EX-4.2 6 a16-14596_1ex4d2.htm EX-4.2 EXECUTION VERSION FOURTH AMENDED AND RESTATED ESCROW AGREEMENT dated as of June 30, 2016 among THE HERTZ CORPORATION, as a Legal Entity and Exchangor, HERTZ VEHICLE FINANCING LLC, as a Legal Entity and Exchangor,...
Exhibit 4.2
EXECUTION VERSION
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FOURTH AMENDED AND RESTATED ESCROW AGREEMENT |
dated as of June 30, 2016
among
THE HERTZ CORPORATION,
as a Legal Entity and Exchangor,
HERTZ VEHICLE FINANCING LLC,
as a Legal Entity and Exchangor,
HERTZ GENERAL INTEREST LLC,
as a Legal Entity and Exchangor,
HERTZ CAR SALES LLC,
as a Legal Entity and Exchangor,
HERTZ CAR EXCHANGE INC.,
as Qualified Intermediary
and
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as the Escrow Agent.
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TABLE OF CONTENTS
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ARTICLE I | ||
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Definitions | ||
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SECTION 1.01. |
Definitions |
2 |
SECTION 1.02. |
Rules of Construction |
4 |
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ARTICLE II | ||
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General Provisions | ||
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SECTION 2.01. |
In General |
4 |
SECTION 2.02. |
Provisions Governing the Escrow Accounts |
5 |
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ARTICLE III | ||
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SECTION 3.01. |
Transfer of Collected Funds from the Exchange Accounts |
5 |
SECTION 3.02. |
Transfer of Disbursed Funds from the Joint Disbursement Accounts |
6 |
SECTION 3.03. |
Shortfalls in Funding |
7 |
SECTION 3.04. |
Additional Subsidies |
7 |
SECTION 3.05. |
The Escrow Accounts |
8 |
SECTION 3.06. |
Limitation on Rights to Exchange Proceeds |
8 |
SECTION 3.07. |
Returns |
8 |
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ARTICLE IV | ||
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Investment Of Funds | ||
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SECTION 4.01. |
Investment of the Exchange Funds |
8 |
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ARTICLE V | ||
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Distributions | ||
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SECTION 5.01. |
Distribution of Escrow Funds |
9 |
ARTICLE VI | |||
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SECTION 6.01. |
Obligations of the Escrow Agent |
11 | |
SECTION 6.02. |
Conflicting Instructions; Adverse Claims |
13 | |
SECTION 6.03. |
Notices |
13 | |
SECTION 6.04. |
Notice of Claims Relating to the Escrow Accounts |
15 | |
SECTION 6.05. |
Limitation of Liabilities; Indemnification |
15 | |
SECTION 6.06. |
Entire Agreement; Successors and Assigns |
16 | |
SECTION 6.07. |
Counterparts |
17 | |
SECTION 6.08. |
No Third Party Beneficiaries |
17 | |
SECTION 6.09. |
Authorization |
17 | |
SECTION 6.10. |
Termination |
17 | |
SECTION 6.11. |
No Discretion |
18 | |
SECTION 6.12. |
GOVERNING LAW AND VENUE |
18 | |
SECTION 6.13. |
JURY TRIAL WAIVER |
18 | |
SECTION 6.14. |
Certain Bankruptcy Events |
18 | |
SECTION 6.15. |
Force Majeure |
19 | |
SECTION 6.16. |
Treasury Regulations Disclosure Requirements |
19 | |
SECTION 6.17. |
Power of Attorney |
19 | |
SECTION 6.18. |
No Petitions |
19 | |
SECTION 6.19. |
Waiver of Setoff |
19 | |
SECTION 6.20. |
Electronic Execution |
20 | |
SECTION 6.21. |
Servicer Capacities |
20 | |
SECTION 6.22. |
Amendments |
20 | |
SECTION 6.23. |
Availability of Funds for Payments |
20 | |
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Exhibit A |
Form of Funds Transfer Protocol |
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Exhibit B |
Form of Authorization |
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Exhibit C-1 |
Form of Instruction to Transfer Escrow Funds |
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Exhibit C-2 |
Form of Instruction to Transfer Escrow Funds |
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Exhibit D |
Form of Power of Attorney |
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This FOURTH AMENDED AND RESTATED ESCROW AGREEMENT (as amended, modified or supplemented from time to time in accordance with the provisions hereof, this “Escrow Agreement”) is entered into as of June 30, 2016, by and among, HERTZ CAR EXCHANGE INC., a Delaware corporation (the “QI”), Deutsche Bank Trust Company Americas, as the escrow agent (the “Escrow Agent”), THE HERTZ CORPORATION, a Delaware corporation (“Hertz”), HERTZ VEHICLE FINANCING LLC, a Delaware limited liability company (“HVF”), HERTZ GENERAL INTEREST LLC, a Delaware limited liability company (“HGI”) and HERTZ CAR SALES LLC, a Delaware limited liability company (“HCS”).
WHEREAS, the QI, the Escrow Agent, Hertz, HVF and HGI entered into a Third Amended and Restated Escrow Agreement, dated as of November 25, 2013 (the “Prior Agreement”);
WHEREAS, each action taken by a Legal Entity in its individual capacity pursuant to this Escrow Agreement shall, for purposes of the Code and the Treasury Regulations, have been taken by Exchangor;
legislation) pursuant to one or more of the “safe harbors” described in Section 1.1031(k)-1(g) of the Treasury Regulations, and Revenue Procedure 2003-39;
WHEREAS, the Escrow Agent may from time to time hold and disburse, pursuant to the terms of this Escrow Agreement, certain funds belonging to Exchangor that are not derived from the disposition of Relinquished Property for purposes other than the acquisition of Replacement Property;
ARTICLE I
Definitions
SECTION 1.01. Definitions. Capitalized terms used herein and not otherwise defined herein shall have the meanings set forth in Schedule I to the Base Indenture and, if not defined therein, the meanings set forth in the Master Exchange Agreement; provided that, if any such capitalized term is defined in the Base Indenture, but has a corresponding Segregated Series-specific definition set forth in the related Segregated Series Supplement, the capitalized term set forth herein shall have the meaning of the corresponding Segregated Series-specific definition set forth in the applicable Segregated Series Supplement in all contexts relating to the HVF Segregated Vehicles, HVF Segregated Vehicle Collateral or other Series-Specific
Collateral with respect to such Segregated Series; provided further that, if any capitalized term is defined in each of the Base Indenture and the HGI Lease, the definition of such capitalized term set forth in the HGI Lease shall apply in all contexts relating to the HGI Vehicles and HGI Vehicle Collateral. The following terms used in this Escrow Agreement shall have the following meanings, unless otherwise expressly provided herein:
“Business Day” shall mean any day except a Saturday, Sunday or legal holiday on which the offices of the Trustee, any Legal Entity, the QI or, with respect to any matter involving any Account, the Escrow Agent (or any successor thereto) is not open for business.
“Code” has the meaning specified in the Recitals hereto.
“Escrow Accounts” shall mean each of the Exchange Accounts and the Joint Disbursement Accounts, each of which the QI shall maintain by itself or jointly in the course of administering its obligations under the Master Exchange Agreement and this Escrow Agreement, and each of which shall be established (if not already established) and maintained pursuant to terms of this Escrow Agreement by the Escrow Agent.
“Escrow Agent” shall mean Deutsche Bank Trust Company Americas, or any successor Escrow Agent appointed pursuant to this Escrow Agreement.
“Escrow Agreement” shall have the meaning set forth in the Preamble hereto.
“Escrow Funds” shall mean the funds in the Escrow Accounts.
“Funds Transfer Protocol(s)” has the meaning specified in Section 2.01(b).
“HCS” has the meaning specified in the Preamble hereto.
“HCS Vehicle” means a passenger automobile or light-duty truck which is owned by HCS.
“Hertz” has the meaning specified in the Preamble hereto.
“HGI” has the meaning specified in the Preamble hereto.
“HVF” has the meaning specified in the Preamble hereto.
“IRS” shall mean the Internal Revenue Service.
“JPM” has the meaning specified in the Recitals hereto.
“LKE Program has the meaning specified in the Recitals hereto.
“Master Exchange Agreement” has the meaning specified in the Recitals hereto.
“QI” has the meaning specified in the Recitals hereto.
“Qualified Intermediary” has the meaning specified in the Recitals hereto.
“Termination Date” has the meaning specified in Section 6.10.
“Treasury Regulations” has the meaning specified in the Recitals hereto.
SECTION 1.02. Rules of Construction. In this Escrow Agreement, including the preamble, recitals, attachments, schedules, annexes, exhibits and joinders hereto, unless the context otherwise requires:
(i) the singular includes the plural and vice versa;
(ii) references to an agreement or document shall include the preamble, recitals, all attachments, schedules, annexes, exhibits and joinders to such agreement or document, and are to such agreement or document (including all such attachments, schedules, annexes, exhibits and joinders to such agreement or document) as amended, supplemented, restated and otherwise modified from time to time and to any successor or replacement agreement or document, as applicable (unless otherwise stated);
(iii) reference to any Person includes such Person’s successors and assigns but, if applicable, only if such successors and assigns are not prohibited by this Escrow Agreement, and reference to any Person in a particular capacity only refers to such Person in such capacity;
(iv) reference to any gender includes the other gender;
(v) reference to any Requirement of Law means such Requirement of Law as amended, modified, codified or reenacted, in whole or in part, and in effect from time to time;
(vi) “including” (and with correlative meaning “include”) means including without limiting the generality of any description preceding such term;
(vii) with respect to the determination of any period of time, “from” means “from and including” and “to” means “to but excluding”;
(viii) the language used in this Escrow Agreement will be deemed to be the language chosen by the parties hereto to express their mutual intent, and no rule of strict construction will be applied against any party; and
(ix) references to sections of the Code also refer to any successor sections.
ARTICLE II
General Provisions
SECTION 2.01. In General
(a) Appointment of Escrow Agent. The Escrow Agent is hereby appointed by each of the Legal Entities and the QI, and agrees to act, as escrow holder of the Escrow Funds held in the Escrow Accounts pursuant to this Escrow Agreement in accordance with the terms hereof.
(b) Fund Transfers. Provided they are consistent with this Escrow Agreement and the limitations on each Legal Entity’s rights to receive, pledge, borrow or otherwise obtain the benefits of any Relinquished Property Proceeds, the particular mechanisms for accomplishing the movement of Escrow Funds described in this Escrow Agreement may be set forth and memorialized in one or more written “Funds Transfer Protocols” attached hereto from time to time as Exhibit A, which shall either (1) be executed by or on behalf of both a Legal Entity and the QI or (2) follow the protocol set forth in Section 3.01 or Section 3.02. A Funds Transfer Protocol may also consist of a compendium of previously executed documents or charts (e.g., flow charts, corporate resolutions and signature cards) which when taken together obviate the need for a single written protocol.
(c) Escrow Accounts. The parties acknowledge and agree that the funds held in any of the Escrow Accounts, or any other account or sub-account established pursuant to the terms of this Escrow Agreement, shall only be distributed in accordance with the terms of this Escrow Agreement, as supplemented by the Master Exchange Agreement. The Escrow Agent shall have no equitable interest in any amounts deposited in any of the Escrow Accounts referred to herein.
SECTION 2.02. Provisions Governing the Escrow Accounts. (a) All Escrow Funds deposited into an Escrow Account pursuant to this Escrow Agreement shall be in U.S. dollars and shall be delivered or disbursed either by (i) federal funds wire transfer, (ii) Electronic Funds Transfer, or (iii) cashier’s check, or other check, with notification in a form consistent with, or as described in, Exhibit A hereto.
(b) The Escrow Agent shall not have any responsibility or liability for any funds delivered pursuant to this Escrow Agreement until actually received in the appropriate account, in accordance with the terms hereof.
(c) The Escrow Accounts shall be maintained (i) with a Qualified Institution or (ii) as a segregated trust account with a Qualified Trust Institution. If any Escrow Account is not maintained in accordance with the previous sentence, then the Legal Entities shall within ten (10) Business Days of obtaining knowledge of such fact, in conjunction with the QI, establish a new Escrow Account that complies with such sentence and transfer into the new Escrow Account all funds from the non-complying Escrow Account. The Escrow Accounts shall be maintained as “securities accounts” (as defined in Section 8-501 of the New York UCC) and the investments made with Escrow Funds shall be held in the Escrow Accounts.
ARTICLE III
Fund Transfers
SECTION 3.01. Transfer of Collected Funds from the Exchange Accounts. (a) On any Business Day, pursuant to standing instructions and procedures established by each Legal Entity and the QI and in accordance with the Master Exchange Agreement, each Legal Entity may initiate proposed Electronic Funds Transfers that are subject to the QI’s approval and shall notify the QI of such initiated transfers. The instructions with respect to the proposed Electronic Funds Transfers shall set forth the amounts to be withdrawn from an Exchange
Account and transferred to another Exchange Account or a Joint Disbursement Account on such day, shall be substantially in the form of Exhibit A hereto, and shall be either (1) executed by or on behalf of both the applicable Legal Entity and the QI or (2) executed by or on behalf of the applicable Legal Entity with the certification contained in Exhibit A stating that such Legal Entity has provided such instruction simultaneously to the Escrow Agent and the QI. Such instructions to the Escrow Agent shall also include instructions regarding adjustments (e.g., calculation errors, overpayments, etc.), if any, to amounts previously transferred from or to such Exchange Account(s). If the QI does not approve any of the proposed Electronic Funds Transfer transactions, the QI shall immediately notify the applicable Legal Entity and the Escrow Agent, and in the case of a transfer of funds from an HVF Exchange Account or an HVF Segregated Exchange Account, the Trustee, via telephone or fax (any such notice given by telephone to be confirmed in writing) of the disapproval and the reasons for such disapproval. If the Escrow Agent receives instructions in the form of Exhibit A (i) executed by or on behalf of both the applicable Legal Entity and the QI or (ii) executed by or on behalf of the applicable Legal Entity with the appropriate certification and the QI has not disapproved of the instructions (orally or in writing) within one (1) hour of the Escrow Agent’s receipt of such instructions, then the Escrow Agent shall promptly execute instructions delivered to the Escrow Agent (subject to the last sentence of this Section 3.01(a)). The Escrow Agent shall have no duty or obligation to verify or confirm any of the information contained in the electronic instructions received by it pursuant to this Section 3.01(a). Notwithstanding the foregoing, the Escrow Agent shall have no duty to transfer or distribute any funds from an Exchange Account unless such funds have been collected and credited to such Exchange Account.
(b) After the occurrence of a Disbursement Occurrence, each Legal Entity shall direct the Escrow Agent to wire any funds held in its Escrow Account that are no longer Relinquished Property Proceeds to, or as directed by, the applicable Legal Entity; provided that, in the case of HVF, the portion of such amount relating to HVF Vehicles shall be paid to the Collection Account and the portion of such amount relating to HVF Segregated Vehicles that constitute Series-Specific Collateral for a particular Segregated Series of Notes, unless otherwise specified in the related Segregated Series Supplement, shall be paid into the collection account or other account specified in such Segregated Series Supplement.
SECTION 3.02. Transfer of Disbursed Funds from the Joint Disbursement Accounts.
From time to time during the term of this Escrow Agreement, the Escrow Agent agrees that it shall receive, hold, invest and disburse, pursuant to the terms and conditions herein set forth, the Escrow Funds delivered into a Joint Disbursement Account by or on behalf of any Legal Entity that are Relinquished Property Proceeds and/or Additional Subsidies, at such Legal Entity’s discretion, as may be needed to complete the purchase of any particular Replacement Property and to be delivered to a Manufacturer or dealer for the purchase of Replacement Property, or to make any Non-LKE Disbursement by or on behalf of such Legal Entity. From time to time on any Business Day, pursuant to standing instructions and procedures established by any Legal Entity and the QI in accordance with the terms of the Master Exchange Agreement, such Legal Entity may initiate proposed Electronic Funds Transfers that are subject to the QI’s approval and shall notify the QI of such initiated transfers, in order to transfer funds from a Joint Disbursement Account to acquire Replacement Property, to pay expenses of the type described
in Section 1.1031(k)-1(g)(7) of the Treasury Regulations not otherwise paid from funds deposited into the Joint Collection Account and to make Non-LKE Disbursements. The instructions with respect to such proposed Electronic Funds Transfers shall set forth the amounts to be withdrawn from the applicable Joint Disbursement Account on such day, shall be substantially in the form of Exhibit A, and shall be either (1) executed by or on behalf of both the applicable Legal Entity and the QI or (2) executed by or on behalf of the applicable Legal Entity with the certification contained in Exhibit A stating that such Legal Entity has provided such instruction simultaneously to the Escrow Agent and the QI. If the QI does not approve any of the proposed Electronic Funds Transfer transactions, the QI shall immediately notify the applicable Legal Entity and the Escrow Agent via telephone or fax (any such notice by telephone to be confirmed in writing) of the disapproval and the reasons for such disapproval. If the Escrow Agent receives instructions in the form of Exhibit A (i) executed by or on behalf of a Legal Entity and the QI or (ii) executed by or on behalf of a Legal Entity with the appropriate certification and the QI has not disapproved of the instructions (orally or in writing) within one (1) hour of the Escrow Agent’s receipt of such instructions, then the Escrow Agent shall promptly execute instructions delivered to the Escrow Agent (subject to the last sentence of this Section 3.02). The Escrow Agent shall have no duty or obligation to verify or confirm any of the information contained in the electronic instructions received by it pursuant to this Section 3.02. Notwithstanding the foregoing, the Escrow Agent shall have no duty to transfer or distribute any funds from a Joint Disbursement Account unless such funds have been collected and credited to such Joint Disbursement Account.
SECTION 3.03. Shortfalls in Funding. If, for any reason, the sum of the amounts requested by a Legal Entity to be transferred from an Exchange Account to another Exchange Account or a Joint Disbursement Account in accordance with the Master Exchange Agreement on any Business Day pursuant to Section 3.01 exceeds the total amount of collected funds in such Exchange Account with respect to such Legal Entity, including any Qualified Earnings from the investment of funds with respect to such Legal Entity held in the Exchange Account pursuant to this Escrow Agreement on such day and actually credited to the Exchange Account, the Escrow Agent shall promptly notify the applicable Legal Entity of the amount of such shortfall, and the amounts to be transferred to such other Exchange Account or Joint Disbursement Account on such day shall be reduced by the amount of such shortfall.
SECTION 3.04. Additional Subsidies. In the event that the Escrow Funds with respect to any Legal Entity are insufficient to pay the Replacement Property Acquisition Cost incurred by such Legal Entity, such Legal Entity may transfer Additional Subsidies directly to such Legal Entity’s Exchange Account or a Joint Disbursement Account in an amount sufficient for the QI to acquire the applicable Replacement Property. Any Legal Entity may transfer Additional Subsidies to one of its Exchange Accounts or to any Joint Disbursement Account to fund Non-LKE Disbursement; provided that, for the avoidance of doubt, Additional Subsidies relating to HVF Vehicles or HVF Segregated Vehicles constituting Series-Specific Collateral for a particular Segregated Series shall only be transferred to an HVF Exchange Account or, unless otherwise specified in a Segregated Series Supplement, an HVF Segregated Exchange Account relating to such Segregated Series, respectively, in order to fund such Non-LKE Disbursement.
SECTION 3.05. The Escrow Accounts. Transfers of funds in and out of the Exchange Accounts and the Joint Disbursement Accounts shall be governed by the terms of this Escrow Agreement, as supplemented by terms of the Master Exchange Agreement.
SECTION 3.06. Limitation on Rights to Exchange Proceeds.
(a) All Escrow Funds shall be held subject to the terms of this Escrow Agreement. In particular, all Relinquished Property Proceeds, and any Qualified Earnings thereon, shall be held subject to Sections 1.1031(k)-1(g)(4)(ii) and 1.1031(k)-l(g)(6) of the Treasury Regulations, including the restrictions on Exchangor’s right to receive, pledge, borrow or otherwise obtain the benefits of Relinquished Property Proceeds or the earnings thereon. Subject to the limitation that each Legal Entity shall have no right to receive, pledge, borrow or otherwise obtain the benefits of the Relinquished Property Proceeds or the earnings thereon held by either the QI or the Escrow Agent, Relinquished Property Proceeds may be withdrawn from an Exchange Account or Joint Disbursement Account upon a Disbursement Occurrence with respect to the related Relinquished Property or such Relinquished Property Proceeds. This Section 3.06(a) shall apply notwithstanding any inconsistent instruction given by any Legal Entity and notwithstanding any decision by any Legal Entity not to pursue a deferred exchange or to abandon the transactions contemplated by this Escrow Agreement.
(b) The QI shall have only such interest in any of the Escrow Funds as is expressly provided in the Master Exchange Agreement and shall have the right to use, withdraw, transfer or otherwise act with respect to any of the Escrow Funds only as expressly provided in, and for the purposes set forth in, this Escrow Agreement or the Master Exchange Agreement.
SECTION 3.07. Returns. If at any time, for any reason, funds transferred from an Escrow Account are returned to such Escrow Account, such funds shall be transferred by the Escrow Agent upon receipt by the Escrow Agent of electronic written instructions from the applicable Legal Entity and the QI.
ARTICLE IV
Investment Of Funds
SECTION 4.01. Investment of the Exchange Funds.
(a) From time to time during the term of this Escrow Agreement, the Escrow Agent shall invest and reinvest all (or such lesser portion as may be agreed to between the parties hereto) the funds held in (i) an HVF Exchange Account in any Permitted Investments (as defined in the Base Indenture), (ii) an HVF Segregated Exchange Account in any Permitted Investments (as defined in the Segregated Series Supplement related to such HVF Segregated Exchange Account) or (iii) any other Exchange Account as directed by Hertz, HGI or HCS; provided however that, in no event shall any Legal Entity direct that any such investment, directly or indirectly, be in any security of a Legal Entity or any of its affiliates. Interest and other amounts, or any benefits earned in lieu of the payment of interest, earned on the Escrow Funds shall be treated as Escrow Funds and the parties hereto agree that absent a change in law, all information returns shall identify the applicable Legal Entity as the recipient.
(b) If any Qualified Earnings on Relinquished Property Proceeds are held in an Exchange Account, such Qualified Earnings shall not be disbursed during the Exchange Period for the related Relinquished Property. Any Qualified Earnings as to which the Exchange Period of the Relinquished Property has expired shall thereafter be deemed Additional Subsidies.
ARTICLE V
Distributions
SECTION 5.01. Distribution of Escrow Funds. The Escrow Agent shall hold the Escrow Funds in its possession until instructed hereunder to deliver the Escrow Funds or any specified portion thereof as follows:
(a) If the Escrow Agent receives a request pursuant to Section 3.01 or Section 3.02 authorizing release of the Escrow Funds, or a portion thereof, the Escrow Agent shall, subject to the terms and conditions described in this Escrow Agreement, disburse the Escrow Funds, or designated portion thereof, including any interest or other amounts earned on the Escrow Funds, pursuant to the instructions set forth in such request; provided however that, other than as set forth in Section 3.01 or Section 3.02 hereof, the Escrow Agent shall have no duty or obligation to verify or confirm any of the information contained in the request.
(b) In connection with any Escrow Funds attributable to designated Relinquished Property (and any earnings thereon) with respect to which no Replacement Property has been identified within the Identification Period, if the Escrow Agent receives written notice substantially in the form of Exhibit A hereto signed jointly by or on behalf of authorized representatives of the QI and the applicable Legal Entity authorizing the disbursement, redemption and/or liquidation of such funds, then the escrow hereunder with respect to such funds shall terminate upon such receipt and the Escrow Agent shall, (a) if such notice is received by 11:00 a.m. (New York time) on a Business Day, on the Business Day such notice is received or (b) otherwise one Business Day after receipt of such notice, redeem or otherwise liquidate the Escrow Funds or designated portion thereof and disburse the Escrow Funds (including any interest or other amounts earned on the Escrow Funds), or designated portion thereof, to, or as directed by, the applicable Legal Entity pursuant to the instructions set forth in such notice; provided that (i) in the case of Escrow Funds of HVF relating to HVF Vehicles (including any funds that are attributable to Relinquished Property relating to such HVF Vehicles and any earnings thereon), such amount shall be paid to the Collection Account and (ii) in the case of Escrow Funds of HVF relating to HVF Segregated Vehicles that constitute Series-Specific Collateral for a particular Segregated Series of Notes (including any funds that are attributable to Relinquished Property relating to such HVF Segregated Vehicles and any earnings thereon), such amount, unless otherwise specified in a Segregated Series Supplement, shall be paid to the collection account or other account relating to such Segregated Series.
(c) In connection with any Escrow Funds attributable to designated Relinquished Property Proceeds (and any earnings thereon) with respect to which no Replacement
Property has been acquired within the Exchange Period, if the Escrow Agent receives written notice substantially in the form of Exhibit A hereto signed jointly by or on behalf of authorized representatives of the QI and the applicable Legal Entity authorizing the disbursement, redemption and/or liquidation of such funds, then the escrow hereunder with respect to such funds shall terminate upon such receipt and the Escrow Agent shall, (a) if such notice is received by 11:00 a.m. (New York time) on a Business Day, on the Business Day such notice is received or (b) otherwise one Business Day after receipt of such notice, redeem or otherwise liquidate the Escrow Funds or designated portion thereof and disburse the Escrow Funds (including any interest or other amounts earned on the Escrow Funds), or designated portion thereof, to, or as directed by, the applicable Legal Entity pursuant to the instructions set forth in such notice; provided that (i) in the case of Escrow Funds of HVF relating to HVF Vehicles, such amount shall be paid to the Collection Account and (ii) in the case of Escrow Funds of HVF relating to HVF Segregated Vehicles that constitute Series-Specific Collateral for a particular Segregated Series of Notes, such amount, unless otherwise specified in a Segregated Series Supplement, shall be paid to the collection account or other account relating to such Segregated Series.
(d) If the Escrow Agent receives a written release notice substantially in the form of Exhibit C hereto stating that a new escrow holder has been appointed pursuant to a new escrow agreement and authorizing termination of the escrow hereunder, signed jointly by or on behalf of authorized representatives of the QI and all Legal Entities and consented to by the Trustee, such party shall release the Escrow Funds (or any portion thereof), in the amounts and to the parties referenced in such notice, and any documentation related to the tax deferred exchange that it may hold.
(e) If the Legal Entities terminate this Escrow Agreement pursuant to Section 6.14, and thereafter the Escrow Agent receives written notice substantially in the form of Exhibit C-1 hereto stating that a new escrow holder has been appointed pursuant to a new escrow agreement following the termination of all or a portion of this Escrow Agreement, the Escrow Agent shall, on the date set forth in such notice, which in no event shall be less than two (2) Business Days following such party’s receipt of such notice, redeem or otherwise liquidate the Escrow Funds with respect to the portion of this Escrow Agreement that was terminated and disburse the Escrow Funds (including any income, interest, or other amounts earned on the Escrow Funds) to such new escrow holder, pursuant to the instructions set forth in such notice. If (i) the Legal Entities terminate all or a portion of this Escrow Agreement pursuant to Section 6.14 or (ii) the Escrow Agent terminates this Escrow Agreement pursuant to Section 6.10, and thereafter the Escrow Agent receives written notice substantially in the form of Exhibit C-2 hereto stating that a new escrow holder has not been appointed prior to the termination of this Escrow Agreement, the Escrow Agent shall, on the date set forth in such notice, which in no event shall be less than two (2) Business Days following such party’s receipt of such notice, redeem or otherwise liquidate the Escrow Funds with respect to the portion of this Escrow Agreement that was terminated and disburse such Escrow Funds (including any income, interest, or other amounts earned on the Escrow Funds), pursuant to the instructions set forth in such notice.
(f) The Escrow Agent will only accept instructions that have been signed by those persons authorized to do so per an authorization in the form of Exhibit B (as such exhibit may be amended and supplemented from time to time). The signatures contained in an authorization in the form of Exhibit B hereto will be considered good and valid for all purposes of this Escrow Agreement until rescinded or modified in writing via a new authorization in the form of Exhibit B delivered to the Escrow Agent.
(g) Except as otherwise provided pursuant to Section 3.01, Section 3.02 and Section 3.06(a) and this Section 5.01, the Escrow Funds may not be disbursed under any conditions except those set forth above in this Section 5.01, and the parties agree that neither the QI nor any Legal Entity shall have the authority to direct (and no such direction shall be effective against) the Escrow Agent to disburse Escrow Funds. All disbursements made pursuant to this Escrow Agreement by the Escrow Agent shall be made by wire or other Electronic Funds Transfer unless such party, in its sole discretion, agrees to another method of disbursement.
ARTICLE VI
Miscellaneous Provisions
SECTION 6.01. Obligations of the Escrow Agent.
(a) The Escrow Agent shall invoice each Legal Entity quarterly for authorized fees and expenses payable by such Legal Entity. Payments of reasonable fees and expenses pursuant to an invoice shall be due thirty (30) days from the date of each Legal Entity’s receipt of such invoice plus any required supporting documentation.
(b) The Escrow Agent shall not have any obligation to, nor shall it incur any liability for failing to, advance, use or risk, in any manner or for any purpose, its own funds or otherwise incur financial liability in the performance of any of its duties or in the exercise of any of its rights or powers hereunder. The provisions of this Section 6.01(b) shall survive the termination of this Escrow Agreement.
(c) Except as expressly contemplated by this Escrow Agreement, the Escrow Agent shall not sell, transfer or otherwise dispose of in any manner all or any portion of the Escrow Funds, except pursuant to an order of a court of competent jurisdiction.
(d) The duties, responsibilities and obligations of the Escrow Agent under this Escrow Agreement shall be limited to those expressly set forth herein, and no duties, responsibilities or obligations shall be inferred or implied. Other than as contemplated herein, the Escrow Agent shall not be subject to, or required to comply with, any other agreement between the Legal Entities and the QI or to which a Legal Entity or the QI is a party, or to comply with any direction or instruction (other than those contained herein or delivered in accordance with this Escrow Agreement) from a Legal Entity or the QI or an entity or entities acting on their behalf.
(e) If at any time the Escrow Agent is served with any judicial or administrative order, judgment, decree, writ or other form of judicial or administrative process that in any way
affects the Escrow Funds, the Escrow Agent shall, in the case of Escrow Funds of HVF, promptly notify the Trustee of such occurrence, in the case of Escrow Funds of Hertz with respect to Sidecar Financed Vehicles, promptly notify the Sidecar Administrative Agent of such occurrence, and, in any case, be authorized to comply therewith in any manner that it or legal counsel of its own choosing reasonably deems appropriate; and if the Escrow Agent complies with any such judicial or administrative order, judgment, decree, writ or other form of judicial or administrative process, it shall not be liable to any of the parties hereto or to any other person or entity even though such order, judgment, decree, writ or process may be subsequently modified or vacated or otherwise determined to have been without legal force or effect.
(f) The Escrow Agent shall not be under any duty to give the Escrow Funds held by it hereunder any greater degree of care than it gives its own similar property and shall not be required to invest any Escrow Funds held hereunder except as provided for in this Escrow Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
(g) At any time the Escrow Agent may request an instruction in writing from any of the Legal Entities and the QI and may, at its own option, include in such request the course of action it proposes to take and the date on which it proposes to act, regarding any matter arising in connection with its duties and obligations hereunder. The Escrow Agent shall not be liable for acting in accordance with such a proposal on or after the date specified therein, provided that the specified date shall be at least three (3) Business Days after the applicable Legal Entity, the Trustee and the QI receive such party’s request for instructions and its proposed course of action, and provided further that, prior to so acting, the Escrow Agent has not received the written instructions requested, including a refusal to the proposed course of action.
(h) In the event of any ambiguity or uncertainty hereunder or in any notice, instruction or other communication received hereunder by the Escrow Agent, the Escrow Agent may, in its sole discretion, only after notifying the applicable Legal Entity, the Trustee and the QI in writing, refrain from taking any action other than retaining possession of the Escrow Funds unless the Escrow Agent receives written instructions, signed by such Legal Entity and the QI, which eliminates such ambiguity or uncertainty.
(i) Each Legal Entity shall pay or reimburse the Escrow Agent upon request, for any taxes relating to the Escrow Funds with respect to such Legal Entity incurred in connection herewith and shall indemnify and hold the Escrow Agent harmless from any amounts it is obligated to pay in the way of such taxes. In addition, all interest or other income earned under this Escrow Agreement shall be allocated to Exchangor for federal income tax purposes, and paid only as directed by the applicable Legal Entity and the QI pursuant to the terms and conditions of this Escrow Agreement, as supplemented by the terms of the Master Exchange Agreement, and reported by Exchangor to the IRS or any other taxing authority. Notwithstanding any written directions, the Escrow Agent shall report, and as required withhold, any taxes it determines may be required by any law or regulation in effect at the time of distribution. If any earnings remain undistributed at the end of any calendar year, the Escrow Agent shall report to the IRS or such other authority such earnings as it deems appropriate or as required by any applicable law or regulation. This Section 6.01(i) shall survive the termination of this Escrow Agreement or the resignation or removal of the Escrow Agent.
(j) The Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it by a Legal Entity or otherwise hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity or the service thereof. Subject to Section 5.01(f), the Escrow Agent may act in reliance upon, and shall be fully protected in relying upon, any instrument or signature reasonably believed by it to be genuine and may assume that any person purporting to give receipt or advice to make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so. All written notices when received as provided pursuant to Section 6.03 shall be valid and accepted whether signed in counterparts or one document.
The Escrow Agent at:
c/o Deustche Bank
Global Transaction Banking
Trust and Securities Services
00 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Escrow Manager
Fax: (000) 000-0000
The QI at:
Hertz Car Exchange Inc.
c/o Deutsche Bank National Trust Company
Xxx Xxxxxxxxxxxxx Xxxxx
00xx Xxxxx
Xxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxx, President
E-mail: xxxxxxx.xxxxx@xx.xxx
Hertz, HVF, HGI or HCS, as applicable, at:
c/o The Hertz Corporation 000 Xxxx Xxxxxxxxx Xxxx Xxxxx, XX 00000 Attention: Treasurer Fax: (000) 000-0000
with a copy to the Administrator at:
The Hertz Corporation 000 Xxxx Xxxxxxxxx Xxxx Xxxxx, XX 00000 Attention: Treasurer Fax: (000) 000-0000
OR
The Trustee at:
The Bank of New York Mellon Trust Company, N.A. 0 Xxxxx XxXxxxx, Xxxxx 0000 Xxxxxxx, XX 00000 Attn: Corporate Trust Administrator-Structured Finance Phone: (000) 000-0000 Fax: (000) 000-0000
signature purporting to be by the QI or any Legal Entity received by it relating to this Escrow Agreement.
(b) Hertz shall, and hereby does, indemnify, protect, save, defend and hold harmless the Escrow Agent and its respective officers, directors, employees, agents and attorneys from and against all claims, loss, damage and costs, including reasonable attorney’s fees, incurred in connection with the performance of the Escrow Agent’s duties hereunder, except with respect to acts involving gross negligence or willful misconduct on the part of the Escrow Agent. The provisions of this Section 6.05(b) shall survive the termination of this Escrow Agreement.
(c) The Escrow Agent shall not be required to give any bond or other security hereunder. The QI and each Legal Entity hereby acknowledge that the Escrow Agent shall not have any liability for any loss, cost or damage that the QI or any Legal Entity or any other person or entity may sustain by reason of the failure to pay, default, insolvency or bankruptcy of any entity or investment in which the Escrow Funds may have been invested or deposited that prevents or delays payment of the Escrow Funds or any interest, income or other amount earned or accrued thereon as herein provided.
Agreement (but not the Escrow Accounts) as it relates to HGI Vehicles and the Escrow Agent, Hertz, HVF and HCS hereby consent to such assignment. To secure Hertz’s obligations under the Sidecar Credit Agreement, the other Sidecar Loan Documents and certain other Financing Documents with respect to which Hertz is a borrower, Hertz has pledged and assigned to the Collateral Agent a security interest in all of its right, title and interest in, to and under this Escrow Agreement (but not the Escrow Accounts) as it relates to Vehicles owned by Hertz and the Escrow Agent, HCS, HVF and HGI hereby consent to such assignment. To secure HCS’s obligations under the Sidecar Credit Agreement, the other Sidecar Loan Documents and certain other Financing Documents with respect to which HCS is a borrower, HCS has pledged and assigned to the Collateral Agent a security interest in all of its right, title and interest in, to and under this Escrow Agreement (but not the Escrow Accounts) as it relates to Vehicles owned by HCS and the Escrow Agent, Hertz, HVF and HGI hereby consent to such assignment.
Notwithstanding any provision herein to the contrary, the Escrow Agent shall have the right to terminate this Escrow Agreement, as it relates to such party, at any time (the “Termination Date”) prior to complete disbursement of all of the Escrow Funds upon not less than ninety (90) Business Days’ notice to the QI, each Legal Entity and the Trustee; provided however that, if a notice to disburse the Escrow Funds pursuant to Section 5.01 is received by the Escrow Agent and such disbursement is to occur prior to the Termination Date, then the Escrow Agent will comply with the terms of this Escrow Agreement and make such disbursement pursuant hereto. If the Escrow Agent gives notice setting a Termination Date, the Legal Entities and the QI may, at their option and provided that the Rating Agency Condition with respect to
each Series of Indenture Notes Outstanding is satisfied with respect thereto, appoint one or more new escrow agents pursuant to an escrow agreement or escrow agreements substantially in the form of this Escrow Agreement and, provided, the Escrow Agent shall receive an instruction substantially in the form of Exhibit C-1 hereto not less than two (2) Business Days prior to the Termination Date, the Escrow Agent shall deliver the Escrow Funds in accordance with such instruction.
SECTION 6.12. GOVERNING LAW AND VENUE. THIS ESCROW AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS. VENUE SHALL BE IN ANY STATE OR FEDERAL COURT WITHIN THE STATE OF NEW YORK.
SECTION 6.14. Certain Bankruptcy Events. If the Escrow Agent:
(a) suffers the entry against it of a judgment, decree or order for relief by a court of competent jurisdiction or any regulatory agency in an involuntary proceeding commenced under any applicable insolvency, receivership or other similar law of any jurisdiction now or hereafter in effect, or has any such proceeding commenced against it which remains undismissed for a period of thirty (30) days, or
(b) commences a voluntary case under any applicable bankruptcy, insolvency, receivership or similar law now or hereafter in effect; or applies for or consents to the entry of an order for relief in an involuntary case under any such law; or makes a general assignment for the benefit of creditors; or fails generally to pay (or admits in writing its inability to pay) its debts as such debts become due; or takes corporate or other action to authorize any of the foregoing,
then the Legal Entities may, immediately upon notice to the QI, the Trustee, the Sidecar Administrative Agent and the Escrow Agent (together with a copy of the replacement escrow agreement referred to below), and subject to satisfaction of the Rating Agency Condition with respect to each Outstanding Series of Indenture Notes, terminate all or a portion of this Escrow Agreement, appoint, or cause the QI to appoint, a successor escrow agent with respect to all or a portion of this Escrow Agreement and enter into a replacement escrow agreement with such
successor on terms substantially the same in all material respects as the terms of this Escrow Agreement.
The provisions of this Section 6.18 shall survive the termination of this Escrow Agreement.
subject to deduction, setoff, banker’s lien, or any other right in favor of any Person, except that such party may setoff (i) any checks credited to the Escrow Accounts and thereafter returned unpaid because of uncollected or insufficient funds and (ii) items, including any Automated Clearing House transactions, that are returned for any reason or any adjustments.
(signature page follows)
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THE HERTZ CORPORATION | ||
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/s/ R. Xxxxx Xxxxxxxxxx | |
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R. Xxxxx Xxxxxxxxxx |
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Treasurer |
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HERTZ VEHICLE FINANCING LLC | ||
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/s/ R. Xxxxx Xxxxxxxxxx | |
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Name: |
R. Xxxxx Xxxxxxxxxx |
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Treasurer |
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HERTZ GENERAL INTEREST LLC | ||
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/s/ R. Xxxxx Xxxxxxxxxx | |
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Name: |
R. Xxxxx Xxxxxxxxxx |
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Title: |
Treasurer |
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HERTZ CAR SALES LLC | ||
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/s/ R. Xxxxx Xxxxxxxxxx | |
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Name: |
R. Xxxxx Xxxxxxxxxx |
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Title: |
Treasurer |
[SIGNATURE PAGE TO FOURTH AMENDED AND RESTATED ESCROW AGREEMENT]
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HERTZ CAR EXCHANGE INC. | ||
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/s/ Xxxxxxxxx Xxx Xxxxx | |
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Name: |
Xxxxxxxxx Xxx Xxxxx |
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Director |
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/s/ Aldrin X.X. Xxxxx | |
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Name: |
Aldrin X.X. Xxxxx |
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Vice President |
[SIGNATURE PAGE TO FOURTH AMENDED AND RESTATED ESCROW AGREEMENT]
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DEUTSCHE BANK TRUST COMPANY AMERICAS, as Escrow Agent | ||
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/s/ Xxxx Xxxxxxxxx | |
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Name: |
Xxxx Xxxxxxxxx |
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Title: |
Assistant Vice President |
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/s/ Xxx Xxxx | |
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Xxx Xxxx |
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Associate |
[SIGNATURE PAGE TO FOURTH AMENDED AND RESTATED ESCROW AGREEMENT]
Exhibit A
DATE:
TO:
FROM:
ACCOUNT: |
[LEGAL ENTITY] [TITLE] [ACCOUNT #] |
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Amount |
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TRANSFER: |
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[DESCRIPTION] [ACCOUNT INFORMATION] | ||||
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TRANSFER: |
[$ ] |
[DESCRIPTION] [ACCOUNT INFORMATION] | ||||
Authorized by:
[The undersigned hereby certifies to the Escrow Agent and that this instruction has been provided to the Escrow Agent and simultaneously, and the Escrow Agent may rely upon this certification in compliance with Sections 3.01 and 3.02 of the Escrow Agreement when making transfers from the Escrow Accounts without the signature of upon this written instruction](1)
Legal Entity: , [on its own behalf] [as Servicer for ] [ ] [ ]
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[Qualified Intermediary: |
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(1) Certification only applicable if instruction being delivered pursuant to Section 3.01or 3.02 and may be omitted from any instruction executed by both and .
(2) No signature required if instruction being delivered pursuant to Section 3.01or 3.02 and certification above is included.
EXHIBIT B
CERTIFICATE OF INCUMBENCY
The undersigned, being the duly appointed, qualified and acting Assistant Secretary of The Hertz Corporation, does hereby certify that the following named persons are duly appointed, qualified, and acting Officers or authorized representatives of The Hertz Corporation and are presently serving in the capacities set forth below. Each of said Officers and authorized representatives, acting individually, has been duly authorized on behalf of The Hertz Corporation and authorized to execute and deliver the Third Amended and Restated Master Exchange Agreement to be dated on or about November 25, 2013 and the Second Amended and Restated Escrow Agreement to be dated on or about November 25, 2013, as well as all other agreements and documents including the Funds Transfer Authorization being entered into by The Hertz Corporation in connection with the tax-deferred exchange program described in said Master Exchange Agreement.
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Assistant Treasurer |
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(Funds Transfer Authorization) |
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(Funds Transfer Authorization) |
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(Funds Transfer Authorization) |
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(Funds Transfer Authorization) |
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(Funds Transfer Authorization) |
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(Funds Transfer Authorization) |
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Hertz Car Exchange Inc. as Qualified Intermediary (“QI”), DB Services Americas, Inc. and Deutsche Bank Trust Company Americas may rely on this Certificate as sufficient evidence of authority to sign for and on behalf of The Hertz Corporation.
WITNESS my hand and seal of The Hertz Corporation on this day of , , as its duly authorized and appointed Assistant Secretary.
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Exhibit C-1
Instruction to Transfer Escrow Funds to New Escrowee
To:
Escrow Agent Account Number
Legal Entity: , ,
and
Legal Entity’s Taxpayer Identification Numbers:
Description of Relinquished Property:
We hereby acknowledge or initiate notice of termination of the Escrow Agreement with you relative to the above account effective . You are hereby advised that the undersigned have appointed a new escrow holder. Therefore, the Escrow Funds are to be redeemed or otherwise liquidated and disbursed on .
You are hereby authorized to liquidate the entire investment, deduct any fees for your services or expenses, and disburse the net proceeds of the Escrow Funds as follows:
Bank:
ABA Number:
Account Name:
Account Number:
For Value:
Authorized by:
Qualified Intermediary: |
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Exhibit C-2
Instruction to Transfer Escrow Funds
To:
Escrow Agent Account Number
Legal Entity: , ,
and
Legal Entity’s Taxpayer Identification Numbers:
Description of Relinquished Property:
We hereby acknowledge or initiate notice of termination of the Escrow Agreement with you relative to the above account effective . You are hereby advised that the undersigned have not appointed a new escrow holder. Therefore, the Escrow Funds are to be redeemed or otherwise liquidated and disbursed on .
You are hereby authorized to liquidate the entire investment, deduct any fees for your services or expenses, and disburse the net proceeds of the Escrow Funds as follows:
Funds in the HVF Exchange Accounts
Bank:
ABA Number:
Account Name:
Account Number:
For Value:
[Funds in the HVF Segregated Exchange Account relating to the following
Segregated Series:
Bank:
ABA Number:
Account Name:
Account Number:
For Value: ]
Funds in the HGI Exchange Accounts
Bank:
ABA Number:
Account Name:
Account Number:
For Value:
Funds in the Hertz Exchange Accounts
Bank:
ABA Number:
Account Name:
Account Number:
For Value:
Funds in the Disbursement Accounts
Bank:
ABA Number:
Account Name:
Account Number:
For Value:
Authorized by:
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Exhibit D
Form of Power of Attorney
KNOW ALL MEN BY THESE PRESENTS, that [ ] [ ] does hereby make, constitute and appoint (“ ”) its true and lawful Attorney-in-Fact for it and in its name, stead and behalf, to exercise any of its rights under the Escrow Agreement (as may be amended, modified or supplemented from time to time, the “Escrow Agreement”) relating to the [HVF Vehicles][HVF Segregated Vehicles leased pursuant to the Segregated Series Lease relating to [ ]][HGI Vehicles][HCS Vehicles], dated as of X, 20 , among , , , , and , including but not limited to, the right to execute any and all documents pertaining to the transfer or release of Escrow Funds (as defined in the Escrow Agreement) relating to the [HVF Vehicles][HVF Segregated Vehicles leased pursuant to the Segregated Series Lease relating to [ ]][HGI Vehicles][HCS Vehicles] and to terminate all or a portion the Escrow Agreement relating to the [HVF Vehicles][HVF Segregated Vehicles leased pursuant to the Segregated Series Lease relating to [ ]][HGI Vehicles][HCS Vehicles]. This power is limited to the foregoing and specifically does not authorize the creation of any liens or encumbrances on any of said Escrow Funds. All powers of attorney for this purpose heretofore filed or executed by [HVF][HGI][HCS] are hereby revoked.
The powers and authority granted hereunder shall be effective as of the [ ] day of , 20 and unless sooner terminated, revoked or extended shall cease eight (8) years from such date.
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By: |
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State of )
County of )
Subscribed and sworn before me, a notary public, in and for said county and state, this day of , 20 .
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Notary Public |
My Commission Expires: