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EXHIBIT 4(c)
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THE HERTZ CORPORATION
and
MANUFACTURERS HANOVER TRUST COMPANY
Trustee
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Senior Debt Securities
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First Supplemental Indenture
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Dated as of April 2, 1990
Supplementing the Indenture
Dated as of April 1, 1986
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FIRST SUPPLEMENTAL INDENTURE dated as of April 2, 1990,
between The Hertz Corporation, a corporation duly organized and
existing under the laws of the State of Delaware (herein called
the "Company"), having its principal office at 000 Xxxx
Xxxxxxxxx, Xxxx Xxxxx, Xxx Xxxxxx 00000-0000, and Manufacturers
Hanover Trust Company, a corporation duly organized and existing
under the laws of the State of New York, as Trustee (herein
called the "Trustee").
RECITALS
The Company and the Trustee are parties to an Indenture dated as of
April 1, 1986 (the "Indenture"), relating to the issuance from time to time by
the Company of its Securities. Capitalized terms used herein, not otherwise
defined, shall have the same meanings assigned thereto in the Indenture.
The Company has requested the Trustee to join with it in the
execution and delivery of this first supplemental indenture (the "First
Supplemental Indenture") in order to supplement and amend the Indenture, by
amending and adding certain provisions thereof, to permit the Company to
require, if it shall so elect, that Registered Securities (as defined herein)
of any series be issued, in whole or in part, in the form of one or more Global
Securities (as defined herein).
Section 901 of the Indenture provides that a supplemental indenture
may be entered into by the Company and the Trustee, without the consent of any
Holders of the Securities, to make any provisions with respect to matters or
questions arising under the Indenture, provided such action shall not adversely
affect the interests of the Holders of Outstanding Securities of any series in
any material respect.
The Company has determined that this First Supplemental Indenture
complies with said Section 901 and does not require the consent of any Holders
of Outstanding Securities.
At the request of the Trustee, the Company has furnished the Trustee
with an Opinion of Counsel complying with the requirements of Sections 102 and
903 of the
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Indenture, stating, among other things, that the execution of this First
Supplemental Indenture is permitted by the Indenture, and an Officers'
Certificate complying with the requirements of Section 102 of the Indenture.
All things necessary to make this First Supplemental Indenture a
valid agreement of the Company and the Trustee, in accordance with the terms of
the Indenture, and a valid amendment of and supplement to the Indenture have
been done.
NOW, THEREFORE, THIS FIRST SUPPLEMENTAL INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually agreed, for the equal and
proportionate benefit of all Holders of the Securities or of a series thereof,
as follows:
I. AMENDMENTS TO THE INDENTURE
A. Section 101 of the Indenture is amended to add new definitions
thereto in the appropriate alphabetical sequence, as follows:
"'Depositary' means, unless otherwise specified by the Company
pursuant to either Section 301 or Section 312, with respect to the
Securities of any series issuable or issued in whole or in part as one or
more Global Securities, The Depository Trust Company, New York, New York,
or any successor thereto registered as a clearing agency under the
Securities and Exchange Act of 1934, as amended, and any other applicable
statute or regulation.
"'Global Security' means, unless otherwise specified by the Company
pursuant to either Section 301 or Section 312, with respect to any series
of Securities issued hereunder, a certificate representing a Registered
Security which is executed by the Company and authenticated and delivered
by the Trustee to the Depositary or pursuant to the Depositary's
instruction, all in accordance with this Indenture and an indenture
supplemental hereto, if any, or a Board Resolution and pursuant to a
Company Order, which shall be registered in the name of the Depositary or
its nominee and which
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shall represent, and shall be denominated in an amount equal to the
aggregate principal amount of, all the Outstanding Securities of such
series or any portion thereof, in either case having the same terms,
including, without limitation, the same original issue date, date or dates
on which principal is due, and interest rate or method of determining
interest. The term "global form" or "global registered form" when used in
this Indenture shall include Global Securities.
"'Registered Security' means any Security (including, without
limitation, any Security in global registered form) which is registered in
the Security Register."
B. Article Two of the Indenture is amended to add a new Section 203,
which reads in its entirety as follows:
"Section 203. Securities in Global Form. If Securities of a series
are issuable in global form, as specified as contemplated by Section 301,
then, such Security shall represent such of the Outstanding Securities of
such series as shall be specified therein and may provide that it shall
represent the aggregate amount of Outstanding Securities from time to time
endorsed thereon and that the aggregate amount of Outstanding Securities
represented thereby may from time to time be reduced to reflect exchanges.
Any endorsement of a Security in global form to reflect the amount, or any
increase or decrease in the amount, of Outstanding Securities represented
thereby shall be made by the Trustee in such manner and upon instructions
given by such Person or Persons as shall be specified therein or in the
Company Order to be delivered to the Trustee pursuant to Section 303 or
Section 304. Subject to the provisions of Section 303 and, if applicable,
Section 304, the Trustee shall deliver and redeliver any Security in global
form in the manner and upon written instructions given by the Person or
Persons specified therein or in the applicable Company Order. If a Company
Order pursuant to Section 303 or Section 304 has been, or simultaneously
is, delivered, any instructions by the Company with respect to endorsement
or delivery or redelivery of a Security in global form shall be in writing
but need not comply with Section 102 and need not be accompanied by an
Opinion of Counsel.
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"The provisions of the last sentence of Section 303 shall apply to any
Security represented by a Security in global form if such Security was
never issued and sold by the Company and the Company delivers to the
Trustee the Security in global form together with written instructions
(which need not comply with Section 102 and need not be accompanied by an
Opinion of Counsel) with regard to the reduction in the principal amount of
Securities represented thereby, together with the written statement
contemplated by the last sentence of Section 303.
"Notwithstanding the provisions of Section 307, unless otherwise
specified as contemplated by Section 301, payment of principal of and any
premium and any interest on any Security in global form shall be made to
the Person or Persons specified therein.
"Notwithstanding the provisions of Section 308 and except as provided
in the preceding paragraph, the Company, the Trustee and any agent of the
Company and the Trustee shall treat a Person as the Holder of such
principal amount of Outstanding Securities represented by a Global Security
as shall be specified in a written statement of the Holder of such Global
Security which is produced to the Trustee by such Person."
C. (i) Section 301 of the Indenture is amended to (a) add Section
312 to the sections referred to in the parenthetical exception to subparagraph
(2) of the second paragraph of Section 301, (b) redesignate subparagraph (13)
as subparagraph (14) and (c) add a new subparagraph (13), which subparagraph
reads in its entirety as follows:
"(13) whether the Securities of the series shall be issued in whole or
in part in the form of a Global Security or Securities; the terms and
conditions, if any, upon which such Global Security or Securities may be
exchanged in whole or in part for other individual Securities, and the
Depositary for such Global Security or Securities; and"
(ii) a new paragraph is added to the end of Section 301 of the
Indenture, which paragraph reads in its entirety as follows:
"If all the Securities of any one series are not to be issued at one
time, (i) the Trustee shall be
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entitled to assume that, at the time of the issuance of such Securities,
the terms of such Securities do not violate any applicable law or agreement
then binding on the Company, and (ii) it shall not be necessary to deliver
a Board Resolution, an executed supplemental indenture, if any, an
Officer's Certificate or an Opinion of Counsel at the time of issuance of
each Security, but such Board Resolution, supplemental indenture, if any,
Officer's Certificate and Opinion of Counsel shall be delivered at or prior
to the time of issuance of the first Security of such series and the
Trustee may conclusively rely on such documents as to the matters covered
thereby until revoked by superseding comparable documents delivered to it."
D. The last paragraph of Section 303 of the Indenture is amended to
add a new sentence at the end of such paragraph, which sentence reads in its
entirety as follows:
"Notwithstanding the foregoing, if any Security shall have been duly
authenticated and delivered hereunder but never issued and sold by the
Company, and the Company shall deliver such Security to the Trustee for
cancelation as provided in Section 309 together with a written statement
(which need not comply with Section 102 and need not be accompanied by an
Opinion of Counsel) stating that such Security has never been issued and
sold by the Company, for all purposes of this Indenture such Security shall
be deemed never to have been authenticated and delivered hereunder and
shall never be entitled to the benefits of this Indenture."
E. Each of the second paragraph and the third paragraph of Section
305 of the Indenture is amended to add the words "Subject to Section 312,"
before the first word of the first sentence of each such paragraph.
F. A new paragraph is added at the end of Section 307 of the
Indenture, which paragraph reads in its entirety as follows:
"None of the Company, the Trustee, any Paying Agent, any Authenticating
Agent or the Security Registrar will have any responsibility or liability
for any aspect of the records relating to or payments made on account of
any beneficial ownership interest in a Global Security or any other
Security issued in global
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form or for maintaining, supervising or reviewing any records relating to
such beneficial ownership interest."
G. Article Three of the Indenture is amended to add a new Section
312, which Section reads in its entirety as follows:
"Section 312. Certain Provisions Relating to Global Securities. If
the Company shall establish pursuant to subparagraph (13) of Section 301
that the Registered Securities of a particular series are to be issued in
whole or in part in the form of one or more Global Securities, then the
Company shall execute and the Trustee shall, in accordance with Section 303
and the Company Order delivered to the Trustee thereunder with respect to
such series, authenticate and deliver such Global Security or Securities,
which (i) shall represent and shall be denominated in an aggregate amount
equal to the aggregate principal amount of the Outstanding Securities of
such series to be represented by such Global Security or Securities, (ii)
shall be registered in the name of the Depositary for such Global Security
or Securities or its nominee, (iii) shall be delivered by the Trustee to
such Depositary or pursuant to such Depositary's instruction and (iv)
unless otherwise specified by the Company pursuant to Section 301, shall
bear a legend substantially to the following effect: 'Unless and until it
is exchanged in whole or in part for the individual Securities represented
hereby, this Global Security may not be transferred except as a whole by
the Depositary to a nominee of the Depositary or by a nominee of the
Depositary or by the Depositary or any such nominee to a successor
Depositary or a nominee of such successor Depositary.'
"Notwithstanding any other provision of Section 203, of Section 305 or
of this Section 312, subject to the provisions of the following paragraph,
unless otherwise specified by the Company pursuant to Section 301 or
unless the terms of a Global Security expressly permit such Global Security
to be exchanged in whole or in part for individual Securities, a Global
Security may be transferred, in whole but not in part in the manner
provided in Section 305, only to a nominee of the Depositary for such
Global Security, or to the Depositary, or to a successor Depositary for
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such Global Security selected or approved by the Company, or to a nominee
of such successor Depositary.
"If at any time the Depositary for the Global Securities of a series
notifies the Company that it is unwilling or unable to continue as
Depositary for the Global Securities of such series or if at any time the
Depositary for the Global Securities of such series shall no longer be
eligible or in good standing under the Securities Exchange Act of 1934, as
amended, or any other applicable statute or regulation, the Company shall
appoint a successor Depositary with respect to such Global Security. If a
successor Depositary for the Global Securities of such series is not
appointed by the Company within 90 days after the Company receives such
notice or becomes aware of such ineligibility, the Company's election
pursuant to Section 301 shall no longer be effective with respect to the
Global Securities of such series and the Company will execute, and the
Trustee, upon receipt of a Company Order for the authentication and
delivery of individual Securities of such series of like tenor and terms in
definitive form in an aggregate principal amount equal to the principal
amount of the Global Security or Global Securities of such series in
exchange for such Global Security or Global Securities.
"The Company may at any time and in its sole discretion determine that
the Securities of any series issued or issuable in the form of one or more
Global Securities shall no longer be represented by such Global Security or
Securities. In such event the Company will execute, and the Trustee, upon
receipt of a Company Request for the authentication and delivery of
individual Securities of such series in exchange in whole or in part for
such Global Security, will authenticate and deliver individual Securities
of such series of like tenor and terms in definitive form in an aggregate
principal amount equal to the principal amount of such Global Security or
Securities of such series in exchange for such Global Security or
Securities.
"If specified by the Company pursuant to Section 301 with respect to
a series of Securities issued or issuable in the form of one or more
Global Securities, the Depositary for any such Global Security may at its
option surrender such Global Security in exchange in whole or in part for
individual Securities
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of such series of like tenor and terms in definitive form on such terms as
are acceptable to the Company and such Depositary. Thereupon the Company
shall execute, and the Trustee shall authenticate and deliver, without
service charge, (A) to each Person specified by such Depositary a new
Security or Securities of the same series of like tenor and terms and of
any authorized denomination as requested by such Person in aggregate
principal amount equal to and in exchange for such Person's beneficial
interest in the Global Security; and (B) to such Depositary a new
Global Security of like tenor and terms and in an authorized denomination
equal to the difference, if any, between the principal amount of the
surrendered Global Security and the aggregate principal amount of
Securities delivered to Holders of such new Security or Securities.
"In any exchange provided for in any of the preceding three
paragraphs, the Company will execute and the Trustee will authenticate and
deliver individual Securities in definitive registered form in authorized
denominations. Upon the exchange of the entire principal amount of a
Global Security for individual Securities, such Global Security shall be
canceled by the Trustee. Securities issued in exchange for a Global
Security pursuant to this Section shall be registered in such names and in
such authorized denominations as the Depositary for such Global Security,
pursuant to instructions from its direct or indirect participants or
otherwise, shall instruct the Trustee or the Security Registrar. Provided
that the Company and the Trustee or the Security Registrar have so agreed,
the Trustee shall deliver such Registered Securities to the persons in
whose names the Registered Securities are registered.
"Notwithstanding the provisions of Section 203 and of Article XIII,
with respect to any Global Security, 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 a Depositary or impair, as between a Depositary and holders
for beneficial interests in any Global Security, the operation of customary
practices governing the exercise of the rights of the Depositary as Holder
of such Global Security."
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II. GENERAL PROVISIONS
A. The recital contained herein shall be taken as the statements of
the Company, and the Trustee assumes no responsibility for the correctness of
same. The Trustee makes no representation as to the validity of this First
Supplemental Indenture. The Indenture, as supplemented and amended by this
First Supplemental Indenture, is in all respects hereby adopted, ratified and
confirmed.
B. This instrument may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
C. This First Supplemental Indenture shall be governed by and
construed in accordance with the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Indenture to be duly executed, and their corporate seals to be
hereunto affixed and attested, all as of the day and year first above written.
THE HERTZ CORPORATION,
by /s/ Xxxxxx X. Xxxxxxxx
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Name: Xxxxxx X. Xxxxxxxx
Title: Treasurer
[SEAL]
Attest:
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MANUFACTURERS HANOVER TRUST
COMPANY,
as Trustee,
by /s/ X. X. Xxxxxxx
Name: X.X. Xxxxxxx
Title: Asst. Vice President
[SEAL]
Attest:
/s/Xxxxxxx X. Xxxxxx
00
XXXXX XX XXX XXXXXX )
: ss.:
COUNTY OF BERGEN )
On this 2nd day of April, 1990, before me personally came Xxxxxx X.
Xxxxxxxx, to me known, who, being by me duly sworn, did depose and say that
he resides at Washington Township, N.J.; that he is Treasurer of The
Hertz Corporation, one of the corporations described in and which executed
the foregoing instrument; that he knows the seal of said corporation; that
it was so affixed by order of the Board of Directors of said corporation,
and that he signed his name thereto by like authority.
/s/ Xxxxxxx Xxxxxxxxxxxxx
Notary Public
XXXXXXX XXXXXXXXXXXXX
A NOTARY PUBLIC OF NEW JERSEY
MY COMMISSION EXPIRES NOV. 17, 0000
00
XXXXX XX XXX XXXX )
: ss.:
COUNTY OF NEW YORK )
On this 2nd day of April, 1990, before me personally came X.X.
Xxxxxxx , to me known, who, being by me duly sworn, did depose and say
that he resides at 000-00 00xx Xxx. Xxxxxxx, XX 00000; that he is ASST.
VICE PRESIDENT of Manufacturers Hanover Trust Company, the bank
described in and which executed the above instrument; that he knows the
seal of said corporation; that the seal affixed to said instrument is such
corporate seal; that it was so affixed by authority of the Board of
Directors of said corporation, and that he signed his name thereto by like
authority.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Xxxxx Xxxxx
Notary Public
XXXXX XXXXX
Notary Public, State of New York
No. 00-0000000
Qualified in New York County
Commission Expires August 31, 1990
