Exhibit 4.20


 


EXECUTION
VERSION


 


The Hertz Corporation


 


$300,000,000 7.50% Senior Notes due 2018

$400,000,000 7.50% Senior Notes due 2018


 


 


Exchange and Registration Rights Agreement


 


September 30, 2010


 


Barclays
Capital Inc.


Deutsche
Bank Securities Inc.


Wells
Fargo Securities, LLC,


 


As
the September 16, 2010 Initial Purchasers and


As
Representatives of the September 20, 2010 Initial Purchasers


 


c/o
Barclays Capital Inc.


745
Seventh Avenue


New
York, New York 10019


 


Ladies
and Gentlemen:


 


The
Hertz Corporation, a Delaware corporation (the “Company”), proposes to
issue and sell upon the terms set forth in each of the Purchase Agreements (as
defined herein) to (i) the initial purchasers under the September 16,
2010 Purchase Agreement (as defined herein) (the “September 16, 2010
Initial Purchasers”), an aggregate of $300 million principal amount of the
Company’s 7.50% Senior Notes due 2018 (the “$300 Million Notes”) and (ii) the
initial purchasers named in Schedule I to the September 20, 2010
Purchase Agreement (as defined herein) (the “September 20, 2010 Initial
Purchasers” and, together with the September 16 Initial Purchasers,
the “Initial Purchasers”) for whom the addressees listed above (the “Representatives”)
are acting as representatives, an aggregate of $400 million principal amount of
the Company’s 7.50% Senior Notes due 2018 (the $400 Million Notes” and,
together with the $300 Million Notes, the “Notes”). The Notes will be
guaranteed (the “Guarantees”) at the Closing Date (as defined below) on
a senior unsecured basis by each domestic subsidiary of the Company named in Schedule
II to each of the Purchase Agreements (the “Guarantors”).   As an inducement to the Initial Purchasers
to enter into each of the Purchase Agreements and in satisfaction of a condition
to the obligations of the Initial Purchasers thereunder, the Company agrees
with the Initial Purchasers for the benefit of holders (as defined herein) from
time to time of the Registrable Securities (as defined herein) as follows:


 


1.             Certain Definitions.  For purposes of this Exchange and
Registration Rights Agreement, the following terms shall have the following
respective meanings:


 


“Base Interest”
shall mean the interest that would otherwise accrue on the Securities under the
terms thereof and the Indenture, without giving effect to the provisions of
this Agreement.


 


The term “broker-dealer” shall mean any
broker or dealer registered with the Commission under the Exchange Act.


 


“Closing Date” shall mean the date on
which the Securities are initially issued.


 


“Commission” shall mean the United States
Securities and Exchange Commission, or any other federal agency at the time
administering the Exchange Act or the Securities Act, whichever is the relevant
statute for the particular purpose.


 


“Effective Time,” in the case of (i) an
Exchange Registration, shall mean the time and date as of which the Commission
declares the Exchange Registration Statement effective or as of which the
Exchange Registration Statement otherwise becomes effective and (ii) a Shelf
Registration, shall mean the time and date as of which the Commission declares
the Shelf Registration Statement effective or as of which the Shelf
Registration Statement otherwise becomes effective.


 

















 


“Electing Holder” shall mean any holder
of Registrable Securities that has returned a completed and signed Notice and
Questionnaire to the Company in accordance with Section 3(d)(ii) or
3(d)(iii) hereof.


 


“Exchange Act” shall mean the Securities
Exchange Act of 1934, or any successor thereto, as the same shall be amended
from time to time.


 


“Exchange Offer” shall have the meaning
assigned thereto in Section 2(a) hereof.


 


“Exchange Registration” shall have the
meaning assigned thereto in Section 3(c) hereof.


 


“Exchange Registration Statement” shall
have the meaning assigned thereto in Section 2(a) hereof


 


“Exchange Securities” shall have the
meaning assigned thereto in Section 2(a) hereof.


 


The term “holder” shall mean each of the
Initial Purchasers and other persons who acquire Registrable Securities from time
to time (including any successors or assigns), in each case for so long as such
person owns any Registrable Securities.


 


“Indenture” shall mean the Indenture,
dated as of the Closing Date, among the Company, the Guarantors and Wells Fargo
Bank, National Association, as Trustee, governing the Notes as the same shall
be amended or supplemented from time to time.


 


“Notice and Questionnaire” means a Notice
of Registration Statement and Selling Securityholder Questionnaire
substantially in the form of Exhibit A hereto, with such changes
thereto as the Company may reasonably determine.


 


The term “person” shall mean a corporation,
association, partnership, organization, business, individual, government or
political subdivision thereof or governmental agency.


 


“Purchase Agreements” shall mean the September 16,
2010 Purchase Agreement and the September 20, 2010 Purchase Agreement.


 


“Registrable Securities” shall mean the
Securities; provided, however, that a Security shall
cease to be a Registrable Security when (i) the Security has been
exchanged for an Exchange Security in an Exchange Offer as contemplated in Section 2(a) hereof
(provided that any Exchange Security
that, pursuant to the last two sentences of Section 2(a), is included in a
prospectus for use in connection with resales by broker-dealers shall be deemed
to be a Registrable Security with respect to Sections 5 and 8 until resale of
such Registrable Security has been effected within the 90-day period referred
to in Section 2(a)); (ii) a Shelf Registration Statement registering
such Security under the Securities Act has been declared or becomes effective
and such Security has been sold or otherwise transferred by the holder thereof
pursuant to and in a manner contemplated by such effective Shelf Registration
Statement; (iii) such Security is sold pursuant to Rule 144 under
circumstances in which any legend borne by such Security relating to
restrictions on transferability thereof, under the Securities Act or otherwise,
is removed or deemed removed by the Company or pursuant to the Indenture; (iv) on
or following the earliest date that is no less than 545 days after the date of
the Indenture and on which such Security would be saleable (if it were held by
a non-affiliate of the Company) pursuant to Rule 144 without restrictions
on volume or manner of sale or (v) such Security shall cease to be
outstanding.


 


“Registration Default” shall have the
meaning assigned thereto in Section 2(c) hereof.


 


“Registration Expenses” shall have the
meaning assigned thereto in Section 4 hereof.


 


“Resale Period” shall have the meaning
assigned thereto in Section 2(a) hereof.


 


“Restricted Holder” shall mean (i) a
holder that is an affiliate of the Company within the meaning of Rule 405,
(ii) a holder that acquires Exchange Securities outside the ordinary
course of such holder’s business, (iii) a 


 


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holder
that has arrangements or understandings with any person to participate in the
Exchange Offer for the purpose of distributing Exchange Securities and (iv) a
holder that is a broker-dealer, but only with respect to Exchange Securities
received by such broker-dealer pursuant to an Exchange Offer in exchange for
Registrable Securities acquired by the broker-dealer directly from the Company.


 


“Rule 144,” “Rule 405”
and “Rule 415” shall mean, in each case,
such rule promulgated under the Securities Act (or any successor
provision), as the same shall be amended from time to time.


 


“Securities” shall mean the Notes to be
issued and sold to the Initial Purchasers, and securities issued in exchange
therefor or in lieu thereof pursuant to the Indenture. Each Security is
entitled to the benefit of the Guarantees, if any, provided for in the
Indenture and, unless the context otherwise requires, any reference herein to a
“Security,” an “Exchange Security” or a “Registrable Security” shall include a
reference to the related Guarantees, if any.


 


“Securities Act” shall mean the
Securities Act of 1933, or any successor thereto, as the same shall be amended
from time to time.


 


“September 16, 2010 Purchase Agreement”
shall mean the Purchase Agreement, dated as of September 16, 2010, among
the September 16 Initial Purchasers and the Company relating to the $300
Million Notes.


 


“September 20, 2010 Purchase Agreement”
shall mean the Purchase Agreement, dated as of September 20, 2010, among
the September 20 Initial Purchasers and the Company relating to the $400
Million Notes.


 


“Shelf Registration” shall have the
meaning assigned thereto in Section 2(b) hereof.


 


“Shelf Registration Statement” shall have
the meaning assigned thereto in Section 2(b) hereof.


 


“Special Interest” shall have the meaning
assigned thereto in Section 2(c) hereof.


 


“Trust Indenture Act” shall mean the
Trust Indenture Act of 1939, or any successor thereto, and the rules,
regulations and forms promulgated thereunder, all as the same shall be amended
from time to time.


 


Unless
the context otherwise requires, any reference herein to a “Section” or “clause”
refers to a Section or clause, as the case may be, of this Exchange and
Registration Rights Agreement, and the words “herein,” “hereof’ and “hereunder”
and other words of similar import refer to this Exchange and Registration
Rights Agreement as a whole and not to any particular Section or other
subdivision.


 


2.             Registration Under the Securities
Act.


 


(a)           Except as set forth in Section 2(b) below,
the Company agrees to use its commercially reasonable efforts to file under the
Securities Act a registration statement relating to an offer to exchange (such
registration statement, the “Exchange Registration Statement”, and such
offer, the “Exchange Offer”) any and all of the Securities for a like
aggregate principal amount of debt securities issued by the Company and
guaranteed by the Guarantors, which debt securities and Guarantees are
substantially identical to the Securities (and are entitled to the benefits of
a trust indenture which is substantially identical to the Indenture or is the
Indenture and which has been qualified under the Trust Indenture Act), except
that they have been registered pursuant to an effective registration statement
under the Securities Act and do not contain restrictions on transfer or
provisions for the additional interest contemplated in Section 2(c) below
or the liquidated damages provided in Section 2(d) below (such new
debt securities hereinafter called “Exchange Securities”). The Company
agrees to use its commercially reasonable efforts to cause the Exchange
Registration Statement to become effective under the Securities Act within 365
days following the Closing Date. The Exchange Offer will be registered under
the Securities Act on the appropriate form and will comply with all applicable
tender offer rules and regulations under the Exchange Act. The Company
further agrees to use its commercially reasonable efforts to commence the
Exchange Offer promptly after the Exchange Registration Statement becomes
effective, hold the Exchange Offer open for the period required by applicable
law (including pursuant to any applicable interpretation by the staff of the
Commission), but in any event for at least 10 business days, and exchange the
Exchange Securities for all Securities that have been validly tendered and not
withdrawn on or prior 


 


3

















 


to the expiration of the Exchange Offer. If the
Company commences the Exchange Offer, the Company will be entitled to close the
Exchange Offer 30 days after the commencement thereof (or at the end of such
shorter period permitted by applicable law; provided that
such period shall not, in any case, be less than 10 business days), provided that the Company has accepted all the Securities
validly tendered in accordance with the terms of the Exchange Offer. The
Company agrees (x) to include in the Exchange Registration Statement a
prospectus for use in any resales by any holder of Exchange Securities that is
a broker-dealer and (y) to keep such Exchange Registration Statement
effective for a period (the “Resale Period”) beginning when Exchange
Securities are first issued in the Exchange Offer and ending upon the earlier
of the expiration of the 90th day after the Exchange Offer has been completed
and such time as such broker-dealers no longer own any Registrable Securities.


 


Each
holder participating in the Exchange Offer shall be required to represent to
the Company that (i) any Exchange Securities received by such holder will
be acquired in the ordinary course of business, (ii) at the time of the
commencement of the Exchange Offer such holder has no arrangements or
understanding with any person to participate in the distribution of the
Securities or the Exchange Securities within the meaning of the Securities Act,
(iii) such holder is not an “affiliate,” as defined in Rule 405 of
the Securities Act, of the Company, (iv) if such holder is not a
broker-dealer, that it is not engaged in, and does not intend to engage in, the
distribution of the Exchange Securities, (v) if such holder is a
broker-dealer, that it will receive Exchange Securities for its own account in
exchange for Securities that were acquired as a result of market making
activities or other trading activities and, that it will deliver a prospectus
in connection with any resale of such Exchange Securities and (vi) such
holder is not acting on behalf of any person who could not truthfully make the
foregoing representations.


 


(b)           If (i) on or prior to
the time the Exchange Offer is consummated existing Commission interpretations
are changed such that the Exchange Securities received by holders other than
Restricted Holders in the Exchange Offer for Registrable Securities are not or
would not be, upon receipt, transferable by each such holder without
restriction under the Securities Act, (ii) the Exchange Offer has not been
completed within 395 days following the Closing Date, (iii) any Initial
Purchaser so requests with respect to Registrable Securities not eligible to be
exchanged for Exchange Securities in the Exchange Offer and held by it
following consummation of the Exchange Offer or (iv) any holder (other
than an Initial Purchaser) shall be, and shall notify the Company that such
holder is, prohibited by law or Commission policy from participating in the
Exchange Offer or such holder may not resell the Exchange Securities acquired
in the Exchange Offer to the public without delivering a prospectus and the
prospectus contained in the Exchange Registration Statement is not available
for such resales by such holder (other than in either case (x) due solely
to the status of such holder as an affiliate of the Company within the meaning
of the Securities Act or (y) due to such holder’s inability to make the
representations set forth in the second paragraph of Section 2(a) hereof)
and any such holder so requests, the Company shall, in lieu of (or, in the case
of clauses (iii) and (iv), in addition to) conducting the Exchange Offer
contemplated by Section 2(a), use its commercially reasonable efforts to
file under the Securities Act as promptly as reasonably practicable, a “shelf”
registration statement providing for the registration of, and the sale on a
continuous or delayed basis by the holders of, all of the Registrable
Securities (or, in the case of clause (iii), the Registrable Securities held by
the Initial Purchasers, or, in the case of clause (iv), by the holders referred
to in clause (iv), as the case may be), pursuant to Rule 415 or any
similar rule that may be adopted by the Commission (such filing, the “Shelf
Registration” and such registration statement, the “Shelf Registration
Statement”). The Company agrees to use its commercially reasonable efforts (x) to
cause the Shelf Registration Statement to become effective within 365 days
after the date on which the obligation to file such Shelf Registration
Statement arises and to use its commercially reasonable efforts to cause such
Shelf Registration Statement to remain effective for a period ending on the
earlier of 365 days following the Effective Time or such shorter period that
will terminate when all the Registrable Securities covered by the Shelf
Registration Statement have been sold pursuant to the Shelf Registration
Statement or are distributed to the public pursuant to Rule 144 or, after
the 90th day following the Effective Time, would be eligible for resale (if
held by a non-affiliate of the Company) pursuant to Rule 144 without
restriction on volume or manner of sale, if any; provided,
however, that no holder shall be entitled to be named as a selling
securityholder in the Shelf Registration Statement or to use the prospectus
forming a part thereof for resales of Registrable Securities unless such holder
is an Electing Holder, and (y) after the Effective Time of the Shelf
Registration Statement, promptly upon the request of any holder of Registrable
Securities that is not then an Electing Holder, to take any action reasonably
necessary to enable such holder to use the prospectus forming a part thereof
for resales of Registrable Securities, including, without limitation, any
action necessary to identify such holder as a selling securityholder in the
Shelf Registration Statement; provided, however,
that nothing in this clause (y) shall relieve any such holder of the
obligation to return a completed and signed Notice and Questionnaire to the
Company in accordance with Section 3(d)(iii) hereof. The Company
further agrees to supplement or make amendments to the Shelf Registration
Statement, as and when required by the rules, regulations or instructions
applicable to the registration form used by the Company for such Shelf
Registration Statement or by the Securities Act or rules and regulations
thereunder for 


 


4

















 


shelf registration, and the Company agrees to
furnish to each Electing Holder copies of any such supplement or amendment
promptly following its filing with the Commission.


 


Notwithstanding
the foregoing, the Company may suspend the availability of any Shelf
Registration Statement (x) for up to an aggregate of 60 days in any
consecutive twelve-month period if (i) such action is required by
applicable law or (ii) such action is taken by the Company in good faith
and for valid business reasons (not including avoidance of the Company’s
obligations hereunder), including the acquisition or divestiture of assets, or (y) with
respect to a Shelf Registration Statement required to be filed due to a failure
to consummate the Exchange Offer within the required time period, if such
action occurs following the consummation of the Exchange Offer.


 


(c)           In the event that (i) the
Exchange Registration Statement has not become effective or been declared
effective by the Commission on or before 365 days following the Closing Date,
or (ii) the Exchange Offer has not been consummated within 395 days after
the Closing Date, or (iii) if a Shelf Registration Statement required to
be filed under Section 2(b) hereof is not declared effective within
365 days following the date on which the obligation to file the Shelf
Registration Statement arises, or (iv) if any Shelf Registration Statement
required by Section 2(b) hereof is filed and declared effective, and
during the period the Company is required to use its commercially reasonable
efforts to cause the Shelf Registration Statement to remain effective, (x) the
Company shall have suspended the Shelf Registration Statement pursuant to Section 2(b) hereof
for more than 60 days in the aggregate in any consecutive twelve-month period
and be continuing to suspend the availability of the Shelf Registration
Statement or (y) the Shelf Registration Statement shall cease to be effective
(other than by action of the Company pursuant to the second paragraph of Section 2(b) hereof)
without being replaced within 90 days by a shelf registration statement that is
filed and declared effective (each such event referred to in clauses (i) through
(iv), a “Registration Default” and each period during which a
Registration Default has occurred and is continuing, a “Registration Default
Period”), then, as liquidated damages for such Registration Default,
subject to the provisions of Section 8(b), special interest (“Special
Interest”), in addition to the Base Interest, shall accrue on Registrable
Securities for the Registration Default Period (but only with respect to one
Registration Default at any particular time) until such time as all Registration
Defaults have been cured at a per annum rate of 0.25% for the first 90 days of
the Registration Default Period, which rate shall increase by an additional
0.25% during each subsequent 90-day period, up to a maximum of 0.50% regardless
of the number of Registration Defaults that shall have occurred and be
continuing. Immediately following the cure of all Registration Defaults, the
accrual of Special Interest will cease. A Registration Default under clause (iii) or
(iv) will be deemed cured upon consummation of the Exchange Offer in the
case of a Shelf Registration Statement required to be filed due to a failure to
consummate the Exchange Offer within the required time period.


 


(d)           If during the 90-day period
referenced in the final sentence of the first paragraph of Section 2(a) hereof
the Exchange Offer Registration Statement is suspended by the Company or ceases
to be effective such that any broker-dealer that (i) receives Exchange
Securities in the Exchange Offer and (ii) is subject to prospectus delivery
requirements cannot fulfill such requirements, the Company shall pay liquidated
damages to such broker-dealers in an amount calculated in a manner consistent
with that specified above with respect to Registration Defaults.


 


(e)           The Company shall take all
actions reasonably necessary or advisable to be taken by it to ensure that the
transactions contemplated herein are effected as so contemplated, including all
actions necessary or desirable to register the Guarantees (if any) under the
registration statement contemplated in Section 2(a) or 2(b) hereof,
as applicable.


 


(f)            Any reference herein to a
registration statement as of any time shall be deemed to include any document
incorporated, or deemed to be incorporated, therein by reference as of such time
and any reference herein to any post-effective amendment to a registration
statement as of any time shall be deemed to include any document incorporated,
or deemed to be incorporated, therein by reference as of such time.


 


3.             Registration Procedures.


 


If
the Company files a registration statement pursuant to Section 2(a) or
Section 2(b), the following provisions shall apply:


 


(a)           At or before the Effective
Time of the Exchange Offer or the Shelf Registration, as the case may be, the
Company shall qualify the Indenture under the Trust Indenture Act.


 


5

















 


(b)           In the event that such
qualification would require the appointment of a new trustee under the
Indenture, the Company shall appoint a new trustee thereunder pursuant to the
applicable provisions of the Indenture.


 


(c)           In connection with the
Company’s obligations with respect to the registration of Exchange Securities
as contemplated by Section 2(a) (the “Exchange Registration”),
if applicable, the Company shall:


 


(i)            use its commercially
reasonable efforts to prepare and file with the Commission an Exchange
Registration Statement on any form which may be utilized by the Company and
which shall permit the Exchange Offer and resales of Exchange Securities by broker-dealers
during the Resale Period to be effected as contemplated by Section 2(a),
and use its commercially reasonable efforts to cause such Exchange Registration
Statement to become effective within 365 days following the Closing Date;


 


(ii)           prepare and file with the
Commission such amendments and supplements to such Exchange Registration
Statement and the prospectus included therein as may be necessary to effect and
maintain the effectiveness of such Exchange Registration Statement for the
periods and purposes contemplated in Section 2(a) hereof and as may
be required by the applicable rules and regulations of the Commission and
the instructions applicable to the form of such Exchange Registration
Statement, and promptly provide each broker-dealer holding Exchange Securities
with such number of copies of the prospectus included therein (as then amended
or supplemented), in conformity in all material respects with the requirements
of the Securities Act and the rules and regulations of the Commission
thereunder, as such broker-dealer reasonably may request prior to the
expiration of the Resale Period, for use in connection with resales of Exchange
Securities;


 


(iii)          promptly notify each
broker-dealer that has requested or received copies of the prospectus included
in such registration statement, and confirm such advice in writing, (A) when
such Exchange Registration Statement or the prospectus included therein or any
prospectus amendment or supplement or post-effective amendment has been filed,
and, with respect to such Exchange Registration Statement or any post-effective
amendment, when the same has become effective, (B) of any request by the
Commission for amendments or supplements to such Exchange Registration
Statement or prospectus or for additional information, (C) of the issuance
by the Commission of any stop order suspending the effectiveness of such
Exchange Registration Statement or the initiation of any proceedings for that
purpose, (D) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the Exchange Securities for
sale in any jurisdiction or the initiation of any proceeding for such purpose,
or (E) at any time during the Resale Period when a prospectus is required
to be delivered under the Securities Act, that such Exchange Registration
Statement, prospectus, prospectus amendment or supplement or post-effective
amendment does not conform in all material respects to the applicable
requirements of the Securities Act and the rules and regulations of the
Commission thereunder or contains an untrue statement of a material fact or
omits to state any material fact required to be stated therein or necessary to
make the statements therein not misleading in light of the circumstances then
existing;


 


(iv)          in the event that the
Company would be required, pursuant to Section 3(c)(iii)(E) above, to
notify any broker-dealers holding Exchange Securities, use its commercially
reasonable efforts to prepare and furnish as soon as practicable to each such
broker-dealer a reasonable number of copies of a prospectus supplemented or
amended so that, as thereafter delivered to purchasers of such Exchange
Securities during the Resale Period, such prospectus shall conform in all
material respects to the applicable requirements of the Securities Act and the rules and
regulations of the Commission thereunder and shall not contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading in
light of the circumstances then existing;


 


(v)           use its commercially
reasonable efforts to obtain the withdrawal of any order suspending the
effectiveness of such Exchange Registration Statement or any post-effective
amendment thereto at the earliest practicable date;


 


(vi)          use its commercially
reasonable efforts to (A) register or qualify the Exchange Securities
under the state securities laws or blue sky laws of such U.S. jurisdictions as
any participating holder of the Registrable Securities reasonably requests in
writing no later than the commencement of the Exchange Offer, (B) keep
such registrations or qualifications in effect and comply with such laws so as
to permit the continuance of offers, sales and dealings therein in such
jurisdictions until the expiration of the Resale Period and (C) take any
and all other 


 


6

















 


actions as may be reasonably
necessary to enable each broker-dealer holding Exchange Securities to
consummate the disposition thereof in such jurisdictions; provided,
however, that the Company shall not be required for any such purpose
to (1) qualify as a foreign corporation or other entity or as a dealer in
securities in any jurisdiction wherein it would not otherwise be required to
qualify but for the requirements of this Section 3(c)(vi), (2) consent
to general service of process in any such jurisdiction, (3) subject itself
to taxation in any such jurisdiction if it is not so subject or (4) make
any changes to its certificate of incorporation, by-laws or other
organizational document, or any agreement between it and any of its
equityholders;


 


(vii)         provide a CUSIP number for
all Exchange Securities, not later than the consummation of the Exchange Offer;
and


 


(viii)        comply in all material
respects with all applicable rules and regulations of the Commission, and
make generally available to its securityholders as soon as practicable but no
later than eighteen months after the effective date of such Exchange
Registration Statement, an earning statement of the Company and its
subsidiaries complying with Section 11(a) of the Securities Act
(including, at the option of the Company, Rule 158 thereunder).


 


(d)           In connection with the
Company’s obligations with respect to the Shelf Registration, if applicable,
the Company shall:


 


(i)            use its commercially
reasonable efforts to prepare and file with the Commission, as promptly as
reasonably practicable, a Shelf Registration Statement on any form which may be
utilized by the Company and which shall register all of the Registrable
Securities (or, in the case of a Shelf Registration Statement filed pursuant to
Section 2(b)(iii), the Registrable Securities held by the Initial
Purchasers or, in the case of a Shelf Registration Statement filed pursuant to Section 2(b)(iv),
the Registrable Securities held by the holders specified in Section 2(b)(iv))
for resale by the holders thereof in accordance with such method or methods of
disposition as may be specified in the applicable Notice and Questionnaire by such
of the holders as, from time to time, may be Electing Holders and use its
commercially reasonable efforts to cause such Shelf Registration Statement to
become effective within the time periods specified in Section 2(b);


 


(ii)           not less than 15 calendar
days prior to the Effective Time of the Shelf Registration Statement, mail the
Notice and Questionnaire to the holders of Registrable Securities; no holder
shall be entitled to be named as a selling securityholder in the Shelf
Registration Statement as of the Effective Time, and no holder shall be
entitled to use the prospectus forming a part thereof for resales of
Registrable Securities at any time, unless such holder has returned a completed
and signed Notice and Questionnaire to the Company by the deadline for response
set forth therein; provided, however,
holders of Registrable Securities shall have at least 13 calendar days from the
date on which the Notice and Questionnaire is first mailed to such holders to
return a completed and signed Notice and Questionnaire to the Company;


 


(iii)          after the Effective Time of
the Shelf Registration Statement, upon the request of any holder of Registrable
Securities that is not then an Electing Holder, promptly send a Notice and
Questionnaire to such holder; provided that
the Company shall not be required to take any action to name such holder as a
selling securityholder in the Shelf Registration Statement or to enable such
holder to use the prospectus forming a part thereof for resales of Registrable
Securities until such holder has returned a completed and signed Notice and
Questionnaire to the Company;


 


(iv)          as soon as practicable
prepare and file with the Commission such amendments and supplements to such
Shelf Registration Statement and the prospectus included therein as may be
necessary to effect and maintain the effectiveness of such Shelf Registration
Statement for the period specified in Section 2(b) hereof and as may
be required by the applicable rules and regulations of the Commission and
the instructions applicable to the form of such Shelf Registration Statement,
and furnish to the Electing Holders copies of any such supplement or amendment
as soon as practicable following its filing with the Commission.
Notwithstanding the foregoing, the Company may suspend the availability of any
Shelf Registration Statement (x) for up to an aggregate of 60 days in any
consecutive twelve-month period if (i) such action is required by
applicable law or, (ii) such action is taken by the Company in good faith
and for valid business reasons (not including avoidance of the Company’s
obligations hereunder), including the acquisition or divestiture of assets, or (y) with
respect to a Shelf Registration Statement required to be 


 


7

















 


filed due to a failure to
consummate the Exchange Offer within the required time period, if such action
occurs following the consummation of the Exchange Offer;


 


(v)           comply in all material
respects with the provisions of the Securities Act with respect to the
disposition of all of the Registrable Securities covered by such Shelf
Registration Statement in accordance with the intended methods of disposition
by the Electing Holders provided for in such Shelf Registration Statement;


 


(vi)          for a reasonable period prior
to the filing of such Shelf Registration Statement, and throughout the period
specified in Section 2(b), make reasonably available at reasonable times
at the Company’s principal place of business or such other reasonable place for
inspection by a representative of, and not more than one counsel acting for,
Electing Holders holding at least a majority in aggregate principal amount of
the Registrable Securities at the time outstanding (the “Majority Electing
Holders”) and any underwriter participating in the distribution of the
Registrable Securities being sold (including any person who may be deemed an
underwriter within the meaning of Section 2(a)(ii) of the Securities
Act) such relevant financial and other pertinent information and books and
records of the Company, and use its commercially reasonable efforts to cause
the officers, employees, counsel and independent certified public accountants
of the Company to respond to such inquiries, as shall be reasonably necessary
to conduct a reasonable investigation within the meaning of Section 11 of
the Securities Act; provided, however,
that the foregoing investigation and information gathering shall be coordinated
on behalf of all such parties by one counsel designated by and on behalf of all
such parties and provided, further, that each such
party shall be required (pursuant to an agreement in form and substance
reasonably satisfactory to the Company) to maintain in confidence and not to
disclose to any other person any information or records reasonably designated
by the Company as being confidential, until such time as (A) such
information becomes a matter of public record (whether by virtue of its
inclusion in such registration statement or otherwise except as a result of a
breach of this or any other obligation of confidentiality to the Company known
to such party), or (B) such person shall be required so to disclose such
information pursuant to a subpoena or order of any court or other governmental
agency or body having jurisdiction over the matter (subject to the requirements
of such order, and only after such person shall have given the Company prompt
prior written notice of such requirement so that the Company, at its expense,
may undertake appropriate action to prevent disclosure of such information or records),
or (C) such information is required to be set forth in such Shelf
Registration Statement or the prospectus included therein or in an amendment to
such Shelf Registration Statement or an amendment or supplement to such
prospectus in order that such Shelf Registration Statement, prospectus,
amendment or supplement, as the case may be, complies with applicable
requirements of the federal securities laws and the rules and regulations
of the Commission and does not contain an untrue statement of a material fact
or omit to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading in light of the
circumstances then existing;


 


(vii)         promptly notify each of the
Electing Holders and any managing underwriter thereof and confirm such advice
in writing, (A) when such Shelf Registration Statement or the prospectus
included therein or any prospectus amendment or supplement or post-effective
amendment has been filed, and, with respect to such Shelf Registration
Statement or any post-effective amendment, when the same has become effective, (B) of
any request by the Commission for amendments or supplements to such Shelf
Registration Statement or prospectus or for additional information, (C) of
the issuance by the Commission of any stop order suspending the effectiveness
of such Shelf Registration Statement or the initiation of any proceedings for
that purpose, (D) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the Registrable Securities
for sale in any jurisdiction or the initiation of any proceeding for such
purpose or (E) if at any time when a prospectus is required to be
delivered under the Securities Act, that such Shelf Registration Statement,
prospectus, prospectus amendment or supplement or post-effective amendment does
not conform in all material respects to the applicable requirements of the
Securities Act and the rules and regulations of the Commission thereunder
or contains an untrue statement of a material fact or omits to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances then existing;


 


(viii)        use its commercially
reasonable efforts to obtain the withdrawal of any order suspending the
effectiveness of such registration statement or any post-effective amendment
thereto at the earliest practicable date;


 


(ix)           if requested by any managing
underwriter or the Majority Electing Holders, promptly incorporate in a
prospectus supplement or post-effective amendment such information as is
required by the applicable rules and regulations of the Commission and as
such managing underwriter or such Majority Electing Holders shall specify 


 


8

















 


should be included therein
relating to the terms of the sale of such Registrable Securities, including
information with respect to the principal amount of Registrable Securities
being sold by such Majority Electing Holders or to any underwriters, the names
and descriptions of such Majority Electing Holders or underwriters, the
offering price of such Registrable Securities and any discount, commission or
other compensation payable in respect thereof, the purchase price being paid
therefor by such underwriters and with respect to any other terms of the
offering of the Registrable Securities to be sold by such Majority Electing
Holders or to such underwriters; and make all required filings of such
prospectus supplement or post-effective amendment as soon as practicable after
notification of the matters to be incorporated in such prospectus supplement or
post-effective amendment;


 


(x)            furnish to each Electing
Holder, and each underwriter, if any, thereof such number of copies of such
Shelf Registration Statement (excluding exhibits thereto and documents
incorporated by reference therein) and of the prospectus included in such Shelf
Registration Statement (including each preliminary prospectus), in conformity
in all material respects with the applicable requirements of the Securities Act
and the rules and regulations of the Commission thereunder, as such
Electing Holder and underwriter, if any, may reasonably request in order to
facilitate the offering and disposition of the Registrable Securities owned by
such Electing Holder or underwritten by such underwriter and to permit such
Electing Holder and underwriter, if any, to satisfy the prospectus delivery
requirements of the Securities Act; and the Company hereby consents to the use
of such prospectus (including such preliminary prospectus) and any amendment or
supplement thereto by each such Electing Holder and by any such underwriter, in
each case in the form most recently provided to such person by the Company, in
connection with the offering and sale of the Registrable Securities covered by
the prospectus (including such preliminary prospectus) or any supplement or
amendment thereto;


 


(xi)           use its commercially
reasonable efforts to (A) register or qualify the Registrable Securities
to be included in such Shelf Registration Statement under such state securities
laws or blue sky laws of such U.S. jurisdictions as any Electing Holder and
managing underwriter, if any, thereof shall reasonably request, (B) keep
such registrations or qualifications in effect and comply with such laws so as
to permit the continuance of offers, sales and dealings therein in such
jurisdictions during the period the Shelf Registration is required to remain
effective under Section 2(b) above and for so long as may be necessary
to enable any such Electing Holder or underwriter to complete its distribution
of Securities pursuant to such Shelf Registration Statement and (C) take
any and all other actions as may be reasonably necessary to enable each such
Electing Holder and underwriter, if any, to consummate the disposition in such
jurisdictions of such Registrable Securities; provided,
however, that the Company shall not be required for any such purpose
to (1) qualify as a foreign corporation or other entity or as a dealer in
securities in any jurisdiction wherein it would not otherwise be required to
qualify but for the requirements of this Section 3(d)(xi), (2) consent
to general service of process in any such jurisdiction, (3) subject itself
to taxation in any such jurisdiction if it is not so subject or (4) make
any changes to its certificate of incorporation, by-laws or other
organizational document, or any agreement between it and any of its
equityholders;


 


(xii)          unless any Registrable
Securities shall be in book-entry only form, cooperate with the Electing
Holders and the managing underwriters, if any, to facilitate the timely
preparation and delivery of certificates representing Registrable Securities to
be sold, which certificates shall not bear any restrictive legends; and, in the
case of an underwritten offering, enable such Registrable Securities to be in
such denominations and registered in such names as the managing underwriter may
request a reasonable amount of time prior to any sale of the Registrable
Securities;


 


(xiii)         provide a CUSIP number for
all Registrable Securities, not later than the applicable Effective Time;


 


(xiv)        enter into one or more
underwriting agreements in customary form, including customary provisions
relating to indemnification and contribution, and use its commercially
reasonable efforts to take such other actions, if any, in connection therewith
as any Electing Holders aggregating at least 20% in aggregate principal amount
of the Registrable Securities at the time outstanding shall reasonably request
in order to expedite or facilitate the disposition of such Registrable
Securities;


 


(xv)         if requested by the Majority
Electing Holders or if the offering contemplated by the Shelf Registration is
an underwritten offering, use its commercially reasonable efforts to (A) make
such representations and warranties to the Electing Holders and the
underwriters, if any, thereof in form, substance and scope as are 


 


9

















 


customarily made in
connection with an offering of debt securities pursuant to any underwriting
agreement; (B) obtain an opinion of counsel to the Company in customary
form subject to customary limitations, assumptions and exclusions and covering
such matters, of the type customarily covered by such an opinion, as the
managing underwriters, if any, or as any Electing Holders of at least 20% in
aggregate principal amount of the Registrable Securities at the time
outstanding may reasonably request, addressed to the Electing Holders and the
underwriters, if any, thereof and dated the effective date of such Shelf
Registration Statement (and if such Shelf Registration Statement contemplates
an underwritten offering of a part or all of the Registrable Securities, dated
the date of the closing under the underwriting agreement relating thereto); (C) obtain
a “cold comfort” letter or letters from the independent certified public
accountants of the Company addressed to the selling Electing Holders or the
underwriters, if any, thereof, dated (i) the effective date of such Shelf
Registration Statement and (ii) if such Shelf Registration Statement
contemplates an underwritten offering, dated the date of the closing under the
underwriting agreement relating thereto, such letter or letters to be in
customary form and covering such matters of the type customarily covered by
letters of such type, subject to receipt of appropriate documentation as
contemplated, and only if permitted, by Statement of Auditing Standards No. 72;
and (D) deliver such customary documents and certificates, including
officers’ certificates, as may be reasonably requested by the Majority Electing
Holders and the managing underwriters, if any, thereof,


 


(xvi)        notify in writing each
holder of Registrable Securities of any proposal by the Company to amend or
waive any provision of this Exchange and Registration Rights Agreement pursuant
to Section 8(h) hereof and of any amendment or waiver effected
pursuant thereto, each of which notices shall contain the text of the amendment
or waiver proposed or effected, as the case may be;


 


(xvii)       in the event that any
broker-dealer registered under the Exchange Act shall underwrite any
Registrable Securities or participate as a member of an underwriting syndicate
(within the meaning of the Conduct Rules (the “Conduct Rules”) of
the Financial Industry Regulatory Authority, Inc. (“FINRA”) or any
successor thereto, as amended from time to time) thereof as an underwriter, use
commercially reasonable efforts to provide information to assist such
broker-dealer in complying with the requirements of such Conduct Rules; and


 


(xviii)      comply in all material
respects with all applicable rules and regulations of the Commission, and
make generally available to its securityholders as soon as practicable but in
any event not later than eighteen months after the effective date of such Shelf
Registration Statement, an earning statement of the Company and its
subsidiaries complying with Section 11(a) of the Securities Act
(including, at the option of the Company, Rule 158 thereunder).


 


(e)           In the event that the
Company would be required, pursuant to Section 3(d)(vii)(E) above, to
notify the Electing Holders and the managing underwriters, if any, thereof, the
Company shall as soon as practicable prepare and furnish to each of the Electing
Holders and to each such underwriter, if any, a reasonable number of copies of
a prospectus supplemented or amended so that, as thereafter delivered to
purchasers of Registrable Securities, such prospectus shall conform in all
material respects to the applicable requirements of the Securities Act and the rules and
regulations of the Commission thereunder and shall not contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading in
light of the circumstances then existing. Each broker-dealer and Electing
Holder agrees that upon receipt of any notice from the Company pursuant to Section 3(c)(iii)(E) or
Section 3(d)(vii)(E) hereof, such broker-dealer or Electing Holder
shall forthwith discontinue the disposition of Registrable Securities pursuant
to the Exchange Registration Statement or Shelf Registration Statement
applicable to such Registrable Securities until such broker-dealer or Electing
Holder shall have received copies of such amended or supplemented prospectus,
and if so directed by the Company, such broker-dealer or Electing Holder shall
deliver to the Company (at the Company’s expense) all copies, other than
permanent file copies, then in such broker-dealer’s or Electing Holder’s
possession of the prospectus covering such Registrable Securities at the time
of receipt of such notice.


 


(f)            In the event of a Shelf
Registration, in addition to the information required to be provided by each
Electing Holder in its Notice and Questionnaire, the Company may require such
Electing Holder to furnish to the Company such additional information regarding
such Electing Holder and such Electing Holder’s intended method of distribution
of Registrable Securities as may be required in order to comply with the
Securities Act. Each such Electing Holder agrees to notify the Company as
promptly as practicable of any inaccuracy or change in information previously
furnished by such Electing Holder to the Company or of the occurrence of any
event in either case as a result of which any prospectus relating to such Shelf
Registration contains or would contain an untrue statement of a material fact
regarding such Electing Holder or 


 


10

















 


such Electing Holder’s intended method of
disposition of such Registrable Securities or omits to state any material fact
regarding such Electing Holder or such Electing Holder’s intended method of
disposition of such Registrable Securities required to be stated therein or
necessary to make the statements therein not misleading in light of the
circumstances then existing, and promptly to furnish to the Company any
additional information required to correct and update any previously furnished
information or required so that such prospectus shall not contain, with respect
to such Electing Holder or the disposition of such Registrable Securities, an
untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not misleading
in light of the circumstances then existing.


 


4.             Registration Expenses.


 


The
Company agrees to bear and to pay or cause to be paid promptly all expenses
incident to the Company’s performance of or compliance with this Exchange and
Registration Rights Agreement, including (a) all Commission and any FINRA
registration, filing and review fees and expenses including the reasonable fees
and disbursements of counsel for the underwriters, if any, in connection with
such registration, filing and review, (b) all fees and expenses in
connection with the qualification of the Securities for offering and sale under
the State securities and blue sky laws referred to in Section 3(d)(xi) hereof
and determination of their eligibility for investment under the laws of such
jurisdictions as any managing underwriters or the Electing Holders may
reasonably designate, including the reasonable fees and disbursements of
counsel for the Electing Holders or underwriters in connection with such
qualification and determination, (c) all expenses relating to the
preparation, printing, production, distribution and reproduction of each
registration statement required to be filed hereunder, each prospectus included
therein or prepared for distribution pursuant hereto, each amendment or
supplement to the foregoing, the expenses of preparing the Securities for
delivery and the expenses of printing or producing any underwriting agreements,
selling agreements and blue sky or legal investment memoranda and all other
documents in connection with the offering, sale or delivery of Securities to be
disposed of (including certificates representing the Securities), (d) messenger,
telephone and delivery expenses relating to the offering, sale or delivery of
Securities and the preparation of documents referred in clause (c) above, (e) reasonable
fees and expenses of the Trustee under the Indenture, any agent of the Trustee
and any counsel for the Trustee and of any collateral agent or custodian, (f) internal
expenses (including all salaries and expenses of the Company’s officers and
employees performing legal or accounting duties), (g) fees, disbursements
and expenses of counsel of the Company and independent certified public
accountants of the Company (including the expenses of any opinions or “cold
comfort” letters required by or incident to such performance and compliance), (h) reasonable
fees, disbursements and expenses of any “qualified independent underwriter”
engaged pursuant to Section 3(d)(xvii) hereof, (i) the
reasonable fees, disbursements and expenses of one counsel for the Electing
Holders retained in connection with a Shelf Registration, as selected by the
Electing Holders of at least a majority in aggregate principal amount of the
Registrable Securities held by Electing Holders (which counsel shall be
reasonably satisfactory to the Company), (j) any fees charged by
securities rating services for rating the Securities, and (k) fees,
expenses and disbursements of any other persons, including special experts,
retained by the Company in connection with such registration (collectively, the
“Registration Expenses”). To the extent that any Registration Expenses
are incurred, assumed or paid by any holder of Registrable Securities or any
placement or sales agent therefor or underwriter thereof, the Company shall
reimburse such person for the full amount of the Registration Expenses so
incurred, assumed or paid promptly after receipt of a request therefore, which
shall be accompanied by written evidence of the expenses so incurred.
Notwithstanding the foregoing, the holders of the Registrable Securities being
registered shall pay all agency fees and commissions and underwriting discounts
and commissions attributable to the sale of such Registrable Securities and the
fees and disbursements of any counsel or other advisors or experts retained by
such holders (severally or jointly), other than the counsel and experts
specifically referred to above.


 


5.             Indemnification.


 


(a)           Indemnification by the Company. The Company
will indemnify and hold harmless (x) each of the broker-dealers whose
Registrable Securities are included in an Exchange Registration Statement, each
of the Electing Holders of Registrable Securities included in a Shelf
Registration Statement against any losses, claims, damages or liabilities,
joint or several, to which such broker-dealer, Electing Holder may become
subject under the Securities Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based upon an untrue statement or alleged untrue statement of a material fact
contained in any Exchange Registration Statement or Shelf Registration
Statement, as the case may be, under which such Registrable Securities were
registered under the Securities Act, or any preliminary, final or summary
prospectus contained therein or furnished by the Company to any such
broker-dealer or Electing Holder, or any amendment or supplement thereto, or
arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, and 


 


11

















 


will reimburse such broker-dealer or Electing Holder
for any legal or other expenses reasonably incurred by them in connection with
investigating or defending any such action or claim as such expenses are
incurred; provided, however, that (i) the
Company shall not be liable to any such person in any such case to the extent
that any such loss, claim, damage or liability arises out of or is based upon
an untrue statement or alleged untrue statement or omission or alleged omission
made in such registration statement, or preliminary, final or summary
prospectus, or amendment or supplement thereto, in reliance upon and in
conformity with written information furnished to the Company by such person
expressly for use therein and (ii) with respect to any untrue statement or
alleged untrue statement or omission or alleged omission made in a Shelf
Registration Statement or prospectus or in any amendment or supplement thereto
or in any preliminary prospectus relating to a Shelf Registration Statement,
the indemnity agreement contained in this Section 5(a) will not inure
to the benefit of any broker-dealer or Electing Holder from whom the person
asserting any such loss, claim, damage or liability purchased the Registrable
Securities purchased concerned, to the extent that at the time of such purchase
such broker-dealer or Electing Holder had received timely written advice from
the Company prior to such purchase that the use of such prospectus, amendment,
supplement or preliminary prospectus was suspended as provided in Section 3(e) hereof.


 


(b)           Indemnification by the Holders. The Company
may require, as a condition to including any Registrable Securities in any
registration statement filed pursuant to Section 2(b) hereof, that
the Company shall have received an undertaking reasonably satisfactory to it
from the Electing Holder of such Registrable Securities, severally and not
jointly, to (i) indemnify and hold harmless the Company and all other
holders of Registrable Securities, against any losses, claims, damages or
liabilities to which the Company or such other holders of Registrable
Securities may become subject, under the Securities Act or otherwise, insofar
as such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon an untrue statement or alleged untrue statement
of a material fact contained in such registration statement, or any
preliminary, final or summary prospectus contained therein or furnished by the
Company to any such Electing Holder, or any amendment or supplement thereto, or
arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or omission or
alleged omission was made in reliance upon and in conformity with written
information furnished to the Company by such Electing Holder expressly for use
therein, and (ii) reimburse the Company for any legal or other expenses
reasonably incurred by the Company in connection with investigating or
defending any such action or claim as such expenses are incurred; provided, however, that no such Electing Holder shall be
required to undertake liability to any person under this Section 5(b) for
any amounts in excess of the dollar amount of the proceeds to be received by
such Electing Holder from the sale of such Electing Holder’s Registrable
Securities pursuant to such registration.


 


(c)           Notices of Claims, Etc. Promptly
after receipt by an indemnified party under Section 5(a) or 5(b) above
of written notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against an indemnifying
party pursuant to the indemnification provisions of or contemplated by this Section 5,
notify such indemnifying party in writing of the commencement of such action;
but the omission so to notify the indemnifying party shall not relieve it from
any liability which it may have to any indemnified party otherwise than under
the indemnification provisions of or contemplated by Section 5(a) or
5(b) hereof. In case any such action shall be brought against any
indemnified party and it shall notify an indemnifying party of the commencement
thereof, such indemnifying party shall be entitled to participate therein and,
to the extent that it shall wish, jointly with any other indemnifying party
similarly notified, to assume the defense thereof, with counsel reasonably
satisfactory to such indemnified party (who shall not, except with the consent
of the indemnified party, be counsel to the indemnifying party), and, after
notice from the indemnifying party to such indemnified party of its election so
to assume the defense thereof, such indemnifying party shall not be liable to
such indemnified party for any legal expenses of other counsel or any other
expenses, in each case subsequently incurred by such indemnified party, in
connection with the defense thereof other than reasonable costs of
investigation. No indemnifying party shall, without the written consent of the
indemnified party, effect the settlement or compromise of, or consent to the
entry of any judgment with respect to, any pending or threatened action or
claim in respect of which indemnification or contribution may be sought hereunder
(whether or not the indemnified party is an actual or potential party to such
action or claim) unless such settlement, compromise or judgment (i) includes
an unconditional release of the indemnified party from all liability arising
out of such action or claim and (ii) does not include a statement as to or
an admission of fault, culpability or a failure to act by or on behalf of any
indemnified party.


 


(d)           Contribution. If for any
reason the indemnification provisions contemplated by Section 5(a) or
Section 5(b) hereof are unavailable to or insufficient to hold
harmless an indemnified party in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities
(or actions in 


 


12

















 


respect thereof) in such proportion as is
appropriate to reflect the relative fault of the indemnifying party and the
indemnified party in connection with the statements or omissions which resulted
in such losses, claims, damages or liabilities (or actions in respect thereof),
as well as any other relevant equitable considerations. The relative fault of
such indemnifying party and indemnified party shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact relates
to information supplied by such indemnifying party or by such indemnified
party, and the parties’ relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The parties
hereto agree that it would not be just and equitable if contributions pursuant
to this Section 5(d) were determined by pro rata allocation (even if
the holders or any agents or underwriters or all of them were treated as one
entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to in this Section 5(d).
The amount paid or payable by an indemnified party as a result of the losses,
claims, damages, or liabilities (or actions in respect thereof) referred to
above shall be deemed to include any legal or other fees or expenses reasonably
incurred by such indemnified party in connection with investigating or
defending any such action or claim. Notwithstanding the provisions of this Section 5(d),
no holder shall be required to contribute any amount in excess of the amount by
which the dollar amount of the proceeds received by such holder from the sale
of any Registrable Securities (after deducting any fees, discounts and
commissions applicable thereto) exceeds the amount of any damages which such
holder has otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. The holders’ and any
underwriters’ obligations in this Section 5(d) to contribute shall be
several in proportion to the principal amount of Registrable Securities
registered or underwritten, as the case may be, by them and not joint.


 


(e)           The obligations of the
Company under this Section 5 shall be in addition to any liability which
the Company may otherwise have and shall extend, upon the same terms and
conditions, to each officer, director and partner of each holder and each
person, if any, who controls any holder within the meaning of the Securities
Act; and the obligations of the holders contemplated by this Section 5
shall be in addition to any liability which the respective holder may otherwise
have and shall extend, upon the same terms and conditions, to each officer and
director of the Company (including any person who, with his consent, is named
in any registration statement as about to become a director of the Company) and
to each person, if any, who controls the Company within the meaning of the
Securities Act.


 


6.             Underwritten Offerings.


 


(a)           Selection of Underwriters. If any of the
Registrable Securities covered by the Shelf Registration are to be sold
pursuant to an underwritten offering, the managing underwriter or underwriters
thereof shall be designated by the Company, subject to the consent of the
Electing Holders holding at least a majority in aggregate principal amount of
the Registrable Securities to be included in such offering (which shall not be
unreasonably withheld or delayed) and such Electing Holders shall be
responsible for all underwriting discounts and commissions in connection
therewith.


 


(b)           Participation by Holders. Each holder
of Registrable Securities hereby agrees with each other such holder that no
such holder may participate in any underwritten offering hereunder unless such
holder (i) agrees to sell such holder’s Registrable Securities on the
basis provided in any underwriting arrangements approved by the persons
entitled hereunder to approve such arrangements and (ii) completes and
executes all questionnaires, powers of attorney, indemnities, underwriting
agreements and other documents reasonably required under the terms of such
underwriting arrangements.


 


7.             Rule 144.


 


The
Company covenants to the holders of Registrable Securities that to the extent
it shall be required to do so under the Exchange Act, the Company shall timely
file the reports required to be filed by it under the Exchange Act or the
Securities Act (including the reports under Section 13 and 15(d) of
the Exchange Act referred to in subparagraph (c)(1) of Rule 144
adopted by the Commission under the Securities Act) and the rules and
regulations adopted by the Commission thereunder, and shall take such further
action as any holder of Registrable Securities may reasonably request, all to
the extent required from time to time to enable such holder to sell Registrable
Securities without registration under the Securities Act within the limitations
of the exemption provided by Rule 144 under the Securities Act, as such Rule may
be amended from time to time, or any similar or successor rule or
regulation hereafter adopted by the Commission. Upon the request of any holder
of Registrable Securities in connection with that holder’s sale pursuant to Rule 144,
the Company shall deliver to such holder a written statement as to whether it
has complied with such requirements.  The
Company will be deemed to have 


 


13

















 


satisfied
the foregoing requirements if any of the Company’s Parents files such reports
and takes such actions of the types otherwise so required, in each case within
the applicable time periods.


 


8.             Miscellaneous.


 


(a)           No Inconsistent Agreements. The Company
represents warrants, covenants and agrees that it has not granted, and shall
not grant, registration rights with respect to Registrable Securities or any
other securities which would be inconsistent with the terms contained in this
Exchange and Registration Rights Agreement.


 


(b)           Specific Performance. The parties
hereto acknowledge that there would be no adequate remedy at law if the Company
fails to perform any of its obligations hereunder and that the Initial
Purchasers and the holders from time to time of the Registrable Securities may
be irreparably harmed by any such failure, and accordingly agree that the
Initial Purchasers and such holders, in addition to any other remedy to which
they may be entitled at law or in equity, shall be entitled to compel specific
performance of the obligations of the Company under this Exchange and
Registration Rights Agreement in accordance with the terms and conditions of
this Exchange and Registration Rights Agreement, in any court of the United
States or any State thereof having jurisdiction.


 


(c)           Notices. All notices,
requests, claims, demands, waivers and other communications hereunder shall be
in writing and shall be deemed to have been duly given when delivered by hand,
if delivered personally or by courier, or three days after being deposited in
the mail (registered or certified mail, postage prepaid, return receipt
requested) as follows: (i) if to the Company, to it at 225 Brae Boulevard,
Park Ridge, New Jersey 07656, Attention: Richard J. Frecker, Assistant General
Counsel and Assistant Secretary, with a copy to Steven J. Slutzky, Esq.,
Debevoise & Plimpton LLP, 919 Third Avenue, New York, New York 10022, (ii) if
to a holder, to the address of such holder set forth in the security register
or other records of the Company or to such other address as the Company or any
such holder may have furnished to the other in writing in accordance herewith,
except that notices of change of address shall be effective only upon receipt,
and (iii) if to the Initial Purchasers, c/o Barclays Capital, 745 Seventh
Avenue, New York, New York 10019, Attention: Syndicate Registration with a copy
to Kirk A. Davenport, Esq., Latham & Watkins LLP, 885 Third
Avenue, New York, New York 10022.


 


(d)           Parties in Interest. All the terms
and provisions of this Exchange and Registration Rights Agreement shall be
binding upon, shall inure to the benefit of and shall be enforceable by the
parties hereto and the holders from time to time of the Registrable Securities
and the respective successors and assigns of the parties hereto and such
holders. In the event that any transferee of any holder of Registrable
Securities shall acquire Registrable Securities, in any manner, whether by
gift, bequest, purchase, operation of law or otherwise, such transferee shall,
without any further writing or action of any kind, be deemed a beneficiary
hereof for all purposes and such Registrable Securities shall be held subject
to all of the terms of this Exchange and Registration Rights Agreement, and by
taking and holding such Registrable Securities such transferee shall be
entitled to receive the benefits of, and be conclusively deemed to have agreed
to be bound by all of the applicable terms and provisions of this Exchange and
Registration Rights Agreement. If the Company shall so request, any such
successor, assign or transferee shall agree in writing to acquire and hold the
Registrable Securities subject to all of the applicable terms hereof.


 


(e)           Survival. The
respective indemnities, agreements, representations, warranties and each other
provision set forth in this Exchange and Registration Rights Agreement or made
pursuant hereto shall remain in full force and effect regardless of any
investigation (or statement as to the results thereof) made by or on behalf of
any holder of Registrable Securities, any director, officer or partner of such
holder, any agent or underwriter or any director, officer or partner thereof,
or any controlling person of any of the foregoing, and shall survive delivery
of and payment for the Registrable Securities pursuant to each of the Purchase
Agreements and the transfer and registration of Registrable Securities by such
holder and the consummation of an Exchange Offer.


 


(f)            Governing Law. This Exchange
and Registration Rights Agreement shall be governed by and construed in
accordance with the laws of the State of New York.


 


(g)           Headings. The
descriptive headings of the several Sections and paragraphs of this Exchange
and Registration Rights Agreement are inserted for convenience only, do not
constitute a part of this Exchange and Registration Rights Agreement and shall
not affect in any way the meaning or interpretation of this Exchange and
Registration Rights Agreement.


 


14














 


(h)           Entire Agreement;
Amendments. This Exchange and Registration Rights Agreement and the
other writings referred to herein (including the Indenture and the form of
Securities) or delivered pursuant hereto which form a part hereof contain the
entire understanding of the parties with respect to its subject matter. This
Exchange and Registration Rights Agreement supersedes all prior agreements and
understandings between the parties with respect to its subject matter. This
Exchange and Registration Rights Agreement may be amended and the observance of
any term of this Exchange and Registration Rights Agreement may be waived
(either generally or in a particular instance and either retroactively or
prospectively) only by a written instrument duly executed by the Company and
the holders of at least a majority in aggregate principal amount of the
Registrable Securities at the time outstanding. Each holder of any Registrable
Securities at the time or thereafter outstanding shall be bound by any
amendment or waiver effected pursuant to this Section 8(h), whether or not
any notice, writing or marking indicating such amendment or waiver appears on
such Registrable Securities or is delivered to such holder.


 


(i)            Counterparts.
This Exchange and Registration Rights Agreement may be executed by the parties
in counterparts, each of which shall be deemed to be an original, but all such
respective counterparts shall together constitute one and the same instrument.


 


If
the foregoing is in accordance with your understanding, please sign and return
to us six counterparts hereof, and upon the acceptance hereof by you, on behalf
of each of the Initial Purchasers, this letter and such acceptance hereof shall
constitute a binding agreement between each of the Initial Purchasers and the
Company.


 


[Signature Pages Follow]


 


15

















 


	
   

  	
   

  
	
   

  	
  Very
  truly yours,

  
	
   

  	
   

  
	
   

  	
  The
  Hertz Corporation

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  R. Scott Massengill

  
	
   

  	
   

  	
  Name:

  	
  R.
  Scott Massengill

  
	
   

  	
   

  	
  Title:

  	
  Vice
  President and Treasurer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Brae
  Holding Corp.

  
	
   

  	
  Hertz
  Claim Management Corporation

  
	
   

  	
  HCM
  Marketing Corporation

  
	
   

  	
  Hertz
  Equipment Rental Corporation

  
	
   

  	
  Hertz
  Local Edition Corp.

  
	
   

  	
  Hertz
  Local Edition Transporting, Inc.

  
	
   

  	
  Hertz
  Global Services Corporation

  
	
   

  	
  Hertz
  System, Inc.

  
	
   

  	
  Hertz
  Technologies, Inc.

  
	
   

  	
  Hertz
  Transporting, Inc.

  
	
   

  	
  Smartz
  Vehicle Rental Corporation

  
	
   

  	
  Simply
  Wheelz LLC

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  R. Scott Massengill

  
	
   

  	
   

  	
  Name:

  	
  R.
  Scott Massengill

  
	
   

  	
   

  	
  Title:

  	
  Treasurer

  
						



 


16

















 


Accepted
as of the date hereof for themselves as initial purchasers under the
September 16, 2010 Purchase Agreement and as Representatives of the
several Initial Purchasers named in Schedule I to the September 20, 2010
Purchase Agreement:


 


	
  Barclays Capital Inc.

  
	
   

  	
   

  
	
  By:

  	
  /s/
  Mark Liggitt

  	
   

  
	
   

  	
  Name:

  	
  Mark
  Liggitt

  	
   

  
	
   

  	
  Title:

  	
  Director

  	
   

  
	
   

  	
   

  	
   

  
	
  Deutsche Bank Securities Inc.

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/
  Edwin E. Roland

  	
   

  
	
   

  	
  Name:

  	
  Edwin
  E. Roland

  	
   

  
	
   

  	
  Title:

  	
  Managing
  Director

  	
   

  
	
   

  	
   

  	
   

  
	
  Deutsche Bank Securities Inc.

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/
  Kevin Sherlock

  	
   

  
	
   

  	
  Name:

  	
  Kevin
  Sherlock

  	
   

  
	
   

  	
  Title:

  	
  Managing
  Director

  	
   

  
	
   

  	
   

  	
   

  
	
  Wells Fargo Securities, LLC

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/
  Jeffrey M. Foley

  	
   

  
	
   

  	
  Name:

  	
  Jeffrey
  M. Foley

  	
   

  
	
   

  	
  Title:

  	
  Managing
  Director

  	
   

  



 

















 


Exhibit A


 


The Hertz Corporation


 


INSTRUCTION TO DTC PARTICIPANTS


 


(Date of Mailing)


 


URGENT - IMMEDIATE ATTENTION REQUESTED


 


DEADLINE FOR RESPONSE:  [DATE](1)


 


The
Depository Trust Company (“DTC”) has identified you as a DTC Participant
through which beneficial interests in The Hertz Corporation (the “Company”)
7.50% Senior Notes due 2018 (the “Securities”) are held.


 


The
Company is in the process of registering the Securities under the Securities
Act of 1933 for resale by the beneficial owners thereof. In order to have their
Securities included in the registration statement, beneficial owners must
complete and return the enclosed Notice of Registration Statement and Selling
Securityholder Questionnaire.


 


It
is important that beneficial owners of the Securities receive a copy of the
enclosed materials as soon as possible as their rights to have the
Securities included in the registration statement depend upon their returning
the Notice and Questionnaire by [Deadline For Response]. Please forward a copy
of the enclosed documents to each beneficial owner that holds interests in the
Securities through you. If you require more copies of the enclosed materials or
have any questions pertaining to this matter, please contact The Hertz
Corporation, 225 Brae Boulevard, Park Ridge, New Jersey, 07656, Attention:
Richard J. Frecker, Assistant General Counsel and Assistant Secretary, [(201)
307-2000].


 






(1)           Not less than 28 calendar days from
date of mailing.


 

















 


The Hertz Corporation


 


Notice of Registration Statement

and

Selling, Securityholder Questionnaire


 


(Date)


 


Reference
is hereby made to the Exchange and Registration Rights Agreement (the “Exchange
and Registration Rights Agreement”) between The Hertz Corporation (the “Company”)
and the Initial Purchasers named therein. Pursuant to the Exchange and
Registration Rights Agreement, the Company has filed with the United States
Securities and Exchange Commission (the “Commission”) a registration
statement on Form [      ] (the “Shelf
Registration Statement”) for the registration and resale under Rule 415
of the Securities Act of 1933, as amended (the “Securities Act”), of the
Company’s 7.50% Senior Notes due 2018 (the “Securities”). A copy of the
Exchange and Registration Rights Agreement is attached hereto. All capitalized
terms not otherwise defined herein shall have the meanings ascribed thereto in
the Exchange and Registration Rights Agreement.


 


Each
beneficial owner of Registrable Securities (as defined below) is entitled to
have the Registrable Securities beneficially owned by it included in the Shelf
Registration Statement. In order to have Registrable Securities included in the
Shelf Registration Statement, this Notice of Registration Statement and Selling
Securityholder Questionnaire (“Notice and Questionnaire”) must be
completed, executed and delivered to the Company’s counsel at the address set
forth herein for receipt ON OR BEFORE [Deadline for Response]. Beneficial
owners of Registrable Securities who do not complete, execute and return this
Notice and Questionnaire by such date (i) will not be named as selling
securityholders in the Shelf Registration Statement and (ii) may not use
the Prospectus forming a part thereof for resales of Registrable Securities.


 


Certain
legal consequences arise from being named as a selling securityholder in the
Shelf Registration Statement and related Prospectus. Accordingly, holders and
beneficial owners of Registrable Securities are advised to consult their own
securities law counsel regarding the consequences of being named or not being
named as a selling securityholder in the Shelf Registration Statement and
related Prospectus.


 


The
term “Registrable Securities” is defined in the Exchange and
Registration Rights Agreement.


 

















 


ELECTION


 


The
undersigned holder (the “Selling Securityholder”) of Registrable
Securities hereby elects to include in the Shelf Registration Statement the Registrable
Securities beneficially owned by it and listed below in Item (3). The
undersigned, by signing and returning this Notice and Questionnaire, agrees to
be bound with respect to such Registrable Securities by the terms and
conditions of this Notice and Questionnaire and the Exchange and Registration
Rights Agreement, including, without limitation, Sections 3(e) and 5 of
the Exchange and Registration Rights Agreement, as if the undersigned Selling
Securityholder were an original party thereto.


 


Upon
any sale of Registrable Securities pursuant to the Shelf Registration
Statement, the Selling Securityholder will be required to deliver to the
Company and Trustee the Notice of Transfer set forth in Appendix A to the
Prospectus and as Exhibit B to the Exchange and Registration Rights
Agreement.


 


The
Selling Securityholder hereby provides the following information to the Company
and represents and warrants that such information is accurate and complete:


 

















 


QUESTIONNAIRE


 


1.             (a)           Full Legal Name of Selling Securityholder:


 


(b)                                 Full Legal Name of
Registered Holder (if not the same as in (a) above) of Registrable
Securities Listed in Item (3) below:


 


(c)                                  Full Legal Name of DTC
Participant (if applicable and if not the same as (b) above) Through Which
Registrable Securities Listed in Item (3) below are Held:


 


2.             Address for Notices to Selling
Securityholder:


 


 


	
  Telephone:

  	
   

  
	
   

  
	
  Fax:

  	
   

  
	
   

  
	
  Contact

  	
   

  
	
  Person:

  	
   

  
				



 


3.             Beneficial Ownership of Securities:


 


Except as set forth below in this Item (3), the undersigned does not
beneficially own any Securities.


 


(a)                                  Principal
amount of Registrable Securities beneficially owned:

CUSIP No(s). of such Registrable Securities:


 


(b)                                 Principal
amount of Securities other than Registrable Securities beneficially owned:

CUSIP No(s). of such other Securities:


 


(c)                                  Principal
amount of Registrable Securities which the undersigned wishes to be included in
the Shelf Registration Statement:

CUSIP No(s). of such Registrable Securities to be included in the Shelf
Registration Statement:


 


4.             Beneficial Ownership
of Other Securities of the Company:


 


Except as set forth below in this Item (4), the undersigned Selling
Securityholder is not the beneficial or registered owner of any other
securities of the Company, other than the Securities listed above in Item (3).


 


State any exceptions here:


 


5.             Relationships with
the Company:


 


Except as set forth below, neither the Selling Securityholder nor any
of its affiliates, officers, directors or principal equity holders (5% or more)
has held any position or office or has had any other material relationship with
the Company (or its predecessors or affiliates) during the past three years.


 


State any exceptions here:


 

















 


6.             Plan of
Distribution:


 


Except as set forth below, the undersigned Selling Securityholder
intends to distribute the Registrable Securities listed above in Item (3) only
as follows (if at all):  Such Registrable
Securities may be sold from time to time directly by the undersigned Selling
Securityholder or, alternatively, through underwriters, broker-dealers or
agents. Such Registrable Securities may be sold in one or more transactions at
fixed prices, at prevailing market prices at the time of sale, at varying
prices determined at the time of sale, or at negotiated prices. Such sales may
be effected in transactions (which may involve crosses or block transactions) (i) on
any national securities exchange or quotation service on which the Registered
Securities may be listed or quoted at the time of sale, (ii) in the
over-the-counter market, (iii) in transactions otherwise than on such
exchanges or services or in the over-the-counter market, or (iv) through
the writing of options. In connection with sales of the Registrable Securities
or otherwise, the Selling Securityholder may enter into hedging transactions
with broker-dealers, which may in turn engage in short sales of the Registrable
Securities in the course of hedging the positions they assume. The Selling
Securityholder may also sell Registrable Securities short and deliver
Registrable Securities to close out such short positions, or loan or pledge
Registrable Securities to broker-dealers that in turn may sell such securities.


 


State any exceptions here:


 


By
signing below, the Selling Securityholder acknowledges that it understands its
obligation to comply, and agrees that it will comply, with the provisions of
the Exchange Act and the rules and regulations thereunder, particularly
Regulation M.


 


In
the event that the Selling Securityholder transfers all or any portion of the
Registrable Securities listed in Item (3) above after the date on which
such information is provided to the Company, the Selling Securityholder agrees
to notify the transferee(s) at the time of the transfer of its rights and
obligations under this Notice and Questionnaire and the Exchange and
Registration Rights Agreement.


 


By
signing below, the Selling Securityholder consents to the disclosure of the
information contained herein in its answers to Items (1) through (6) above
and the inclusion of such information in the Shelf Registration Statement and
related Prospectus. The Selling Securityholder understands that such
information will be relied upon by the Company in connection with the
preparation of the Shelf Registration Statement and related Prospectus.


 


In
accordance with the Selling Securityholder’s obligation under Section 3(d) of
the Exchange and Registration Rights Agreement to provide such information as
may be required by law for inclusion in the Shelf Registration Statement, the
Selling Securityholder agrees to promptly notify the Company of any
inaccuracies or changes in the information provided herein which may occur
subsequent to the date hereof at any time while the Shelf Registration
Statement remains in effect. All notices hereunder and pursuant to the Exchange
and Registration Rights Agreement shall be made in writing, by hand delivery,
first-class mail, or air courier guaranteeing overnight delivery as follows:


 


(i)            To the Company:


 


The Hertz Corporation

225 Brae Boulevard

Park Ridge, New Jersey 07656-0713

Attention: Assistant General Counsel and Assistant Secretary


 


(ii)           With a copy to:


 


Steven J. Slutzky, Esq.

Debevoise & Plimpton LLP

919 Third Avenue

New York, New York 10022


 


Once
this Notice and Questionnaire is executed by the Selling Securityholder and
received by the Company’s counsel, the terms of this Notice and Questionnaire,
and the representations and warranties contained herein, shall be binding on,
shall inure to the benefit of and shall be enforceable by the respective
successors, heirs, personal representatives, and assigns of the 


 

















 


Company
and the Selling Securityholder (with respect to the Registrable Securities
beneficially owned by such Selling Securityholder and listed in Item (3) above).
This Agreement shall be governed in all respects by the laws of the State of
New York.


 


IN
WITNESS WHEREOF, the undersigned, by authority duly given, has caused this
Notice and Questionnaire to be executed and delivered either in person or by
its duly authorized agent.


 


Dated:


 


	
   

  	
   

  
	
   

  	
  Selling
  Securityholder

  
	
   

  	
  (Print/type
  full legal name of beneficial owner of Registrable Securities)

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 

















 


 


PLEASE
RETURN THE COMPLETED AND EXECUTED NOTICE AND QUESTIONNAIRE FOR RECEIPT ON OR
BEFORE [DEADLINE FOR RESPONSE] TO THE COMPANY’S COUNSEL AT:


 


Steven
J. Slutzky, Esq.

Debevoise & Plimpton LLP

919 Third Avenue

New York, New York 10022


 

















 


Exhibit B


 


NOTICE OF TRANSFER PURSUANT TO REGISTRATION STATEMENT


 


Wells
Fargo Bank, National Association

The Hertz Corporation

c/o Wells Fargo Bank, National Association

45 Broadway, 14th floor

New York, NY 10006


 


Attention:  Corporate Trust Services


 


Re:                               The Hertz Corporation (the “Company”)

7.50% Senior Notes due 2018


 


Dear
Sirs:


 


Please
be advised
that                    has
transferred
$             aggregate
principal amount of the above-referenced Notes pursuant to an effective
Registration Statement on Form [             ]
(File No. 333-) filed by the Company.


 


We
hereby certify that the prospectus delivery requirements, if any, of the
Securities Act of 1933, as amended, have been satisfied and that the
above-named beneficial owner of the Notes is named as a “Selling Holder” in the
Prospectus dated
             or in
supplements thereto, and that the aggregate principal amount of the Notes
transferred are the Notes listed in such Prospectus opposite such owner’s name.


 


Dated:


 


	
   

  	
  Very
  truly yours,

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  (Name)

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  (Authorized Signature)