERTIFICATION OF CHIEF EXECUTIVE OFFICER
PURSUANT TO RULE 13a—14(a)/15d—14(a)

I, Mark P. Frissora, certify that:

Date: February 25, 2011


 

 

By:

 

/s/ MARK P. FRISSORA

Mark P. Frissora
Chief Executive Officer



EXHIBIT 31.2

CERTIFICATION OF CHIEF FINANCIAL OFFICER
PURSUANT TO RULE 13a—14(a)/15d—14(a)

I, Elyse Douglas, certify that:

Date: February 25, 2011


 

 

By:

 

/s/ ELYSE DOUGLAS

Elyse Douglas
Chief Financial Officer



EXHIBIT 32.1

CERTIFICATION OF CHIEF EXECUTIVE OFFICER
PURSUANT TO 18 U.S.C. SECTION 1350

In connection with the Annual Report of Hertz Global Holdings, Inc. (the "Company") on Form 10-K for the period ending December 31, 2010 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: February 25, 2011


 

 

By:

 

/s/ MARK P. FRISSORA

Mark P. Frissora
Chief Executive Officer



EXHIBIT 32.2

CERTIFICATION OF CHIEF FINANCIAL OFFICER
PURSUANT TO 18 U.S.C. SECTION 1350

In connection with the Annual Report of Hertz Global Holdings, Inc. (the "Company") on Form 10-K for the period ending December 31, 2010 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: February 25, 2011


 

 

By:

 

/s/ ELYSE DOUGLAS

Elyse Douglas
Chief Financial Officer