Exhibit 4.1


 




 





HERTZ GLOBAL HOLDINGS, INC.


 


5.25% Convertible Senior Notes due 2014


 


as Issuer


 






 


INDENTURE


 


Dated as of May 27,
2009


 






 


Wells Fargo Bank, National
Association


 


as Trustee




 





 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE 1          Definitions
  and Other Provisions of General Application

  	
  1

  
	
   

  	
   

  	
   

  
	
  SECTION 1.01.

  	
  Definitions

  	
  1

  
	
  SECTION 1.02.

  	
  Rules of Construction

  	
  14

  
	
  SECTION 1.03.

  	
  Incorporation by Reference of TIA

  	
  15

  
	
  SECTION 1.04.

  	
  Conflict with TIA

  	
  15

  
	
  SECTION 1.05.

  	
  Compliance Certificates and Opinions

  	
  15

  
	
  SECTION 1.06.

  	
  Form of Documents Delivered to Trustee

  	
  16

  
	
  SECTION 1.07.

  	
  Acts of Holders; Record Dates

  	
  17

  
	
  SECTION 1.08.

  	
  Notices, etc., to Trustee and Company

  	
  19

  
	
  SECTION 1.09.

  	
  Notices to Holders; Waiver

  	
  20

  
	
  SECTION 1.10

  	
  Effect of Headings and Table of Contents

  	
  20

  
	
  SECTION 1.11.

  	
  Successors and Assigns

  	
  20

  
	
  SECTION 1.12.

  	
  Separability Clause

  	
  20

  
	
  SECTION 1.13.

  	
  Benefits of Indenture

  	
  20

  
	
  SECTION 1.14.

  	
  GOVERNING LAW; WAIVER OF JURY TRIAL

  	
  20

  
	
  SECTION 1.15.

  	
  Legal Holidays

  	
  21

  
	
  SECTION 1.16.

  	
  No Personal Liability of Directors, Officers,
  Employees, Incorporators and Stockholders

  	
  21

  
	
  SECTION 1.17.

  	
  Exhibits and Schedules

  	
  21

  
	
  SECTION 1.18.

  	
  Counterparts

  	
  21

  
	
  SECTION 1.19.

  	
  Calculations

  	
  21

  
	
  SECTION 1.20.

  	
  U.S.A. Patriot Act

  	
  21

  
	
   

  	
   

  	
   

  
	
  ARTICLE 2          The
  Notes

  	
  22

  
	
   

  	
   

  	
   

  
	
  SECTION 2.01.

  	
  Designation, Amount and Issuance of Notes

  	
  22

  
	
  SECTION 2.02.

  	
  Form of Notes

  	
  22

  
	
  SECTION 2.03.

  	
  Date and Denomination of Notes; Payment at Maturity;
  Payment of Interest

  	
  23

  
	
  SECTION 2.04.

  	
  Paying Agent to Hold Money in Trust

  	
  26

  
	
  SECTION 2.05.

  	
  Outstanding Notes

  	
  26

  
	
  SECTION 2.06.

  	
  Commission Reports

  	
  26

  
	
  SECTION 2.07.

  	
  Execution, Authentication and Delivery

  	
  27

  
	
  SECTION 2.08.

  	
  Temporary Notes

  	
  27

  
	
  SECTION 2.09.

  	
  Security Registrar and Paying Agent

  	
  28

  
	
  SECTION 2.10.

  	
  Mutilated, Destroyed, Lost and Stolen Notes

  	
  29

  
	
  SECTION 2.11.

  	
  Cancellation of Notes Paid, etc.

  	
  30

  
	
  SECTION 2.12.

  	
  CUSIP Numbers

  	
  30

  
	
   

  	
   

  	
   

  
	
  ARTICLE 3          Repurchase
  of Notes

  	
  30

  
	
   

  	
   

  	
   

  
	
  SECTION 3.01.

  	
  Repurchase at Option of the Holder Upon a
  Fundamental Change

  	
  30

  
				



 


i

















 


	
  SECTION 3.02.

  	
  Withdrawal of Fundamental Change Repurchase Notice

  	
  33

  
	
  SECTION 3.03.

  	
  Deposit of Fundamental Change Repurchase Price

  	
  33

  
	
  SECTION 3.04.

  	
  Notes Repurchased in Part

  	
  34

  
	
  SECTION 3.05.

  	
  Covenant to Comply with Securities Laws Upon
  Repurchase of Notes

  	
  34

  
	
   

  	
   

  	
   

  
	
  ARTICLE 4          Covenants

  	
  34

  
	
   

  	
   

  	
   

  
	
  SECTION 4.01.

  	
  Payment of Principal, Premium and Interest

  	
  34

  
	
  SECTION 4.02.

  	
  Maintenance of Office or Agency

  	
  34

  
	
  SECTION 4.03.

  	
  Existence

  	
  35

  
	
  SECTION 4.04.

  	
  Further Instruments and Acts

  	
  35

  
	
  SECTION 4.05.

  	
  Additional Interest

  	
  35

  
	
  SECTION 4.06.

  	
  Waiver of Stay, Extension or Usury Laws

  	
  35

  
	
  SECTION 4.07.

  	
  Repurchase and Cancellation

  	
  35

  
	
  SECTION 4.08.

  	
  Provisions as to Paying Agent

  	
  35

  
	
  SECTION 4.09.

  	
  Compliance Certificate; Statements as to Defaults

  	
  37

  
	
   

  	
   

  	
   

  
	
  ARTICLE 5          Consolidation,
  Merger and Sale of Assets

  	
  37

  
	
   

  	
   

  
	
  SECTION 5.01.

  	
  When Company May Merge or Transfer Assets

  	
  37

  
	
  SECTION 5.02.

  	
  Successor to Be Substituted

  	
  37

  
	
  SECTION 5.03.

  	
  Opinion of Counsel to Be Given Trustee

  	
  38

  
	
   

  	
   

  	
   

  
	
  ARTICLE 6          Defaults
  and Remedies

  	
  38

  
	
   

  	
   

  
	
  SECTION 6.01.

  	
  Events of Default

  	
  38

  
	
  SECTION 6.02.

  	
  Acceleration of Maturity; Rescission and Annulment

  	
  40

  
	
  SECTION 6.03.

  	
  Other Remedies; Collection Suit by Trustee

  	
  41

  
	
  SECTION 6.04.

  	
  Trustee May File Proofs of Claim

  	
  41

  
	
  SECTION 6.05.

  	
  Trustee May Enforce Claims Without Possession
  of Notes

  	
  41

  
	
  SECTION 6.06.

  	
  Application of Money Collected

  	
  41

  
	
  SECTION 6.07.

  	
  Limitation on Suits

  	
  42

  
	
  SECTION 6.08.

  	
  Unconditional Right of Holders to Receive Principal
  and Interest

  	
  42

  
	
  SECTION 6.09.

  	
  Restoration of Rights and Remedies

  	
  42

  
	
  SECTION 6.10.

  	
  Rights and Remedies Cumulative

  	
  43

  
	
  SECTION 6.11.

  	
  Delay or Omission Not Waiver

  	
  43

  
	
  SECTION 6.12.

  	
  Control by Holders

  	
  43

  
	
  SECTION 6.13.

  	
  Waiver of Past Defaults

  	
  43

  
	
  SECTION 6.14.

  	
  Undertaking for Costs

  	
  44

  
	
  SECTION 6.15.

  	
  Failure to Comply with Reporting Covenant

  	
  44

  
	
   

  	
   

  	
   

  
	
  ARTICLE 7          Discharge

  	
  45

  
	
   

  	
   

  
	
  SECTION 7.01.

  	
  Discharge of the Indenture

  	
  45

  
	
  SECTION 7.02.

  	
  Application of Trust Money

  	
  45

  
	
  SECTION 7.03.

  	
  Repayment to Company

  	
  45

  
	
  SECTION 7.04.

  	
  Reinstatement

  	
  46

  



 


ii

















 


	
  ARTICLE 8          Amendments

  	
  46

  
	
   

  	
   

  
	
  SECTION 8.01.

  	
  Without Consent of Holders

  	
  46

  
	
  SECTION 8.02.

  	
  With Consent of Holders

  	
  47

  
	
  SECTION 8.03.

  	
  Execution of Amendments, Supplements or Waivers

  	
  48

  
	
  SECTION 8.04.

  	
  Revocation and Effect of Consents and Waivers

  	
  48

  
	
  SECTION 8.05.

  	
  Conformity with TIA

  	
  48

  
	
  SECTION 8.06.

  	
  Notation on or Exchange of Notes

  	
  49

  
	
   

  	
   

  	
   

  
	
  ARTICLE 9          Conversion
  of Notes

  	
  49

  
	
   

  	
   

  
	
  SECTION 9.01.

  	
  Right to Convert

  	
  49

  
	
  SECTION 9.02.

  	
  Conversion Procedures; Settlement Upon Conversion;
  No Adjustment for Interest or Dividends; Cash Payments in Lieu of Fractional
  Shares

  	
  51

  
	
  SECTION 9.03.

  	
  Increased Conversion Rate Applicable to Securities
  Converted in Connection With Make-Whole Fundamental Changes

  	
  54

  
	
  SECTION 9.04.

  	
  Adjustment of Conversion Rate

  	
  56

  
	
  SECTION 9.05.

  	
  Effect of Reclassification, Consolidation, Merger or
  Sale

  	
  64

  
	
  SECTION 9.06.

  	
  Certain Covenants

  	
  65

  
	
  SECTION 9.07.

  	
  Notice to Holders Prior to Certain Actions

  	
  65

  
	
  SECTION 9.08.

  	
  Stockholder Rights Plans

  	
  66

  
	
  SECTION 9.09.

  	
  Responsibility of Trustee

  	
  66

  
	
   

  	
   

  	
   

  
	
  ARTICLE 10          The
  Trustee

  	
  67

  
	
   

  	
   

  	
   

  
	
  SECTION 10.01.

  	
  Certain Duties and Responsibilities

  	
  67

  
	
  SECTION 10.02.

  	
  Notice of Defaults

  	
  68

  
	
  SECTION 10.03.

  	
  Certain Rights of Trustee

  	
  68

  
	
  SECTION 10.04.

  	
  Not Responsible for Recitals or Issuance of Notes

  	
  69

  
	
  SECTION 10.05.

  	
  May Hold Notes

  	
  70

  
	
  SECTION 10.06.

  	
  Money Held in Trust

  	
  70

  
	
  SECTION 10.07.

  	
  Compensation and Reimbursement

  	
  70

  
	
  SECTION 10.08.

  	
  Disqualification; Conflicting Interests

  	
  70

  
	
  SECTION 10.09.

  	
  Corporate Trustee Required; Eligibility

  	
  71

  
	
  SECTION 10.10.

  	
  Resignation and Removal, Appointment of Successor

  	
  71

  
	
  SECTION 10.11.

  	
  Acceptance of Appointment by Successor

  	
  72

  
	
  SECTION 10.12.

  	
  Merger, Conversion, Consolidation or Succession to
  Business

  	
  73

  
	
  SECTION 10.13.

  	
  Preferential Collection of Claims Against Company

  	
  73

  
	
  SECTION 10.14.

  	
  Appointment of the Authenticating Agent

  	
  73

  
	
  SECTION 10.15.

  	
  Trustee’s Application for Instructions from the
  Company

  	
  74

  
	
   

  	
   

  	
   

  
	
  ARTICLE 11          Holders’
  Lists and Reports by Trustee and the Company

  	
  75

  
	
   

  	
   

  	
   

  
	
  SECTION 11.01.

  	
  The Company to Furnish Trustee Names and Addresses
  of Holders

  	
  75

  
	
  SECTION 11.02.

  	
  Preservation of Information; Communication to
  Holders

  	
  75

  



 


iii

















 


	
  SECTION 11.03.          Reports
  by Trustee

  	
  75

  
	
   

  	
   

  
	
  EXHIBIT A                  Form of
  Note

  	
  A-1

  
	
  EXHIBIT B                  Form of
  Conversion Notice

  	
  B-1

  
	
  EXHIBIT C                  Form of
  Fundamental Change Repurchase Notice

  	
  C-1

  
	
  EXHIBIT D                  Form of
  Assignment

  	
  D-1

  



 


iv

















 


CROSS-REFERENCE TABLE*


 


	
  Trust Indenture Act Section

  	
   

  	
  Indenture Section

  
	
  310(a)(1)

  	
   

  	
  10.09

  
	
        (a)(2)

  	
   

  	
  10.09

  
	
        (a)(3)

  	
   

  	
  N.A.

  
	
        (a)(4)

  	
   

  	
  N.A.

  
	
        (a)(5)

  	
   

  	
  10.09

  
	
        (b)

  	
   

  	
  10.08

  
	
        (c)

  	
   

  	
  N.A.

  
	
  311(a)

  	
   

  	
  10.13

  
	
        (b)

  	
   

  	
  10.13

  
	
        (c)

  	
   

  	
  N.A.

  
	
  312(a)

  	
   

  	
  11.01;11.02

  
	
        (b)

  	
   

  	
  11.02

  
	
        (c)

  	
   

  	
  11.02

  
	
  313(a)

  	
   

  	
  11.03

  
	
        (b)(1)

  	
   

  	
  N.A.

  
	
        (b)(2)

  	
   

  	
  10.07

  
	
        (c)

  	
   

  	
  1.09

  
	
        (d)

  	
   

  	
  11.03

  
	
  314(a)

  	
   

  	
  1.05; 2.06

  
	
        (b)

  	
   

  	
  N.A.

  
	
        (c)(1)

  	
   

  	
  1.05

  
	
        (c)(2)

  	
   

  	
  1.05

  
	
        (c)(3)

  	
   

  	
  N.A.

  
	
        (d)

  	
   

  	
  N.A.

  
	
        (e)

  	
   

  	
  1.05

  
	
        (f)

  	
   

  	
  N.A.

  
	
  315(a)

  	
   

  	
  10.01

  
	
        (b)

  	
   

  	
  1.09; 10.02

  
	
        (c)

  	
   

  	
  10.01

  
	
        (d)

  	
   

  	
  10.01

  
	
        (e)

  	
   

  	
  6.14

  
	
  316(a)(last sentence)

  	
   

  	
  1.01;

  
	
   

  	
   

  	
  “Outstanding”

  
	
        (a)(1)(A)

  	
   

  	
  6.12

  
	
        (a)(1)(B)

  	
   

  	
  6.13

  
	
        (a)(2)

  	
   

  	
  N.A.

  
	
        (b)

  	
   

  	
  6.08

  
	
        (c)

  	
   

  	
  8.04

  
	
  317(a)(1)

  	
   

  	
  6.03

  
	
        (a)(2)

  	
   

  	
  6.04

  
	
        (b)

  	
   

  	
  2.04

  
	
  318(a)

  	
   

  	
  1.04

  
	
        (b)

  	
   

  	
  N.A.

  
	
        (c)

  	
   

  	
  1.04

  
	
  N.A.
  means not applicable

  	
   

  	
   

  



 






*  This Cross-Reference Table is not part of
this Indenture.


 














 


INDENTURE, dated as of
May 27, 2009 between the Company
(as defined herein),  and
Wells Fargo Bank, National Association, a national banking association, as
trustee (the “Trustee”).


 


RECITALS
OF THE COMPANY


 


WHEREAS, the Company desires
to provide for the establishment of a new series of its debt securities to be
known as its “5.25% Convertible Senior Notes due 2014” (the “Notes”),
the form and substance of the Notes and the terms, provisions and
conditions thereof to be set forth as provided in this Indenture;


 


WHEREAS, the Form of
Note, the certificate of authentication to be borne by each Note, the
Form of Conversion Notice, the Form of Fundamental Change Repurchase
Notice and the Form of Assignment to be borne by the Notes are to be substantially
in the forms hereinafter provided for;


 


WHEREAS, all things
necessary to make this Indenture a valid agreement of the Company, in
accordance with its terms, have been done; and


 


NOW, THEREFORE, THIS
INDENTURE WITNESSETH, for and in consideration of the premises and the
purchases of the Notes by the Holders thereof, it is mutually agreed, for the
benefit of the Company and the equal and proportionate benefit of all Holders
of the Notes, as follows:


 


ARTICLE 1


 


Definitions and
Other Provisions of General  Application


 


SECTION 1.01.      Definitions.


 


“Act” has the meaning
specified in Section 1.07.


 


“Additional Shares”  has the meaning specified in Section 9.03.


 


“Adjustment Event”  has the meaning specified in Section 9.04(k).


 


“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.


 


“Agent Members”  has the meaning specified in Section 2.03(d)(v).


 


“Authentication
Order” has the meaning specified in Section 2.07.


 


“Bankruptcy
Law” has the meaning specified in Section 6.01.


 

















 


“Bid Solicitation Agent”  means the financial institution appointed by the Company to solicit
bids for the Trading Price of the Notes in accordance with
Section 9.01(a)(2).  The Bid
Solicitation Agent appointed by the Company shall initially be the Trustee.


 


“Board
of Directors” means either the board of directors of the Company
or any duly authorized committee of that board.


 


“Business Day”  means, solely for purposes of this Indenture, each Monday, Tuesday,
Wednesday, Thursday and Friday which is not a day on which banking institutions
in New York City are authorized or obligated by law or executive order to
close.


 


“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.


 


“Capital Stock”  of any Person means any and all shares, interests, rights to purchase,
warrants, options, participations 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.


 


“Carlyle”
means TC Group L.L.C. (which operated under the trade name The Carlyle Group)
or any successor thereof.


 


“Carlyle Investors” means collectively, (i) Carlyle
Partners IV, L.P., a Delaware limited partnership, or any successor thereto,
(ii) CEP II Participations S.ar.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) any Affiliate of any thereof, and (vi) any successor in interest to
any thereof.


 


“CDR”
means Clayton, Dubilier & Rice, Inc. or any successor thereof.


 


“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.


 


“close of business”  means 5:00 p.m. (New York City time).


 


“Commission”
means the Securities and Exchange Commission.


 


“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.


 


2

















 


“Common Equity”  of any Person means Capital Stock of such Person that is generally
entitled to (i) vote in the election of directors of such Person or
(ii) if such Person is not a corporation, vote or otherwise participate in
the selection of the governing body, partners, managers or others that will
control the management or policies of such Person.


 


“Common Stock”  means the Common Stock, par value $0.01 per share, of the Company, or
such other Capital Stock into which the Company’s common stock is reclassified
or changed.


 


“Company”
means Hertz Global Holdings, Inc., a Delaware corporation, until a
successor Person shall have become such pursuant to the applicable provisions
of this Indenture, and thereafter “Company” shall mean such successor Person.


 


“Company
Request” and “Company Order”
mean, respectively, a written request or order signed in the name of the
Company by an Officer of the Company.


 


“Continuing Director”  means a director who either was a member of the Board of Directors on
the original issuance date of the Notes or who becomes a member of the Board of
Directors subsequent to that date and whose election, appointment or nomination
for election by the stockholders of the Company, is duly approved by a majority
of the Continuing Directors on the Board of Directors at the time of such
approval, either by a specific vote or by approval of the proxy statement
issued by the Company on behalf of the entire Board of Directors in which such
individual is named as nominee for director. 
Solely for purposes of this definition, the phrase “or any duly
authorized committee of that board” in the definition of “Board of Directors”
shall be disregarded.


 


“Conversion Agent”  means the Person appointed by the Company to which Notes may be
presented for conversion.  The Conversion
Agent appointed by the Company shall initially be the Trustee.


 


“Conversion Date”  has the meaning specified in Section 9.02(a).


 


“Conversion Notice”  has the meaning specified in Section 9.02(a).


 


“Conversion Obligation”  has the meaning specified in Section 9.01(a).


 


“Conversion Price”  on any date of determination means $1,000, divided by the Conversion Rate as of such date.


 


“Conversion Rate”  has the meaning specified in Section 9.01(a).


 


“Conversion Value,”  for every $1,000 in principal amount of a Note being converted, means
an amount equal to the sum of the Daily Conversion Values for each of the
thirty (30) Settlement Period Trading Days in the Settlement Period.


 


“Corporate
Trust Office” means the designated corporate trust office of the
Trustee, at which at any particular time its corporate trust business shall be
administered, which office as of the date hereof is located at 45 Broadway,
14th Floor, New York, NY 10006, Attention: Corporate Trust Services.


 


3

















 


 “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.


 


“Current Market Price”  means the average of the Last Reported Sale Prices of the Common Stock
over the ten (10) consecutive Trading Day period ending on the Trading Day
immediately preceding the declaration date for the distribution requiring such
computation.


 


“Custodian”
has the meaning specified in Section 6.01.


 


“Daily Conversion Value”  for any Settlement Period Trading Day equals 1/30th of (x) the
Conversion Rate in effect on that Settlement Period Trading Day, multiplied by (y) the VWAP of the
Common Stock on that Settlement Period Trading Day.


 


“Declaration Date” shall mean, with respect to a distribution by
the Company to all or substantially all of its holders of Common Stock, the
date on which the distribution has been authorized by the Board of Directors
under applicable law.


 


“Default”  means any event which is, or after notice or passage of time or both
would be, an Event of Default.


 


“Depositary” means with
respect to Notes issuable in whole or in part in the form of one or more Global
Notes, a clearing agency registered under the Exchange Act that is designated
to act as Depositary for such Notes, which shall initially be DTC until a successor
shall have been appointed and become such pursuant to the applicable provisions
of this Indenture, and thereafter, “Depositary” shall mean
such successor.


 


“Determination Date”  has the meaning specified in Section 9.04(k).


 


“Distributed Property”  has the meaning specified in Section 9.04(c).


 


“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 Fundamental Change or other similar event) (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 Fundamental Change or other similar event), in
whole or in part, in each case on or prior to the Maturity Date of the Notes.


 


“DTC”
means The Depository Trust Company.


 


“Effective Date”  has the meaning specified in Section 9.03.


 


“Event of Default”  has the meaning set forth in Section 6.01 hereof.


 


“Exchange
Act” means the Securities Exchange Act of 1934, as amended from
time to time, and any successor legislation.


 


4

















 


“Ex-Dividend Date”  means, in respect of a dividend or distribution to holders of Common
Stock, the first date upon which a sale of the Common Stock does not
automatically transfer the right to receive the relevant dividend or
distribution from the seller of the Common Stock to its buyer.


 


“Expiration Date”  has the meaning specified in Section 9.04(e).


 


“Expiration Time”  has the meaning specified in Section 9.04(e).


 


“Fair Market Value”  means the amount that a willing buyer would pay to a willing seller in
an arms’ length transaction, as determined by the Board of Directors.


 


“Fixed Cash Amount”  has the meaning specified in Section 9.02(b).


 


“Fixed Dollar Amount”  has the meaning specified in Section 9.02(b).


 


“Full Interest Period”  means a period of days during which interest accrues from, and
including, an Interest Payment Date to, but excluding, the next Interest
Payment Date.


 


“Fundamental Change”  shall be deemed to have occurred at the time after the Notes are
originally issued that any of the following occurs:


 


(i)            a
“person” or “group” (within the meaning of Section 13(d) of the
Exchange Act), other than the Company, its Subsidiaries or the employee benefit
plans of the Company or any such Subsidiary of the Company, files a Schedule TO
or any schedule, form or report under the Exchange Act disclosing that such
person or group has become the direct or indirect ultimate “beneficial owner,”
as defined in Rule 13d-3 under the Exchange Act, of the Company’s Common
Equity representing more than 50% (or, in the case of the Investors or any
“group” within the meaning of Section 13(d) of the Exchange Act of
which one or more of the Investors is part, 75% or more; provided,
however, that such percentage shall be calculated without
considering (i) any shares of Common Stock purchased directly by the
Investors from the Company in a primary offering on arms’ length terms at any
time and from time to time following the date the Notes are first issued or
(ii) any shares of Common Stock underlying any convertible or exchangeable
securities purchased directly by the Investors from the Company in a primary
offering on arms’ length terms at any time and from time to time following the
date the Notes are first issued to the extent the Investors are the “beneficial
owner” of such underlying shares) of the voting power of all shares of the
Company’s Common Equity; provided, that
any of the Company’s Common Equity of which any Investor is the “beneficial
owner” shall not be included in any Common Equity of which any other “person”
or “group” is the “beneficial owner.”


 


(ii)           consummation
of (A) any recapitalization, reclassification or change of the Common
Stock (other than changes resulting from a subdivision or combination) as a
result of which the Common Stock would be converted into, or exchanged for,
stock, other securities, other property or assets or (B) any share
exchange, consolidation or merger of the Company pursuant to which the Common
Stock will be converted into cash, securities or other property or any
conveyance, transfer, sale, lease or other 


 


5

















 


disposition
in one transaction or a series of transactions of all or substantially all of
the consolidated assets of the Company and its Subsidiaries, taken as a whole,
to any Person other than one of the Company’s Subsidiaries; provided,
however, that a transaction (i) where the holders of 50% or more of
all classes of all shares of the Company’s Common Equity immediately prior to
such transaction own, directly or indirectly, more than 50% of all shares of
Common Equity of the continuing or surviving corporation or transferee
immediately after such event or (ii) which is effected solely to change
the Company’s jurisdiction of incorporation and results in a reclassification,
conversion or exchange of outstanding shares of the Common Stock solely into
shares of common stock of the surviving entity or a direct or indirect parent
of the surviving entity (provided that such parent owns, directly or
indirectly, 100% of the equity of the surviving entity), shall not be a
Fundamental Change;


 


(iii)          Continuing
Directors cease to constitute at least a majority of the Board of Directors;


 


(iv)          the
stockholders of the Company approve any plan or proposal for the liquidation or
dissolution of the Company; or


 


(v)           the
Common Stock (or other common stock into which the Notes are then convertible)
ceases to be listed on at least one national or regional securities exchange;


 


provided, however, that a Fundamental Change
shall not be deemed to have occurred if at least 90% of the consideration,
excluding cash payments for fractional shares, in the transaction or
transactions constituting the Fundamental Change consists of shares of Publicly
Traded Securities and as a result of such transaction or transactions the Notes
become convertible into such Publicly Traded Securities in accordance with
Section 9.05, subject to the provisions of Section 9.02.


 


For
purposes of this definition, whether a “person” is a “beneficial owner” shall
be determined in accordance with Rule 13d-3 under the Exchange Act and “person”
includes any syndicate or group that would be deemed to be a “person” under
Section 13(d)(3) of the Exchange Act. 
In addition, solely for purposes of clause (iii) above, the phrase
“or any duly authorized committee of that board” in the definition of “Board of
Directors” shall be disregarded.


 


“Fundamental Change Company Notice”  has the meaning specified in Section 3.01(b).


 


“Fundamental Change Repurchase Date”  has the meaning specified in Section 3.01(a).


 


“Fundamental Change Repurchase Expiration Time”  has the meaning specified in Section 3.01(a)(1).


 


“Fundamental Change Repurchase Notice”  has the meaning specified in Section 3.01(a)(1).


 


“Fundamental Change Repurchase Price”  has the meaning specified in Section 3.01(a).


 


6














 


“GAAP” means generally
accepted accounting principles 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 as in effect from time to time.


 


“Global Note”  means any Note that evidences
all or part of the Notes and is authenticated and delivered to, and registered
in the name of, the Depositary for such Notes or a nominee thereof.


 


“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.


 


“Hedging Obligations”
of any Person means the obligations of such Person pursuant to any Interest
Rate Agreement, Currency Agreement or Commodities Agreement.


 


“Holder”
means the Person in whose name a Note is registered in the Security Register.


 


“Indebtedness”  for purposes of Section 6.01(g) hereof,
means, with respect to any Person on any date of determination (without
duplication):


 


(i)            the principal of
indebtedness of such Person for borrowed money;


 


(ii)           the principal of
obligations of such Person evidenced by bonds, debentures, notes or other
similar instruments;


 


(iii)          all reimbursement
obligations of such Person in respect of letters of credit, bankers’ acceptances
or other similar instruments (the amount of such obligations being equal at any
time to the aggregate then undrawn and unexpired amount of such letters of
credit, bankers’ acceptances or other instruments plus the aggregate amount of
drawings thereunder that have not then been reimbursed);


 


(iv)          all obligations of
such Person to pay the deferred and unpaid purchase price of property (except
Trade Payables), which purchase price is due more than one year after the date
of placing such property in final service or taking final delivery and title
thereto;


 


(v)           all Capitalized
Lease Obligations of such Person,


 


(vi)          the redemption,
repayment or other repurchase amount of such Person with respect to any
Disqualified Stock of such Person or (if such Person is a Subsidiary of the
Company) 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 


 


7

















 


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 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.


 


“Indenture”  means this instrument as originally executed or as it
may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
including for all purposes of this instrument, the provisions of the TIA that
are deemed to be a part of and govern this instrument.


 


“Interest Payment Date”  has the meaning specified in Section 2.03(c).


 


“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.


 


“Investors” means CDR, the
CDR Investors, Carlyle, the Carlyle Investors, ML and the Merrill Lynch
Investors, and any of their respective affiliates and successors-in-interest.


 


“Last Reported Sale Price”  of the Common Stock on any
date means:


 


(i)            the closing sale
price per share (or if no closing sale price is reported, the average of the
last bid and last ask prices or, if more than one in either case, the average
of the average last bid and the average last ask prices) on that date as
reported by the New York Stock Exchange; or


 


(ii)           if the Common Stock
is not listed for trading on the New York Stock Exchange, the closing sale
price per share (or if no closing sale price is reported, the average of the
last bid and last ask prices or, if more than one in either case, the average of
the average last bid and the average last ask prices) on that date as reported
in 


 


8

















 


composite
transactions for the principal U.S. national or regional securities exchange on
which the Common Stock is traded; or


 


(iii)          if the Common Stock
is not listed for trading on a U.S. national or regional securities exchange,
the closing sale price per share (or if no closing sale price is reported, the
average of the last bid and last ask prices or, if more than one in either
case, the average of the average last bid and the average last ask prices) for
the Common Stock on that date as reported by the OTC Bulletin Board (or
successor thereto); or


 


(iv)          if not so reported
by the OTC Bulletin Board (or successor thereto), the last quoted bid price for
the Common Stock in the over-the-counter market on that date as reported by
Pink OTC Market Inc. or similar organization; or


 


(v)           if the Common Stock
is not so quoted by Pink OTC Market Inc. or similar organization, the average
of the mid-point of the last bid and ask prices for the Common Stock on the
relevant date from a nationally recognized independent investment banking firm,
which may be one of the underwriters, selected by the Company for this purpose.


 


The Last Reported Sale Price of the Common
Stock will be determined without reference to extended or after-hours
trading.  If, during a period applicable
for calculating the Last Reported Sale Price of the Common Stock, an event
occurs that requires an adjustment to the Conversion Rate, the Last Reported
Sale Price shall be calculated for such period in a manner determined by the
Company to appropriately reflect the impact of such event on the price of the
Common Stock during such period.


 


“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).


 


“Make-Whole Fundamental Change”  means any transaction or
event that constitutes a Fundamental Change pursuant to clause (i), (ii) (disregarding
the proviso in clause (ii)), (iv) and (v) under the definition
thereof.


 


“Management Investors”
means the officers, directors, employees and other members of the management of
the Company or any of its Subsidiaries, or family members or relatives thereof,
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 Subsidiary.


 


“Management Stock”
means Capital Stock of the Company (including any options, warrants or other
rights in respect thereof) held by any of the Management Investors.


 


“Market Disruption Event”  means, if the Common Stock is
listed for trading on the New York Stock Exchange or listed on another U.S.
national or regional securities exchange, the occurrence or existence during
the one-half hour period ending on the scheduled close of trading on the
relevant exchange on any Trading Day of any material suspension or limitation
imposed on trading (by reason of movements in price exceeding limits permitted
by the stock exchange or 


 


9

















 


otherwise) in the Common
Stock or in any options, contracts or future contracts relating to the Common
Stock.


 


“Maturity
Date”  means June 1, 2014.


 


“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 or any thereof,
and (vi) any successor in interest to any thereof.


 


“ML” means Merrill Lynch
Global Partners, Inc. or any successor thereto.


 


“Notes” has the meaning set
forth in the first paragraph of the recitals of this Indenture.


 


“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.


 


“open of
business”  means 9:00 a.m. (New York City
time).


 


“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.


 


“Outstanding,”
when used with respect to Notes means, as of the date of determination, all
Notes theretofore authenticated and delivered under this Indenture, except:


 


(i)            Notes
theretofore cancelled by the Trustee or delivered to the Trustee for
cancellation;


 


(ii)           Notes
for whose payment or redemption money in the necessary amount has been
theretofore deposited with the Trustee or any Paying Agent in trust for the
Holders of such Notes, provided that, if such Notes are to be redeemed, notice
of such redemption has been duly given pursuant to this Indenture or provision
therefor reasonably satisfactory to the Trustee has been made; and


 


(iii)          Notes
paid pursuant to Section 2.10 hereof and 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 


 


10

















 


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 a Responsible Officer of 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.


 


“Paying
Agent”  shall initially be the Trustee, and shall
be the Person authorized by the Company to pay the principal amount of,
interest on, or Fundamental Change Repurchase Price of, any Notes on behalf of
the Company.


 


“Person” means any individual,
corporation, partnership, joint venture, association, joint-stock company,
trust, limited liability company, unincorporated organization or government or
any agency or political subdivision thereof.


 


“Place of
Payment”  means, for purposes of the Notes, New
York, New York.


 


“Preferred Stock”
as applied to the Capital Stock of any corporation means Capital Stock of any
class or classes (however designated) that by its terms is preferred as to the
payment of dividends, or as to the distribution of assets upon any voluntary or
involuntary liquidation or dissolution of such corporation, over shares of
Capital Stock of any other class of such corporation.


 


“Publicly
Traded Securities”  means shares of common stock or
equivalent Common Equity listed on a national securities exchange, which will
be so listed when issued or exchanged in connection with an event that would be
a Fundamental Change but for the second proviso in the definition of such term.


 


“Record
Date”  means, in respect of any dividend or
distribution, the date fixed for determination of holders of Capital Stock
entitled to receive such distribution or, if earlier, the first date on which
the shares of the Common Stock trade on the applicable exchange or in the
applicable market, regular way, without the right to receive such dividend or
distribution.


 


“Record Expiration Date”  has the meaning specified in Section 1.07(e)(iii).


 


“Reference Property”  has the meaning specified in Section 9.05(a)(3).


 


“Regular
Record Date”  means, with respect to any Interest
Payment Date of the Notes, November 15 and May 15 (whether or not a
Business Day) preceding the applicable December 1 and June 1 Interest
Payment Date, respectively.


 


“Reorganization Event”  has the meaning specified in Section 9.05(a)(3).


 


“Reporting Additional Interest”  has the meaning specified in Section 6.15.


 


11

















 


“Reporting Date”
has the meaning specified in Section 2.06.


 


“Responsible Officer” means,
when used with respect to the Trustee, any vice president, any assistance vice
president, any trust officer or assistant trust officer or any other officer of
the Trustee customarily performing functions similar to those performed by any
of the above designated officers and also means, with respect to a particular
corporate trust matter, any other officer to whom such matter is referred
because of his/her knowledge of and familiarity with the particular subject.


 


“Schedule TO”  means a Tender Offer
Statement under Section 14(d)(1) or 13(e)(1) of the Exchange
Act.


 


“Scheduled Trading Day”  means any day that is
scheduled to be a Trading Day on the primary U.S. national or regional
securities exchange or market on which our Common Stock is listed or admitted
for trading or, if
our Common Stock is not listed or admitted for trading on any exchange or
market, a Business Day.


 


“Securities Act”  means the Securities Act of
1933, as amended from time to time, and any successor legislation.


 


“Security Register”
and “Security Registrar” have the
respective meanings specified in Section 2.09.


 


“Settlement Period”  means the thirty (30)
consecutive Settlement Period Trading Days:


 


(i)            with respect to
Conversion Dates occurring during the period beginning thirty-five (35)
Scheduled Trading Days preceding the Maturity Date, beginning on and including
the thirty-second (32nd) Scheduled Trading Day immediately
preceding the Maturity Date; and


 


(ii)           in all other cases,
beginning on and including the third (3rd)
Trading Day following the Conversion Date.


 


“Settlement Period Market Disruption Event”  means:


 


(i)            a failure by the
primary U.S. national or regional securities exchange or market on which the
Common Stock is listed or admitted to trading to open for trading during its
regular trading session; or


 


(ii)           the occurrence or
existence prior to 1:00 p.m. on any Trading Day for the Common Stock of an
aggregate of at least one half-hour period, of any suspension or limitation
imposed on trading (by reason of movements in price exceeding limits permitted
by the stock exchange or otherwise) in the Common Stock or in any options,
contracts or future contracts relating to the Common Stock.


 


“Settlement Period Trading Day”  means a day during which:


 


12

















 


(i)            trading in the
Common Stock generally occurs on the primary U.S. national or regional
securities exchange or market on which the Common Stock is listed or admitted
for trading; and


 


(ii)           there is no
Settlement Period Market Disruption Event;


 


provided,
however, that if on any Trading Day the Common Stock is not traded on any
market, then that Trading Day shall nevertheless be a “Settlement Period Trading Day”  so long as the Company is able to
obtain the market value per share of the Common Stock on that Trading Day from
a nationally recognized independent investment banking firm retained by the
Company for this purpose (which may be one of the underwriters).


 


“Significant Subsidiary”  means any Subsidiary that
would be a “significant subsidiary” of the Company within the meaning of Rule 1-02
under Regulation S-X promulgated by the Commission, as such Regulation is in
effect on the Issue Date.


 


“Spin-off”  has the meaning specified in Section 9.04(c).


 


“Stock Price”  means:


 


(i)            in the case of a
Make-Whole Fundamental Change in which holders of the Common Stock receive only
cash as consideration for their shares of Common Stock, the amount of cash paid
per share of the Common Stock in connection with such Make-Whole Fundamental
Change; or


 


(ii)           in the case of all
other Make-Whole Fundamental Changes, the average of the Last Reported Sale
Prices of Common Stock over the five (5) consecutive Trading Day period
ending on the Trading Day immediately preceding the Effective Date of such
Make-Whole Fundamental Change.


 


“Subsidiary” means a Person of
which more than 50% of the outstanding voting stock (or equivalent ownership
interests) is owned, directly or indirectly, by the Company or by one or more
other Subsidiaries, or by the Company and one or more other Subsidiaries.  For the purposes of this definition, “voting
stock” means stock(or equivalent ownership interests)  which ordinarily has voting power for the
election of directors, managers or trustees, as applicable, whether at all
times or only so long as no senior class of stock has such voting power by
reason of any contingency.


 


“Successor Company”  has the meaning specified in Section 5.01(a).


 


“TIA” means  the Trust Indenture Act of
1939 (15 U.S.C. §§77aaa-7bbbb) as in effect on the date of this Indenture.


 


“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.


 


13

















 


“Trading Day”  means a day during which:


 


(i)            the New York Stock
Exchange is open for trading, or if the Common Stock is not listed for trading
on the New York Stock Exchange, the principal U.S. national or regional
securities exchange on which the Common Stock is listed is open for trading, or
if the Common Stock is not so quoted or listed, any Business Day; and


 


(ii)           there is no Market
Disruption Event.


 


“Trading Price”  per $1,000 in principal
amount of the Notes on any date of determination shall be calculated based on
the average of the secondary market bid quotations obtained by the Bid
Solicitation Agent for $5,000,000 aggregate principal amount of Notes at
approximately 3:30 p.m., New York City time, on such determination date
from three independent nationally recognized securities dealers selected by the
Company, which may include the Company or any, or, all of the underwriters; provided
that, if only two such bids can reasonably be obtained, then the average of
the two bids shall be used, and if only one such bid can reasonably be
obtained, then that one bid shall be used. 
If the Company or the Bid Solicitation Agent, as applicable, cannot
reasonably obtain at least one bid for $5,000,000 aggregate principal amount of
the Notes or in the
Company’s reasonable judgment the bid quotations are not indicative of the
secondary market value of the Notes , then the Trading Price per
$1,000 in principal amount of Notes will be deemed to be less than 98% of the
product of the Last Reported Sale Price of the Common Stock and the applicable
Conversion Rate. Any
such determination will be conclusive absent manifest error.


 


“Trading Price Measurement Period”  has the meaning specified in Section 9.01(a)(2).


 


“Trigger Event”  has the meaning specified in Section 9.04(c).


 


“VWAP” for
the Common Stock means, with respect to any Settlement Period Trading Day
during the Settlement Period, the per share volume-weighted average price of
the Common Stock as displayed under the heading “Bloomberg VWAP” on Bloomberg page HTZ.N
<equity> AQR in respect of the period from 9:30 a.m. to 4:00 p.m.,
New York City time, on such Settlement Period Trading Day; or if such
volume-weighted average price is unavailable, the market value per share of the
Common Stock on such Settlement Period Trading Day as determined by a
nationally recognized independent investment banking firm retained for this
purpose by the Company.


 


SECTION 1.02.         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;


 


14

















 


(4)           the words “herein,” “hereof” and “hereunder”
and other words of similar import refer to this Indenture as a whole and not to
any particular Article, Section or other subdivision;


 


(5)           all references to “$” or “dollars”
shall refer to the lawful currency of the United States of America;


 


(7)           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;”


 


(8)           words in the singular include the
plural, and words in the plural include the singular;


 


(9)           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 Commission from time to time;
and


 


(10)         any reference to a Section, Article or
clause refers to such Section, Article or clause of this Indenture.


 


SECTION 1.03.         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
Commission 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
Holder.


 


“indenture to be qualified” means
this Indenture.


 


“indenture trustee” or “institutional trustee” means the
Trustee.


 


“obligor” on the indenture securities
means the Company and any successor or other obligor on the indenture
securities.


 


SECTION 1.04.         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 1.05.         Compliance Certificates and Opinions.  Upon any application or request by the
Company or by any other obligor upon the Notes to the Trustee to take any
action 


 


15

















 


under any provision of this Indenture, the Company or
such other obligor, 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 4.09) 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 1.06.         Form of Documents Delivered to
Trustee.  In any case where several
matters are required to be certified by, or covered by an opinion of, any
specified Person, it is not necessary that all such matters be certified by, or
covered by the opinion of, only one such Person, or that they be so certified
or covered by only one document, but one such Person may certify or give an
opinion with respect to some matters and one or more other such Persons as to
other matters, and any such Person may certify or give an opinion as to such
matters in one or several documents.


 


Any certificate or opinion of an Officer may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such Officer knows that the certificate or
opinion or representations with respect to the matters upon which his
certificate or opinion is based are erroneous. 
Any such certificate or opinion of counsel may be based, insofar as it
relates to factual matters, upon a certificate or opinion of, or
representations by, an Officer or Officers to the effect that the information
with respect to such factual matters is in the possession of the Company,
unless such counsel knows that the certificate or opinion or representations
with respect to such matters are erroneous.


 


Where any Person is required to make, give or execute
two or more applications, requests, consents, certificates, statements,
opinions or other instruments under this Indenture, they may, but need not, be
consolidated and form one instrument.


 


16














 


SECTION 1.07.      Acts of Holders; 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 10.01)
conclusive in favor of the Trustee, the Company and any other obligor upon the
Notes, if made in the manner provided in this Section 1.07.


 


(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 Security Register.


 


(d)           Any request, demand, authorization,
direction, notice, consent, waiver or other action by the Holder of any Note
shall bind the Holder of every Note issued upon the transfer thereof or in
exchange therefor or in lieu thereof, in respect of anything done, suffered or
omitted to be done by the Trustee, the Company or any other obligor upon the
Notes in reliance thereon, whether or not notation of such action is made upon
such Note.


 


(e)           (i)  The Company may set any day
as a record date for the purpose of determining the Holders of Outstanding
Notes entitled to give, make or take any request, demand, authorization,
direction, notice, consent, waiver or other action provided or permitted by
this Indenture to be given, made or taken by Holders of Notes, provided that
the Company may not set a record date for, and the provisions of this paragraph
shall not apply with respect to, the giving or making of any notice,
declaration, request or direction referred to in the next paragraph.  If any record date is set pursuant to this
paragraph, the Holders of Outstanding Notes on such record date (or their duly
designated proxies), and no other Holders, shall be entitled to take the
relevant action, whether or not such Persons remain Holders after such record
date; provided that no such action shall be effective hereunder unless
taken on or prior to the applicable Record 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 


 


17

















 


(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 Record Expiration Date to be
given to the Trustee in writing and to each Holder of Notes in the manner set
forth in Section 1.08.


 


(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 6.02,
(C) any request to institute proceedings referred to in Section 6.07(ii) or
(D) any direction referred to in Section 6.12, 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 Record 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
Record Expiration Date to be given to the Company in writing and to each Holder
of Notes in the manner set forth in Section 1.09.


 


(iii) 
With respect to any record date set pursuant to this Section 1.07, the
party hereto that sets such record dates may designate any day as the “Record Expiration Date” and from
time to time may change the Record Expiration Date to any earlier or later day;
provided that no such change shall be effective unless notice of the proposed
new Record Expiration Date is given to the Company or the Trustee, whichever
such party is not setting a record date pursuant to this Section 1.07(e) in
writing, and to each Holder of Notes in the manner set forth in Section 1.09,
on or prior to the existing Record Expiration Date.  If a Record 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 Record
Expiration Date with respect thereto, subject to its right to change the Record
Expiration Date as provided in this paragraph. 
Notwithstanding the foregoing, no Record 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 


 


18

















 


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 or 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 1.08.      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; 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 07666, Attention: Chief Financial
Officer (telephone: (201) 307-2000; telecopier: (201) 307-2748),
with a copy to The Hertz Corporation, 225 Brae Boulevard, Park Ridge, New
Jersey 07666, Attention: General Counsel (telephone: (201) 307-2000;
telecopier: (201) 594-3122, and to Debevoise & Plimpton LLP, 919
Third Avenue, New York, New York 10022, Attention: David A. 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.


 


19

















 


SECTION 1.09.      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 1.10.      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 1.11.      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 1.12.      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 1.13.      Benefits of Indenture.  Nothing in this Indenture or in the Notes,
express or implied, shall give to any Person, other than the parties hereto and
their successors hereunder, any Paying Agent and the Holders, any benefit or
any legal or equitable right, remedy or claim under this Indenture.


 


SECTION 1.14.      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.


 


20

















 


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 1.15.      Legal Holidays.  In any case where any Interest Payment Date,
Fundamental Change Repurchase Date or Maturity Date 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 Fundamental Change
Repurchase Date or at the Maturity Date, and no interest shall accrue on such
payment for the intervening period.


 


SECTION 1.16.      No Personal Liability of Directors, Officers,
Employees, Incorporators and Stockholders. 
No director, officer, employee, incorporator or stockholder of the
Company or any Subsidiary of the Company shall have any liability for any
obligation of the Company under this Indenture or the Notes, or for any claim
based on, in respect of, or by reason of, any such obligation or its
creation.  Each Holder, 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 1.17.      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 1.18.      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 1.19.      Calculations.  The Company may be responsible for making
certain calculations called for hereunder and under the Notes or in connection
with a conversion.  These calculations
include, but are not limited to, determinations of the Last Reported Sale
Price, accrued interest payable on the Notes, the Daily Conversion Values, the
Trading Price of the Notes and the applicable Conversion Rate on the Notes. The
Company shall make these calculations in good faith, and absent manifest error,
all calculations, including those performed by the Company, will be final and
binding on the Holders.  The Company
shall provide a schedule of our calculations to each of the Trustee and the
Conversion Agent, which schedule the Trustee shall forward to any Holder of
Notes upon the request of such Holder.


 


SECTION 1.20.      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, 


 


21

















 


verify, and record
information that identifies each person or legal entity that establishes a
relationship or opens an account with the Trustee.  The parties to this Indenture agree that they
will provide the Trustee with such information as it may reasonably request in
order for the Trustee to satisfy the requirements of the U.S.A. Patriot Act.


 


ARTICLE 2


 


The Notes


 


SECTION 2.01.      Designation, Amount and Issuance of
Notes.  The Notes shall be designated
as “5.25% Convertible Senior Notes due 2014.” 
The Notes will not exceed the aggregate principal amount of
$517,500,000, except for Notes authenticated and delivered upon registration of
transfer of, in exchange for, or in lieu of, other Notes pursuant to Section 2.08,
2.10, 3.04, 5.02 and 9.02(d) of this Indenture.  Upon the execution of this Indenture, or from
time to time thereafter,
Notes may be executed by the Company and delivered to the Trustee for
authentication.


 


SECTION 2.02.      Form of Notes.  The Notes and the Trustee’s certificate of
authentication to be borne by such Notes, the Conversion Notice, Fundamental
Change Repurchase Notice and Form of Assignment shall be substantially in
the forms set forth in Exhibits A, B, C and D, respectively, hereto.  The terms and provisions contained in the
form of Notes attached as Exhibit A hereto shall constitute, and are
hereby expressly made, a part of this Indenture and, to the extent applicable,
the Company and the Trustee, by their execution and delivery of this Indenture,
expressly agree to such terms and provisions and to be bound thereby.


 


Any of the Notes may have
such letters, numbers or other marks of identification and such notations,
legends, endorsements or changes as the officers executing the same may approve
(execution thereof to be conclusive evidence of such approval) and as are not
inconsistent with the provisions of the Indenture, or as may be required by the
custodian for the Global Notes, the Depositary or as may be required to comply
with any applicable law or with any rule or regulation made pursuant
thereto or with any rule or regulation of any securities exchange or
automated quotation system on which the Notes may be listed, or to conform to
usage, or to indicate any special limitations or restrictions to which any
particular Notes are subject.


 


So long as the Notes are
eligible for book-entry settlement with the Depositary, or unless otherwise
required by law, or otherwise contemplated by Section 2.03(d), all of the
Notes will be represented by one or more Global Notes.  The transfer and exchange of beneficial
interests in any such Global Notes shall be effected through the Depositary in
accordance with this Indenture and the applicable procedures of the
Depositary.  Except as provided in Section 2.03(d),
beneficial owners of a Global Note shall not be entitled to have certificates
registered in their names, will not receive or be entitled to receive physical
delivery of certificates in definitive form and will not be considered holders
of such Global Note.


 


Any Global Notes shall
represent such of the outstanding Notes as shall be specified therein and shall
provide that it shall represent the aggregate amount of outstanding Notes from 


 


22

















 


time to time
endorsed thereon and that the aggregate amount of outstanding Notes represented
thereby may from time to time be increased or reduced to reflect repurchases,
conversions, transfers or exchanges permitted hereby.  Any endorsement of a Global Note to reflect
the amount of any increase or decrease in the amount of outstanding Notes
represented thereby shall be made by the Trustee or the custodian for the
Global Note, at the direction of the Trustee, in such manner and upon
instructions given by the holder of such Notes in accordance with this
Indenture.  Payment of principal of,
interest on and premium, if any, on any Global Notes shall be made to the
Depositary in immediately available funds.


 


SECTION 2.03.      Date
and Denomination of Notes; Payment at Maturity; Payment of Interest.


 


(a)           Date and Denomination.  The Notes initially shall be issued in the
form of one or more Global Notes without interest coupons in minimum
denominations of $2,000 principal amount and integral multiples of $1,000 in
excess thereof (i) registered in the name of Cede & Co., as
nominee of the Depositary and (ii) delivered to the Trustee as custodian
for the Depositary.  Each Note shall be
dated the date of its authentication and shall bear interest from the date
specified on the face of the form of Notes attached as Exhibit A hereto.


 


(b)           Payment at Maturity.  The Notes shall mature on June 1, 2014,
unless earlier converted or repurchased in accordance with the provisions
hereof.  On the Maturity Date, each
Holder shall be entitled to receive on such date $1,000 in cash for each $1,000
in principal amount of Notes, together with accrued and unpaid interest to, but
not including, the Maturity Date.  With
respect to Global Notes, principal and interest will be paid to the Depositary
in immediately available funds.  With
respect to any certificated Notes, principal and interest will be payable at
the office of the Paying Agent in New York City, which initially will be the
office or agency of the Trustee.  If the
Maturity Date is not a Business Day, payment shall be made on the next
succeeding Business Day, and no additional interest shall be accrue thereon.


 


(c)           Payment of Interest.  Interest on the Notes will accrue at the rate
of 5.25% per annum, from May 27, 2009 until the principal thereof is paid
or made available for payment.  Interest
shall be payable in arrears on June 1 and December 1 of each year
(each, an “Interest Payment Date”), commencing on December 1,
2009, to the Holder at the close of business on any Regular Record Date with
respect to the applicable Interest Payment Date, except that the interest
payable on the Maturity Date will be paid to the Person to whom the principal
amount is paid. If any Notes are converted after the close of business on a
Regular Record Date for an Interest Payment Date but prior to the corresponding
Interest Payment Date, the Company shall pay on the corresponding Interest
Payment Date the interest accrued and unpaid on such converted Notes
notwithstanding the conversion of such Notes prior to the Interest Payment
Date, assuming such Holders were the Holders of record on the corresponding
Regular Record Date. If a Holder surrenders any Notes for conversion during the
period from and after the close of business on any Regular Record Date to the
open of business on the immediately following Interest Payment Date, whether or
not such Holder was the Holder of record on such Regular Record Date, such
Holder shall pay the Company an amount in cash equal to the interest that has
accrued and will be paid on the Notes being converted on the corresponding
Interest Payment Date; provided that no such payment need be made:


 


23

















 


(i)            with
respect to Notes converted after 5:00 p.m., New York City time on May 15,
2014;


 


(ii)           with
respect to Notes converted during the period commencing on the date the Company
gives notice of a Fundamental Change pursuant to Section 9.01(a)(4) to,
and including, the second Trading Day immediately preceding the Fundamental
Change Repurchase Date; or


 


(iii)          with
respect to any overdue interest, if any overdue interest remains unpaid at the
time of conversion with respect to the Notes surrendered for conversion.


 


Interest
on the Notes for a Full Interest Period will be computed on the basis of a
three hundred sixty (360)-day year comprised of twelve (12) thirty (30)-day
months.  Interest on the Notes for any
period other than a Full Interest Period will be computed on the basis of the
actual number of days elapsed during the period and a three hundred sixty-five
(365)-day year.


 


The
Company shall pay interest on:


 


(i)            any
Global Notes by wire transfer of immediately available funds to the account of
the Depositary or its nominee;


 


(ii)           any
Notes in certificated form having a principal amount of less than $5,000,000,
by check mailed to the address of the Holder, provided, however,
on the Maturity Date, interest will be payable as described in Section 2.03(b);
and


 


(iii)          any
Notes in certificated form having a principal amount of $5,000,000 or more, by
wire transfer in immediately available funds at the election of the Holders of
such Notes duly delivered to the Trustee at least five (5) Business Days
prior to the relevant Interest Payment Date, provided, however,
on the Maturity Date, interest will be payable as described in Section 2.03(b).


 


If
an Interest Payment Date is not a Business Day, payment shall instead be made
on the next succeeding Business Day, and no additional interest shall accrue
thereon.


 


All
references to “interest” in this Indenture shall be deemed to include Reporting
Additional Interest, if any, that accrues in connection with the Company’s
failure to comply with Section 2.06, if applicable, as provided by Section 6.15.


 


(d)           The following provisions shall apply
only to Global Notes:


 


(i)            Notwithstanding
any other provision in this Indenture, no Global Note may be exchanged in whole
or in part for Notes registered, and no transfer of a Global Note in whole or in
part may be registered, in the name of any Person other than the Depositary or
a nominee thereof unless (A) the Depositary (x) has notified the
Company that it is unwilling or unable to continue as Depositary for such
Global Note or (y) has ceased to be a clearing agency registered under the
Exchange Act, and in each case a successor Depositary has not been appointed by
the Company within ninety (90) calendar days, or (B) the Company, at its
option, notifies the Trustee in writing that it no longer 


 


24

















 


wishes
to have all the Notes represented by Global Notes.  Any Global Note exchanged pursuant to this Section 2.03(d)(i) shall
be so exchanged in whole and not in part.


 


(ii)           In
addition, certificated Notes will be issued in exchange for beneficial
interests in a Global Note upon request by or on behalf of the Depositary in
accordance with customary procedures following the request of a beneficial
owner seeking to enforce its rights under the Notes or this Indenture,
including its rights following the occurrence of an Event of Default.


 


(iii)          Notes
issued in exchange for a Global Note or any portion thereof pursuant to clause (i) or
(ii) above shall be issued in definitive, fully registered form, without
interest coupons, shall have an aggregate principal amount equal to that of
such Global Notes or portion thereof to be so exchanged, shall be registered in
such names and be in such authorized denominations as the Depositary shall designate and shall bear any
legends required hereunder.  Any Global
Notes to be exchanged shall be surrendered by the Depositary to the Trustee, as
Registrar; provided that pending completion of the exchange of a Global Note,
the Trustee acting as custodian for the Global Notes for the Depositary or its
nominee with respect to such Global Notes, shall reduce the principal amount
thereof, by an amount equal to the portion thereof to be so exchanged, by means
of an appropriate adjustment made on the records of the Trustee.  Upon any such surrender or adjustment, the
Trustee shall authenticate and make available for delivery the Notes issuable
on such exchange to or upon the written order of the Depositary or an
authorized representative thereof.


 


(iv)          In
the event of the occurrence of any of the events specified in clause (i) above
or upon any request described in clause (ii) above, the Company will
promptly make available to the Trustee a sufficient supply of certificated
Notes in definitive, fully registered form, without interest coupons.


 


(v)           Neither
any members of, or participants in, the Depositary (the “Agent Members”) nor
any other Persons on whose behalf Agent Members may act shall have any rights
under this Indenture with respect to any Global Notes registered in the name of
the Depositary or any nominee thereof, and the Depositary or such nominee, as
the case may be, may be treated by the Company, the Trustee and any agent of
the Company or the Trustee as the absolute owner and holder of such Global
Notes for all purposes whatsoever. 
Notwithstanding the foregoing, nothing herein shall prevent the Company,
the Trustee or any agent of the Company or the Trustee from giving effect to
any written certification, proxy or other authorization furnished by the
Depositary or such nominee, as the case may be, or impair, as between the
Depositary, its Agent Members and any other Person on whose behalf an Agent
Member may act, the operation of customary practices of such Persons governing
the exercise of the rights of a holder of any Notes.


 


(vi)          At
such time as all interests in a Global Note have been repurchased, converted,
cancelled or exchanged for Notes in certificated form, such Global Note shall,
upon receipt thereof, be canceled by the Trustee in accordance with standing
procedures and instructions existing between the Depositary and the custodian
for the Global Note.  At any time prior
to such cancellation, if any interest in a Global Note is repurchased, 


 


25

















 


converted,
cancelled or exchanged for Notes in certificated form, the principal amount of
such Global Note shall, in accordance with the standing procedures and
instructions existing between the Depositary and the custodian for the Global
Note, be appropriately reduced, and an endorsement shall be made on such Global
Note, by the Trustee or the custodian for the Global Note, at the direction of
the Trustee, to reflect such reduction.


 


SECTION 2.04.      Paying
Agent to Hold Money in Trust.  Prior
to each due date of the principal and interest on any Note, the Company shall
deposit with the Paying Agent (or if the Company or a Subsidiary of the Company is acting as Paying
Agent, segregate and hold in trust for the benefit of the Persons entitled
thereto) a sum sufficient to pay such principal and interest when so becoming
due.  The Company shall require each
Paying Agent (other than the Trustee) to agree in writing that the Paying Agent
shall hold in trust for the benefit of Holders or the Trustee all money held by
the Paying Agent for the payment of principal of or interest on the Notes and
shall notify the Trustee of any Default by the Company in making any such
payment.  If the Company or a Subsidiary
of the Company acts as Paying Agent, it shall segregate the money held by it as
Paying Agent and hold it as a separate trust fund.  The Company at any time may require a Paying
Agent to pay all money held by it to the Trustee and to account for any funds
disbursed by the Paying Agent.  Upon
complying with this Section, the Paying Agent shall have no further liability
for the money delivered to the Trustee.


 


SECTION 2.05.      Outstanding Notes.  If the Paying Agent segregates and holds in
trust, in accordance with this Indenture, on a Fundamental Change Repurchase
Date or Maturity Date cash sufficient to pay all principal and interest payable
on that date with respect to the Notes (or portions thereof) to be repurchased
or maturing, as the case may be, and the Paying Agent is not prohibited from
paying such money to the Noteholders on that date pursuant to the terms of this
Indenture, then on and after that date such Notes (or portions thereof) cease
to be “Outstanding” for purposes of this Indenture and interest on them ceases
to accrue.


 


SECTION 2.06.      Commission Reports.  The Company will deliver to the Trustee,
within 15 calendar days after it would have been required to file with the
Commission (giving effect to any grace period provided by Rule 12b-25
under the Exchange Act), copies of its annual reports and of the information,
documents and other reports (or copies of such portions of any of the foregoing
as the Commission may by rules and regulations prescribe) which the
Company is required to file with the Commission pursuant to Section 13 or
15(d) of the Exchange Act. Documents filed by the Company with the
Commission via its EDGAR system (or any successor thereto) will be deemed to be
filed with the Trustee as of the time such documents are so filed. In the event
the Company is at any time no longer subject to the reporting requirements of Section 13
or 15(d) of the Exchange Act, the Company shall continue to provide the
Trustee (or make available on a Company website) reports containing
substantially the same information (without exhibits) as would have been
required to be filed with the Commission had the Company continued to have been
subject to such reporting requirements. In such event, such reports shall be
provided within 15 days after the Company would have been required to file the
reports with the Commission (giving effect to any grace period provided by Rule 12b-25
under the Exchange Act) had the Company continued to have been subject to such
reporting requirements.  Notwithstanding
the foregoing, if any audited or reviewed financial statements or information
required to be included in any Commission 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 


 


26

















 


Exchange Act and the rules and
regulations of the Commission thereunder), the Company may, in lieu of making
such filing or transmitting or making available the information, documents and
reports so required to be filed, elect to make a filing on an alternative form
or transmit or make available unaudited or unreviewed financial statements or
information substantially similar to such required audited or reviewed
financial statements or information, provided that 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
180th day after the date on which the same was
otherwise required pursuant to the preceding provisions of this paragraph (such
date, the “Reporting Date”) and provided, further,
during the period that such filing has not been made or, if the Company makes
such an election, such information, documents and reports have not been
transmitted or made available, as the case may be, liquidated damages will
accrue on the Notes at a rate of 0.50% per annum until 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
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
also will comply with the other provisions of TIA §314(a) if and as
applicable.


 


SECTION 2.07.      Execution, Authentication and Delivery.  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 Notes for original issue in the
aggregate principal amount not to exceed $517.5 million 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” or other similar identification numbers of
such Notes, if any, 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.


 


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 (manually or by facsimile) 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 2.08.      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 


 


27

















 


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 2.09.      Security 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 “Security 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 “Security 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 check mailed to the address of the Person
entitled thereto as such address shall appear in the Security Register.  The Company may have one or more additional
paying agents, and the term “Paying Agent” includes the Paying Agent and any
additional Paying Agent.


 


The Company initially appoints
the Trustee as “Security Registrar” and “Paying Agent” in connection with the
Notes until such time as such entity has resigned or a successor has been
appointed.  The Company may change the
Paying Agent or Security Registrar for the Notes without prior notice to the
Holders of Notes.  The Company may enter
into an appropriate agency agreement with any Security 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
Security Registrar or Paying Agent, the Trustee shall act as such and shall be
entitled to appropriate compensation therefor pursuant to Section 10.07.  The Company or any wholly-owned domestic
Subsidiary of the Company may act as Paying Agent, Security 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 


 


28

















 


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 Security 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.


 


Each
Note is a registered Note and is transferable only upon surrender for
registration of transfer duly endorsed as provided herein.  The Company and the Security Registrar shall
deem and treat the Person in whose name such Note is registered on the Security
Register as the absolute owner and Holder thereof for the purpose of receiving
payment of the principal of, and interest on, such Note and for all other
purposes, whether or not such Note shall be overdue, and neither the Company
nor the Security Registrar shall be affected by any notice to the
contrary.  All references in this
Indenture and the Form of Note to a “holder” of any Note shall mean the
Person in whose name such Note is at the time registered on the Security
Register.


 


SECTION 2.10.      Mutilated, Destroyed, Lost and Stolen
Notes.  If a mutilated Note is
surrendered to the Security 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 Security 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 Security 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 2.10, 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.


 


29














 


Every new Note issued
pursuant to this Section 2.10 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 2.10
are exclusive and shall preclude (to the extent lawful) all other rights and
remedies with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Notes.


 


SECTION 2.11.      Cancellation of Notes Paid, Etc.  All Notes surrendered for the purpose of
payment, repurchase, conversion, exchange or registration of transfer, shall,
if surrendered to the Company or any Paying Agent or any Security Registrar or
any Conversion Agent, be surrendered to the Trustee and promptly canceled by
it, or, if surrendered to the Trustee, shall be promptly canceled by it, and no
Notes shall be issued in lieu thereof except as expressly permitted by any of
the provisions of this Indenture.  The
Trustee shall dispose of canceled Notes in accordance with its customary
procedures.  If the Company shall acquire
any of the Notes, such acquisition shall not operate as satisfaction of the
Indebtedness represented by such Notes unless and until the same are delivered
to the Trustee for cancellation.


 


SECTION 2.12.      CUSIP Numbers.  The Company in issuing the Notes may use “CUSIP”
numbers (if then generally in use), and, if so, the Trustee shall use “CUSIP”
numbers in all notices issued to Holders as a convenience to them; provided,
that any such notice may state that no representation is made as to the
correctness of such numbers either as printed on the Notes or on such notice
and that reliance may be placed only on the other identification numbers
printed on the Notes.  The Company will
promptly notify the Trustee in writing of any change in the “CUSIP” numbers.


 


ARTICLE 3



Repurchase of Notes


 


SECTION 3.01.      Repurchase
at Option of the Holder Upon a Fundamental Change.


 


(a)           If there shall occur a Fundamental
Change at any time prior to the Maturity Date, then each Holder shall have the
right, at such Holder’s option, to require the Company to repurchase for cash
any or all of such Holder’s Notes, or any portion of the principal amount
thereof that is equal to $1,000 or an integral multiple of $1,000, on a date
(the “Fundamental Change Repurchase Date”) of the Company’s choosing that is
not less than fifteen (15) Business Days or more than thirty-five (35) Business
Days after the date of the Fundamental Change Company Notice at a repurchase
price equal to 100% of the principal amount of the Notes to be repurchased,
plus accrued and unpaid interest thereon to, but excluding, the Fundamental
Change Repurchase Date (the “Fundamental Change Repurchase Price”).  If
such Fundamental Change Repurchase Date falls between a Regular Record Date and
on or prior to the Interest Payment Date to which it relates, the Company shall
instead pay the full amount of accrued and unpaid interest payable on such
Interest Payment Date to the holder of record on the close of business on the
corresponding Regular Record Date and the Fundamental Change 


 


30

















 


Repurchase Price shall be
equal to 100% of the principal amount of the Notes to be repurchased.  Repurchases of Notes under this Section 3.01
shall be made, at the option of the holder thereof, upon:


 


(1)           delivery to the Paying Agent by a
Holder of a duly completed notice (the “Fundamental Change Repurchase Notice”)  in the form set forth on the
reverse of the Note by the close of business on the Business Day immediately
preceding the Fundamental Change Repurchase Date (the “Fundamental Change Repurchase
Expiration Time”);  and


 


(2)           delivery or book-entry transfer of
the Notes to the Paying Agent by the Fundamental Change Repurchase Expiration
Time (together with all necessary endorsements) at the Corporate Trust Office
of the Paying Agent in New York City, such delivery being a condition to
receipt by the Holder of the Fundamental Change Repurchase Price therefor.


 


The Fundamental Change
Repurchase Notice shall state:


 


(i)                                    if certificated Notes have been issued,
the certificate numbers of the Notes to be delivered for repurchase, or if
certificated Notes have not been issued, such Fundamental Change Repurchase
Notice must comply with appropriate Depositary procedures;


 


(ii)                                 the portion of the principal amount of
Notes to be repurchased, which must be $1,000 or an integral multiple thereof;
and


 


(iii)                              that the Notes are to be repurchased by
the Company pursuant to the applicable provisions of the Notes and this
Indenture.


 


Any
purchase by the Company contemplated pursuant to the provisions of this Section 3.01
shall be consummated by the payment of the Fundamental Change Purchase Price to
the relevant Holders promptly following the later of the Fundamental Change
Repurchase Date and the time of the book-entry transfer or delivery of the
Note.


 


All
questions as to the validity, eligibility (including time of receipt) and
acceptance of any Notes for repurchase shall be determined by the Company,
whose determination shall be final and binding absent manifest error.


 


Notwithstanding
anything herein to the contrary, any Holder delivering to the Paying Agent the
Fundamental Change Repurchase Notice contemplated by this Section 3.01
shall have the right to withdraw, in whole or in part, such Fundamental Change
Repurchase Notice at any time prior to the close of business on the Business
Day immediately preceding the Fundamental Change Repurchase Date by delivery of
a written notice of withdrawal to the Paying Agent in accordance with Section 3.02
below.


 


The
Paying Agent shall promptly notify the Company of the receipt by it of any
Fundamental Change Repurchase Notice or written notice of withdrawal thereof.


 


31

















 


(b)                                On or before the tenth (10th) calendar day after the occurrence of a Fundamental
Change, the Company shall mail or cause to be mailed to all Holders of the
Notes, and to beneficial owners as required by applicable law, a notice (the “Fundamental
Change Company Notice”) of the occurrence of the
Fundamental Change and of the repurchase right at the option of the Holders
arising as a result thereof.  Such
mailing shall be by first class mail. 
The Company shall also deliver a copy of the Fundamental Change Company
Notice to the Trustee, the Paying Agent and the Conversion Agent.  Simultaneously with providing such notice,
the Company will issue a press release containing the information set forth in
the Fundamental Change Company Notice and make this information available on
its website.


 


Each Fundamental Change Company Notice shall specify:


 


(i)            the
events causing the Fundamental Change;


 


(ii)           the
date of the Fundamental Change;


 


(iii)          the
last date on which a Holder may exercise the repurchase right pursuant to this Article 3;


 


(iv)          the
Fundamental Change Repurchase Price;


 


(v)           the
Fundamental Change Repurchase Date;


 


(vi)          the
name and address of the Paying Agent and the Conversion Agent;


 


(vii)         that
the Notes are eligible to be converted, the applicable Conversion Rate and any
adjustments to the applicable Conversion Rate resulting from such Fundamental
Change transaction and expected changes in the cash, shares or other property
deliverable upon conversion of the Notes as a result of the occurrence of the
Fundamental Change, and the settlement method the Company has chosen to satisfy
the related Conversion Obligation, if any;


 


(viii)        that
the Notes with respect to which a Fundamental Change Repurchase Notice has been
delivered by a Holder may be converted only if the Holder withdraws the
Fundamental Change Repurchase Notice in accordance with the terms of this
Indenture;


 


(ix)          that
a Holder must exercise its repurchase right by the Fundamental Change
Repurchase Expiration Time;


 


(x)           that
the Holder shall have the right to withdraw any Notes tendered prior to the
Fundamental Change Repurchase Expiration Time;


 


(xi)          the
CUSIP number of the Notes; and


 


(xii)         the
procedures that Holders must follow to require the Company to repurchase their
Notes pursuant to this Article 3.


 


32

















 


No failure of the Company
to give the foregoing notices and no defect therein shall limit the repurchase
rights of Holders or affect the validity of the proceedings for the repurchase
of the Notes pursuant to this Section 3.01.


 


(c)           Notwithstanding the foregoing, no
Notes may be repurchased by the Company at the option of the Holders upon a
Fundamental Change if there has occurred and is continuing an Event of Default
other than an Event of Default that is cured by the payment of the Fundamental
Change Repurchase Price.


 


SECTION 3.02.      Withdrawal of Fundamental Change
Repurchase Notice.  A Fundamental
Change Repurchase Notice may be withdrawn by means of a written notice of
withdrawal delivered to the Corporate Trust Office of the Paying Agent in
accordance with the Fundamental Change Repurchase Notice at any time prior to
the Fundamental Change Repurchase Expiration Time, specifying:


 


(1)    if
certificated Notes have been issued, the certificate numbers of the Notes in
respect of which such notice of withdrawal is being submitted, or if
certificated Notes have not been issued, such notice of withdrawal must comply
with appropriate Depositary procedures;


 


(2)    the
principal amount of the Note with respect to which such notice of withdrawal is
being submitted, which portion must be in minimum denomination of $2,000 and
integral multiples of $1,000 in excess thereof; and


 


(3)    the
principal amount, if any, of such Note that remains subject to the original
Fundamental Change Repurchase Notice, which portion must be in minimum
denomination of $2,000 principal amount and integral multiples of $1,000 in
excess thereof.


 


SECTION 3.03.      Deposit of Fundamental Change
Repurchase Price.  Prior to 10:00 a.m.,
New York City time, on the Fundamental Change Repurchase Date, the Company
shall deposit with the Paying Agent or, if the Company or a Subsidiary of the
Company is acting as the Paying Agent, shall segregate and hold in trust as
provided herein, an amount of cash (in immediately available funds if deposited
on the Fundamental Change Repurchase Date), sufficient to pay the aggregate
Fundamental Change Repurchase Price of all the Notes or portions thereof that
are to be repurchased as of the Fundamental Change Repurchase Date.


 


If
on the Fundamental Change Repurchase Date the Paying Agent holds cash
sufficient to pay the Fundamental Change Repurchase Price of the Notes that
Holders have elected to require the Company to repurchase in accordance with Section 3.01,
then, on the Fundamental Change Repurchase Date, such Notes will cease to be
outstanding, interest will cease to accrue (whether or not book-entry transfer
of the Notes is made or the Note is transferred or delivered to the Paying
Agent, as the case may be) and all other rights of the Holders of such Notes
will terminate (other than the right to receive the Fundamental Change
Repurchase Price upon delivery or book-entry transfer of the Notes).  This will be the case whether or not
book-entry transfer of the Notes has been made or the Notes have been delivered
to the Paying Agent.


 


33

















 


SECTION 3.04.      Notes Repurchased in Part.  Upon presentation of any Notes repurchased
only in part, the Company shall execute and the Trustee shall authenticate and
make available for delivery to the Holder thereof, at the expense of the
Company, a new Note or Notes, of any authorized denomination, in aggregate
principal amount equal to the unrepurchased portion of the Notes presented.


 


SECTION 3.05.      Covenant to Comply with Securities Laws
Upon Repurchase of Notes.  The
Company will, to the extent applicable, comply with the provisions of Rule 13e-4
and any other tender offer rules under the Exchange Act that may be
applicable at the time of the offer to repurchase the Notes, file the related
Schedule TO or any other schedule required in connection with any offer by the
Company to repurchase the Notes and comply with all other federal and state
securities laws in connection with any offer by the Company to repurchase the
Notes.


 


ARTICLE 4


 


Covenants


 


SECTION 4.01.      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) 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 4.02.      Maintenance
of Office or Agency.


 


(a)           The Company shall maintain in the
United States one or more offices or agencies where Notes may be presented or surrendered
for payment, where Notes may be surrendered for transfer or exchange and where
notices and demands to or upon the Company in respect of the Notes and this
Indenture may be served.  The Company
shall give prompt written notice to the Trustee of the location, and of any
change in the location, of such office or agency.  If at any time the Company shall fail to
maintain such office or agency or shall fail to furnish the Trustee with the
address thereof, such presentations, surrenders, notices and demands may be
made or served at the Corporate Trust Office of the Trustee.


 


(b)           The Company may also from time to
time designate one or more other offices or agencies where the Notes may be
presented or surrendered for any or all purposes and may from time to time
rescind such designations.


 


The Company hereby
designates the Corporate Trust Office of the Trustee as such office or agency
of the Company where Notes may be presented or surrendered for payment or for
transfer or exchange for so long as such Corporate Trust Office remains a Place
of Payment.


 


34

















 


SECTION 4.03.      Existence.  Subject to Article 5, the Company will
do or cause to be done all things necessary to preserve and keep in full force
and effect its existence and rights (constituent documents and statutory);
provided that the Company shall not be required to preserve any such right if
the Company shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Company and that the loss
thereof is not disadvantageous in any material respect to the holders of Notes.


 


SECTION 4.04.      Further Instruments and Acts.  The Company shall execute and deliver such
further instruments and do such further acts as may be reasonably necessary or
proper to carry out more effectively the purpose of this Indenture.


 


SECTION 4.05.      Additional Interest. 
If Reporting Additional Interest is payable by the Company, the Company
shall deliver to the Trustee an Officers’ Certificate to that effect stating (i) the
amount of such Reporting Additional Interest that is payable and (ii) the
date on which such Reporting Additional Interest is payable.  Unless and until a Responsible Officer
receives such a certificate, the Trustee may assume without inquiry that no
Reporting Additional Interest is payable.


 


SECTION 4.06.      Waiver of Stay, Extension or Usury Laws. 
The Company covenants (to the extent it may lawfully do so) that it
shall not at any time insist upon, plead, or in any manner whatsoever claim or
take benefit or advantage of, any stay, extension or usury law or other law
which would prohibit or forgive the Company from paying all or any portion of
the principal of or interest on the Notes as contemplated herein, wherever
enacted, now or at any time; the Company (to the extent it may lawfully do so)
hereby expressly waives all benefit or advantage of any such law, and covenants
that it will not, by resort to any such law, 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.


 


SECTION 4.07.      Repurchase and Cancellation.  To the extent permitted by law, the Company
may repurchase any Notes in the open-market or by tender offer at any price or
by private agreement.  Neither the
Company nor its Affiliates shall resell such Notes unless such resale is
registered under the Securities Act or such resale is pursuant to an exemption from
the registration requirements of the Securities Act that results in such Notes
not being “restricted securities,” as such term is defined in Rule 144(a)(3) under
the Securities Act.  Any Notes
repurchased by the Company may, at the Company’s option, be surrendered to the
Trustee for cancellation.  Any Notes
surrendered for cancellation by the Company shall not be reissued or resold.


 


SECTION 4.08.      Provisions as to Paying Agent.


 


(a)                                 If the Company shall appoint a Paying
Agent other than the Trustee, the Company will cause such Paying Agent to
execute and deliver to the Trustee an instrument in which such agent shall
agree with the Trustee, subject to the provisions of this Section 4.08:


 


(i)        that it will hold all sums held by it as such agent
for the payment of the principal of and premium, if any, and accrued and unpaid
interest on the Notes in trust for the benefit of the Holders of the Notes;


 


35

















 


(ii)       that it will give the Trustee prompt notice of any
failure by the Company to make any payment of the principal of and premium, if
any, and accrued and unpaid interest on the Notes when the same shall be due
and payable; and


 


(iii)      that at any time during the continuance
of an Event of Default, upon written request of the Trustee, it will forthwith
pay to the Trustee all sums so held in trust.


 


The Company shall, on or
before each due date of the principal of, or premium (including the Fundamental
Change Repurchase Price), if any, or accrued and unpaid interest on the Notes,
deposit with the Paying Agent a sum sufficient to pay such principal, premium
(including the Fundamental Change Repurchase Price), if any, or accrued and
unpaid interest and (unless such Paying Agent is the Trustee) the Company will
promptly notify the Trustee of any failure to take such action, provided that
if such deposit is made on the due date, such deposit must be received by the
Paying Agent by 11:00 a.m., New York City time, on such date.


 


(b)                                 If the Company shall act as its own
Paying Agent, it will, on or before each due date of the principal of, premium
(including the Fundamental Change Repurchase Price), if any, accrued and unpaid
interest on the Notes, set aside, segregate and hold in trust for the benefit
of the holders of the Notes a sum sufficient to pay such principal, premium
(including the Fundamental Change Repurchase Price), if any, accrued and unpaid
interest so becoming due and will promptly notify the Trustee in writing of any
failure to take such action and of any failure by the Company to make any
payment of the principal of, premium (including the Fundamental Change
Repurchase Price), if any, accrued and unpaid interest on the Notes when the
same shall become due and payable.


 


(c)                                  Anything in this Section 4.08 to the
contrary notwithstanding, the Company may, at any time, for the purpose of
obtaining a satisfaction and discharge of this Indenture, or for any other
reason, pay or cause to be paid to the Trustee all sums held in trust by the
Company or any Paying Agent hereunder as required by this Section 4.08,
such sums to be held by the Trustee upon the trusts herein contained, and upon
such payment by the Company or any Paying Agent to the Trustee, the Company or
such Paying Agent shall be released from all further liability with respect to
such sums.


 


(d)                                 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 or premium (including the Fundamental Change Repurchase Price), if
any, or accrued and unpaid interest on any Note and remaining unclaimed for two
years after such principal, premium (including the Fundamental Change
Repurchase Price) or interest has become due and payable shall be paid to the
Company on request of the Company contained in an Officers’ Certificate, 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; provided, however, that the Trustee
or such Paying Agent, before being required to make any such repayment, shall
at the expense of the Company cause to be published once, in a newspaper
published in the English language, customarily published on each Business Day
and of general circulation in The Borough of Manhattan, The City of New 


 


36

















 


York, New York, notice
that such money remains unclaimed and that, after a date specified therein,
which shall not be less than 30 days from the date of such publication, any
unclaimed balance of such money then remaining will be repaid to the Company.


 


SECTION 4.09.      Compliance Certificate; Statements as
to Defaults.  The Company shall
deliver to the Trustee within 120 days after the end of each fiscal year
(beginning with the fiscal year ending on December 31, 2009) an Officers’
Certificate stating whether or not the signer thereof has knowledge of any
failure by the Company to comply with all conditions and covenants then
required to be performed under this Indenture and, if so, specifying each such
failure and the nature thereof.


 


In addition, the Company
shall deliver to the Trustee, as soon as possible, and in any event within 30
days after the Company becomes aware of the occurrence of any Event of Default
or Default, an Officers’ Certificate setting forth the details of such Event of
Default or Default, its status and the action that the Company proposes to take
with respect thereto.


 


ARTICLE 5




Consolidation,
Merger and Sale of Assets


 


SECTION 5.01.      When Company May Merge or Transfer
Assets.  The Company shall not (i) consolidate
with or merge with or into another Person, or (ii) sell, convey, transfer
or lease all or substantially all of its properties and assets to, another
Person (other than a wholly-owned Subsidiary in existence on, or created after,
the date of this Indenture), unless:


 


(a)           either (i) the Company is the
surviving corporation, or (ii) if the Company is not the surviving
corporation, the resulting, surviving or transferee Person (the “Successor
Company”) is an entity organized and existing under the
laws of the United States, any state thereof or the District of Columbia and
such Successor Company expressly assumes, by a supplemental indenture, all of
the Company’s obligations under the Notes and this Indenture;


 


(b)           immediately after giving effect to
the transaction described above, no Default or Event of Default, has occurred
and is continuing under this Indenture; and


 


(c)           the Company has delivered to the
Trustee the Officer’s Certificate and Opinion of Counsel pursuant to Section 5.03.


 


SECTION 5.02.      Successor to Be Substituted.  In case of any such consolidation, merger,
sale, conveyance, transfer or lease in which the Company is not the surviving
corporation and upon the assumption by the Successor Company, by supplemental
indenture, executed and delivered to the Trustee, of the due and punctual
payment of the principal of and interest on all of the Notes, and the due and
punctual performance and observance of all of the covenants and conditions of
this Indenture to be performed or satisfied by the Company, except in the case
of a lease of all or substantially all of the Company’s properties and assets,
such Successor Company shall succeed to, and be substituted for, and may
exercise every right and power of, the Company, with the same effect as if it
had been named herein as the party of this first part, and Hertz Global
Holdings, Inc. shall be discharged from its obligations under the 


 


37

















 


Notes and this
Indenture.  Such Successor Company
thereupon may cause to be signed, and may issue either in its own name or in
the name of  Inc. any or all of the
Notes, issuable hereunder that theretofore shall not have been signed by the
Company and delivered to the Trustee; and, upon the order of such Successor
Company instead of the Company and subject to all the terms, conditions and
limitations in this Indenture prescribed, the Trustee shall authenticate and
shall deliver, or cause to be authenticated and delivered, any Notes that
previously shall have been signed and delivered by the officers of the Company
to the Trustee for authentication, and any Notes that such Successor Company
thereafter shall cause to be signed and delivered to the Trustee for that
purpose.  All the Notes so issued shall
in all respects have the same legal rank and benefit under this Indenture as the
Notes theretofore or thereafter issued in accordance with the terms of this
Indenture as though all of such Notes had been issued at the date of the
execution hereof.  In the event of any
such consolidation, merger, sale, conveyance or transfer, upon compliance with
this Article 5 the Person named as the “Company” in Section 1.01 of
this Indenture or any successor that shall thereafter have become such in the
manner prescribed in this Article 5 may be dissolved, wound up and
liquidated at any time thereafter and such Person shall be discharged from its
liabilities as obligor and maker of the Notes and from its obligations under
this Indenture.


 


SECTION 5.03.      Opinion of Counsel to Be Given Trustee.  Prior to execution of any supplemental
indenture pursuant to this Article 5, the Trustee shall receive an Officer’s
Certificate and an Opinion of Counsel each to the effect that any such
consolidation, merger, sale, conveyance, transfer or lease and any such
assumption complies with the provisions of this Article 5, provided that
in giving such opinion such counsel may rely on an Officer’s Certificate as to
compliance with Section 5.01(b).


 


ARTICLE 6


 


Defaults and
Remedies


 


SECTION 6.01.      Events of Default.  Each of the following events shall be an “Event of
Default” with respect to the Notes:


 


(a)           A
Default in the payment of interest on the notes when due, and such failure
continues for 30 days;


 


(b)           A
Default in the payment of principal of the notes when due, whether at their
Maturity Date, upon required repurchase, upon declaration of acceleration or
otherwise;


 


(c)           The
failure by the Company to comply with its obligations under Section 5.01
hereof;


 


(d)           The
failure by the Company to pay or deliver, as the case may be, cash, shares of
Common Stock or a combination thereof and, if applicable, Reference Property in
respect of the Conversion Obligation, as required by Article 9 hereof,
upon the conversion of any Notes, and such failure continues for a period of
five (5) calendar days following the applicable settlement date for such
conversion as determined in accordance with Section 9.02;


 


38














 


(e)          The
failure by the Company to provide notice of the anticipated effective date or
actual effective date of a Fundamental Change, Make-Whole Fundamental Change or
notice of specified corporate transactions, as described in Sections 3.01(b),
9.01(a)(3) and 9.01(a)(4), in each case, for a period of five (5) calendar
days after any such notice becomes due;


 


(f)           the
failure by the Company to comply for 60 days after the notice specified in the
penultimate paragraph of this Section 6.01 with its other agreements
contained in the Notes or this Indenture;


 


(g)          the
failure by the Company or any Subsidiary of the Company to pay any Indebtedness
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 accelerated Indebtedness that
is paid or otherwise acquired or retired within 20 Business Days after such
acceleration;


 


(h)          the
taking of any of the following actions by the Company or a Significant
Subsidiary, or by each of such other 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;


 


(i)           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 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
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 Subsidiaries that are not Significant Subsidiaries but 


 


39

















 


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; or


 


(j)            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 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.


 


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 (f) 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 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 (g) or
(j) and any event that with the giving of notice or the lapse of time
would become an Event of Default under clause (f), its status and what action
the Company is taking or proposes to take with respect thereto.


 


SECTION 6.02.      Acceleration of Maturity; Rescission
and Annulment.  If an Event of
Default (other than an Event of Default specified in Section 6.01(h) or
Section 6.01(i)) occurs and is continuing, the Trustee by notice to the
Company, or the Holders of at least thirty percent (30%) in principal amount of
the Outstanding Notes by notice to the Company and the Trustee, in either case
specifying in such notice the respective Event of Default and that such notice
is a “notice of acceleration,” may, and the Trustee shall, 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 6.01(h) or
Section 6.01(i) occurs and is continuing, the principal of and
accrued interest on all the 


 


40

















 


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
of a court of competent jurisdiction 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; provided, however, that no such
declaration may be rescinded in respect of any Event of Default (i) 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), (ii) in respect of a
covenant or provision hereof that pursuant to the second paragraph of Section
8.02 cannot be modified or amended without the consent of the Holder of each
Outstanding Note affected or (iii) that results from (A) a failure of the
Company to repurchase Notes as provided for under Article 3 or (B) a failure of
the Company to perform its conversion obligations under Article 9.  No such rescission shall affect any
subsequent Default or impair any right consequent thereto.


 


SECTION 6.03.      Other Remedies; Collection Suit by
Trustee.  If an Event of Default
occurs and is continuing, the Trustee may, but is not obligated under Section 6.03
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 6.01(a) or 6.01(b) 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 10.07.


 


SECTION 6.04.      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 10.07.


 


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 6.05.      Trustee May Enforce Claims Without
Possession of Notes.  All rights of
action and claims under this Indenture or the Notes may be prosecuted and
enforced by the Trustee without the possession of any of the Notes or the
production thereof in any proceeding relating thereto, and any such proceeding
instituted by the Trustee shall be brought in its own name as trustee of an
express trust, and any recovery of judgment shall, after provision for the
payment of the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel, be for the ratable benefit of the Holders
of the Notes in respect of which such judgment has been recovered.


 


SECTION 6.06.      Application of Money Collected.  Any money collected by the Trustee pursuant
to this Article 6 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 


 


41

















 


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 10.07;


 


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 6.07.      Limitation on Suits.  Subject to Section 6.08 hereof, no
Holder may pursue any remedy with respect to this Indenture or the Notes
unless:


 


(i)            such
Holder has previously given the Trustee written notice that an Event of Default
is continuing;


 


(ii)           Holders
of at least 30% in principal amount of the Outstanding Notes have requested the
Trustee in writing to pursue the remedy;


 


(iii)          such
Holder or Holders have offered to the Trustee security or indemnity reasonably
satisfactory to it against any loss, liability or expense;


 


(iv)          the
Trustee has not complied with the request within 60 days after receipt of the
request and the offer of security or indemnity; and


 


(v)           the
Holders of a majority in principal amount of the Outstanding Notes have not
given the Trustee a direction inconsistent with the request within such 60-day
period.


 


A Holder may not
use this Indenture to affect, disturb or prejudice the rights of another
Holder, to obtain a preference or priority over another Holder or to enforce
any right under this Indenture except in the manner herein provided and for the
equal and ratable benefit of all Holders (it being understood that the Trustee
does not have an affirmative duty to ascertain whether or not such actions or
forbearances are unduly prejudicial to such Holders).


 


SECTION 6.08.      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 interest on such Note on the respective Maturity Date or
Interest Payment Dates expressed in such Note and to institute suit for the
enforcement of any such payment on or after such respective Maturity Date or
Interest Payment Dates, and such right shall not be impaired without the
consent of such Holder.


 


SECTION 6.09.      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 


 


42

















 


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 6.10.      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 6.11.      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 6 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 6.12.      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


 


(i)            such
direction shall not be in conflict with any rule of law or with this
Indenture, and


 


(ii)           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 10.01, that the Trustee determines is
unduly prejudicial to the rights of any other Holder or that would involve the
Trustee in personal liability; provided, however, that the Trustee may take any
other action deemed proper by the Trustee that is not inconsistent with such
direction.  Prior to taking any action
under this Indenture, the Trustee shall be entitled to indemnification
satisfactory to it in its sole discretion against all losses and expenses
caused by taking or not taking such action. 
This Section 6.12 shall be in lieu of Section 316(a)(1)(A) of
the TIA, and such Section 316(a)(1)(A) of the TIA is hereby expressly
excluded from this Indenture and the Notes, as permitted by the TIA.


 


SECTION 6.13.      Waiver of Past Defaults.  The Holders of at least 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


 


43

















 


(i)            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);


 


(ii)           in
respect of a covenant or provision hereof that pursuant to the second paragraph
of Section 8.02 cannot be modified or amended without the consent of the
Holder of each Outstanding Note affected; or


 


(iii)          that
results from (A) a failure of the Company to repurchase Notes as provided
for under Article 3 or (B) a failure of the Company to perform its
conversion obligations under Article 9.


 


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 6.13
shall be in lieu of Section 316(a)(1)(B) of the TIA and such Section 316(a)(1)(B) of
the TIA is hereby expressly excluded from this Indenture and the Notes, as
permitted by the TIA.


 


SECTION 6.14.      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,


 


(i)            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 6.14 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 Maturity Date or
Interest Payment Dates expressed in such Note.


 


SECTION 6.15.      Failure to Comply with Reporting
Covenant.  Notwithstanding anything
to the contrary in this Indenture, the sole remedy for an Event of Default
relating to the Company’s failure to perform or observe the covenants in Section 2.06  (other than as specifically set forth
therein) will for the 180 days after the occurrence of such an Event of Default
consist exclusively of the right to receive additional interest (the “Reporting
Additional Interest”) on the Notes at an annual rate
equal to 0.50% of the principal amount of the Notes.  Reporting Additional Interest will be payable
in the same manner and on the same Interest Payment Dates as the stated
interest payable on the Notes.  Reporting
Additional Interest will accrue on all outstanding Notes from, and including,
the date on which an Event of Default relating to a failure by the Company to
comply with its obligations pursuant
to Section 2.06 first occurs to, but not including, the one-hundred eightieth
(180th) day thereafter (or such earlier date 


 


44

















 


on
which the Event of Default relating to the Company’s obligations pursuant to Section 2.06
shall have been cured or waived).  On
such one-hundred eightieth (180th)
day (or earlier, if an Event of Default relating to the Company’s obligations
pursuant to Section 2.06 is cured or waived prior to such one-hundred
eightieth (180th) day), such Reporting Additional Interest
will cease to accrue and the Notes will be subject to acceleration.  A Holder’s right to receive Reporting
Additional Interest for an Event of Default relating to the Company’s failure
to perform or observe the covenant in Section 2.06 will not affect the
rights of the Holders in the event of an occurrence of any other Event of
Default.


 


ARTICLE 7


 


Discharge


 


SECTION 7.01.      Discharge of the Indenture.


 


(a)           When (i) the Company delivers to
the Trustee all outstanding Notes (other than Notes replaced pursuant to Section 2.10)
for cancellation or (ii) all outstanding Notes have become due and
payable, whether on the Maturity Date, upon a repurchase pursuant to Article 3
hereof, upon conversion pursuant to Article 9 or otherwise, and the
Company irrevocably deposits with the Trustee money sufficient to pay on the
Maturity Date or upon repurchase all outstanding Notes, including interest
thereon to the Maturity Date or the relevant Fundamental Change Repurchase
Date, as the case may be (other than Notes replaced pursuant to Section 2.10
hereof), and any shares of Common Stock, cash or a combination of cash and
shares of Common Stock (or other property) due in respect of converted Notes,
and if in each such case the Company pays all other sums payable hereunder by
the Company, then this Indenture shall, subject to Section 7.01(b), cease
to be of further effect.  The Trustee
shall acknowledge satisfaction and discharge of this Indenture on demand of the
Company accompanied by an Officers’ Certificate and an Opinion of Counsel at
the cost and expense of the Company.


 


(b)           Notwithstanding clause (a) above,
the Company’s obligations in Sections 2.04, 
2.10, 10.07, 10.10 and 11.01 and this Article 7 shall survive until
the Notes have been paid in full. 
Thereafter, the Company’s obligations in Section 10.07 shall
survive such satisfaction and discharge.


 


SECTION 7.02.      Application of Trust Money.  The Trustee shall hold in trust cash and any
shares of Common Stock or other property due in respect of converted Notes
deposited with it pursuant to this Article 7.  It shall apply the deposited money through
the Paying Agent and in
accordance with this Indenture to the payment of principal of and interest on
the Notes or, in the case of any cash or shares of Common Stock (or other
property) due in respect of converted Notes, in accordance with this Indenture
in relation to the conversion of Notes pursuant to the terms hereof.


 


SECTION 7.03.      Repayment to Company.  The Trustee and the Paying Agent shall
promptly turn over to the Company upon request any excess money or securities
held by them at any time after a full satisfaction and discharge pursuant to
the terms hereof.


 


45

















 


Subject to any applicable
abandoned property law, the Trustee and the Paying Agent shall pay to the
Company upon written request any money held by them for the payment of
principal or interest and any shares of Common Stock or other property due in
respect of converted Notes that remains unclaimed for two years, and,
thereafter, Holders entitled to the money or securities must look to the
Company for payment as general creditors.


 


SECTION 7.04.      Reinstatement.  If the Trustee or Paying Agent is unable to
apply any cash or to pay or deliver, as the case may be, cash or any shares of
Common Stock (or other property) due in respect of converted Notes in
accordance with this Article 7 by reason of any legal proceeding or by
reason of any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, the Company’s
obligations under this Indenture and the Notes shall be revived and reinstated
as though no deposit had occurred pursuant to this Article 7 until such
time as the Trustee or Paying Agent is permitted to apply all such cash and pay
or deliver, as the case may be, cash or any shares of Common Stock (or other
property) due in respect of converted Notes in accordance with this Article 7;
provided, however, that, if the Company has made any payment of
interest on or principal of any Notes because of the reinstatement of its
obligations, the Company shall be subrogated to the rights of the Holders of
such Notes to receive such payment from the money held by the Trustee or Paying
Agent.


 


ARTICLE 8


 


Amendments


 


SECTION 8.01.      Without
Consent of Holders.  The Company and
the Trustee may amend or supplement this Indenture or the Notes without notice
to or the consent of any Holder to:


 


(a)           provide for the assumption by a
successor corporation pursuant to Section 5.01 hereof;


 


(b)           add to the covenants for the benefit
of Holders of the Notes or to surrender any right or power conferred upon the
Company;


 


(c)           add any additional events of default;


 


(d)           secure the Notes;


 


(e)           evidence and provide for the
acceptance of appointment hereunder by a successor trustee and other agents and
to add to or change any of the provisions hereof as necessary to provide for or
facilitate the administration of the trusts hereunder by more than one trustee;


 


(f)            cure any ambiguity, correct or
supplement any provision hereof that may be defective or inconsistent with any
other provision hereof or make any other provisions with respect to matters or
questions arising hereunder that shall not adversely affect the interests of
the Holders of the Notes in any material respect;


 


46

















 


(g)           add Guarantees with respect to the
Notes;


 


(h)           confirm and evidence the release or
discharge of any Guarantee or Lien with respect to or securing the Notes where
such release of discharge is provided for under this Indenture;


 


(i)            comply with any requirements of the
Commission in connection with qualifying, or maintaining the qualification of,
this Indenture under the TIA;


 


(j)            conform the provisions of the
Indenture and the form or terms of the Notes to the section entitled “Description
of the Notes” as set forth in the prospectus supplement related to the offering
and sale of the Notes dated May 20, 2009;


 


(k)           add the ability of the Company to
irrevocably choose, at its option, to settle conversions of the Notes with cash
only or with a combination of cash and shares of its common stock;


 


(l)            increase the conversion rate; or


 


(m)          provide for the conversion of the
Notes in accordance with this Indenture.


 


SECTION 8.02.      With Consent of Holders.  Subject to Section 6.08, the Company and
the Trustee may amend or supplement this Indenture or the Notes with the
written consent of the Holders of at least a majority in aggregate principal
amount of the Outstanding Notes (including consents obtained in connection with
a tender offer or exchange offer for Notes), provided, that 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 with any provision of this
Indenture or the Notes.


 


Notwithstanding
the provisions of this Section 8.02, without the consent of each Holder
affected, an amendment or waiver, including a waiver pursuant to Section 6.13,
may not


 


(a)           change the terms of payment of
principal, interest or any premium;


 


(b)           reduce the percentage of principal
amount of the Notes the consent of whose holders is necessary to amend this
Indenture or waive any default;


 


(c)           make any change that impairs or
adversely affects the right of a Holder to convert any Notes pursuant to Article 9;


 


(d)           reduce the Fundamental Change
Repurchase Price, change the time at which Holders may require any Notes to be
repurchased by the Company in connection with a Fundamental Change in
accordance with Article 3 or amend or modify in any manner adverse to the
Holders the Company’s obligation to make such payments, whether through an
amendment or waiver of provisions in the covenants, definitions or otherwise;


 


(e)           make any Note payable in a currency
other than that stated in the Note;


 


47

















 


(f)            impair the right of any Holder to
institute suit for the enforcement of any payment on or with respect to such
Holder’s Notes; or


 


(g)           change the ranking of the Notes in a
manner adverse to the Holders.


 


It shall not be necessary
for any Act of Holders under this Section to approve the particular form
of any proposed supplemental indenture, amendment or waiver, but it shall be
sufficient if such Act shall approve the substance thereof.


 


SECTION 8.03.      Execution
of Amendments, Supplements or Waivers. 
The Trustee shall sign any amendment, supplement or waiver authorized
pursuant to this Article 8 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 8.04.      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 8.04,
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 1.07.


 


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 (a) through
(g) of the second paragraph of Section 8.02.  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 8.05.      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.


 


48














 


SECTION 8.06.                 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 9


 


Conversion of Notes


 


SECTION 9.01.                 Right to Convert.  (a) Subject
to and upon compliance with the provisions of this Article 9, a Holder
shall have the right, at such Holder’s option, to convert all or any portion
(if the portion to be converted is $1,000 in principal amount or multiple
thereof) of such Notes, at any time prior to the close of business on the
second Scheduled Trading Day immediately preceding the Maturity Date at an
initial conversion rate (the “Conversion Rate”) of
120.6637 shares of the Common Stock (subject to adjustments as provided in
Sections 9.03 and 9.04 of this Indenture) per $1,000 in principal amount of
Notes (the “Conversion Obligation”) only under the following circumstances:


 


(1)                                  Conversion Based on
Common Stock Price.  A Holder may surrender its Notes for
conversion during any calendar quarter commencing at any time after June 30,
2009, and only during such calendar quarter, if the Last Reported Sale Price
for the Common Stock for at least twenty (20) Trading Days during the thirty
(30) consecutive Trading-Day period ending on the last Trading Day of the
immediately preceding calendar quarter is more than 130% of the applicable
Conversion Price in effect on the last day of such immediately preceding
calendar quarter.  Whenever the Notes
shall become convertible pursuant to this Section 9.01(a)(1), the Company
shall notify all Holders, the Trustee and the Conversion Agent promptly and,
simultaneously with providing such notice, the Company shall issue a press
release containing the relevant information and make this information available
on its website.


 


(2)                                  Conversion Upon
Satisfaction of Trading Price Condition. 
A Holder may surrender its Notes for
conversion during the five (5) Business Day period after any ten (10) consecutive
Trading Day period (the “Trading Price Measurement Period”)
in which the Trading Price per $1,000 in principal amount of Notes, as
determined by the Company (or, at the Company’s request, by the Bid
Solicitation Agent) following a request by a Holder in accordance with the
procedures set forth in this Section 9.01(a)(2), for each Trading Day in
the Trading Price Measurement Period was less than 98% of the product of the
Last Reported Sale Price of the Common Stock and the applicable Conversion
Rate.  In connection with any conversion
in accordance with this Section 9.01(a)(2), the Bid Solicitation Agent
shall have no obligation to determine the Trading Price of the Notes unless
requested in writing by the Company; and the Company shall 


 


49

















 


have no obligation
to determine the Trading Price of the Notes or make such request, as
applicable, unless a Holder provides the Company with written notice which
includes reasonable evidence that the Trading Price per $1,000 in principal
amount of Notes would be less than 98% of the product of the Last Reported Sale
Price of the Common Stock and the applicable Conversion Rate.  Promptly after receiving such evidence, the
Company shall determine, or instruct the Bid Solicitation Agent to determine,
as applicable, the Trading Price of the Notes in the manner described above
beginning on the next Trading Day and on each successive Trading Day until the
Trading Price per $1,000 in principal amount of Notes is greater than or equal
to 98% of the product of the Last Reported Sale Price of the Common Stock and
the applicable Conversion Rate.  Whenever
the Notes shall become convertible pursuant to this Section 9.01(a)(2),
the Company shall notify all Holders, the Trustee and the Conversion Agent
promptly and, simultaneously with providing such notice, the Company shall
issue a press release containing the relevant information and make this
information available on its website.


 


(3)                                  Conversion Upon
Specified Distributions to Holders of Common  Stock.  If the Company elects to:


 


(ii)                                  distribute to all or substantially all
holders of its Common Stock rights entitling them to purchase, for a period
expiring within sixty (60) calendar days after the date of the
distribution, shares of the Common Stock at a price per share less than the
average Last Reported Sale Prices of the Common Stock over the ten (10) consecutive
Trading Day period ending on and including the Trading Day immediately
preceding the declaration date for such distribution; or


 


(iii)                               distribute to
all or substantially all holders of the Common Stock the Company’s assets, its
debt securities or certain rights to purchase securities of the Company (excluding distributions described in Section 9.04(a) and
(b) and other than pursuant to a stockholders’ rights plan), which
distribution has a per share Fair Market Value exceeding 10% of the Last
Reported Sale Price of the Common Stock on the five consecutive Trading Days
immediately preceding the declaration date for such distribution,


 


then,
in either case, the Company shall notify all Holders, the Trustee and the
Conversion Agent at least thirty-five (35) Business Days prior to the
Ex-Dividend Date for such distribution. 
Simultaneously with providing such notice, the Company shall issue a
press release containing the relevant information, including, but not limited
to, the Declaration Date, and make this information available on its
website.  Once the Company has given such
notice, a Holder may surrender its Notes for conversion at any time until the
earlier of the close of business on the Business Day immediately prior to such
Ex-Dividend Date for such distribution or the Company’s announcement that such
distribution will not take place.  A
Holder may not exercise a conversion right pursuant to this Section 9.01(a)(3) if
such Holder may participate in the distribution described above as a result of
holding the Notes on a basis equivalent to a holder of a number of shares of
Common Stock equal to the principal amount of such Notes, divided by the applicable Conversion
Price.


 


50

















 


(4)                                  Conversion Upon a Fundamental
Change or a Make-Whole Fundamental Change.  If an event
constituting a Fundamental Change occurs, a Holder may surrender its Notes for
conversion at any time beginning on the Business Day following the effective
date of such event until the close of business on the second Scheduled Trading
Day immediately preceding the Fundamental Change Repurchase Date corresponding
to such event. If an event constituting a Make-Whole Fundamental Change occurs,
a Holder may be entitled to receive an increase in the Conversion Rate in the
form of Additional Shares upon any conversion. In an event constituting a
Make-Whole Fundamental Change occurs, a Holder may surrender notes for
conversion at any time beginning on the business day following the effective
date of such event until 5:00 p.m., New York City time, on the 35th trading day
after the effective date of the event. 
The Company shall notify all Holders, the Trustee and the Conversion
Agent of the anticipated occurrence of such a Fundamental Change or Make-Whole
Fundamental Change no later than anticipated effective date of such Fundamental
Change or Make-Whole Fundamental Change. 
Simultaneously with providing such notice, the Company shall issue a
press release containing the relevant information and make this information
available on its website.


 


(5)                                  Conversion
During the Period Commencing on March 1, 2014 to Maturity.  Notwithstanding anything
herein to the contrary, a Holder may surrender all or a portion of its Notes
for conversion at any time on or after March 1, 2014  until 5:00 p.m., New York City time on
the second Scheduled Trading Day immediately preceding the Maturity Date.


 


SECTION 9.02.                 Conversion Procedures; Settlement Upon Conversion; No
Adjustment for Interest or Dividends; Cash Payments in Lieu of Fractional
Shares.  (a)                        In order to exercise the conversion right with respect
to any Notes in certificated form, a Holder must (A) complete and manually
sign an irrevocable notice of conversion in the form entitled “Form of
Conversion Notice” attached to the reverse of such certificated Note (in the
form of Exhibit B) (or a facsimile thereof) (a “Conversion Notice”),
(B) deliver such Conversion Notice and certificated Note to the
Conversion Agent at the office of the Conversion Agent, (C) to the extent
any shares of Common Stock issuable upon conversion are to be issued in a name
other than the Holder’s, furnish appropriate endorsements and transfer
documents as may be required by the Conversion Agent, (D) if required
pursuant to Section 9.02(f), pay all transfer or similar taxes or duties
and (E) if required pursuant to Section 2.03(c), pay funds equal to
interest payable on the next Interest Payment Date.


 


In order to exercise the conversion right with respect to any interest
in a Global Note, a Holder must (A) comply with the Depositary’s procedures for
converting a beneficial interest in a Global Note, (B) to the extent any shares
of Common Stock issuable upon conversion are to be issued in a name other than
the Holder’s, furnish appropriate endorsements and transfer documents as may be
required by the Conversion Agent; (C) if required pursuant to Section 9.02 (f),
pay all transfer or similar taxes or duties; and (D) if required pursuant to Section
2.03(c), pay funds equal to interest payable on the next Interest Payment Date.


 


The date that the Holder satisfies the
foregoing requirements is the “Conversion Date.”


 


51

















 


If a Holder has submitted any Notes for repurchase pursuant to Section 3.01,
such Notes may be converted only if the Holder submits a withdrawal notice in
accordance with Section 3.02 prior to the close of business on the second
Scheduled Trading Day immediately preceding the Fundamental Change Repurchase
Date and, if such Notes are evidenced by a Global Note, the Holder complies
with appropriate Depositary procedures.


 


(b)                                 Except as provided below, the Company may
elect to pay or deliver, as the case may be, shares of its Common Stock, cash
or a combination of cash and shares of Common Stock in respect of the
Conversion Obligation upon conversion of any Notes.


 


The Company shall from time to time make an election with respect to
the method it chooses in respect of the Conversion Obligation upon conversion
of any Notes.  Such election shall be
effective until the Company provides notice of an election of a different
method of settlement.  The Company may
not elect a different method of settlement after the thirty-fifth (35th) Scheduled Trading Day preceding the Maturity
Date.  The Company shall provide to all
Holders, the Trustee and the Conversion Agent a notice of the newly chosen
method of settlement and the effective date of such newly chosen method;
provided, however, that in no event shall the Company notify a Holder who has
submitted its Notes for conversion of a settlement method applicable to such conversion
after the second Trading Day immediately following the related Conversion Date
(or, if earlier, March 1, 2014). 
Simultaneously with providing such notice, the Company shall issue a
press release containing the relevant information and make this information
available on its website.


 


The Company will treat all Holders converting on the same Trading Day
in the same manner.  Except for all
conversions that occur on of after the 35th scheduled Trading Day prior to the maturity of
the Notes, we will not have any obligation to settle our conversion obligations
arising on different Trading Days in the same manner.  The Company may choose on one Trading Day to
settle in shares of Common Stock only and choose on another Trading Day to
settle in cash or a combination of cash and shares of Common Stock.


 


If the Company elects to deliver cash in
respect of the Conversion Obligation upon conversion of any Notes, the Company
shall specify in such notice the fixed dollar amount per $1,000 in principal
amount of the Notes to be paid in cash (the “Fixed Dollar Amount”);
provided the Fixed Dollar Amount due upon conversion shall in no event
exceed the Conversion Value.  If, in
respect of any conversion, the Company has not previously made an election with
respect to the settlement method it chooses in respect of any Conversion
Obligation upon conversion of any Notes and does not timely make such an
election, the Company shall be deemed to have elected to settle such conversion
in the manner set forth in Section 9.02(b)(3).


 


Settlement of conversions (x) solely in
shares of Common Stock (other than cash in lieu of fractional shares) shall
occur on the third (3rd) Trading Day
following the final Settlement Period Trading Day of the Settlement Period that
would be applicable if settlement were in cash or a combination of cash and
shares of Common Stock, and (y) in cash or in a combination of cash and
shares of Common Stock shall occur on the third (3rd) Trading Day following the final Settlement Period
Trading Day of the applicable Settlement Period.


 


52

















 


The number of shares of Common Stock, the
amount of cash, or the number of shares of Common Stock and amount of cash, as
the case may be, due upon conversion of any Notes shall be computed as follows:


 


(1)                                  if upon conversion of any Notes, the
Company has elected to deliver solely shares of Common Stock in respect of the
related Conversion Obligation, the Company shall deliver to each converting
Holder, for each $1,000 in principal amount of Notes converted, a number of
shares of Common Stock equal to the Conversion Rate in effect on the final
Settlement Period Trading Day of the Settlement Period that would be applicable
if settlement were in cash or a combination of cash and shares of Common Stock,
plus cash in lieu of fractional shares, if applicable, as set forth in Section 9.02(i);


 


(2)                                  if upon conversion of any Notes, the
Company has elected to pay solely cash in respect of the related Conversion
Obligation, the Company shall deliver to each converting Holder, for each
$1,000 in principal amount of Notes converted, cash in an amount equal to the
Conversion Value; and


 


(3)                                  if upon conversion of any Notes, the
Company has elected (or is deemed to have elected) to pay and deliver, as the
case may be, a combination of cash and shares of Common Stock in respect of the
related Conversion Obligation, the Company shall pay or deliver, as the case
may be, to each converting Holder, for each $1,000 in principal amount of Notes
converted: (A) the Fixed Dollar Amount per $1,000 in principal amount of
the Notes of the Conversion Obligation to be satisfied in cash specified in the
notice regarding the Company’s chosen method of settlement or, if lower, the
Conversion Value in cash (the “Fixed Cash Amount”) and
(B) if the Fixed Cash Amount is less than the Conversion Value a number of
shares of Common Stock equal to the sum, for each of the thirty-five (35)
Settlement Period Trading Days in the Settlement Period, of 1/30th of (a) the
Conversion Rate then in effect minus (b) the quotient of (x) the
Fixed Cash Amount divided by (y) the VWAP of the Common Stock on
that Settlement Period Trading Day (plus cash in lieu of fractional shares, if
applicable, as set forth in Section 9.02(i)).


 


(c)                                  If more than one Note shall be
surrendered for conversion at one time by the same Holder, the Conversion
Obligation with respect to such Notes, if any, that shall be payable upon
conversion shall be computed on the basis of the aggregate principal amount of
the Notes (or specified portions thereof to the extent permitted thereby) so
surrendered.


 


(d)                                 In case any Note shall be surrendered for
partial conversion, the Company shall execute and the Trustee shall
authenticate and deliver to or upon the written order of the Holder of the Note
so surrendered, without charge to such Holder, a new Note or Notes in
authorized denominations in an aggregate principal amount equal to the
unconverted portion of the surrendered Note.


 


(e)                                  Upon the conversion of an interest in a
Global Note, the Trustee and the Depositary shall reduce the principal amount
of such Global Note in their records.


 


53

















 


(f)                                    The issuance of stock certificates on
conversions of Notes shall be made without charge to the converting holder of
Notes for any documentary, stamp or similar issue or transfer tax in respect of
the issue thereof.  The Company shall
not, however, be required to pay any such tax which may be payable in respect
of any transfer involved in the issue and delivery of stock in any name other
than that of the holder of any Notes converted, and the Company shall not be
required to issue or deliver any such stock certificate unless and until the
Person or Persons requesting the issue thereof shall have paid to the Company
the amount of such tax or shall have established to the satisfaction of the
Company that such tax has been paid. The Company will not be required to make
any payment with respect to any other tax, assessment or governmental charge
imposed by any other government or any political subdivision or taxing
authority thereof.


 


(g)                                 Upon conversion, principal and accrued
and unpaid interest to the Conversion Date with respect to the converted Notes
shall be deemed to be paid in full rather than cancelled, extinguished or
forfeited.


 


(h)                                 If the Company’s Conversion Obligation is
satisfied in Common Stock or a combination of cash and Common Stock, the Holder
that has converted its Notes (or if such Person designated another Person to
whom such Common Stock shall be issued and delivered, such Person) shall be
treated as a holder of record of such Common Stock as of the close of business
on the final Settlement Period Trading Day of the applicable Settlement Period.


 


(i)                                     No fractional shares of Common Stock
shall be issued upon conversion of any Note or Notes.  If any fractional shares of Common Stock
would be issuable upon the conversion of any Note or Notes, the Company shall
instead deliver cash with respect to the fractional share calculated by
multiplying the daily VWAP of the Common Stock on the final Settlement Period
Trading Day of the applicable Settlement Period, by the fractional amount and
rounding the product to the nearest cent. 
If the Company has elected to satisfy the entire Conversion Obligation
in Common Stock only, the applicable Settlement Period used to calculate the
cash payment under this Section 9.02(i) shall be the Settlement
Period that would be applicable if settlement of the Conversion Obligation were
in cash or a combination of cash and shares of Common Stock.


 


SECTION 9.03.                 Increased Conversion Rate Applicable to Securities
Converted in Connection With Make-Whole Fundamental Changes. 
If a Holder elects to convert its Notes in connection with a Make-Whole Fundamental
Change, the Conversion Rate applicable to each Note that is surrendered for
conversion in accordance with this Article 9 shall be increased by an
additional number of shares of Common Stock (the “Additional Shares”)
determined pursuant to this Section 9.03.


 


A conversion will be deemed to have occurred
in connection with a Make-Whole Fundamental Change only if such conversion occurs on and after the
business day following the Effective Date of such Make-Whole Fundamental Change
and prior to the close of the Business Day immediately prior to the related
Fundamental Change Repurchase Date and notwithstanding the fact
that a Note may then be convertible because another condition to conversion has
been satisfied.


 


54

















 


The number of Additional Shares shall be
determined by reference to the table below, based on the date on which such
Make-Whole Fundamental Change occurs or becomes effective (the “Effective
Date”) and the Stock Price paid per share for the Common
Stock in such Make-Whole Fundamental Change. 
The Stock Prices set forth in the first row of the table below (i.e.,
the column headers) shall be adjusted as of any date on which the Conversion
Rate is adjusted to equal the Stock Prices applicable immediately prior to such
adjustment, multiplied by a
fraction, the numerator of which shall be the Conversion Rate immediately prior
to the adjustment and the denominator of which shall be the Conversion Rate as
so adjusted.  The number of Additional
Shares in the table will be adjusted in the same manner and at the same time as
the Conversion Rate as set forth in Section 9.04.


 


The following table sets forth the number of
Additional Shares per $1,000 in principal amount of the Notes by which the
Conversion Rate shall be increased based on the Stock Price and Effective Date
of the Make-Whole Fundamental Change:


 


Stock Price


 


	
  Effective
  Date

  	
   

  	
  $ 6.50

  	
   

  	
  $8.50

  	
   

  	
  $ 10.50

  	
   

  	
  $ 12.50

  	
   

  	
  $ 14.50

  	
   

  	
  $ 16.50

  	
   

  	
  $ 18.50

  	
   

  	
  $ 20.50

  	
   

  	
  $ 22.50

  	
   

  	
  $24.50

  	
   

  	
  $ 26.50

  	
   

  	
  $ 28.50

  	
   

  	
  $30.50

  	
   

  	
  $ 32.50

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  May 27, 2009

  	
   

  	
  33.1825

  	
   

  	
  21.9078

  	
   

  	
  15.7359

  	
   

  	
  12.0158

  	
   

  	
  9.5623

  	
   

  	
  7.8336

  	
   

  	
  6.5537

  	
   

  	
  5.5693

  	
   

  	
  4.7895

  	
   

  	
  4.1570

  	
   

  	
  3.6343

  	
   

  	
  3.1956

  	
   

  	
  2.8227

  	
   

  	
  2.5025

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  June 1, 2010

  	
   

  	
  33.1825

  	
   

  	
  20.5574

  	
   

  	
  14.3027

  	
   

  	
  10.6949

  	
   

  	
  8.4004

  	
   

  	
  6.8288

  	
   

  	
  5.6889

  	
   

  	
  4.8251

  	
   

  	
  4.1473

  	
   

  	
  3.6010

  	
   

  	
  3.1511

  	
   

  	
  2.7740

  	
   

  	
  2.4536

  	
   

  	
  2.1781

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  June 1, 2011

  	
   

  	
  33.1825

  	
   

  	
  18.9499

  	
   

  	
  12.4366

  	
   

  	
  8.9306

  	
   

  	
  6.8354

  	
   

  	
  5.4715

  	
   

  	
  4.5199

  	
   

  	
  3.8183

  	
   

  	
  3.2778

  	
   

  	
  2.8471

  	
   

  	
  2.4946

  	
   

  	
  2.2000

  	
   

  	
  1.9497

  	
   

  	
  1.7343

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  June 1, 2012

  	
   

  	
  33.1825

  	
   

  	
  16.3434

  	
   

  	
  9.6002

  	
   

  	
  6.3712

  	
   

  	
  4.6465

  	
   

  	
  3.6259

  	
   

  	
  2.9625

  	
   

  	
  2.4958

  	
   

  	
  2.1459

  	
   

  	
  1.8710

  	
   

  	
  1.6469

  	
   

  	
  1.4596

  	
   

  	
  1.2997

  	
   

  	
  1.1614

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  June 1, 2013

  	
   

  	
  33.1825

  	
   

  	
  11.9201

  	
   

  	
  5.1183

  	
   

  	
  2.6449

  	
   

  	
  1.6803

  	
   

  	
  1.2493

  	
   

  	
  1.0160

  	
   

  	
  0.8646

  	
   

  	
  0.7529

  	
   

  	
  0.6637

  	
   

  	
  0.5894

  	
   

  	
  0.5261

  	
   

  	
  0.4713

  	
   

  	
  0.4232

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  June 1, 2014

  	
   

  	
  33.1825

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  



 


provided, however,
that:


 


(1)                                  if the actual Stock Price is between two
Stock Prices listed in the table above under the column titled “Stock Price,”
or if the actual Effective Date of such Make-Whole Fundamental Change is
between two Effective Dates listed in the table above in the row immediately
below the title “Effective Date,” then the number of Additional Shares shall be
determined by the Company by straight-line interpolation between the number of
Additional Shares set forth for the higher and lower Stock Price amounts, and
the two Effective Dates, as applicable, based on a 365-day year; and


 


(2)                                  (a) if the actual Stock Price is
greater than $32.50 per share (subject to adjustment in the same manner as the
Stock Prices set forth in the first row of the table above pursuant to this Section 9.03),
then the Conversion Rate will not be increased, or (b) if the actual Stock
Price is less than $6.50 per share (subject to adjustment in the same manner as
the Stock Prices set forth in the first 


 


55

















 


row of the table above pursuant to this Section 9.03), then the
Conversion Rate will not be increased.


 


Notwithstanding the foregoing, in no event
will the Conversion Rate as adjusted exceed 153.8462 per $1,000 in principal
amount of Notes, subject to adjustment in the same manner as the Conversion
Rate pursuant to Section 9.04.


 


SECTION 9.04.                 Adjustment of Conversion Rate. 
The Conversion Rate shall be adjusted from time to time by the Company
as follows:


 


(a)                                  If the Company shall issue shares of
Common Stock as a dividend or distribution on shares of Common Stock, or if the
Company effects a share split or share combination of the Common Stock, the
Conversion Rate will be adjusted based on the following formula:


 


	
  CR’ = CR0  x

  	
   

  	
  OS’

  	
   

  
	
   

  	
   

  	
  OS0

  	
   

  



 


where


 


	
   

  	
  CR0

  	
  =

  	
   

  	
  the Conversion Rate in effect at 5:00 p.m., New
  York City time on the Record Date for such dividend or distribution or the
  effective date of such share split or share combination;

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  CR’

  	
  =

  	
   

  	
  the Conversion Rate in effect immediately after the
  Record Date for such dividend or distribution or the effective date of such
  share split or share combination;

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  OS0

  	
  =

  	
   

  	
  the number of shares of the Common Stock that are
  outstanding at 5:00 p.m., New York City time on the Record Date for such
  dividend or distribution or the effective date of such share split or share
  combination; and

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  OS’

  	
  =

  	
   

  	
  the number of shares of the Common Stock that are
  outstanding immediately after, and solely as a result of, such event.

  



 


Such
adjustment shall become effective immediately after (x) 5:00 p.m. on
the Record Date for such dividend or distribution or (y) the effective
date of such share split or share combination. 
If any dividend or distribution of the type described in this Section 9.04(a) is
declared but not so paid or made, the Conversion Rate shall be readjusted to
the Conversion Rate that would then be in effect if such dividend or
distribution had not been declared.


 


(b)                                 If the Company shall issue to all or
substantially all holders of its Common Stock any rights or warrants entitling
them for a period of not more than sixty (60) calendar days to subscribe for or
purchase shares of the Common Stock, at a price per share less than the Current
Market Price of the Common Stock, the Conversion Rate shall be adjusted based
on the following formula:


 


	
  CR’ = CR0  x

  	
   

  	
  OS0 + X

  	
   

  
	
   

  	
   

  	
  OS0  + Y

  	
   

  



 


where


 


	
   

  	
  CR0

  	
  =

  	
   

  	
  the Conversion Rate in effect at 5:00 p.m., New
  York City time on the Record Date for such distribution;

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  CR’

  	
  =

  	
   

  	
  the Conversion Rate in effect immediately after the
  Record Date for such distribution;

  



 


56

















 


	
   

  	
  OS0

  	
  =

  	
   

  	
  the number of shares of the Common Stock that are
  outstanding at 5:00 p.m., New York City time on the Record Date for such
  distribution;

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  X’

  	
  =

  	
   

  	
  the total number of shares of the Common Stock
  issuable pursuant to such rights or warrants; and

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Y

  	
  =

  	
   

  	
  the number of shares of the Common Stock equal to
  the aggregate price payable to exercise such rights or warrants divided by
  the Current Market Price.

  



 


Such
adjustment shall become effective immediately after 5:00 p.m. on the
Record Date for such distribution.  In
the event that such rights or warrants described in this Section 9.04(b) are
not so distributed, the Conversion Rate shall be readjusted to the Conversion
Rate that would then be in effect if the Record Date for such distribution had
not occurred.  To the extent that such
rights or warrants are not exercised prior to their expiration or shares of the
Common Stock are otherwise not delivered pursuant to such rights or warrants
upon the exercise of such rights or warrants, the Conversion Rate shall be
readjusted to the Conversion Rate that would then be in effect had the
adjustments made upon the issuance of such rights or warrants been made on the
basis of the delivery of only the number of shares of the Common Stock actually
delivered.  In determining the aggregate
price payable for such shares of the Common Stock, there shall be taken into
account any consideration received for such rights or warrants and the value of
such consideration if other than cash to be determined by the Board of
Directors.


 


(c)                                  If the Company shall distribute shares of
its Capital Stock, evidences of its indebtedness or other of its assets or
property to all or substantially all holders of its Common Stock, excluding (v)
any dividends or distributions referred to in Section 9.04(a); (w) any
rights or warrants referred to in Section 9.04(b); (x) any dividends or
distributions covered by Section 9.04(d); (y) any dividends and distributions
in connection with a Reorganization Event covered by Section 9.05; and (z)
any Spin-off to which the provisions set forth below in this Section 9.04(c) shall
apply (any of such shares of Capital Stock, evidences of indebtedness, or other
assets or property, “Distributed Property”), then,
in each such case, the Conversion Rate shall be adjusted based on the following
formula:


 


	
  CR’ = CR0  x

  	
   

  	
  SP0

  	
   

  
	
   

  	
   

  	
  SP0  — FMV

  	
   

  



 


where


 


	
   

  	
  CR0

  	
  =

  	
   

  	
  the Conversion Rate in effect at 5:00 p.m., New
  York City time on the Record Date for such distribution;

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  CR’

  	
  =

  	
   

  	
  the Conversion Rate in effect immediately after the
  Record Date for such distribution;

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SP0

  	
  =

  	
   

  	
  the Current Market Price; and

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  FMV

  	
  =

  	
   

  	
  the Fair Market Value, on the Record Date for such
  distribution, of the Distributed Property, expressed as an amount per share
  of the Common Stock.

  



 


With respect to an adjustment pursuant to this
Section 9.04(c) where there has been a payment of a dividend or other
distribution on the Common Stock of shares of Capital Stock of any class or
series of, or similar equity interest in, a Subsidiary or other business unit
of the Company (a “Spin-off’),
that are, or, when issued, will be, quoted or listed on the New York
Stock Exchange, the NASDAQ Global Select Market, NASDAQ Global Market or any
other 


 


57

















 


national or regional
securities exchange or market, the Conversion Rate will instead be adjusted
based on the following formula:


 


	
  CR’ = CR0 x

  	
   

  	
  FMV0 + MP0

  	
   

  
	
   

  	
   

  	
  MP0

  	
   

  



 


where


 


	
   

  	
  CR0

  	
  =

  	
   

  	
  the Conversion Rate in effect at 5:00 p.m., New
  York City time on the Record Date for such dividend or distribution

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  CR’

  	
  =

  	
   

  	
  the Conversion Rate in effect immediately after the
  Record Date for such dividend or distribution

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  FMV0

  	
  =

  	
   

  	
  the average of the Last Reported Sale Prices of the
  Capital Stock or similar equity interest distributed to holders of the Common
  Stock applicable to one share of the Common Stock over the ten (10) consecutive
  Trading-Day period commencing on, and including, the effective date of the
  Spin-off; and

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  MP0

  	
  =

  	
   

  	
  the average of the Last Reported Sale Prices of the
  Common Stock over the ten (10) consecutive Trading-Day period commencing
  on, and including, the effective date of the Spin-off.

  



 


Such adjustment shall become effective immediately
after 5:00 p.m. on the Record Date for such dividend or distribution.  If such dividend or distribution is not so
made, the Conversion Rate shall be readjusted to be the Conversion Rate that
would then be in effect if such dividend or distribution had not been declared.
Such adjustment in
this paragraph does not apply to any distributions to the extent that the right
to convert the Notes has been changed into the right to convert into Reference
Property in respect of such distribution as described under Section 9.05(a)(3).


 


For the purposes of this Section 9.04(c) (and
subject in all respects to Section 9.08), rights or warrants distributed
by the Company to all holders of its Common Stock entitling them to subscribe
for or purchase shares of the Company’s capital stock (either initially or
under certain circumstances), which rights or warrants, until the occurrence of
a specified event or events (a “Trigger Event”): (1) are
deemed to be transferred with such shares of Common Stock; (2) are not
exercisable; and (3) are also issued in respect of future issuances of
Common Stock, shall be deemed not to have been distributed for purposes of this
Section 9.04(c), (and no adjustment to the Conversion Rate under this Section 9.04(c) will
be required) until the occurrence of the earliest Trigger Event, whereupon such
rights and warrants shall be deemed to have been distributed and an appropriate
adjustment (if any is required) to the Conversion Rate shall be made under this
Section 9.04(c).  If any such right
or warrant, including any such existing rights or warrants distributed prior to
the date of this Indenture, are subject to events, upon the occurrence of which
such rights or warrants become exercisable to purchase different securities,
evidences of indebtedness or other assets, then the date of the occurrence of
any and each such event shall be deemed to be the date of distribution and
Record Date of such deemed distribution (in which case the original rights or
warrants shall be deemed to terminate and expire on such date without exercise
by any of the holders).  In addition, in
the event of any distribution 


 


58

















 


or deemed distribution of
rights or warrants, or any Trigger Event or other event (of the type described
in the preceding sentence) with respect thereto that was counted for purposes
of calculating a distribution amount for which an adjustment to the Conversion
Rate under this Section 9.04(c) was made, (1) in the case of any
such rights or warrants which shall all have been redeemed or purchased without
exercise by any Holders thereof, upon such final redemption or repurchase (x) the
Conversion Rate shall be readjusted as if such rights or warrants had not been
issued and (y) the Conversion Rate shall then again be readjusted to give
effect to such distribution, deemed distribution or Trigger Event, as the case
may be, as though it were a cash distribution, equal to the per share
redemption or purchase price received by holders of Common Stock with respect
to such rights or warrants (assuming each such holder had retained such rights
or warrants), made to all holders of Common Stock as of the date of such
redemption or purchase, and (2) in the case of such rights or warrants
which shall have expired or been terminated without exercise by any holders
thereof, the Conversion Rate shall be readjusted as if such rights and warrants
had not been issued.


 


For the purposes of this Section 9.04(c) and
subsections (a) and (b) of this Section 9.04, any dividend or
distribution to which this Section 9.04(c) applies which also
includes one or both of:


 


A.                                   a dividend or distribution of
shares of Common Stock to which Section 9.04(a) applies; and


 


B.                                     a dividend or distribution of
rights or warrants to which Section 9.04(b) applies,


 


then (1) such
dividend or distribution, other than the dividend or distribution of shares of
Common Stock to which Section 9.04(a) applies and the dividend or
distribution of rights or warrants to which Section 9.04(b) applies,
shall be deemed to be a dividend or distribution to which this Section 9.04(c) applies
and any Conversion Rate adjustment required by this Section 9.04(c) with
respect thereto shall then be made, and (2) the dividend or distribution
of shares of Common Stock to which Section 9.04(a) applies and the
dividend or distribution of shares of Common Stock to which Section 9.04(b) applies
shall be deemed to immediately follow such dividend or distribution to which
this Section 9.04(c) applies and any Conversion Rate adjustment
required by Section 9.04(a) and Section 9.04(b) with
respect thereto shall then be made, except that, if determined by the Company, (I) the
“Record Date” of the dividend or distribution of shares of Common Stock to
which Section 9.04(a) applies and the dividend or distribution of
shares of Common Stock to which Section 9.04(b) applies shall be
deemed to be the Record Date of such dividend or distribution to which this Section 9.04(c) applies
and (II) any shares of Common Stock included in the dividend or distribution
of shares of Common Stock to which Section 9.04(a) applies or the
dividend or distribution of shares of Common Stock to which Section 9.04(b) applies
shall be deemed not to be “outstanding at the close of business on the Record
Date for such dividend or distribution or the effective date of such share
split or share combination” within the meaning of Section 9.04(a) or “outstanding
at the close of business on the Record Date for such distribution” within the
meaning of Section 9.04(b).


 


59














 


(d)                                 If the Company pays any cash dividend or
distribution to all or substantially all holders of its Common Stock, the Conversion Rate shall be
adjusted based on the following formula:


 




	
  CR’ = CR0 x

  	
   

  	
  SP0

  
	
   

  	
   

  	
  SP0 — C

  






 


where


 




	
  CR0

  	
   

  	
  =

  	
   

  	
  the Conversion Rate in effect at 5:00 p.m., New
  York City time on the Record Date for such dividend or distribution

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  CR’

  	
   

  	
  =

  	
   

  	
  the Conversion Rate in effect immediately after the
  Record Date for such dividend or distribution

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SP0

  	
   

  	
  =

  	
   

  	
  the Current Market Price; and

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  C

  	
   

  	
  =

  	
   

  	
  the amount in cash per share of Common Stock the
  Company distributes to holders of its Common Stock.

  






 


Such
adjustment shall become effective immediately after the Record Date for such
dividend or distribution.  In the event
that any such dividend or distribution is not so made, the Conversion Rate
shall be readjusted to be the Conversion Rate that would then be in effect if
such dividend or distribution had not been declared. Such adjustment described
in this paragraph does not apply to any distributions to the extent that the
right to convert Notes has been changed into the right to convert into
Reference Property in respect of such distribution as described under Section 9.05(a)(3).


 


(e)                                  If the Company or any of its Subsidiaries
makes a payment in respect of a tender offer or exchange offer for the Common
Stock subject to the tender offer rules, to the extent that the cash and value
of any other consideration included in the payment per share of the Common
Stock exceeds the Last Reported Sale Price of the Common Stock on the Trading
Day immediately succeeding the last date (the “Expiration Date”) on
which tenders or exchanges may be made pursuant to such tender offer or
exchange offer, the Conversion Rate shall be adjusted based on the following
formula:


 




	
  CR’ = CR0  x

  	
   

  	
  FMV + (SP’ x OS’)

  
	
   

  	
   

  	
  0S0 x SP’

  






 


where


 




	
  CR0

  	
   

  	
  =

  	
   

  	
  the Conversion Rate in effect at 5:00 p.m., New
  York City time, on the Expiration Date

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  CR’

  	
   

  	
  =

  	
   

  	
  the Conversion Rate in effect immediately after the
  Expiration Date

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  FMV

  	
   

  	
   

  	
   

  	
  the Fair Market Value, on the Expiration Date, of
  the aggregate value of all cash and any other consideration paid or payable
  for shares purchased or to be purchased in such tender or exchange offer

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  OS’

  	
   

  	
   

  	
   

  	
  the number of shares of Common Stock outstanding
  immediately after the date such tender or exchange offer expires (the “Expiration
  Time”) after giving effect to such 

  






 


60

















 




	
   

  	
   

  	
   

  	
   

  	
  tender or exchange;

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  OS0

  	
   

  	
   

  	
   

  	
  the number of shares of Common Stock outstanding
  immediately prior to the Expiration Time; and

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SP’

  	
   

  	
  =

  	
   

  	
  the average of the Last Reported Sale Prices of
  Common Stock over the ten (10) consecutive Trading Day period commencing
  on the Trading Day immediately following the Expiration Time.

  






 


Such
adjustment shall become effective immediately prior to the open of business on
the Trading Day immediately following the Expiration Date for such tender of
exchange offer.  In the event the Company
or one of its Subsidiaries is obligated to purchase shares of the Common Stock
pursuant to any such tender offer or exchange offer, but the Company or such
Subsidiary of the Company is permanently prevented by applicable law from
effecting any such purchases, or all such purchases are rescinded, the Conversion
Rate shall be readjusted to be the Conversion Rate that would then be in effect
based upon the number of shares actually purchased or exchanged if such tender
offer or exchange offer had not been made. 
Except as set forth in the preceding sentence, if the application of
this clause (e) to any tender offer or exchange offer would result in a
decrease in the Conversion Rate, no adjustment shall be made for such tender
offer or exchange offer under this Section 9.04(e).


 


(f)                                    Except with respect to a Spin-Off, in
cases where the Fair Market Value of assets, debt securities or certain rights,
warrants or options to purchase the Company’s securities, or the amount of
the cash dividend or distribution applicable to one share of Common Stock,
distributed to all or substantially all stockholders:


 


(i)                                     equals or exceeds the average Last
Reported Sale Prices of Common Stock over the ten (10) consecutive Trading
Day period ending on the Trading Day immediately preceding the declaration date
for such distribution; or


 


(ii)                                  such average Last Reported Sale Prices
exceeds the Fair Market Value of such assets, debt securities or rights,
warrants or options, or the amount of cash so distributed by less than $1.00,


 


rather
than being entitled to an adjustment in the Conversion Rate, the Holder of a
Note will be entitled to receive upon conversion, in addition to the shares of
Common Stock, cash or a combination of cash and shares of Common Stock, the
kind and amount of assets, debt securities or rights, warrants or options, or
cash comprising the distribution, if any, that such Holder would have received
if such Holder had held a number of shares of Common Stock equal to the
principal amount of the Notes held, divided by the Conversion Price in effect
immediately prior to the Record Date for determining the stockholders entitled
to receive the distribution.


 


(g)                                 To the extent permitted by applicable law
and subject to the applicable rules of the New York Stock Exchange or any
other securities exchange on which the Company’s common stock shall be then
listed, the Company from time to time may increase the Conversion Rate by any
amount for a period of at least twenty (20) Business Days if the Board of
Directors shall have made a determination that such increase would be in the Company’s
best interest, which determination shall be conclusive.  Whenever the Conversion Rate is increased
pursuant to the preceding sentence, the Company shall mail to holders of record
of the Notes a notice of the increase, which notice will be given at least
fifteen (15) calendar days prior to the 


 


61

















 


effectiveness of any such increase, and such notice
shall state the increased Conversion Rate and the period during which it will
be in effect.


 


(h)                                 In addition, the Company may (but is not
required to) increase the Conversion Rate to avoid or diminish any income tax
to holders of Common Stock or rights to purchase shares of Common Stock in
connection with a dividend or distribution of shares (or rights to acquire
shares) or similar event.


 


(i)                                     All calculations and other determinations
under this Article 9 shall be made by the Company and shall be made to the
nearest one-ten thousandth (1/10,000th)
of a share.  No adjustment pursuant to
this Section 9.04 shall be made to the Conversion Rate unless such
adjustment would require a change of at least 1% in the Conversion Rate then in
effect at such time.  However, any
adjustments that are less than 1% of the Conversion Rate shall be carried
forward and taken into account in any subsequent adjustment, regardless of
whether the aggregate adjustment is less than 1% within one year of the first
adjustment carried forward, upon a Fundamental Change, upon a Make-Whole
Fundamental Change, and on each day beginning with the thirty-second (32nd) Scheduled Trading Day and ending on and including
the second (2nd) Scheduled Trading Day prior to the
Maturity Date.


 


(j)                                     Whenever the Conversion Rate is adjusted
as herein provided, the Company will issue a press release containing the
relevant information, including, but not limited to, any applicable
declaration date, and make this information available on its website.  In  addition, the Company shall
promptly file with the Trustee and any Conversion Agent other than the Trustee
an Officers’ Certificate setting forth any applicable declaration date and the
Conversion Rate after such adjustment and setting forth a brief statement of
the facts requiring such adjustment. 
Unless and until a Responsible Officer of the Trustee shall have received
such Officers’ Certificate, the Trustee shall not be deemed to have knowledge
of any adjustment of the Conversion Rate and may assume without inquiry that
the last Conversion Rate of which it has knowledge is still in effect.  Promptly after delivery of such certificate,
the Company shall prepare a notice of such adjustment of the Conversion Rate
setting forth the adjusted Conversion Rate and the date on which each
adjustment becomes effective and shall mail such notice of such adjustment of
the Conversion Rate to the Holder of each Note at its last address appearing on
the Security Register within twenty (20) calendar days of the effective date of
such adjustment.  Failure to deliver such
notice shall not affect the legality or validity of any such adjustment.


 


(k)                                  In any case in which this Section 9.04
provides that an adjustment shall become effective immediately after (i) a
Record Date for a dividend or distribution described in Section 9.04(a),
9.04(b), 9.04(d), (ii) the effective date for a share split or share
combination of the Common Stock described in Section 9.04(a), (iii) a
Record Date for the determination of stockholders entitled to receive rights or
warrants pursuant to Section 9.04(b), or (iv) the expiration date for
any tender or exchange offer pursuant to Section 9.04(e), (each, a “Determination
Date”), the Company may elect to defer until the
occurrence of the applicable Adjustment Event (as hereinafter defined) (x) issuing
to the holder of any Notes converted after such Determination Date and before
the occurrence of such Adjustment Event, the additional shares of Common Stock
or other securities issuable upon such conversion by reason of the adjustment
required by such Adjustment Event over and above the Common Stock issuable upon
such conversion before giving effect to such adjustment and (y) paying to
such holder any 


 


62

















 


amount in cash in lieu of any fractional share
pursuant to Section 9.04.  For
purposes of this Section 9.04(k), the term “Adjustment Event” shall
mean:


 


(1)                                  in any case referred to in clause (i) hereof,
the date any such dividend or distribution is paid or made;


 


(2)                                  in any case referred to in clause (ii) hereof,
the occurrence of such event;


 


(3)                                  in any case referred to in clause (iii) hereof,
the date of expiration of such rights or warrants; and


 


(4)                                  in any case referred to in clause (iv) hereof,
the date a sale or exchange of Common Stock pursuant to such tender or exchange
offer is consummated and becomes irrevocable.


 


(l)                                     Notwithstanding any of the foregoing
clauses in this Section 9.04, the applicable Conversion Rate will not be
adjusted pursuant to this Section 9.04 if the Holders of the Notes will
participate in the transaction that would otherwise give rise to adjustment
pursuant to this Section 9.04 without conversion of such Holder’s Notes on
a basis equivalent to a holder of a number of shares of Common Stock equal to
the principal amount of the Notes held by the Holder divided by the applicable
Conversion Price.  In no event will the
Company adjust the Conversion Rate to the extent that the adjustment
would reduce the Conversion Price below the par value per share of Common
Stock.  In addition, the applicable
Conversion Rate will not be adjusted:


 


(1)                                  for the issuance of shares of Common
Stock, including in connection with satisfaction of the Company’s Conversion
Obligation in a combination of cash and shares of Common Stock, or any
securities convertible into or exchangeable or exercisable for shares of Common
Stock or the right to purchase shares of Common Stock or such convertible or
exchangeable securities;


 


(2)                                  upon the issuance of any shares of the
Common Stock pursuant to any present or future plan providing for the
reinvestment of dividends or interest payable on the Company’s securities and
the investment of additional optional amounts in shares of the Common Stock
under any plan;


 


(3)                                  upon the issuance of any shares of the
Common Stock or options or rights to acquire those shares pursuant to any
present or future employee, director or consultant benefit plan or program of
or assumed by the Company or any of the Company’s Subsidiaries;


 


(4)                                  upon the issuance of any shares of the
Common Stock pursuant to any option, warrant, right or exercisable, exchangeable
or convertible security not described in clause (3) above and outstanding
as of May 27, 2009;


 


(5)                                  for a change in the par value (or a
change to no par value or from no par value to par value) of the Common Stock;
or


 


63

















 


(6)                                  for accrued and unpaid interest.


 


(m)                               For purposes of this Section 9.04,
the number of shares of Common Stock at any time outstanding shall not include
shares held in the treasury of the Company but shall include shares issuable in
respect of scrip certificates issued in lieu of fractions of shares of Common
Stock.  The Company will not pay any
dividend or make any distribution on shares of Common Stock held in the
treasury of the Company.


 


(n)                                 Whenever any provision of this Article 9
requires a calculation of a number of shares of Common Stock equal to a sum or
an average of the VWAPs or the Last Reported Sale Prices over a span of
multiple days, the Company will make appropriate adjustments (determined by the
Board of Directors) to account for any adjustment to the Conversion Rate that
becomes effective, or any event requiring an adjustment to the Conversion Rate
where the Ex-Dividend Date of the event occurs, at any time during the period
from which the sum or average is to be calculated.


 


SECTION 9.05.                                                               Effect of Reclassification,
Consolidation, Merger or Sale.


 


(a)                                  In the event of:


 


(1)                                  any reclassification of the outstanding
Common Stock (other than a change in par value or a change to or from no par
value or as a result of a share split or share combination to which Section 9.04(a) applies);


 


(2)                                  any binding share exchange,
consolidation, recapitalization, reclassification, combination or merger or
similar event involving the Company; or


 


(3)                                  any conveyance, transfer, sale, lease or
other disposition to another Person of all or substantially all of the Company’s
assets,


 


in which holders of Common Stock received
cash, securities or other property (the “Reference Property”) in
exchange for such Common Stock (any such event or transaction, a “Reorganization
Event”), in each case, the Company or the Successor
Company, as the case may be, shall execute with the Trustee a supplemental
indenture (which shall comply with the TIA as in force at the date of execution
of such supplemental indenture, if such supplemental indenture is then required
to so comply) providing that the Notes shall, and the Notes shall, without the
consent of any Holder, become convertible based on the type and amount of
consideration that the holders of a number of shares of Common Stock equal to
the principal amount of Notes divided by the Conversion Price would have
received in such Reorganization Event. 
If the Reorganization Event causes the Common Stock to be exchanged for
more than a single type of consideration determined, based in part upon any
form of stockholder election, the Reference Property into which the Notes will
be convertible will be deemed to be, (i) if Holders of a majority of
Common Stock affirmatively make such an election, the weighted average of the
types and amounts of consideration received by the Holders of Common Stock that
affirmatively made such an election or (ii) if Holders of a majority of
Common Stock do not affirmatively make such an election, the types and amount
of consideration actually received by such Holders.  In all cases, the provisions under Section 9.02
shall continue to apply with respect to the 


 


64

















 


calculation of the Conversion Obligation and
the method of settlement.  The Company
hereby agrees not to become a party to any such transaction unless its terms
are consistent with the foregoing.  Such
supplemental indenture shall provide for adjustments which shall be as nearly
equivalent as practicable to the adjustments provided for in this Article 9.


 


(b)                                 The Company shall cause notice of the
execution of such supplemental indenture to be mailed to each Holder, at the
address of such Holder as it appears on the Security Register of the Notes
maintained by the Security Registrar, within twenty (20) calendar days after
execution thereof.  Failure to deliver
such notice shall not affect the legality or validity of such supplemental
indenture.


 


SECTION 9.06.                                                                 Certain Covenants.  (a) 
The Company shall, prior to the issuance of any Notes hereunder, and from time
to time as may be necessary, reserve out of its authorized but unissued Common
Stock or shares of Common Stock held in treasury, a sufficient number of shares
of Common Stock, free of preemptive rights, to permit the conversion of the
Notes.


 


(b)                                 The Company covenants that all shares of
Common Stock issued upon conversion of Notes will be duly and validly issued
and fully paid and non-assessable by the Company and free from all taxes, liens
and charges with respect to the issue thereof.


 


(c)                                  The Company shall endeavor promptly to
comply with all federal and state securities laws regulating the issuance and
delivery of shares of Common Stock upon the conversion of Notes, if any, and
shall cause to have listed or quoted and shall keep listed or quoted all such
shares of Common Stock on each U.S. national or regional securities exchange or
automatic quotation system or over-the-counter or other domestic market on
which the Common Stock is then listed or quoted.


 


SECTION 9.07.                                                               Notice to Holders Prior to Certain
Actions.  Except where notice is required pursuant to Section 9.01,
in case:


 


(a)                                  the Company shall declare a dividend (or
any other distribution) on its Common Stock that would require an adjustment in
the Conversion Rate pursuant to Section 9.04; or


 


(b)                                 the Company shall authorize the granting
to all or substantially all of the holders of its Common Stock of rights or
warrants to subscribe for or purchase any share of any class or any other
rights or warrants that would require an adjustment in the Conversion Rate
pursuant to Section 9.04; or


 


(c)                                  of any reclassification of the Common
Stock of the Company (other than a share split or share combination of its
outstanding Common Stock, or a change in par value or to or from no par value),
or of any share exchange, consolidation or merger to which the Company is a
party and for which approval of any stockholders of the Company is required, or
of the conveyance, transfer, sale, lease or other disposition of all or
substantially all of the consolidated assets of the Company; or


 


(d)                                 of the voluntary or involuntary
dissolution, liquidation or winding up of the Company;


 


65

















 


the
Company shall cause to be filed with the Trustee and to be mailed to each
Holder at its address appearing on the Security Register, as promptly as
possible but in any event at least twenty (20) calendar days prior to the
applicable date hereinafter specified, a notice stating (x) the
declaration date of the dividend or other distribution, (y) the date on
which a record is to be taken for the purpose of such dividend, distribution or
rights or warrants, or, if a record is not to be taken, the date as of which
the holders of Common Stock of record to be entitled to such dividend,
distribution or rights are to be determined, or (z) the date on which such
reclassification, share exchange, consolidation, merger, conveyance, transfer,
sale, lease or other disposition, dissolution, liquidation or winding up is
expected to become effective or occur, and the date as of which it is expected
that holders of Common Stock of record shall be entitled to exchange their
Common Stock for securities or other property deliverable upon such
reclassification, consolidation, merger, sale, transfer, dissolution,
liquidation or winding up.  Failure to
give such notice, or any defect therein, shall not affect the legality or
validity of such dividend, distribution, reclassification, consolidation,
merger, sale, transfer, dissolution, liquidation or winding up.


 


SECTION 9.08.                                                               Stockholder Rights Plans. 
If the rights provided for in any rights plan adopted by the Company
have not separated from the shares of Common Stock in accordance with the
provisions of the applicable stockholder rights agreement, upon conversion of
Notes, the converting Holder will receive, in addition to shares of Common
Stock, if any, the rights under the applicable stockholders rights
agreement.  If such rights have separated
from the Common Stock, the Conversion Rate will be adjusted as provided in Section 9.04(c) at
the time of separation as if the Company distributed to all holders of the
Common Stock, shares of the Company’s Capital Stock, evidences of indebtedness
or assets, subject to readjustment in the event of the expiration, termination
or redemption of such rights.


 


SECTION 9.09.                                                               Responsibility of Trustee. 
The Trustee and any other Conversion Agent shall not at any time be
under any duty or responsibility to any Holder of Notes to determine the
Conversion Rate or whether any facts exist that may require any adjustment
(including any increase) of the Conversion Rate, or with respect to the nature
or extent or calculation of any such adjustment when made, or with respect to
the method employed, or herein or in any supplemental indenture provided to be
employed, in making the same.  The
Trustee and any other Conversion Agent shall not be accountable with respect to
the validity or value (or the kind or amount) of any shares of Common Stock, or
of any securities, property or cash that may at any time be issued or delivered
upon the conversion of any Note; and the Trustee and any other Conversion Agent
make no representations with respect thereto. 
Neither the Trustee nor any Conversion Agent shall be responsible for
any failure of the Company to issue, transfer or deliver any shares of Common
Stock or stock certificates or other securities or property or cash upon the
surrender of any Note for the purpose of conversion or to comply with any of
the duties, responsibilities or covenants of the Company contained in this Article 9.  Without limiting the generality of the
foregoing, neither the Trustee nor any Conversion Agent shall be under any
responsibility to determine the correctness of any provisions contained in any
supplemental indenture entered into pursuant to Section 9.05 relating
either to the kind or amount of shares of stock or securities or property
(including cash) receivable by Holders of the Notes upon the conversion of
their Notes after any event referred to in such Section 9.05 or to any
adjustment to be made with respect thereto, but, subject to the provisions of Section 8.01,
may accept as conclusive evidence of the correctness of any such provisions,
and shall be 


 


66

















 


protected in conclusively
relying upon, the Officer’s Certificate (which the Company shall be obligated
to file with the Trustee prior to the execution of any such supplemental
indenture) with respect thereto.  Neither
the Trustee nor the Conversion Agent shall be responsible for determining
whether any event contemplated by Section 9.01 has occurred that makes the
Notes eligible for conversion or no longer eligible therefor until the Company
has delivered to the Trustee and the Conversion Agent the notices referred to
in Section 9.01 with respect to the commencement or termination of such
conversion rights, on which notices the Trustee and the Conversion Agent may
conclusively rely, and the Company agrees to deliver such notices to the
Trustee and the Conversion Agent immediately after the occurrence of any such
event or at such other times as shall be provided for in Section 9.01.


 


ARTICLE 10


 


The Trustee


 


SECTION 10.01.                                                         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 which 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 confirm or
investigate the accuracy of any mathematical calculations or other facts stated
therein).


 


(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 man would exercise or use under the circumstances
in the conduct of his 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


 


(1)                                  this subsection shall not be construed to
limit the effect of subsection (a) of this Section,


 


(2)                                  the Trustee shall not be liable for any
error of judgment made in good faith by a Responsible Officer, unless it shall
be proved that the Trustee was negligent in ascertaining the pertinent facts;


 


67

















 


(3)                                  the Trustee shall not be liable with
respect to any action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of a majority in principal amount
of the Outstanding Notes, determined as provided in Section 6.12, relating
to the time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred upon the
Trustee, under this Indenture with respect to the Notes; and


 


(4)                                  no provision of this Indenture shall
require the Trustee to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties hereunder, or in
the exercise of any of its rights or powers.


 


(d)                                 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.


 


SECTION 10.02.                                                         Notice of Defaults. 
Within 90 days after the occurrence of any default hereunder with
respect to the Notes, the Trustee shall transmit by mail to all Holders of
Notes entitled to receive reports pursuant to Section 11.03, notice of
such default hereunder known to the Trustee, unless such default shall have
been cured or waived; provided that, except in the case of a default in the
payment of the principal of (or premium, if any) or interest on the Notes, the
Trustee shall be protected in withholding such notice if and so long as the
board of directors, the executive committee or a trust committee of directors
or Responsible Officers of the Trustee in good faith determine that the
withholding of such notice is in the interest of the Holders of the Notes; and
provided, further, that in the case of any default of the character specified
in Section 6.01(f) with respect to the Notes, no such notice to
Holders shall be given until at least 30 days after the occurrence
thereof.  For the purpose of this
Section, the term “default” means any event which is, or after notice or lapse
of time or both would become, an Event of Default with respect to the Notes.


 


SECTION 10.03.                                                         Certain Rights of Trustee. 
Subject to the provisions of Section 10.01:


 


(a)                                  the Trustee may conclusively rely and
shall be fully protected in acting or refraining from acting upon any
resolution, certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document (whether in its original or facsimile
form) believed by it to be genuine and to have been signed or presented by the
proper party or parties;


 


(b)                                 any request or direction of the Company
mentioned herein shall be sufficiently evidenced by a Company Request or
Company Order and any resolution of the Board of Directors may be sufficiently
evidenced by a Board Resolution;


 


(c)                                  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;


 


68

















 


(d)                                 the Trustee may consult with counsel of
its own 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;


 


(e)                                  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 of the Notes pursuant to this
Indenture, unless such Holders shall have offered to the Trustee security or
indemnity satisfactory to it against the costs, expenses and liabilities which
might be incurred by it in compliance with such request or direction;


 


(f)                                    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, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit, and, if the Trustee
shall determine to make such further inquiry or investigation, it shall be
entitled to examine the books, records and premises of the Company, personally
or by agent or attorney at the expense of the Company and shall incur no
liability or additional liability of any kind by reason of such inquiry or
investigation;


 


(g)                                 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;


 


(h)                                 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;


 


(i)                                     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 written 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 Securities and this
Indenture; and


 


(j)                                     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 10.04.                                                         Not Responsible for Recitals or Issuance
of Notes.  The recitals contained herein and in the
Notes, except the Trustee’s certificates of authentication, and in any coupons
shall be taken as the statements of the Company, and the Trustee or any
Authenticating Agent assumes no responsibility for their correctness.  The Trustee makes no representations as to
the validity or sufficiency of this Indenture or of the Notes.  The Trustee or any Authenticating Agent shall
not be accountable for the use or application by the Company of Notes or the
proceeds thereof.


 


69

















 


SECTION 10.05.                                                         May Hold Notes. 
The Trustee, any Authenticating Agent, any Paying Agent, any Security
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 Sections
10.8 and 10.13, may otherwise deal with the Company with the same rights it
would have if it were not Trustee, Authenticating Agent, Paying Agent, Security
Registrar or such other agent.


 


SECTION 10.06.                                                         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 with the Company.


 


SECTION 10.07.                                                         Compensation and Reimbursement. 
The Company agrees:


 


(1)                                  to pay to the Trustee from time to time
compensation as agreed upon from time to time in writing for all services
rendered by it 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 expenses,
disbursements and advances incurred or made by the Trustee in accordance with
any provision of this Indenture (including the reasonable compensation and the
reasonable 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 fully indemnify the Trustee and any
predecessor Trustee for, and to hold it harmless against, any and all loss,
liability, claim, damage or expense (including taxes other than taxes based
upon the income of the Trustee) incurred without negligence or bad faith on its
part, arising out of or in connection with the acceptance of 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.


 


As security for the performance of the obligation of the
Company under this Section the Trustee shall have a lien prior to the
Notes upon all property and funds held or collected by the Trustee as such,
except funds held in trust for the payment of principal of (and premium, if any)
or interest on the Notes. When the Trustee incurs expenses or renders services
in connection with an Event of Default specified in Section 6.01(h) or
6.01(i), 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 provisions of this Section shall survive the
termination of this Indenture.


 


SECTION 10.08.                                                         Disqualification; Conflicting Interests. 
If the Trustee has or shall acquire any conflicting interest, it shall,
within 90 days after ascertaining that it has such conflicting interest and a
Default occurs, either eliminate such conflicting interest or resign with
respect to the Notes in the manner prescribed in the TIA.


 


70














 


SECTION 10.09.        Corporate Trustee Required;
Eligibility.  There shall at all
times be a Trustee hereunder which shall be a corporation organized and doing
business under the laws of the United States of America, any State thereof or
the District of Columbia, authorized under such laws to exercise corporate
trust powers, having a combined capital and surplus of at least $50,000,000
subject to supervision or examination by Federal or State authority.  If such corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of said
supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such corporation 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, it shall resign immediately in the manner and with the effect
hereinafter specified, in this Article.


 


SECTION 10.10.        Resignation and Removal, Appointment
of Successor.


 


(a)           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 10.11.


 


(b)           The Trustee may resign at any time
with respect to the Notes by giving written notice thereof to the Company.  If the instrument of acceptance by a
successor Trustee required by Section 10.11 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 with respect
to the Notes.


 


(c)           The Trustee may be removed at any
time with respect to the Notes by Act of the Holders of a majority in principal
amount of the Outstanding Notes, delivered to the Trustee and to the Company.
If the instrument of acceptance by a successor Trustee required by Section 10.11
shall not have been delivered to the Trustee within 30 days after such Act of
removal, the retiring Trustee may petition at the expense of the Company any
court of competent jurisdiction for the appointment of a successor Trustee with
respect to the Notes.


 


(d)                                 If
at any time:


 


(1)           the Trustee shall fail to comply with
Section 10.08(a) 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 10.09 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 a 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, (i) the
Company by a Board Resolution may remove the Trustee with respect to the Notes
or (ii) subject to Section 6.14, any Holder who has been a bona fide
Holder 


 


71

















 


of a Note for at least
six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the removal of the Trustee
with respect to the Notes and the appointment of a successor Trustee or
Trustees.


 


(e)           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, with respect to the Notes, the Company, by a
Board Resolution, shall promptly appoint a successor Trustee or Trustees with
respect to the Notes and shall comply with the applicable requirements of Section 10.11,
if, within one year after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee with respect to the Notes 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 10.11,
become the successor Trustee with respect to the Notes and to that extent
supersede the successor Trustee appointed by the Company.  If no successor Trustee with respect to the
Notes shall have been so appointed by the Company or the Holders and accepted
appointment in the manner required by Section 10.11, any Holder who has
been a bona fide Holder of a Note for at least six months may, on behalf of
himself and all others similarly situated, petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Notes.


 


(f)            The Company shall give notice of
each resignation and each Removal of the Trustee with respect to the Notes and
each appointment of a successor Trustee with respect to the Notes by mailing
written notice of such event by first-class mail, postage prepaid, to all
Holders of Notes as their names and addresses appear in the Security
Register.  Each notice shall include the
name of the successor Trustee with respect to the Notes and the address of its
Corporate Trust Office.


 


SECTION 10.11.        Acceptance of Appointment by
Successor.


 


(a)           In case of the appointment hereunder
of a successor Trustee with respect to the Notes, 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 (and the charges of its agents and
counsel), 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.


 


(b)           Upon request of any 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 in paragraph (a) of this Section.


 


(c)           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.


 


72

















 


SECTION 10.12.        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,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Notes shall have been authenticated, but
not delivered by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Notes so authenticated with the same effect as
if such successor Trustee had itself authenticated such Notes.


 


SECTION 10.13.        Preferential Collection of Claims
Against 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).


 


SECTION 10.14.        Appointment of the Authenticating
Agent.  At any time when any of the
Notes remain Outstanding the Trustee may appoint an Authenticating Agent or
Agents with respect to the Notes which shall be authorized to act on behalf of
the Trustee to authenticate Notes issued upon exchange, registration of
transfer or partial redemption thereof or pursuant to Section 2.10, and
Notes so authenticated shall be entitled to the benefits of this Indenture and
shall be valid and obligatory for all purposes as if authenticated by the
Trustee hereunder.  Wherever reference is
made in this Indenture to the authentication and delivery of Notes by the
Trustee or the Trustee’s certificate of authentication, such reference shall be
deemed to include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. 
Each Authenticating Agent shall be acceptable to the Company and shall
at all times be a corporation organized and doing business under the laws of
the United States of America, any State thereof or the District of Columbia,
authorized under such laws to act as Authenticating Agent, having a combined
capital and surplus of not less than $50,000,000 and subject to supervision or
examination by Federal or State authority. 
If such Authenticating Agent publishes reports of condition at least
annually, pursuant to law or to the requirements of said supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of such Authenticating Agent 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 an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.


 


Any corporation into
which an Authenticating Agent may be merged or converted or with which it may
be consolidated, or any corporation resulting from any merger, conversion or
consolidation to which such Authenticating Agent shall be a party, or any
corporation succeeding to all or substantially all the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.


 


73

















 


An Authenticating Agent
may resign at any time by giving written notice thereof to the Trustee and to
the Company.  The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice
thereof to such Authenticating Agent and to the Company.  Upon receiving such a notice of resignation
or upon such a termination, or in case at any time such Authenticating Agent
shall cease to be eligible in accordance with the provisions of this Section,
the Trustee may appoint a successor Authenticating Agent which shall be
acceptable to the Company and shall provide notice thereof pursuant to Section 1.09.  Any successor Authenticating Agent upon
acceptance of its appointment hereunder shall become vested with all the
rights, powers and duties of its predecessor hereunder, with like effect as if
originally named as an Authenticating Agent. 
No successor Authenticating Agent shall be appointed unless eligible
under the provisions of this Section.


 


The Company agrees to pay
to each Authenticating Agent from time to time reasonable compensation for its
services under this Section.


 


If an appointment with
respect to one or more series is made pursuant to this Section, the Notes may
have endorsed thereon an alternate certificate of authentication in the
following form:


 


“This is one of the
Securities of the series designated therein referred to in the within-mentioned
Indenture.


 


 


Wells Fargo Bank,
National Association, As Trustee


 


 


	
  By

  	
   

  	
   

  
	
  as Authenticating Agent

  
	
   

  
	
   

  
	
  By

  	
   

  	
   

  
	
  Authorized Signatory”

  
	
   

  
	
   

  
	
  Dated:

  



 


 


SECTION 10.15.        Trustee’s Application for
Instructions from the Company.  Any
application by the Trustee for written instructions from the Company may, at
the option of the Trustee, set forth in writing any action proposed to be taken
or omitted by the Trustee under this Indenture and the date on and/or after
which such action shall be taken or such omission shall be effective.  The Trustee shall not be liable for any action
taken by, or omission of, the Trustee in accordance with a proposal included in
such application on or after the date specified in such application (which date
shall not be less than three Business Days after the date any Officer of the
Company actually receives such application, unless any such Officer shall have
consented in writing to any earlier date) unless prior to taking any such
action (or the effective date in the case of an omission), the Trustee shall
have received written instructions in response to such application specifying
the action to be taken or omitted.


 


74

















 


ARTICLE 11


 


Holders’ Lists And
Reports By Trustee And The Company


 


SECTION 11.01.        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 Security
Registrar, no such list need be furnished pursuant to this Section 11.01.


 


SECTION 11.02.        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 11.01 and the names and
addresses of Holders received by the Trustee in its capacity as Security
Registrar; provided, however, that if and so long as the Trustee shall be the
Security Registrar, the Security Register shall satisfy the requirements
relating to such list.  None of the
Company 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 11.01
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 11.03.        Reports by Trustee.  Within 60 days after each December 15,
beginning with December 15, 2009, 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
Commission and with the Company.  The
Company will notify the Trustee when any Notes are listed on any stock
exchange.


 


75

















 


IN
WITNESS WHEREOF, the parties have caused this Indenture to be duly executed as
of the date first written above.


 


	
   

  	
  HERTZ GLOBAL
  HOLDINGS, INC.,

  
	
   

  	
  as Issuer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Elyse Douglas

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title: Executive Vice President and Chief Financial
  Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  WELLS FARGO BANK, NATIONAL ASSOCIATION, as Trustee,

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Martin Reed

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title: Vice President

  



 


76














 


EXHIBIT A


 


[FORM OF FACE OF NOTE]



[Global
Note Legend]


 


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 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
DTC 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 THE INDENTURE REFERRED TO ON THE REVERSE
HEREOF.


 


A-1

















 


	
  No.

  	
  Initially
  $[               ]

  



 


5.25% Convertible Senior Note due
2014


 


CUSIP No.: 42805T
AA3 

ISIN: US42805TAA34


 


HERTZ GLOBAL
HOLDINGS, INC., a Delaware corporation (and its successors and assigns),
promises to pay to [CEDE & CO.](1), or its registered assigns, the
principal sum of
[                        ]
MILLION DOLLARS ($[                ])
[(or such lesser principal amount as shall be specified in the “Schedule of Exchanges
of Securities” attached hereto)](1), on June 1, 2014, and to pay interest thereon from May 27,
2009, or from the most recent Interest Payment Date to which interest has been
paid or duly provided for, semi-annually on June 1 and December 1 of
each year, commencing on December 1, 2009, at the rate of 5.25% per annum,
until the principal hereof is paid or made available for payment or
converted.  The interest so payable, and
punctually paid or duly provided for, on any Interest Payment Date will, as provided
in the Indenture, be paid to the Person in whose name this Note (or one or more
predecessor Notes) is registered at 5:00 p.m., New York City time, on the
Regular Record Date for such interest, which shall be May 15 or November 15
(whether or not a Business Day), as the case may be, next preceding such
Interest Payment Date.


 


Interest on the Notes for
a Full Interest Period will be computed on the basis of a three hundred sixty
(360)-day year comprised of twelve (12) thirty (30)-day months.  Interest on the Notes for any period other
than a Full Interest Period will be computed on the basis of the actual number
of days elapsed during the period and a three hundred sixty-five (365)-day
year.  If an Interest Payment Date is not
a Business Day, payment shall instead be made on the next succeeding Business
Day, and no additional interest shall accrue thereon.


 


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.


 


In the case of any
conflict between this Note and the Indenture, the provisions of the Indenture
shall control.  This Note shall be deemed
to be a contract made under the laws of the State of New York, and for all
purposes shall be governed by and construed in accordance with the laws of said
State.


 


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
(as defined on the reverse hereof) or be valid or obligatory for any purpose.


 






(1)                                  Use
bracketed language only if Global Note.


 


A-2

















 


	
   

  	
  HERTZ GLOBAL
  HOLDINGS, INC., as Issuer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


 


TRUSTEE’S CERTIFICATE 

OF AUTHENTICATION


 


This
is one of the Notes of the series designated herein referred to in the
within-mentioned Indenture


 


 


Dated:


 


 


WELLS
FARGO BANK, NATIONAL ASSOCIATION, 

as Trustee


 


 


	
  By:

  	
   

  	
   

  
	
   

  	
  Authorized
  Signatory

  	
   

  



 


A-3

















 


[FORM OF REVERSE SIDE OF NOTE]




5.25% Convertible Senior Note due 2014


 


HERTZ
GLOBAL HOLDINGS, INC., a Delaware corporation (such corporation, and its
successors and assigns under the Indenture hereinafter referred to, being
herein called the “Company”), issued this
Note under an Indenture dated as of May 27, 2009 (the “Indenture”),
between the Company and Wells Fargo Bank, National Association (herein
called the “Trustee”), as trustee, to which reference is
hereby made for a statement of the respective rights, obligations, duties and
immunities thereunder of the Company, the Trustee and the Holders and of the
terms upon which the Notes are, and are to be, authorized and delivered.  All terms used in this Note that are defined
in the Indenture shall have the meaning assigned to them in the Indenture.


 


1.                                      Method
of Payment


 


The
Company will pay interest on the Notes to the Persons who are registered
holders of Notes at 5:00 p.m., New York City time, on the May 15 and November 15 next preceding the Interest Payment
Date.  Holders must surrender Notes to a
Paying Agent to collect principal payments.


 


The
Company shall pay interest on:


 


(i)                                     any
Global Notes by wire transfer of immediately available funds to the account of
the Depositary or its nominee;


 


(ii)                                  any
Notes in certificated form having a principal amount of less than $5,000,000,
by check mailed to the address of the Person entitled thereto as it appears in
the Security Register; provided, however, on the Maturity Date, interest
will be payable as described in Section 2.03(b) of the Indenture; and


 


(iii)                               any
Notes in certificated form having a principal amount of $5,000,000 or more, by
wire transfer in immediately available funds at the election of the Holders of
such Notes duly delivered to the Trustee at least five (5) Business Days
prior to the relevant Interest Payment Date; provided, however, on the Maturity
Date, interest will be payable as described in Section 2.03(b) of the
Indenture.


 


2.                                      Paying
Agent, Security Registrar, Conversion Agent and Bid Solicitation Agent


 


Initially,
the Trustee will act as Paying Agent, Security Registrar, Conversion Agent and
Bid Solicitation Agent.  The Company may
appoint and change any Paying Agent, Security Registrar or co-registrar,
Conversion Agent or Bid Solicitation Agent without notice.  The Company may act as Paying Agent, Security
Registrar or co-registrar.


 


3.                                      Repurchase
of Notes at the Option of Holders


 


If
there shall occur a Fundamental Change at any time prior to the Maturity Date,
then each Holder shall have the right, at such Holder’s option, to require the
Company to repurchase


 


A-4

















 


for cash any or all of such Holder’s Notes, or any portion of the
principal amount thereof that is equal to $1,000 or an integral multiple of
$1,000, in accordance with the terms of the Indenture.


 


4.                                      Conversion


 


Subject to and upon compliance with the provisions of
the Indenture, the Holder hereof has the right, at its option, during certain
periods and upon the occurrence of certain conditions specified in the
Indenture and prior to 5:00 p.m. (New York City time) on the second Scheduled
Trading Day immediately preceding the Maturity Date, to convert any Notes or
portion thereof that is $1,000 in principal amount or multiple thereof at a
Conversion Rate specified in the Indenture, as adjusted from time to time as
provided in the Indenture, upon surrender of this Note, together with a
Conversion Notice as provided in the Indenture and this Note, to the Company at
the office of the Conversion Agent and, unless the shares issuable on
conversion are to be issued in the same name as this Note, duly endorsed by, or
accompanied by instruments of transfer in form satisfactory to the Company duly
executed by, the Holder or by its duly authorized attorney.  Except as provided in the Indenture, the
Company may elect to pay or deliver, as the case may be, shares of its Common
Stock, cash or a combination of cash and shares of Common Stock and, if
applicable, Reference Property in respect of the Conversion Obligation upon
conversion of any Notes.  The Company may
elect, in accordance with the Indenture, a different settlement method pursuant
to the terms of the Indenture.  If, in
respect of any conversion, the Company has not previously made an election with
respect to the settlement method it chooses in respect of any Conversion
Obligation upon conversion of any Notes and does not timely make such an
election, the Company shall be deemed to have elected to settle such conversion
in the manner set forth in Section 9.02(b)(3) of the Indenture.  The initial Conversion Rate shall be 120.6637
shares of Common Stock for each $1,000 in principal amount of Notes.  No fractional shares of Common Stock will be
issued upon conversion of any Note or Notes, but instead cash will be paid to
the Holder as provided in Section 9.02(i) of the Indenture.  No adjustment shall be made for dividends or
any shares issued upon conversion of such Note except as provided in the
Indenture.


 


5.                                      Denominations,
Transfer, Exchange


 


The
Notes are in Global Form without coupons in denominations of $2,000 and
whole multiples of $1,000.  A Holder may
transfer or exchange Notes in accordance with the Indenture.  Upon any transfer or exchange, the Security
Registrar and the Trustee may require a Holder, among other things, to furnish
appropriate endorsements or transfer documents and to pay any taxes required by
law or permitted by the Indenture.


 


6.                                      Persons
Deemed Owners


 


The
registered Holder of this Note may be treated as the owner of it for all
purposes.


 


7.                                      Unclaimed
Money


 


Subject to any applicable
abandoned property law, the Trustee and the Paying Agent shall pay to the
Company upon written request any money held by them for the payment of
principal or interest in respect of converted Notes that remains unclaimed for
two years, and, thereafter, Holders entitled to the money must look to the
Company for payment as general creditors.


 


A-5

















 


8.                                      Amendment,Waiver


 


Subject to certain
exceptions, the Indenture contains provisions permitting an amendment of the
Indenture or the Notes with the written consent of the Holders of at least a
majority in principal amount of the then outstanding Notes and the waiver of
any Event of Default or noncompliance with any provision with the written
consent of the Holders of a majority in principal amount of the then
outstanding Notes.


 


In addition, the
Indenture permits an amendment of the Indenture or the Notes without the
consent of any Holder under circumstances specified in the Indenture.


 


9.                                      Defaults
and Remedies


 


Under
certain circumstances specified in the Indenture, after a declaration of
acceleration with respect to the Notes, the Holders of a majority in principal
amount of the Outstanding Notes may rescind and annul such declaration with
respect to the Notes and its consequences.


 


Subject to certain
conditions in the Indenture, the Holders of at least a majority in aggregate
principal amount of the Notes then Outstanding may, on behalf of the Holders of
all the Notes, waive certain past Defaults under the Indenture and its
consequences.


 


10.                                Trustee
Dealings with the Company


 


Subject to certain
limitations imposed by the TIA, the Trustee under the Indenture, in its
individual or any other capacity, may become the owner or pledgee of Notes and
may otherwise deal with the Company or its Affiliates with the same rights it
would have if it were not Trustee.


 


11.                                No
Recourse Against Others


 


No director, officer,
employee, incorporator, stockholder or partner of the Company, as such, shall
have any liability for any obligations of the Company under the Notes, the
Indenture or for any claim based on, in respect of, or by reason of, such
obligations or their creation.  Each
Holder by accepting a Note waives and releases all such liability.  The waiver and release shall be part of the
consideration for the issuance of the Notes.


 


12.                                Authentication


 


This
Note shall not be valid until an authorized signatory of the Trustee (or an
authenticating agent) manually signs the certificate of authentication on the
other side of this Note.


 


13.                                Abbreviations


 


Customary abbreviations
may be used in the name of a Holder or an assignee, such as TEN COM (=tenants
in common), 1EN ENT (=tenants by the entireties), JT TEN (=joint tenants with
rights of survivorship and not as tenants in common), CUST (=custodian), and
U/G/M/A (=Uniform Gift to Minors Act).


 


A-6

















 


14.                                GOVERNING
LAW


 


THIS
NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF NEW YORK.


 


15.                                CUSIP
and ISIN Numbers


 


Pursuant to a
recommendation promulgated by the Committee on Uniform Security Identification
Procedures, the Company has caused CUSIP and ISIN numbers to be printed on the
Notes and has directed the Trustee to use CUSIP and ISIN numbers in notices of
repurchase as a convenience to Holders. 
No representation is made as to the accuracy of such numbers either as
printed on the Notes or as contained in any notice of repurchase and reliance
may be placed only on the other identification numbers placed thereon.


 


The
Company will furnish to any Holder upon written request and without charge to
the Holder a copy of the Indenture which has in it the text of this Note.


 


A-7














 


SCHEDULE
A


 


SCHEDULES
OF EXCHANGES OF SECURITIES




HERTZ
GLOBAL HOLDINGS INC.




5.25%
Convertible Senior Notes due 2014


 


The initial principal amount
of this Global Note is [                                       ]
DOLLARS ($[              ]).  The following, exchanges, purchases or
conversion of a part of this Global Note have been made:


 


	
  Date of

  Exchange

  	
   

  	
  Amount
  of decrease

  in principal amount

  of this Global Note

  	
   

  	
  Amount
  of increase

  in principal amount

  of the Global Note

  	
   

  	
  Principal
  amount of

  this Global Note

  following such decrease

  or increase

  	
   

  	
  Signature
  of

  authorized signatory

  of Trustee or

  Custodian

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


A-8

















 


EXHIBIT
B


 


[FORM OF
CONVERSION NOTICE]


 


TO:                            HERTZ GLOBAL HOLDINGS, INC.

WELLS FARGO BANK, NATIONAL ASSOCIATION, as Trustee


 


The undersigned registered owner of this Note
hereby irrevocably exercises the option to convert this Note, or the portion
thereof (which is $1,000 or a multiple thereof) below designated in accordance
with the terms of the Indenture referred to in this Note, and directs that the
shares of Common Stock, cash or a combination of cash and shares of Common
Stock and, if applicable, Reference Property deliverable or payable upon such
conversion and any Notes representing any unconverted principal amount hereof,
be issued and delivered to the registered holder hereof unless a different name
has been indicated below.  Capitalized
terms used herein but not defined shall have the meanings ascribed to such terms
in the Indenture.  If shares or any
portion of this Note not converted are to be issued in the name of a person
other than the undersigned, the undersigned will provide the appropriate
information below and pay all transfer taxes payable with respect thereto.  Any amount required to be paid by the
undersigned on account of interest accompanies this Note.


 


	
  Dated:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Signature(s)

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Signature(s) must be guaranteed by an
  “eligible guarantor institution” meeting the requirements of the Security
  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 Security Registrar in addition
  to, or in substitution for, STAMP, all in accordance with the Securities
  Exchange Act of 1934, as amended.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Signature Guarantee

  



 


B-1

















 


Fill in the registration of shares of Common
Stock, if any, if to be issued, and Notes if to be delivered, and the person to
whom cash, if any, and payment for fractional shares is to be made, if to be
made, other than to and in the name of the registered holder:


 


	
  Please
  print name and address

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  (Name)

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  (Street
  Address)

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  (City, State and Zip Code)

  	
   

  
	
   

  	
   

  
	
  Principal amount to be converted

  	
   

  
	
  (if less than all):

  	
   

  



 


$


 


Social Security or Other Taxpayer

Identification Number:


 


NOTICE: The signature on this Conversion Notice must
correspond with the name as written upon the face of the Notes in every
particular without alteration or enlargement or any change whatever.


 


B-2

















 


EXHIBIT C


 


[FORM OF
FUNDAMENTAL CHANGE REPURCHASE NOTICE]


 


TO:                            HERTZ GLOBAL
HOLDINGS INC.

WELLS FARGO BANK, NATIONAL ASSOCIATION, as Trustee


 


The undersigned registered owner of this Note
hereby irrevocably acknowledges receipt of a notice from Hertz Global Holdings, Inc.
(the “Company”) describing the right of Holders to
elect to require the Company to repurchase the Notes and requests and instructs
the Company to pay the entire principal amount of this Note, or the portion
thereof (which is $1,000 or an integral multiple thereof) below designated, in
accordance with the terms of the Indenture at the price of 100% of such entire
principal amount or portion thereof, together with accrued and unpaid interest
to, but excluding, the Fundamental Change Repurchase Date to the registered
holder hereof; provided, however, that if the Fundamental Change
Repurchase Date falls after a Regular Record Date and on or prior to the
Interest Payment Date to which it relates, the Company will instead pay the
full amount of accrued and unpaid interest payable on such Interest Payment
Date to the holder of record on the close of business on the corresponding
Regular Record Date and the Company will pay only 100% of the principal amount
of the Notes to be repurchased to the Holder surrendering this Note for
repurchase.  Capitalized terms used
herein but not defined shall have the meanings ascribed to such terms in the Indenture.  The Notes shall be repurchased by the Company
as of the Fundamental Change Repurchase Date pursuant to the terms and
conditions specified in the Indenture.


 


	
  Dated:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Signature(s):

  	
   

  
	
   

  	
   

  	
   

  	
   

  



 


NOTICE:
The above signatures of the holder(s) hereof must correspond with the name
as written upon the face of the Notes in every particular without alteration or
enlargement or any change whatever.


 


	
  Notes Certificate Number
  (if applicable):

  	
   

  



 


Principal amount to be repurchased (if less
than all, must be $1,000 or whole multiples thereof):


 


Social Security or Other Taxpayer
Identification Number:


 


C-1

















 


EXHIBIT
D


 


[FORM OF
ASSIGNMENT]


 


For value
received                                         hereby
sell(s) assign(s) and transfer (s) unto                                         
(Please insert social security or other Taxpayer Identification Number of
assignee) the within Notes, and hereby irrevocably constitutes and appoints
attorney to transfer said Notes on the books of the Company, with full power of
substitution in the premises.


 


	
  Dated:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Signature(s)

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Signature(s) must be guaranteed by an
  “eligible guarantor institution” meeting the requirements of the Security
  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 Security Registrar in addition
  to, or in substitution for, STAMP, all in accordance with the Securities
  Exchange Act of 1934, as amended.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Signature Guarantee

  



 


NOTICE:
The signature on this Assignment must correspond with the name as written upon
the face of the Notes in every particular without alteration or enlargement or
any change whatever.


 


D-1