Exhibit 4.21


 


EXECUTION
COPY


 


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 SEPTEMBER 30, 2010


 






 


7.50% SENIOR NOTES DUE 2018


 

















 


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

  	
  49

  
	
  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

  	
  51

  
	
  Section 109.

  	
  Notices, etc., to Trustee and Company

  	
  53

  
	
  Section 110.

  	
  Notices to Holders; Waiver

  	
  54

  
	
  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

  	
  55

  
	
  Section 116.

  	
  Legal Holidays

  	
  55

  
	
  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

  	
  56

  
	
  Section 202.

  	
  Form of Trustee’s Certificate of Authentication

  	
  58

  
	
  Section 203.

  	
  Restrictive and Global Note Legends

  	
  58

  
	
   

  	
   

  
	
  ARTICLE III

  	
   

  
	
   

  	
   

  
	
  THE NOTES

  	
   

  
	
   

  	
   

  
	
  Section 301.

  	
  Title and Terms

  	
  61

  
	
  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

  	
  64

  
	
  Section 307.

  	
  Payment of Interest Rights Preserved

  	
  64

  
	
  Section 308.

  	
  Persons Deemed Owners

  	
  65

  
	
  Section 309.

  	
  Cancellation

  	
  66

  
	
  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

  	
  97

  
	
  Section 607.

  	
  Limitation on Suits

  	
  97

  
	
  Section 608.

  	
  Unconditional Right of Holders to Receive Principal and
  Interest

  	
  98

  
	
  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

  	
  103

  
	
  Section 707.

  	
  Compensation and Reimbursement

  	
  103

  
	
  Section 708.

  	
  Conflicting Interests

  	
  103

  
	
  Section 709.

  	
  Corporate Trustee Required; Eligibility

  	
  104

  
	
  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

  	
  106

  
	
  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

  	
   

  
	
   (b)

  	
   

  	
  708

  	
   

  
	
  § 311(a)

  	
   

  	
  713

  	
   

  
	
   (b)

  	
   

  	
  713

  	
   

  
	
   (b)(2)

  	
   

  	
  803

  	
   

  
	
  § 312(a)

  	
   

  	
  801

  	
   

  
	
   

  	
   

  	
  802

  	
   

  
	
   (b)

  	
   

  	
  802

  	
   

  
	
   (c)

  	
   

  	
  802

  	
   

  
	
  § 313(a)

  	
   

  	
  803

  	
   

  
	
   (b)

  	
   

  	
  803

  	
   

  
	
   (c)

  	
   

  	
  803

  	
   

  
	
   (d)

  	
   

  	
  803

  	
   

  
	
  § 314(a)

  	
   

  	
  405

  	
   

  
	
   (a)(4)

  	
   

  	
  106

  	
   

  
	
   

  	
   

  	
  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

  	
   

  
	
   (d)(1)

  	
   

  	
  701

  	
   

  
	
   (d)(2)

  	
   

  	
  701

  	
   

  
	
   (d)(3)

  	
   

  	
  612

  	
   

  
	
   (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)

  	
   

  	
  104

  	
   

  
	
  §
  317(a)(1)

  	
   

  	
  603

  	
   

  
	
   (a)(2)

  	
   

  	
  604

  	
   

  
	
   (b)

  	
   

  	
  403

  	
   

  
	
  §
  318(a)

  	
   

  	
  107

  	
   

  



 


This
cross-reference table shall not for any purpose be deemed to be part of this
Indenture.


 


vii

















 


INDENTURE, dated as of September 30, 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
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.


 


“Acquisition” means the acquisition by the Company, directly
and/or indirectly through one or more of its Affiliates, of all of the
outstanding capital stock of DTAG, pursuant to or following the consummation of
the Merger.


 


“Acquisition Agreement” means the Agreement and Plan of Merger,
dated as of April 25, 2010, by and among Holding, HDTMS, Inc., and
DTAG, as the same may be amended, supplemented, waived or otherwise modified
from time to time.


 


“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),
including the Company’s 7.50% Senior Notes due 2018 issued on the Issue Date in
an aggregate principal amount of $400 million.


 


“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 


 


2

















 


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 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, (xix) any
Divestiture Action or (xx) 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 


 


3

















 


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 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.


 


4

















 


“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.


 


“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.


 


5

















 


“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”;


 


(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



 


6

















 


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.


 


“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 


 


7

















 


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 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.


 


8

















 


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 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 


 


9

















 


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:


 


(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 


 


10

















 


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,


 


(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 


 


11

















 


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 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.


 


12














 


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 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 


 


13

















 


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 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, 14th 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 


 


14

















 


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 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.


 


15

















 


“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.


 


“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.


 


“Divestiture Action” means any sale, lease, transfer or other
disposition necessary or advisable in the good faith determination of the
Company in order to consummate the Acquisition.


 


“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.


 


“DTAG” means Dollar Thrifty Automotive Group, Inc.


 


“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 


 


16

















 


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 7.50% Senior Notes due
2018, 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 


 


17

















 


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, 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 


 


18

















 


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 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


 


19

















 


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 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 


 


20

















 


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.


 


“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 


 


21

















 


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.


 


“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 


 


22

















 


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
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.


 


23














 


“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
7.50% Senior Notes due 2018 issued on the Issue Date in an aggregate principal amount of $300 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.


 


“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 


 


24

















 


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 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 


 


25

















 


(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.


 


“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.


 


“Merger” means the merger of a subsidiary of Hertz Global
Holdings, Inc. with and into DTAG, with DTAG as the surviving corporation,
pursuant to the terms of the Acquisition Agreement.


 


“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 


 


26

















 


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.


 


“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 


 


27

















 


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 September 16, 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;


 


28

















 


(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
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 


 


29

















 


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
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



 


30

















 


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;


 


(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;


 


31














 


(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


 


(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


 


32

















 


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;


 


(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 


 


33

















 


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;


 


(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;


 


34

















 


(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;


 


(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 


 


35

















 


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 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 


 


36

















 


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).


 


“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.


 


37

















 


“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.


 


“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 


 


38

















 


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 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, any assets sold,
leased, transferred or otherwise disposed of to any Franchisee or any Franchise
Special Purpose Entity, and any assets sold, leased, transferred or otherwise
disposed of pursuant to or in connection with any Divestiture Action.


 


“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 


 


39

















 


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, 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).


 


40














 


“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.


 


“Senior Subordinated Notes” means the “Notes” as such term is
defined in the 2005 Senior Subordinated Indenture.


 


“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 


 


41

















 


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, 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.


 


42

















 


“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.


 


“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



 


43

















 


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
the Issue Date, 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.


 


“Supplemental Indenture” means a Supplemental Indenture, to be
entered into substantially in the form attached hereto as Exhibit E.


 


“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 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 


 


44

















 


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.


 


“Transactions” means, collectively, any or all of the following
(whether or not consummated): (i) the
entry into this Indenture, and the offer and issuance of the Notes, (ii) the Acquisition, (iii) the Merger and (iv) 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 


 


45

















 


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 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 


 


46

















 


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

  
	
  “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

  






 


47

















 




	
  Term

  	
   

  	
  Defined in 

  Section

  
	
  “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:


 


(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;


 


48














 


(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.


 


“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 


 


49

















 


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 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.


 


50

















 


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 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 


 


51

















 


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 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, 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 


 


52

















 


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.


 


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, 14th 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
Debevoise & Plimpton LLP, 919 Third Avenue, New York, New
York 10022, Attention:  David A. 


 


53

















 


Brittenham, Esq.
and Steven J. Slutzky, Esq. (telephone: 
(212) 909-6000; telecopier:  (212)
909-6836), 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.


 


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.


 


54

















 


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 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 


 


55

















 


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.


 


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 


 


56

















 


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, 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.


 


57














 


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:


 


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.


 


58

















 


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 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 


 


59

















 


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 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.


 


60

















 


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 $300.0 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 “7.50% Senior Notes due
2018” of the Company.  The final Stated
Maturity of the Notes shall be October 15, 2018.  Interest on the Outstanding principal amount
of Notes will accrue at the rate of 7.50% 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 accrue
from the most recent date to which interest has been paid or duly provided for
or, if no interest has been paid, from September 30, 2010; 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 $300.0 million, (ii) Additional Notes in one or more
series from time to time for original issue in aggregate principal amounts
specified by the 


 


61

















 


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 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 


 


62

















 


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.


 


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, 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.


 


63

















 


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.


 


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 


 


64

















 


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 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.


 


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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,
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.


 


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.


 


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(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
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 


 


67

















 


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 Restricted 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 


 


68

















 


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,


 


(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.


 


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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 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 


 


70

















 


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 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 


 


71

















 


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 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;


 


72














 


(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
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 


 


73

















 


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 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 


 


74

















 


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 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);


 


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(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 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 


 


76

















 


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;


 


(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 


 


77

















 


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) 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 Senior 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”), 


 


78

















 


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:


 


(A)          50% of the Consolidated Net Income
accrued during the period (treated as one accounting period) beginning on July 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 


 


79

















 


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.


 


(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;


 


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(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 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;


 


81














 


(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 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,


 


82

















 


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); 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 


 


83

















 


(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;


 


(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 


 


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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:


 


(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 


 


85

















 


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 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).


 


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(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 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 


 


87

















 


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,


 


(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,


 


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(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,


 


(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 


 


89

















 


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.


 


(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 


 


90

















 


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.


 


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;


 


91

















 


(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 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 (1) any transaction in which
any Restricted Subsidiary consolidates with, merges into or transfers all or
part of its assets to the Company or (2) the
Transactions.


 


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(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.


 


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;


 


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(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 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;


 


94

















 


(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 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 


 


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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 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 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 


 


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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 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).


 


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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 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 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 


 


98

















 


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 § 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 


 


99

















 


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 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.


 


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(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.


 


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;


 


101

















 


(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;


 


(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.


 


102

















 


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.


 


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.


 


103

















 


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 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.


 


104

















 


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 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  


 


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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 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 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 


 


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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.


 


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,


 


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(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,


 


(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;


 


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(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.


 


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.


 


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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.


 


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 October 15, 2014 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 October 15 of the years set forth
below:


 




	
  Redemption Period

  	
   

  	
  Price

  	
   

  
	
  2014

  	
   

  	
  103.750

  	
  %

  
	
  2015

  	
   

  	
  101.875

  	
  %

  
	
  2016 and thereafter

  	
   

  	
  100.000

  	
  %

  
	
   

  	
   

  	
   

  	
   

  






 


110

















 


(b)   In addition, at any time and from time to
time on or prior to October 15, 2013, 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 107.50%, 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 October 15, 2014,
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 October 15, 2014 (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 


 


111

















 


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 October 15, 2014; 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 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:


 


112

















 


(1)           the expected Redemption Date,


 


(2)           the redemption price (or the formula
by which the redemption price will be determined),


 


(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 


 


113

















 


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.


 


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


 


114

















 


(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 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,


 


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);


 


(ii)           the
Company has paid or caused to be paid all other sums then payable hereunder by
the Company; and


 


(iii)          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)).


 


115














 


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 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, 


 


116

















 


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 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 Debevoise & Plimpton 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 Debevoise & Plimpton 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


 


7.50% Senior Notes due 2018


 


CUSIP
No. 428040 CC1(2)/U42804 AF8(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 October 15, 2018. 
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 7.50% 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.

  
	
  (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 September 30, 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; or (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:  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 91st 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 on or before
365 days after 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 on or before
365 days after the date on which the obligation to file the Shelf Registration
Statement arises or (iv) 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 Statement to remain effective, (1) the Company shall have 


 


2

















 


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 ceases 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 7.50% Senior Notes due 2018 of the
Company (herein called the “Notes”), issued under an Indenture, dated as
of September 30, 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 as a
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 October 15, 2014 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 October 15
of the years set forth below:


 


	
  Period

  	
   

  	
  Redemption Price

  	
   

  
	
  2014

  	
   

  	
  103.750

  	
  %

  
	
  2015

  	
   

  	
  101.875

  	
  %

  
	
  2016 and thereafter

  	
   

  	
  100.000

  	
  %

  



 


6

















 


In
addition, at any time and from time to time on or prior to October 15,
2013, 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 107.50%, 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 October 15, 2014, 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, 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 or 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


 


7.50% Senior Notes due 2018


 


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 October 15, 2018.  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 7.50% 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.

  
	
  (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 Corporate Trust Office of the Trustee, 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 7.50% Senior Notes due 2018 of the
Company (herein called the “Notes”), issued under an Indenture, dated as
of September 30, 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 as a
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 October 15, 2014 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 October 15
of the years set forth below:


 


	
  Period

  	
   

  	
  Redemption Price

  	
   

  
	
  2014

  	
   

  	
  103.750

  	
  %

  
	
  2015

  	
   

  	
  101.875

  	
  %

  
	
  2016 and thereafter

  	
   

  	
  100.000

  	
  %

  



 


5

















 


In
addition, at any time and from time to time on or prior to October 15,
2013 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 107.50% 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 October 15, 2014, 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, 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 or 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 Registrar — DAPS Reorg


MAC
N9303-121


608
2nd 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”)

  
	
   

  	
   

  
	
   

  	
  7.50%
  Senior Notes due 2018 (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 September 30, 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 Registrar — DAPS Reorg


MAC
N9303-121


608
2nd 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”)

  
	
   

  	
   

  
	
   

  	
  7.50%
  Senior Notes due 2018 (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 September 30, 2010 (as amended,
supplemented, waived or otherwise modified, the “Indenture”), providing
for the issuance of 7.50% Senior Notes due 2018 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 Registrar — DAPS Reorg


MAC
N9303-121


608
2nd 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”)

  
	
   

  	
   

  
	
   

  	
  7.50%
  Senior Notes due 2018 (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 September 30, 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