EXHIBIT 4(a)
THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER
REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A NOMINEE THEREOF.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN CERTIFICATED
FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITORY TRUST
COMPANY (THE "SECURITIES DEPOSITORY") TO A NOMINEE OF THE SECURITIES DEPOSITORY
OR BY THE SECURITIES DEPOSITORY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITORY OR
A NOMINEE OF SUCH SUCCESSOR DEPOSITORY. UNLESS THIS NOTE IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF THE SECURITIES DEPOSITORY, TO THE COMPANY OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE SECURITIES DEPOSITORY (AND ANY
PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE SECURITIES DEPOSITORY), 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.
No. $250,000,000
CUSIP: 428040 BV 0
ISIN: US428040BV07
Common Code: 019844994
THE HERTZ CORPORATION
Floating Rate Notes due August 5, 2008
Original Issue Date: August 5, 2004
Interest Payment Dates: February 5, May 5, August 5 and November 5
Maturity Date: August 5, 2008
Interest Rate: 3-month LIBOR, reset quarterly, plus 1.20%
THE HERTZ CORPORATION, a Delaware corporation (hereinafter called the
"Company", which term includes any successor corporation under the Indenture
hereinafter referred to), for value received, hereby promises to pay to CEDE &
CO., or registered assigns, the principal sum of $250,000,000 (the "Principal
Amount") on the Maturity Date shown above, except as provided below, and to pay
interest thereon at the rate per annum shown above. The Company will pay
interest quarterly on the Interest Payment Dates, commencing November 5, 2004.
Interest on this Note shall be calculated on the basis of a 360-day year and the
actual number of days elapsed during the related Interest Period. Interest
payable on any Interest
Payment Date will include interest accrued from, and including, the most recent
date to which interest has been paid or, if no interest has been paid, from the
Original Issue Date shown above to, but excluding, such Interest Payment Date or
Maturity Date, or date of earlier redemption, as the case may be (an "Interest
Period"). The interest so payable, and punctually paid or duly provided for, on
any Interest Payment Date will, as provided in such Indenture, be paid to the
Person in whose name this Note (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest, which shall be the fifteenth calendar day (whether or not a Business
Day), as the case may be, next preceding such Interest Payment Date. Any such
interest not so punctually paid or duly provided for shall forthwith cease to be
payable to the registered Holder on such Regular Record Date, and may be paid to
the Person in whose name this Note (or one or more Predecessor Securities) is
registered on a Special Record Date for the payment of such Defaulted Interest
to be fixed by the Company, notice whereof shall be given to holders of Notes
not less than 15 calendar days prior to such Special Record Date, or may be paid
at any time in any other lawful manner not inconsistent with the requirements of
any securities exchange upon which the Notes may be listed, and upon such notice
as may be required by such exchange, all as more fully provided in such
Indenture.
The initial rate of interest on the Notes is 2.90%. The rate of interest
on the Notes will be reset on February 5, May 5, August 5 and November 5 of each
year, commencing November 5, 2004 (each such date being referred to as an
"Interest Reset Date"). If any Interest Reset Date would otherwise be a day that
is not a Business Day, that Interest Reset Date will be postponed to the next
succeeding Business Day, except if that Business Day falls in the next
succeeding calendar month, that Interest Reset Date will be the immediately
preceding Business Day. The Trustee will determine 3-month LIBOR on the second
London Banking Day (as defined below) preceding the related Interest Reset Date
(each such date being referred to as an "Interest Determination Date").
"3-month LIBOR" means with respect to any Interest Period:
(a) the rate for three-month deposits in United States dollars commencing
on the related Interest Reset Date, that appears on the Moneyline Telerate Page
3750 as of 11:00 AM London time, on the Interest Determination Date, or
(b) if no rate appears on the particular Interest Determination Date on
the Moneyline Telerate Page 3750 (as defined below), the rate calculated by the
Trustee as the arithmetic mean of at least two offered quotations obtained by
the Trustee after requesting the principal London offices of each of four major
reference banks in the London interbank market to provide the Trustee with its
offered quotation for deposits in United States dollars for the period of three
months, commencing on the related Interest Reset Date, to prime banks in the
London interbank market at approximately 11:00 AM London time on that Interest
Determination Date and in a principal amount that is representative for a single
transaction in United States dollars in that market at that time, or
(c) if fewer than two offered quotations referred to in clause (b) are
provided as requested, the rate calculated by the Trustee as the arithmetic mean
of the rates quoted at approximately 11:00 AM New York time, on the particular
Interest Determination Date by three major banks in The City of New York
selected by the Trustee for loans in United States dollars
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to leading European banks for a period of three months and in a principal amount
that is representative for a single transaction in United States dollars in that
market at that time, or
(d) if the banks so selected by the Trustee are not quoting as mentioned
in clause (c), 3-month LIBOR in effect on the particular Interest Determination
Date.
"Moneyline Telerate Page 3750" means the display on Moneyline Telerate (or
any successor service) on such page (or any other page as may replace such page
on such service) for the purpose of displaying the London interbank rates of
major banks for United States dollars.
"London banking day" means a day on which commercial banks are open for
business, including dealings in United States dollars, in London.
In the event this Global Note is surrendered in exchange for Notes in
definitive form, principal and interest payable with respect to Notes in
definitive form will be payable at the office or agency of the Company
maintained for that purpose in New York, New York (the Place of Payment), in
such coin or currency of the United States of America as at the time of payment
is legal tender for payment of public and private debts; provided, however, that
payment of interest payable with respect to such Notes in definitive form, may
be made at the option of the Company by check mailed to the address of the
Person entitled thereto as such address shall appear on the Security Register.
This Note is one of a duly authorized issue of securities of the Company
(herein referred to as the "Securities") evidencing its unsecured indebtedness,
of the series hereinafter specified, all issued under and pursuant to an
indenture, dated as of March 16, 2001, (herein referred to as the "Indenture"),
duly executed and delivered by the Company and The Bank of New York, as Trustee
(hereinafter called the "Trustee"), to which Indenture and all indentures
supplemental thereto reference is hereby made for a description of the rights,
limitations of rights, obligations, duties and immunities thereunder of the
Trustee, the Company and Holders of the Securities. The Securities may be issued
in one or more series, which different series may be issued in various aggregate
principal amounts, may mature at different times, may bear interest, if any, at
different rates, may be subject to different redemption provisions, if any, may
be subject to different sinking, purchase or analogous funds, if any, may be
subject to different covenants and Events of Default and may otherwise vary as
provided in the Indenture. This Note is one of the series designated as the
Floating Rate Notes due August 5, 2008 of the Company (herein referred to as the
"Notes"), limited except as provided in the Indenture to the aggregate principal
amount of two hundred-fifty million dollars ($250,000,000). The Company may,
without the consent of the Holder hereof, create and issue additional securities
ranking pari pasu with the Notes of this series in all respects and so that such
additional securities shall be consolidated and form a single series having the
same terms as to status, redemption or otherwise as the Notes initially issued.
No additional securities may be issued if an Event of Default has occurred.
The Notes are not entitled to any sinking fund.
The Company may not redeem the Notes, in whole or in part, at its option
at any time prior to the Maturity Date, except upon the occurrence of certain
tax events as described below.
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The Company will, subject to the exceptions and limitations set
forth below, pay as additional interest on the Notes of this series such
additional amounts as are necessary in order that the net payment by the Company
or a Paying Agent of the principal of and interest thereon in respect of any
beneficial owner thereof who is a non-United States person, after deduction for
any present or future tax, assessment or governmental charge of the United
States or a political subdivision or taxing authority thereof or therein,
imposed by withholding with respect to the payment, will not be less than the
amount provided in the Notes of this series in respect of such beneficial owner,
to be then due and payable; provided, however, that the foregoing obligation to
pay additional amounts shall not apply:
(1) to a tax, assessment or governmental charge that is imposed or
withheld solely by reason of the beneficial owner of any portion of the
Notes of this series, or a fiduciary, settlor, beneficiary, member or
shareholder of such beneficial owner if such beneficial owner is an
estate, trust, partnership or corporation, or a person holding a power
over an estate or trust administered by a fiduciary holder, being
considered as:
(a) being or having been present or engaged in trade or
business in the United States or having or having had a permanent
establishment in the United States;
(b) having a current or former relationship with the United
States, including a relationship as a citizen or resident thereof;
(c) being or having been a foreign or domestic personal holding
company, a passive foreign investment company or a controlled
foreign corporation with respect to the United States or a
corporation that has accumulated earnings to avoid United States
federal income tax; or
(d) being or having been a "10-percent shareholder" of the Company
as defined in Section 871(h)(3) of the United States Internal
Revenue Code or any successor provision;
(2) to any holder of the Notes of this series that is not the sole
beneficial owner of any Note of this series, or portion thereof, or that
is a fiduciary or partnership, but only to the extent that a beneficiary
or settlor with respect to the fiduciary, or a beneficial owner or member
of the partnership would not have been entitled to the payment of an
additional amount had the beneficiary, settlor, beneficial owner or member
received directly its beneficial or distributive share of the payment;
(3) to a tax, assessment or governmental charge that is imposed or
withheld by reason of the failure of the holder of any portion of the
Notes of this series or any other person to comply with the certification,
identification or information reporting requirements concerning the
nationality, residence, identity or connection with the United States of
the holder or the beneficial owner of any portion of the Notes of this
series, if compliance is required by statute or by regulation of the
United States Treasury Department or by an applicable income tax treaty to
which the United States is a party as a precondition to exemption from
such tax, assessment or other governmental charge;
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(4) to a tax, assessment or governmental charge that is imposed
otherwise than by withholding by the Company or a Paying Agent from the
payment;
(5) to a tax, assessment or governmental charge that is imposed or
withheld solely by reason of a change in law, regulation, or
administrative or judicial interpretation that becomes effective more than
15 days after the payment becomes due or is duly provided for, whichever
occurs later;
(6) to any estate, inheritance, gift, sales, excise, transfer,
wealth or personal property tax or a similar tax, assessment or
governmental charge;
(7) to any tax, assessment or other governmental charge required
to be withheld by any Paying Agent from any payment of principal of or
interest on any Notes of this series, if such payment can be made without
such withholding by any other paying agent;
(8) to any tax, assessment or governmental charge required to be
withheld or deducted where such withholding or deduction is imposed on a
payment to an individual and is required to be made pursuant to any
European Union Directive on the taxation of savings or any law
implementing or complying with, or introduced in order to conform to, such
directive; or
(9) in the case of any combination of items (1), (2), (3), (4),
(5), (6), (7) and (8).
The Notes of this series are subject in all cases to any tax, fiscal or
other law or regulation or administrative or judicial interpretation applicable
thereto. Except as specifically provided herein, the Company shall not be
required to make any payment with respect to any tax, assessment or governmental
charge imposed by any government or a political subdivision or taxing authority
thereof or therein.
If (a) as a result of any change in, or amendment to, the laws (or any
regulations or rulings promulgated thereunder) of the United States, or any
change in, or amendments to, official position regarding the application or
interpretation of such laws, regulations or rulings, which change or amendment
is announced or becomes effective on or after July 29, 2004, the Company becomes
or will become obligated to pay additional amounts as described above with
respect to any Notes of this series or (b) any act is taken by a taxing
authority of the United States on or after July 29, 2004, whether or not such
act is taken with respect to the Company or any affiliate, that results in a
substantial probability that the Company will or may be required to pay such
additional amounts with respect to any Notes of this series, then the Company
may, at its option, redeem, as a whole, but not in part, all of the Notes of
this series on not less than 30 nor more than 60 days' prior notice, at a
redemption price equal to 100% of their principal amount, together with interest
accrued thereon to the date fixed for redemption, provided that the Company
determines, in its business judgment, that the obligation to pay such additional
amounts cannot be avoided by the use of reasonable measures available to it, not
including substitution of the obligor under the Notes of this series. No
redemption pursuant to (b) above may be made unless the Company shall have
received an opinion of independent counsel to the
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effect that an act taken by a taxing authority of the United States results in a
substantial probability that it will or may be required to pay the additional
amounts described above and the Company shall have delivered to the Trustee a
certificate, signed by a duly authorized officer, stating that based on such
opinion the Company is entitled to redeem the Notes of this series pursuant to
their terms. Unless the Company defaults in payment of the redemption price on
the redemption date, interest will cease to accrue on the Notes of this series
on and after the redemption date.
As used herein, the term "United States" means the United States of
America (including the States and the District of Columbia), and its
territories, its possessions and other areas subject to its jurisdiction; the
term "United States person" means an individual who is a citizen or resident of
the United States, a corporation or partnership (or other entity treated as a
partnership or corporation for federal income tax purposes) created or organized
in or under the laws of the United States, any state thereof or the District of
Columbia (other than a partnership that is not treated as a United State person
under the applicable Treasury regulations), any estate the income of which is
subject to United States federal income taxation regardless of its source, or
any trust if a court within the United States is able to exercise primary
supervision over the administration of the trust and one or more United States
persons have the authority to control all substantial decisions of the trust.
Notwithstanding the preceding sentence, to the extent provided in the Treasury
regulations, certain trusts in existence on August 20, 1996, and treated as
United States persons prior to such date that elect to continue to be treated as
United States persons will also be a United States person; and "non-United
States person" means a person who is not a United States person.
Notices with respect to the Notes of this series will be published in
newspapers in The City of New York and in London. It is expected that
publication will be made in the City of New York in The Wall Street Journal and
in London in the Financial Times. Any such notice shall be deemed to have been
given on the date of such publication or, if published more than once, on the
date of the first such publication.
In case an Event of Default, as defined in the Indenture, with respect to
the Notes shall have occurred and be continuing, the principal hereof may be
declared, and upon such declaration shall become, due and payable, in the
manner, with the effect and subject to the conditions provided in the Indenture.
The Indenture provides that in certain events such declaration and its
consequences may be waived by the Holders of a majority in aggregate principal
amount of the Notes then Outstanding. Any such waiver by the Holder of this Note
(unless revoked as provided in the Indenture) shall be conclusive and binding
upon such Holder and upon all future Holders and owners of this Note and of any
Note issued upon the transfer hereof or in exchange or substitution herefor,
irrespective of whether or not any notation of such waiver is made upon this
Note or such other Notes.
The Indenture contains provisions permitting the Company and the Trustee,
with the consent of the Holders of not less than a majority in aggregate
principal amount of all Outstanding Securities or, in certain cases, of the
Outstanding Securities of each series to be affected, evidenced as in the
Indenture provided, to execute supplemental indentures adding any provisions to
or changing in any manner or eliminating any of the provisions of the Indenture
or of any supplemental indenture or modifying in any manner the rights of the
Holders of the
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Securities of each such series; provided, however, that no such supplemental
indenture shall (i) change the Stated Maturity of the principal of, or any
installment of principal or interest on, any Security, or reduce the principal
amount thereof or the rate of interest, if any, thereon, or any premium payable
upon the redemption thereof, or reduce the amount of the principal of a
Discounted Security that would be due and payable upon a declaration of the
Maturity thereof, or change the coin or currency in which any Security or the
interest thereon is payable, or impair the right to institute suit for the
enforcement of any such payment on or after the Stated Maturity thereof (or, in
the case of redemption, on or after the Redemption Date) or (ii) reduce the
percentage in principal amount of the Outstanding Securities or the Outstanding
Securities of any particular series, the consent of whose Holders is required
for any such supplemental indenture, or the consent of whose Holders is required
for any waiver of compliance with certain provisions of the Indenture or certain
defaults thereunder or their consequences provided for in the Indenture. It is
also provided in the Indenture that prior to the acceleration of maturity of the
Securities of any particular series upon the occurrence of an Event of Default
with respect to such series as permitted by the Indenture, the Holders of a
majority in aggregate principal amount of the Securities of such series at the
time Outstanding may on behalf of the Holders of all of the Securities of such
series waive any past default under the Indenture with respect to Securities of
such series and its consequences, except a default in the payment of the
principal of or premium, if any, or interest, if any, on any of the Securities
of such series. Any such consent or waiver by the Holder of this Note (unless
revoked as provided in the Indenture) shall be conclusive and binding upon such
Holder and upon all future Holders and owners of this Note and of any Note
issued upon transfer hereof or in exchange or substitution herefor, irrespective
of whether or not any notation of such consent or waiver is made upon this Note
or such other Notes.
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the time, place and rate, and in the coin or currency, as prescribed herein and
in the Indenture.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Note is registrable by the Holder hereof on the
Security Register of the Company, upon due presentment of this Note for
registration of transfer at the office of the Security Registrar, or at the
office of any Security Co-Registrar duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory to, the Company and the
Security Registrar or any such Security Co-Registrar duly executed by, the
Holder hereof or his attorney duly authorized in writing, and thereupon one or
more new Notes of authorized denominations and for the same aggregate principal
amount will be issued to the designated transferee or transferees.
The Notes are issuable only as registered Notes without coupons in
denominations of $1,000 and integral multiples of $1,000 in excess thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
Notes are exchangeable for new Notes of any authorized denominations of the same
aggregate principal amount as requested by the Holder surrendering the same. If
(x) the Securities Depository is at any time unwilling or unable to continue as
securities depository and a successor depository is not appointed by the Company
within 60 days, (y) the Company executes and delivers to the Trustee a Company
Order to the effect that this Note shall be exchangeable or (z) an Event of
Default has occurred and is
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continuing with respect to the Notes, this Note shall be exchangeable for Notes
in definitive form of like tenor and of an equal aggregate principal amount, in
denominations of $1,000 and integral multiples of $1,000 in excess thereof. Such
definitive Notes shall be registered in such name or names as the Securities
Depository shall instruct the Trustee. If definitive Notes are so delivered, the
Company may make such changes to the form of this Note as are necessary or
appropriate to allow for the issuance of such definitive Notes.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment for registration of transfer, the Company, the
Trustee, the Security Registrar, any Security Co-Registrar and any agent of the
Company or the Trustee may treat the Person in whose name this Note is
registered as the absolute owner hereof for all purposes, whether or not this
Note be overdue, and neither the Company, the Trustee, the Security Registrar,
any Security Co-Registrar nor any such agent shall be affected by notice to the
contrary.
The Holder of this Note shall not have recourse for the payment of
principal of or interest on this Note or for any claim based on this Note or the
Indenture against any director, officer or stockholder, past, present or future,
of the Company. By acceptance of this Note, the Holder waives any such claim
against any such Person.
The Indenture and this Note shall be governed by and construed in
accordance with the laws of the State of New York.
All terms used but not defined in this Note which are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
Unless the certificate of authentication hereon has been executed by the
Trustee under such Indenture, this Note shall not be entitled to any benefit
under such Indenture or be valid or obligatory for any purpose.
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IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed
manually or in facsimile, and a facsimile of its corporate seal to be imprinted
hereon.
Dated: August 5, 2004
THE HERTZ CORPORATION
By:______________________________________
Treasurer
Attest:__________________________________
Assistant Secretary
[SEAL]
Dated: August 5, 2004
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of
the series designated herein,
issued under the Indenture
described herein.
THE BANK OF NEW YORK, as Trustee
By:__________________________________
Authorized Signatory
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