THE HERTZ CORPORATION
Debt Securities
Underwriting Agreement Basic Provisions
May 20, 2002
The Hertz Corporation, a Delaware corporation (the "Company"), proposes
from time to time to enter into one or more Pricing Agreements (each, a "Pricing
Agreement") in the form of Annex I hereto, incorporating by reference the basic
provisions (the "Basic Provisions") set forth herein, with such additions and
deletions as the parties thereto may determine, and, subject to the terms and
conditions stated herein and therein, to issue and sell to the firm or firms
named in Schedule I to the applicable Pricing Agreement (such firm or firms
constituting the "Underwriters" with respect to such Pricing Agreement and the
securities specified therein) certain of the Company's debt securities specified
in Schedule II to such Pricing Agreement (such securities, as so specified in
such Pricing Agreement, being herein sometimes referred to as the "Designated
Securities"), less the principal amount of Designated Securities covered by
Delayed Delivery Contracts, if any, as provided in Section 3 hereof and as may
be specified in Schedule II to such Pricing Agreement (such Designated
Securities to be covered by Delayed Delivery Contracts, as so specified in such
Pricing Agreement, being herein sometimes referred to as "Contract Securities"
and the Designated Securities to be purchased by the Underwriters (after giving
effect to the deduction, if any, for Contract Securities) being herein sometimes
referred to as "Underwriters' Securities").
The terms and rights of any particular issuance of Designated Securities
shall be as specified in the Pricing Agreement relating thereto and in or
pursuant to the indentures, together with any indentures supplemental thereto,
pursuant to which the Designated Securities will be issued (the "Indentures" or
separately "each Indenture" or the "applicable Indenture").
With respect to any Pricing Agreement, such Pricing Agreement, together
with the Basic Provisions incorporated therein by reference, is also herein
referred to as "this Agreement", and the date of such Pricing Agreement is also
herein referred to as "the date of this Agreement." Terms defined in the Pricing
Agreement, unless defined herein, are used as therein defined.
1. Particular sales of Designated Securities may be made from time to time
to the Underwriters of such Securities through the representative or
representatives identified in the Pricing Agreement (the "Representative"). The
Basic Provisions shall not be construed as an obligation of the Company to sell
any of the Securities or as an obligation of any of the Underwriters to purchase
the Securities. The obligation of the Company to issue and sell any of the
Securities and the obligation of any of the Underwriters to purchase any of the
Securities shall be evidenced by the Pricing Agreement with respect to the
Designated Securities specified therein. Each Pricing Agreement shall state the
aggregate principal amount of such Designated Securities, the initial public
offering price of such Designated Securities, the purchase price to the
Underwriters of such Designated Securities, the names of the Underwriters of
such Designated Securities, the principal amount of such Designated Securities
to be purchased by each Underwriter, whether any of such Designated Securities
shall be covered by Delayed
Delivery Contracts (as defined in Section 3 hereof) and the commission payable
to the Underwriters with respect thereto, and shall set forth the date, time and
manner of delivery of such Designated Securities and payment therefor. The
Pricing Agreement shall also specify (to the extent not set forth in the
registration statement and the prospectus with respect thereto and the
Indentures) the terms of such Designated Securities. A Pricing Agreement shall
be in the form of an executed writing (which may be in counterparts) and may be
evidenced by an exchange of facsimile transmissions. Each Pricing Agreement
shall be deemed to be an agreement by the Company and the Underwriters to be
bound by the terms of this Agreement. The obligations of the Underwriters under
this Agreement shall be several and not joint.
2. The Company represents and warrants to, and agrees with, each of the
Underwriters that:
(a) A registration statement (No. 333-57138) on Form S-3 in respect of
the Company's debt securities (the "Securities") have been filed with the
Securities and Exchange Commission (the "Commission"), in the form
heretofore delivered to the Representative, and such registration
statement in such form has been declared effective by the Commission; and
no stop order suspending the effectiveness of such registration statement
has been issued and no proceeding for that purpose has been initiated or
threatened by the Commission (any preliminary prospectus included in such
registration statement being hereinafter called the "Preliminary
Prospectus", the various parts of such registration statement, including
all exhibits thereto but excluding Form T-1, and, if applicable, including
information ("Rule 430A Information"), if any, deemed to be a part of such
registration statement at the time of effectiveness pursuant to Rule 430A
under the Securities Act of 1933, as amended (the "Act"), as amended at
the time such part became effective, being hereinafter referred to as the
"Registration Statement"), and the prospectus relating to the Securities,
in the form in which it has most recently been filed, or electronically
transmitted for filing, with the Commission on or prior to the date of
this Agreement, being hereinafter called the "Prospectus"; any reference
herein to the Registration Statement, the Preliminary Prospectus or the
Prospectus shall be deemed to include the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 under the Act, as of the
effective date of such Registration Statement or the date of such
Preliminary Prospectus or Prospectus, as the case may be, and any
reference herein to any amendment or supplement to the Registration
Statement, the Preliminary Prospectus or the Prospectus shall be deemed to
include any documents filed after the effective date of such Registration
Statement or the date of such Preliminary Prospectus or Prospectus, as the
case may be, under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and so incorporated by reference; and any reference to
the phrase "Prospectus as amended or supplemented" shall be deemed to
refer to the Prospectus as amended or supplemented to set forth any Rule
430A Information or to describe the offering of a particular series of
Designated Securities in the form in which it is first filed, or
electronically transmitted for filing, with the Commission pursuant to
Rule 424 under the Act, including any documents incorporated by reference
therein as of the date of such filing or transmission);
(b) The documents incorporated by reference in the Prospectus, when
they were filed with the Commission, conformed in all material respects to
the requirements of the
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Exchange Act and the rules and regulations of the Commission thereunder,
and any further documents so filed and incorporated by reference, when
they are filed with the Commission, will conform in all material respects
to the requirements of the Exchange Act and the rules and regulations of
the Commission thereunder;
(c) The Registration Statement and the Prospectus conform, and any
amendments or supplements thereto will conform, in all material respects
to the requirements of the Act, the Exchange Act, where applicable, and
the rules and regulations of the Commission under the Act or the Exchange
Act, as applicable, and do not and will not, as of the applicable
effective date as to the Registration Statement and any amendment thereto
and as of the applicable filing date as to the Prospectus and any
supplement thereto, contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary
to make the statements therein not misleading; provided, however, that
this representation and warranty shall not apply to any statement or
omission made in reliance upon and in conformity with information
furnished in writing to the Company by an Underwriter of Designated
Securities through the Representative expressly for use in the Prospectus
as amended or supplemented relating to such Securities; when the
Registration Statement became effective, the Indentures were, and at all
times thereafter the Indentures have been and will be, duly qualified
under the Trust Indenture Act of 1939, as amended (the "Trust Indenture
Act"), and when the Registration Statement became effective the Indentures
conformed, and at all times thereafter the Indentures have conformed and
will conform, in all material respects to the requirements of the Trust
Indenture Act;
(d) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware and
has corporate power and authority and has all licenses, permits, orders
and other governmental and regulatory approvals, to own or lease its
properties and conduct its business in the jurisdictions in which such
business is transacted as described in the Prospectus, with only such
exceptions as are not material to the business of the Company and its
subsidiaries considered as a whole;
(e) This Agreement has been duly authorized, executed and delivered on
behalf of the Company; upon execution and delivery of each Pricing
Agreement by the Company, such Pricing Agreement shall have been duly
authorized, executed and delivered on behalf of the Company and, when
executed and delivered by the Representative, will be a valid and legally
binding agreement of the Company in accordance with its terms; on the date
of each Pricing Agreement with respect to the Designated Securities
covered thereby, such Designated Securities shall be duly authorized, and,
when such Designated Securities are authenticated as contemplated by the
Indentures and issued and delivered in accordance with this Agreement and,
in the case of any Contract Securities, pursuant to Delayed Delivery
Contracts applicable to such Contract Securities, will have been duly
executed, authenticated, issued and delivered and will constitute valid
and legally binding obligations of the Company in accordance with their
terms and will be entitled to the benefits provided by the Indentures,
which will be substantially in the form included as an exhibit to the
Registration Statement; and the Indentures have been duly authorized by
the Company and, as executed and delivered by the Company and the
applicable trustee
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under the Indentures (the "Trustee"), constitute valid and legally binding
instruments of the Company in accordance with its terms except as the same
may be limited by bankruptcy, insolvency, reorganization or other similar
laws relating to or affecting the enforcement of creditors' rights
generally and by general equitable principles, regardless of whether such
enforceability is considered in a proceeding in equity or at law;
(f) In the event that any of the Designated Securities are purchased
pursuant to Delayed Delivery Contracts, each of such Delayed Delivery
Contracts has been duly authorized by the Company and, when executed and
delivered on behalf of the Company and duly authorized, executed and
delivered on behalf of the purchaser thereunder, will constitute a valid
and legally binding agreement of the Company in accordance with its terms;
(g) There is no consent, approval, authorization, order, registration
or qualification of or with any court or any regulatory authority or other
governmental body having jurisdiction over the Company which is required
for, and the absence of which would materially affect, the issue and sale
of the Designated Securities as contemplated by this Agreement or, in the
case of any Contract Securities, Delayed Delivery Contracts with respect
to such Contract Securities, or the execution, delivery or performance of
the Indentures, except the registration under the Act of the Securities,
the qualification of the Indentures under the Trust Indenture Act and such
consents, approvals, authorizations, registrations or qualifications as
may be required under the securities or Blue Sky laws of any jurisdiction
in connection with the public offering of the Designated Securities by the
Underwriters; and
(h) PricewaterhouseCoopers LLP ("PwC"), who have certified certain of
the financial statements included or incorporated by reference in the
Registration Statement and the Prospectus as amended or supplemented, are,
to the best of the knowledge of the Company, independent certified public
accountants as required by the Act and the rules and regulations of the
Commission thereunder.
3. Upon the execution of the Pricing Agreement applicable to any
Designated Securities and authorization by the Representative of the release of
the Underwriters' Securities, the several Underwriters propose to offer the
Underwriters' Securities for sale upon the terms and conditions set forth in the
Prospectus as amended or supplemented, and, in connection with such offer or the
sale of such Designated Securities, will use the Prospectus as amended or
supplemented, together with any amendment or supplement thereto, that
specifically describes such Designated Securities, in the form which has been
most recently distributed to them by the Company, only as permitted or
contemplated thereby, and will offer and sell such Designated Securities only as
permitted by the Act and the applicable securities laws or regulations of any
jurisdiction. The Representative will use its best efforts to inform the Company
when it has authorized the sale of the Underwriters' Securities to the public
and when it has been advised that such Underwriters' Securities have been sold
by the several Underwriters within a reasonable period of time after such sales
are completed.
The Company may specify in Schedule II to the Pricing Agreement applicable
to any Designated Securities that the Underwriters are authorized to solicit
offers to purchase
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Designated Securities from the Company pursuant to delayed delivery contracts
(herein called "Delayed Delivery Contracts"), substantially in the form of Annex
II attached hereto but with such changes therein as the Representative and the
Company may authorize or approve. If so specified, the Underwriters will
endeavor to make such arrangements, and as compensation therefor the Company
will pay to the Representative, for the accounts of the Underwriters, at the
Time of Delivery (as defined in Section 4 hereof), such commission, if any, as
may be set forth in such Pricing Agreement. Delayed Delivery Contracts, if any,
shall be with institutional investors of the types described in the Prospectus
as amended or supplemented and subject to other conditions therein set forth.
The Company will enter into a Delayed Delivery Contract in each case where the
Underwriters have arranged for such a contract and the Company has advised the
Representative of its approval of the proposed sale of Contract Securities to
the purchaser thereunder; provided, however, that the minimum principal amount
of Contract Securities covered by any Delayed Delivery Contract (or the
aggregate amount under Delayed Delivery Contracts with related purchasers) shall
be $1,000,000 and the aggregate principal amount of all Contract Securities
shall not exceed the maximum aggregate principal amount specified in Schedule II
to the Pricing Agreement with respect to the Designated Securities specified
therein, unless the Company shall otherwise agree in writing. However, if the
aggregate principal amount of Contract Securities requested for delayed delivery
is less than the minimum aggregate principal amount specified in such Schedule
II, the Company will have the right to reject all requests. Each Underwriter to
whom Contract Securities have been attributed will make reasonable efforts to
assist the Company in obtaining performance by the purchaser in accordance with
the terms of the Delayed Delivery Contract covering such Contract Securities,
but no Underwriter will have any liability in respect of the validity or
performance of any Delayed Delivery Contract.
The Company will notify the Representative not later than 3:30 p.m., New
York City time, on the third business day preceding the Time of Delivery
specified in the applicable Pricing Agreement (or such other time and date as
the Representative and the Company may agree upon in writing), such notice to be
confirmed in writing prior to such Time of Delivery, of the principal amount of
Contract Securities, and the name of, and principal amount thereof to be
purchased by, each purchaser. The principal amount of Contract Securities to be
deducted from the principal amount of Designated Securities to be purchased by
each Underwriter as set forth in Schedule I to the Pricing Agreement applicable
to such Designated Securities shall be, in each case, the principal amount of
Contract Securities of which the Company has been advised in writing prior to
the Time of Delivery by the Representative as having been attributed to such
Underwriter, provided that, if the Company has not been so advised, the amount
of Contract Securities to be so deducted shall be, in each case, that proportion
of Contract Securities which the principal amount of Designated Securities to be
purchased by such Underwriter under such Pricing Agreement bears to the total
principal amount of the Designated Securities (rounded, as the Representative
may determine, to the nearest $1,000 principal amount) and that, subject to
Section 8 hereof, the total principal amount of Underwriters' Securities to be
purchased by all of the Underwriters pursuant to such Pricing Agreement shall be
the total principal amount of Designated Securities set forth in Schedule I to
such Pricing Agreement less the principal amount of the Contract Securities.
4. Underwriters' Securities to be purchased by each Underwriter pursuant
to the Pricing Agreement relating thereto, shall be delivered (to the extent
practicable) in definitive form or in the form of one or more global securities,
as specified in such Pricing Agreement, by the
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Company to the Representative, for the account of such Underwriter, against
payment of the purchase price therefor by such Underwriter or on its behalf, by
wire or internal bank transfer to an account specified by the Company, in the
funds specified in such Pricing Agreement, all at the place and time and date
specified in such Pricing Agreement or at such other place and time and date or
by such other method of payment as the Representative and the Company may agree
upon in writing, the time and date of such delivery and payment being herein
called the "Time of Delivery". If any Underwriters' Securities are to be
delivered in definitive form, the Underwriters' Securities so delivered shall be
in such authorized denominations and shall be registered in such name or names
as the Representative shall request in writing at least 48 hours prior to the
Time of Delivery. For the purpose of expediting the checking of such
Underwriters' Securities by the Representative, the Company agrees to make such
Underwriters' Securities available to the Representative not later than 9:00
a.m., New York City time, on the business day next preceding the Time of
Delivery at the offices of the Representative designated in Section 11 hereof.
If any Underwriters' Securities are to be delivered in global form, unless
otherwise provided in the applicable Pricing Agreement, the Underwriters'
Securities so delivered shall be deposited with, or on behalf of, the Depository
Trust Company (the "Depository") and registered in the name of the Depository's
nominee.
Concurrently with the delivery of and payment for the Underwriters'
Securities, the Company will make a payment to the Representative for the
accounts of the Underwriters, by wire or internal bank transfer to an account
specified by the Representative (or by such other method of payment as the
Representative and the Company may agree upon in writing), in the amount of any
compensation payable by the Company to the Underwriters in respect of any
Delayed Delivery Contracts as provided in Section 3 hereof and in the Pricing
Agreement relating to the Designated Securities, or such amount may be deducted
from the amounts delivered pursuant to the preceding paragraph.
5. The Company agrees with each of the Underwriters of any Designated
Securities:
(a) To make no amendment or any supplement to the Registration
Statement or the Prospectus as amended or supplemented after the date of
the Pricing Agreement relating to such Designated Securities and prior to
the Time of Delivery for such Designated Securities prior to having
furnished the Representative with a copy of the proposed form thereof and
given the Representative a reasonable opportunity to review the same; to
file promptly all reports and any definitive proxy or information
statements required to be filed by the Company with the Commission
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act
subsequent to the date of the Prospectus as amended or supplemented and
for so long as the delivery of a prospectus is required by law in
connection with the offering or sale of such Designated Securities, and
during such same period to advise the Representative, promptly after it
receives notice thereof, of the time when any amendment to the
Registration Statement has been filed or become effective or any
supplement to the Prospectus as amended or supplemented or any amended
Prospectus has been filed or electronically transmitted for filing, of the
issuance of any stop order by the Commission, of the suspension of the
qualification of such Designated Securities for offering or sale in any
jurisdiction, of the initiation or threatening of any proceeding for any
such purpose, or of any request by the Commission for the amending or
supplementing of the Registration Statement or the Prospectus as amended
or
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supplemented or for additional information; and, in the event of the
issuance of any such stop order or of any order preventing or suspending
the use of any prospectus relating to such Designated Securities or
suspending any such qualification, to use promptly its best efforts to
obtain its withdrawal;
(b) Promptly from time to time to take such action as the
Representative may reasonably request in order to qualify such Designated
Securities for offering and sale under the securities laws of such states
as the Representative may request and to continue such qualifications in
effect so long as necessary under such laws for the distribution of such
Designated Securities, provided that, in connection therewith the Company
shall not be required to qualify as a foreign corporation to do business,
or to file a general consent to service of process in any jurisdiction,
and provided further that the expense of maintaining any such
qualification more than one year from the date of the Pricing Agreement
with respect to such Designated Securities shall be at the expense of the
Underwriters;
(c) To furnish the Underwriters with copies of the Registration
Statement (excluding exhibits) and copies of the Prospectus as amended or
supplemented in such quantities as the Representative may from time to
time reasonably request; and if, before a period of six months shall have
elapsed after the date of the Pricing Agreement applicable to such
Designated Securities and the delivery of a prospectus shall be at the
time required by law in connection with sales of any such Designated
Securities, either (i) any event shall have occurred as a result of which
the Prospectus as amended or supplemented would include any untrue
statement of a material fact or omit to state any material fact necessary
in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading, or (ii) for any other reason
it shall be necessary during such same period to amend or supplement the
Prospectus as amended or supplemented or to file under the Exchange Act
any document incorporated by reference into the Prospectus as amended or
supplemented in order to comply with the Act or the Exchange Act, to
notify the Representative and upon its request to file such document and
to prepare and furnish without charge to each Underwriter and to any
dealer participating in the distribution of such Designated Securities as
many copies as the Representative may from time to time reasonably request
of an amendment or a supplement to the Prospectus as amended or
supplemented which will correct such statement or omission or effect such
compliance; and in case any Underwriter is required by law to deliver a
prospectus in connection with sales of any of such Designated Securities
at any time six months or more after the date of such Pricing Agreement,
upon the request of the Representative, but at the expense of such
Underwriter, to prepare and deliver to such Underwriter as many copies as
the Representative may request of an amended or supplemented prospectus
complying with Section 10(a)(3) of the Act;
(d) To make generally available to its security holders as soon as
practicable, but in any event no later than eighteen months after the
effective date of the Registration Statement (as such date is defined in
Rule 158(c) under the Act), an earnings statement of the Company and its
consolidated subsidiaries complying with Rule 158 under the Act and
covering a period of at least twelve consecutive months beginning after
such effective date;
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(e) During a period of five years from the date of the Pricing
Agreement applicable to such Designated Securities, to furnish to the
Representative copies of all reports or other communications (financial or
other) furnished to security holders, and to deliver to the
Representative, during such same period, (i) as soon as they are
available, copies of any reports and financial statements furnished to or
filed with the Commission or any national securities exchange on which any
of the Designated Securities or any class of securities of the Company is
listed, and (ii) such additional information concerning the business and
financial condition of the Company as the Representative may from time to
time reasonably request (such financial statements to be on a consolidated
basis to the extent that the accounts of the Company and its subsidiaries
are consolidated in reports furnished to its security holders generally or
to the Commission); and
(f) To pay or cause to be paid all costs and expenses incident to the
performance of its obligations hereunder, including the cost of all
qualifications of such Designated Securities under state securities laws
(including reasonable fees and disbursements of counsel to the
Underwriters in connection with such qualifications and with legal
investment surveys), any fees of rating agencies with respect to the
Securities and the cost of printing the Basic Provisions, each Pricing
Agreement and any Delayed Delivery Contracts (it being understood that,
except as provided in this subsection (f) and in Section 10 hereof, the
Underwriters will pay all of their own costs and expenses, including the
cost of printing any Agreement Among Underwriters, the fees of their
counsel, transfer taxes on resale of any of such Designated Securities by
them and any advertising expenses connected with any offers that they may
make).
6. The obligations of the Underwriters of any Designated Securities under
the Pricing Agreement applicable to such Designated Securities shall be subject,
in the discretion of the Representative, to the condition that all
representations and warranties and other statements of the Company herein are,
at and as of the Time of Delivery for such Designated Securities, true and
correct, the condition that the Company shall have performed all of its
obligations hereunder theretofore to be performed, in all material respects, and
the following additional conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceeding for that purpose shall
have been initiated or threatened by the Commission; and all requests for
additional information on the part of the Commission shall have been
complied with or otherwise satisfied;
(b) The Company shall have furnished to the Representative, at
the Time of Delivery for such Designated Securities, the opinion of
Xxxxxx X. Xxxxx, Esq., Senior Vice President, Secretary and General
Counsel of the Company, addressed to the Underwriters and dated the Time
of Delivery, to the effect that:
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(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
State of Delaware and is duly qualified and in good standing as a
foreign corporation under the laws of New York and New Jersey and
has the corporate power and authority to own or hold its properties
and to conduct the business in which it is engaged;
(ii) The applicable Indenture has been validly authorized, duly
executed and delivered by the Company and duly qualified under the
Trust Indenture Act, and is a valid and binding instrument of the
Company enforceable in accordance with its terms except as limited
by general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law)
and by bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium or other laws affecting enforcement of creditors' rights
generally;
(iii) The Underwriters' Securities have been validly authorized
by the proper authorized officers of the Company, and assuming they
have been duly authenticated by the applicable Trustee or the
authenticating agent and delivered, are the validly issued,
outstanding and legally binding obligations of the Company;
(iv) The Contract Securities, if any, have been validly
authorized and, when duly executed, authenticated, issued and
delivered and paid for by the respective purchasers thereof under
the related Delayed Delivery Contracts, such Contract Securities
will be validly issued, outstanding and legally binding obligations
of the Company;
(v) The Delayed Delivery Contracts, if any, have been validly
authorized, executed and delivered by the Company and, assuming due
authorization, execution and delivery by the purchasers thereunder,
are valid and legally binding obligations of the Company,
enforceable in accordance with their terms, except as limited by
general principles of equity and by bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium or other laws
affecting enforcement of creditors' rights generally;
(vi) The Registration Statement is effective under the Act and,
to the best knowledge of such counsel, no stop order suspending its
effectiveness has been issued and no proceeding for that purpose is
pending or threatened by the Commission;
(vii) The Registration Statement and the Prospectus as amended or
supplemented (except that no opinion need be expressed as to the
financial statements, schedules and other financial and statistical
data contained therein) and any further amendments or supplements
thereto made by the Company prior to the Time of Delivery for the
Designated Securities, appear to comply as to form in all material
respects with the requirements of the Act and the applicable rules
and regulations of the Commission under said Acts and the documents
incorporated by reference in the Prospectus as amended or
supplemented (except
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that no opinion need be expressed as to the financial statements,
schedules and other financial and statistical data contained
therein) appear to comply as of their respective dates as to form in
all material respects with the requirements of the Exchange Act and
the rules and regulations thereunder;
(viii) Such counsel does not know of any litigation or any
governmental proceeding instituted or threatened against the Company
which could materially affect the transactions contemplated by this
Agreement or would be required to be disclosed in any Prospectus
which is not disclosed and correctly summarized therein;
(ix) Such counsel does not know of any contracts or other
documents which are required to be filed as exhibits to the
Registration Statement incorporated by reference in the Prospectus,
which have not been filed as exhibits to the Registration Statement
or incorporated therein by reference; and
(x) This Agreement and the Delayed Delivery Contracts, if any,
have been duly authorized, executed and delivered by the Company;
the execution, delivery and performance of this Agreement, the
Delayed Delivery Contracts, if any, and the applicable Indenture
and the sale of the Designated Securities will not conflict with,
or result in a breach of any of the provisions of, or constitute a
default under, or result in the creation or imposition of any lien,
charge or encumbrance upon any of the property or assets of the
Company or any of its subsidiaries considered as a whole pursuant
to the terms of, any material agreement, indenture or instrument
known to such counsel to which the Company is a debtor or a
guarantor, or result in a violation of the provisions of the
Certificate of Incorporation, as amended, of By-Laws of the Company
or any order, rule or regulation of any court or other governmental
body; and no consent, authorization or order of, or filing or
registration with, any court or governmental body is required for
the execution, delivery and performance by the Company of this
Agreement and the Delayed Delivery Contracts, if any, and the
applicable Indenture, except such as may be required by the Act,
the Trust Indenture Act, the Exchange Act or state securities laws.
Such counsel shall additionally state that no facts have come to the
attention of such counsel which would lead him to believe that at the time the
Registration Statement became effective (or, if an amendment to the Registration
Statement has been filed by the Company with the Commission subsequent to the
effectiveness of the Registration Statement, then at the time of the most recent
such filing) either the Registration Statement or any such amendment thereto
contained an untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading, or that the Prospectus, as amended or supplemented as of its
date and at the date of the opinion, includes an untrue statement of a material
fact or omits to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading (except that no comment need be expressed as to the financial
statements, schedules and other financial and statistical data contained
therein).
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(c) Sidley Xxxxxx Xxxxx & Xxxx LLP, counsel to the Underwriters, shall
have furnished to the Representative its written opinion, dated the Time
of Delivery for such Designated Securities, in form satisfactory to the
Representative in its reasonable judgment, to the effect that:
(i) The Company is a corporation duly incorporated and validly
existing in good standing under the laws of the State of Delaware
and has the corporate power under the laws of such State to own its
properties and carry on its business as set forth in the Prospectus
as amended or supplemented;
(ii) The applicable Indenture has been duly qualified under the
Trust Indenture Act, has been validly authorized, duly executed and
delivered by the Company and constitutes a valid and binding
obligation of the Company;
(iii) The Designated Securities have been duly authorized by the
Company; the Underwriters' Securities, when executed by the Company
and authenticated by the Trustee in accordance with the applicable
Indenture and delivered and paid for as provided for in this
Agreement, will have been duly issued under the Indenture and will
constitute valid and binding obligations of the Company entitled to
the benefits provided by the Indenture; and any Contract Securities
(when executed by the Company and authenticated by the Trustee as
aforesaid), when delivered and paid for as provided in the Delayed
Delivery Contracts, will have been duly issued under the Indenture
and will constitute valid and binding obligations of the Company
entitled to the benefits of the Indenture;
(iv) The documents incorporated by reference in the Prospectus as
amended or supplemented (other than the financial statements and
other accounting information contained or incorporated by reference
therein or omitted therefrom, as to which such counsel need express
no opinion), when they were filed with the Commission, appeared on
their face to be appropriately responsive in all material respects
to the requirements of the Exchange Act and the rules and
regulations of the Commission thereunder;
(v) The Registration Statement has become effective under the
Act, is still effective, and to the best knowledge of such counsel
no proceedings for a stop order are pending or threatened;
(vi) The Registration Statement and the Prospectus as amended or
supplemented and any further amendments or supplements thereto made
by the Company prior to the Time of Delivery for the Designated
Securities (other than Exhibit 12 to the Registration Statement and
the financial statements and other accounting information contained
in the Registration Statement or the Prospectus as amended or
supplemented or any further amendments or supplements thereto, or
omitted therefrom, as to which such counsel need express no opinion)
appear on their face to be appropriately responsive in all material
respects to the requirements of the Act and the rules and
regulations of the Commission thereunder;
11
(vii) The Indentures and the Designated Securities conform as to
legal matters with the descriptions thereof contained in the
Registration Statement and the Prospectus as amended or
supplemented; and
(viii) This Agreement has been duly authorized, executed and
delivered by the Company.
Such opinion shall also state that, while such counsel have not verified,
and are not passing upon and do not assume any responsibility for, the accuracy,
completeness or fairness of the statements contained in the Registration
Statement or the Prospectus as amended or supplemented, they have generally
reviewed and discussed such statements with certain officers and employees of
the Company, with their counsel and auditors and with the representatives of the
Underwriters, and in the course of such review and discussions, no facts came to
the attention of such counsel which lead them to believe that the Registration
Statement, at the time that such Registration Statement became effective (other
than the financial statements and other accounting information contained
therein, or omitted therefrom, as to which they have not been requested to
comment), contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading, or that the Prospectus as amended or supplemented, as of
the date thereof (other than the financial statements and other accounting
information contained therein, or omitted therefrom, as to which they have not
been requested to comment), included an untrue statement of a material fact or
omitted to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading. Such opinion may be made subject to the qualification that the
enforceability of the terms of the Indentures and the Designated Securities may
be limited by bankruptcy, insolvency, reorganization or other similar laws
relating to or affecting the enforcement of creditors' rights generally and by
general equitable principles, regardless of whether such enforceability is
considered in a proceeding in equity or at law;
(d) At the Time of Delivery for such Designated Securities, PwC shall
have furnished to the Representative a letter dated such Time of Delivery,
in form satisfactory to the Representative in its reasonable judgment, to
the effect set forth in Annex III hereto and as to such other matters as
the Representative may reasonably request as shall be referred to in
Schedule II to the Pricing Agreement applicable to such Designated
Securities;
(e) Since the respective dates as of which information is given in the
Prospectus as amended or supplemented, there shall not have occurred any
material adverse change, or any development involving a prospective
material adverse change, in or affecting particularly the business or
assets of the Company and its subsidiaries considered as a whole, or any
material adverse change in the financial position or results of operations
of the Company and its subsidiaries considered as a whole, otherwise than
as set forth or contemplated in the Prospectus as amended or supplemented,
which in any such case makes it impracticable or inadvisable in the
reasonable judgment of the Representative to proceed with the public
offering or the delivery of the Designated Securities on the terms and in
the manner contemplated in the Prospectus as amended or supplemented;
(f) Since the time of execution of the Pricing Agreement applicable to
the Designated Securities, none of the following events shall have
occurred:
12
(A) (i) a declaration of a general moratorium on commercial
banking activities in the United States by the authorities that
govern such banking system or a material disruption in the
securities settlement or clearance systems in the United States,
which moratorium or disruption remains in effect and which, in the
reasonable judgment of the Representative, substantially impairs the
Underwriters' ability to settle the transaction involving the
Designated Securities; provided that the exercise of such judgment
shall take into account the availability of alternative means for
settlement and the likely duration of such moratorium or disruption
with the understanding that if the Commission or the Board of
Governors of the Federal Reserve System has unequivocally stated
prior to the Time of Delivery that the resumption of such system
will occur within 3 business days of the scheduled Time of Delivery
for such Designated Securities, the ability to settle the
transaction shall not be deemed to be substantially impaired or (ii)
(1) the United States shall have become engaged in hostilities which
have resulted in the declaration of a national emergency or a
declaration of war by the governmental authorities of the United
States empowered to make such declaration, (2) any suspension or
limitation on trading in securities generally on the New York Stock
Exchange or any setting of minimum prices for trading on such
exchange, or (3) any material outbreak or material escalation of
hostilities involving the United States in armed conflict, which,
in the case of clause (ii)(1), (2) or (3), makes it impracticable
or inadvisable, in the reasonable judgment of the Representative,
after consultation with the Company, if possible, to proceed with
the public offering or the delivery of such Designated Securities
on the terms and in the manner contemplated in the Prospectus,
as amended or supplemented; or
(B) (1) any substantial national or international calamity or
emergency, or (2) any material adverse change in the general
economic, political, legal, tax, regulatory or financial conditions
or currency exchange rates in the United States (whether resulting
from events within or outside of the United States), which, in the
view of the Representative has caused a substantial deterioration in
the price and/or value of such Designated Securities, that in the
case of clause (1) or (2), in the mutual reasonable determination of
the Representative and the Company, make it impracticable or
inadvisable to proceed with the public offering or the delivery of
such Designated Securities on the terms and in the manner
contemplated in the Prospectus, as amended or supplemented.
(g) The Company shall have furnished or caused to be furnished to the
Representative, at the Time of Delivery for such Designated Securities, a
certificate in form satisfactory to the Representative in its reasonable
judgment to the effect that: (i) the representations and warranties of the
Company contained in this Agreement are true and correct on and as of such
Time of Delivery as though made at and as of such Time of Delivery; (ii)
the Company has duly performed, in all material respects, all obligations
required to be performed by it pursuant to the terms of this Agreement at
or prior to such Time of Delivery; (iii) no stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceeding for that purpose has been initiated or, to the
13
knowledge of the Company, threatened by the Commission and all requests
for additional information on the part of the Commission have been
complied with or otherwise satisfied; and (iv) at and as of such Time of
Delivery neither the Registration Statement nor the Prospectus as amended
or supplemented contains any untrue statement of a material fact or omits
to state any material fact required to be stated therein or necessary to
make the statements therein not misleading; provided, however, that no
such certificate shall apply to any statements or omissions made in
reliance upon and in conformity with information furnished in writing to
the Company by an Underwriter through the Representative expressly for use
therein.
The obligations of the Company and the Underwriters of any Designated
Securities under the Pricing Agreement applicable to such Designated Securities
are subject to the additional condition that there shall have been furnished to
the Company and such Underwriters, at the Time of Delivery for such Designated
Securities, such certificates of officers as shall, in the reasonable judgment
of the Representative and the Company, be appropriate to indicate that the
Indentures have been duly authorized, executed and delivered by the Trustee and
is a valid and binding agreement of the Trustee.
7. (a) The Company will indemnify and hold harmless each Underwriter of
the applicable Designated Securities against any losses, claims, damages
or liabilities, joint or several, to which such Underwriter may become
subject with respect to such Designated Securities, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact contained in
any Preliminary Prospectus, any preliminary prospectus supplement, the
Registration Statement or the Prospectus as amended or supplemented, or
any amendment or supplement thereto with respect to such Designated
Securities, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and will
reimburse each Underwriter for any legal or other expenses reasonably
incurred by such Underwriter in connection with investigating or defending
any such action or claim; provided, however, that the Company shall not be
liable in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon an untrue statement or alleged
untrue statement or omission or alleged omission made in any of such
documents in reliance upon and in conformity with written information
furnished to the Company by any Underwriter of Designated Securities
through the Representative expressly for use therein; and provided further
that the Company shall not be liable to any Underwriter of Designated
Securities or any person controlling such Underwriter under the indemnity
agreement in this subsection (a) with respect to any of such documents to
the extent that any such loss, claim, damage or liability of such
Underwriter or controlling person results from the fact that such
Underwriter sold such Designated Securities to a person to whom there was
not sent or given, at or prior to the written confirmation of such sale, a
copy of the Prospectus or of the Prospectus as then amended or
supplemented (excluding documents incorporated by reference), whichever is
most recent, if the Company has previously furnished copies thereof to
such Underwriter.
14
The indemnity agreement in this subsection (a) shall be in addition to
any liability which the Company may otherwise have and shall extend, upon
the same terms and conditions, to each person, if any, who controls any
Underwriter within the meaning of the Act.
(b) Each Underwriter of the applicable Designated Securities will
indemnify and hold harmless the Company against any losses, claims,
damages or liabilities to which the Company may become subject with
respect to such Designated Securities, under the Act or otherwise, insofar
as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in any Preliminary
Prospectus, any preliminary prospectus supplement, the Registration
Statement or the Prospectus as amended or supplemented, or any amendment
or supplement thereto with respect to such Designated Securities, or arise
out of or are based upon the omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein not misleading, in each case to the extent, but only to
the extent, that such untrue statement or alleged untrue statement or
omission or alleged omission was made in any of such documents in reliance
upon and in conformity with written information furnished to the Company
by such Underwriter through the Representative expressly for use therein;
and will reimburse the Company for any legal fees or other expenses
reasonably incurred by the Company in connection with investigating or
defending any such action or claim.
The indemnity agreement in this subsection (b) shall be in addition to
any liability which the Underwriters may otherwise have and shall extend,
upon the same terms and conditions, to each officer and director of the
Company and to each person, if any, who controls the Company within the
meaning of the Act.
(c) Promptly after receipt by an indemnified party under subsection (a)
or (b) above of written notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made
against the indemnifying party under such subsection, notify the
indemnifying party in writing of the commencement thereof, and in the
event that such indemnified party shall not so notify the indemnifying
party within 30 days following receipt of any such notice by such
indemnified party, the indemnifying party shall have no further liability
under such subsection to such indemnified party unless such indemnifying
party shall have received other notice addressed and delivered in the
manner provided in the second paragraph of Section 11 hereof of the
commencement of such action; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may
have to any indemnified party otherwise than under such subsection. In
case any such action shall be brought against any indemnified party, and
it shall notify the indemnifying party of the commencement thereof, the
indemnifying party shall be entitled to participate therein, and, to the
extent that it shall wish, jointly with any other indemnifying party
similarly notified, to assume the defense thereof, with counsel
satisfactory to such indemnified party in its reasonable judgment, and
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party shall
not be liable to such indemnified party under such subsection for any
legal or other expenses subsequently incurred by such indemnified party in
connection with the defense thereof other than reasonable costs of
investigation.
15
(d) If the indemnification provided for in this Section 7 is
unavailable to an indemnified party under subsection (a) or (b) above in
respect of any losses, claims, damages or liabilities (or actions in
respect thereof) referred to therein, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities (or actions in
respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the
Underwriters of the Designated Securities on the other from the offering
of the Designated Securities to which such loss, claim, damage or
liability (or action in respect thereof) relates. If, however, the
allocation provided by the immediately preceding sentence is not permitted
by applicable law, then each indemnifying party shall contribute to such
amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the
relative fault of the Company on the one hand and the Underwriters of the
Designated Securities on the other in connection with the statements or
omissions which resulted in such losses, claims, damages or liabilities
(or actions in respect thereof), as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one
hand and such Underwriters on the other shall be deemed to be in the same
proportion as the total net proceeds from the offering (before deducting
expenses) received by the Company bear to the total underwriting discounts
and commissions received by such Underwriters, in each case as set forth
in the table on the cover page of the Prospectus as amended or
supplemented with respect to such Designated Securities. The relative
fault shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied
by the Company or such Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent
such statement or omission, including, with respect to any such
Underwriter, the extent to which such losses, claims, damages or
liabilities (or actions in respect thereof) result from the fact that such
Underwriter sold such Designated Securities to a person to whom there was
not sent or given, at or prior to the written confirmation of such sale, a
copy of the Prospectus or of the Prospectus as then amended or
supplemented (excluding documents incorporated by reference), whichever is
most recent, if the Company has previously furnished copies thereof to
such Underwriter. The Company and the Underwriters agree that it would not
be just and equitable if contribution pursuant to this subsection (d) were
determined by pro rata allocation (even if the Underwriters were treated
as one entity for such purpose) or by any other method of allocation which
does not take account of the equitable considerations referred to above in
this subsection (d). The amount paid or payable by an indemnified party as
a result of the losses, claims, damages or liabilities (or actions in
respect thereof) referred to above in this subsection (d) shall be deemed
to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this subsection (d), no
Underwriter shall be required to contribute any amount in excess of the
amount by which the total price at which the applicable Designated
Securities underwritten by it and distributed to the public were offered
to the public exceeds the amount of any damages which such Underwriter has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
16
misrepresentation (within the meaning of Section 11(f) of the Act) shall
be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The obligations of Underwriters of
Designated Securities in this subsection (d) to contribute are several in
proportion to their respective underwriting obligations and not joint.
8. If any Underwriter shall default in its obligation to purchase the
Underwriters' Securities which it has agreed to purchase under the Pricing
Agreement applicable to such Securities, the Representative may in its
discretion arrange for itself or for another party or other parties to purchase
such Underwriters' Securities on the terms contained herein. If within 36 hours
after such default by any Underwriter the Representative does not arrange for
the purchase of such Underwriters' Securities, then the Company shall be
entitled to a further period of 36 hours within which to procure another party
or other parties to purchase such Underwriters' Securities on such terms. In the
event that, within the respective prescribed periods, the Representative
notifies the Company that it has so arranged for the purchase of such
Underwriters' Securities, or the Company notifies the Representative that it has
so arranged for the purchase of such Underwriters' Securities, the
Representative or the Company, respectively, shall have the right to postpone
the Time of Delivery for such Underwriters' Securities for a period of not more
than seven days in order to effect whatever changes may thereby be made
necessary in the Registration Statement or the Prospectus as amended or
supplemented, or any other documents or arrangements, and the Company agrees to
file promptly any amendments to the Registration Statement or the Prospectus as
amended or supplemented which in the opinion of Sidley Xxxxxx Xxxxx & Xxxx LLP
and counsel for the Company referred to in Section 6(b) hereof may thereby be
made necessary. The term "Underwriter" as used in this Agreement shall include
any person substituted under this Section with like effect as if it had
originally been a party to the Pricing Agreement with respect to such Designated
Securities. In the event that neither the Representative nor the Company arrange
for another party or parties to purchase such Underwriters' Securities as
provided in this Section, the Company shall have the right to require each
non-defaulting Underwriter to purchase and pay for the Underwriters' Securities
which such non-defaulting Underwriter agreed to purchase under the Pricing
Agreement relating to such Designated Securities and, in addition, to require
each non-defaulting Underwriter to purchase the Underwriters' Securities which
the defaulting Underwriter or Underwriters shall have so failed to purchase up
to an amount thereof equal to 10% of the principal amount of the Underwriters'
Securities which such non-defaulting Underwriter has otherwise agreed to
purchase under the Pricing Agreement relating to such Designated Securities;
provided, however, that if the aggregate principal amount of Underwriters'
Securities which any defaulting Underwriter or Underwriters shall have so failed
to purchase is more than one-eleventh of the aggregate principal amount of the
Designated Securities, then the Pricing Agreement relating to such Designated
Securities may be terminated either by the Company or, through the
Representative, by such Underwriters as have agreed to purchase in the aggregate
50% or more of the remaining Designated Securities under the Pricing Agreement
relating to such Designated Securities, without liability on the part of any
non-defaulting Underwriter or the Company, except for the expenses referred to
in Section 5(f) hereof and the indemnification provided in Section 7 hereof; but
nothing herein shall relieve a defaulting Underwriter from liability for its
default.
17
9. The respective indemnities, agreements, representations, warranties and
other statements of the Underwriters and the Company hereunder, as set forth in
this Agreement or made by them, respectively, pursuant to this Agreement, shall
remain in full force and effect, regardless of any investigation (or any
statement as to the results thereof) made by or on behalf of any Underwriter or
the Company or any of its officers or directors or any controlling person, and
shall survive delivery of and payment for the Designated Securities.
10. If any Pricing Agreement shall be terminated pursuant to Section 8
hereof, or if any Designated Securities are not delivered by the Company as
provided herein because the condition set forth either in the last paragraph of
Section 6 or in Section 6(f) has not been met, the Company shall then be under
no liability hereunder to any Underwriter, except as provided in Section 5(f)
and Section 7 hereof; but if for any other reason any Designated Securities are
not delivered by the Company as provided herein, the Company will be liable to
reimburse the Underwriters, through the Representative, for all out-of-pocket
expenses, including counsel fees and disbursements, as approved in writing by
the Representative, reasonably incurred by the Underwriters in making
preparations for the purchase, sale and delivery of the Designated Securities,
but the Company shall then have no further liability to any Underwriter except
as provided in Section 5(f) and Section 7 hereof.
11. In all dealings with the Company under this Agreement, the
Representative of the Underwriters of Designated Securities shall act on behalf
of each of such Underwriters, and the Company shall be entitled to act and rely
upon any statement, request, notice or agreement on behalf of any Underwriter
made or given by the Representative.
All statements, requests, notices and agreements hereunder shall be in
writing, or by telegram if promptly confirmed in writing, and if to the
Representative or the Underwriters shall be sufficient in all respects if
delivered or sent by registered mail to the Representative at the address
indicated in the Pricing Agreement, and if to the Company shall be sufficient in
all respects if delivered or sent by registered mail to the Company at 000 Xxxx
Xxxxxxxxx, Xxxx Xxxxx, Xxx Xxxxxx 00000-0000, attention of the Secretary;
provided, however, that any notice to an Underwriter pursuant to Section 7(c)
hereof shall be delivered or sent by registered mail directly to such
Underwriter at its principal office.
12. This Agreement shall be binding upon, and inure solely to the benefit
of, the Underwriters and the Company, and to the extent provided in Section 7
and Section 9 hereof, the officers and directors of the Company and any person
who controls any Underwriter or the Company, and their respective personal
representatives, successors and assigns, and no other person shall acquire or
have any right under or by virtue of this Agreement. No purchaser of any of the
Designated Securities from any Underwriter shall be construed a successor or
assign by reason merely of such purchase.
13. Time shall be of the essence of each Pricing Agreement.
14. This Agreement shall be governed by, and construed in accordance
with, the laws of the State of New York.
18
15. Each Pricing Agreement may be executed in any number of counterparts,
each of which counterparts, when so executed and delivered, shall be deemed to
be an original, but all such counterparts shall together constitute but one and
the same instrument.
19
ANNEX I
Pricing Agreement
[Name of Representative],
as Representative of the Several Underwriters
named in Schedule I hereto
[Address of Representative]
_________, 2002
Ladies and Gentlemen:
The Hertz Corporation, a Delaware corporation (the "Company"), proposes,
subject to the terms and conditions stated herein and in the document entitled
"The Hertz Corporation -- Debt Securities -- Underwriting Agreement Basic
Provisions (the "Basic Provisions"), filed as an exhibit to the Registration
Statement, to issue and sell to the Underwriters named in Schedule I hereto (the
"Underwriters") the Securities specified in Schedule II hereto (the "Designated
Securities"). Each of the provisions of the Basic Provisions is incorporated
herein by reference in its entirety and shall be deemed to be a part of this
Pricing Agreement to the same extent as if such provisions had been set forth in
full herein; and each of the representations and warranties set forth therein
shall be deemed to have been made at and as of the date of this Pricing
Agreement, except that each representation and warranty set forth in Section 2
of the Basic Provisions relating to the Prospectus and to the Prospectus as
amended or supplemented applicable to the Designated Securities covered by this
Pricing Agreement shall be deemed to have been made as of the date of this
Pricing Agreement. Unless otherwise defined herein, terms defined in the
Underwriting Agreement are used herein as therein defined.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Designated Securities, in the
form heretofore delivered to you, is now proposed to be electronically
transmitted for filing with the Commission.
Subject to the terms and conditions set forth herein and in the Basic
Provisions incorporated herein by reference, the Company agrees to issue and
sell to each of the Underwriters, and each of the Underwriters agrees, severally
and not jointly, to purchase from the Company, at the time and place and at the
purchase price to the Underwriters set forth in Schedule II hereto, the
principal amount of Designated Securities set forth opposite the name of such
Underwriter in Schedule I hereto [, less the principal amount of Designated
Securities covered by Delayed Delivery Contracts, if any, [as may be specified
in such Schedule II] [attributable to such Underwriter as determined pursuant to
Section 3 of the Basic Provisions]].
I-1
If the foregoing is in accordance with your understanding, please sign and
return to us a counterpart hereof, and upon acceptance hereof by you, on behalf
of each of the Underwriters, this letter and such acceptance hereof, including
the provisions of the Basic Provisions incorporated herein by reference, shall
constitute a binding agreement between each of the Underwriters and the Company.
It is understood that your acceptance of this letter on behalf of each of the
Underwriters is or will be pursuant to the authority set forth in the Master
Agreement Among Underwriters, the form of which you have delivered to us. You
represent that you are authorized on behalf of yourselves and each of the
Underwriters to enter into this Pricing Agreement.
Very truly yours,
THE HERTZ CORPORATION
By: ____________________
Name:
Title:
Accepted as of the date hereof:
[NAME OF REPRESENTATIVE]
By: ____________________
Name:
Title:
I-2
SCHEDULE I TO PRICING AGREEMENT
Principal Amount
of Designated
Securities to be
Underwriters Purchased
---------------------------------------------- ----------------
[Name of Representative]...................... $
[Name of Other Underwriters]..................
----------------
Total......................................... $
================
I-3
SCHEDULE II TO PRICING AGREEMENT
Title of Designated Securities:
Aggregate principal amount:
Denominations:
Price to Public:
Purchase Price by Underwriters:
Maturity:
Interest Rate:
Interest Payment Dates:
Redemption Provisions:
Sinking Fund Provisions:
Time of Delivery:
Closing Location: Sidley Xxxxxx Xxxxx & Xxxx LLP, New York, New York
Funds in which Underwriters to make Payment:
Immediately available funds
Delayed Delivery:
X-0
XXXXX XX
Xxxxxxx Xxxxxxxx Xxxxxxxx
, 0000
THE HERTZ CORPORATION
c/o [Name and address of Representative]
Attention:
Ladies and Gentlemen:
The undersigned hereby agrees to purchase from The Hertz Corporation
(hereinafter called the "Company"), and the Company agrees to sell to the
undersigned, principal amount of the Company's [Title of Designated Securities]
(hereinafter called the "Designated Securities"), offered by the Company's
Prospectus dated , 20 , as amended or supplemented, receipt of a copy
of which is hereby acknowledged, at a purchase price of % of the principal
amount thereof, plus accrued interest from the date from which interest accrues
as set forth below, and on the further terms and conditions set forth in this
contract. [The undersigned will purchase the Designated Securities from the
Company on , 20 (the "Delivery Date"), and interest on the Designated
Securities so purchased will accrue from , 20 . Each of the Designated
Securities will be dated the Delivery Date thereof.] [The undersigned will
purchase the Designated Securities from the Company on the delivery date or
dates and in the principal amount or amounts set forth below:
Date from Which
Delivery Date Principal Amount Interest Accrues
------------- ---------------- ----------------
, 20 $
, 20 $
Each such date on which Designated Securities are to be purchased hereunder is
hereinafter referred to as a "Delivery Date". Each of the Designated Securities
will be dated the Delivery Date thereof.]
Payment for the Designated Securities which the undersigned has agreed to
purchase on [the] [each] Delivery Date shall be made to the Company or its order
by [wire or internal bank transfer to an account specified by the
Company][certified or official bank check] in [Immediately available funds]
[[New York] Clearing House funds][at the office of ][at 9:30 a.m., New York City
time,] on [the] [such] Delivery Date upon delivery to the undersigned of the
Designated Securities then to be purchased by the undersigned in definitive
fully registered form and in such denominations and registered in such names as
the undersigned may designate by written or telegraphic communication addressed
to the Company not less than five full business days prior to [the] [such]
Delivery Date.
The obligation of the undersigned to take delivery of and make payment for
Designated Securities on [the] [each] Delivery Date shall be subject to the
conditions that (1) the purchase of
II-1
Designated Securities by the undersigned shall not on [the] [such] Delivery Date
be prohibited under the laws of the jurisdiction to which the undersigned is
subject and (2) the Company, on or before , 20 , shall have sold to the
several Underwriters, pursuant to the Pricing Agreement dated , 20 with the
Company, an aggregate principal amount of Designated Securities equal to $ minus
the aggregate principal amount of Designated Securities covered by this contract
and other contracts similar to this contract. The obligation of the undersigned
to take delivery of and make payment for Designated Securities shall not be
affected by the failure of any purchaser to take delivery of and make payment
for Designated Securities pursuant to other contracts similar to this contract.
Promptly after completion of the sale to the Underwriters, the Company
will mail or deliver to the undersigned at its address set forth below notice to
such effect, accompanied by a copy of the opinion of counsel for the Company
delivered to the Underwriters in connection therewith.
The undersigned represents and warrants to the Company that, as of the
date of this contract, the undersigned is not prohibited from purchasing the
Designated Securities hereby agreed to be purchased by it under the laws of the
jurisdiction to which the undersigned is subject.
This contract will inure to the benefit of and be binding upon the parties
hereto and their respective successors, but will not be assignable by any party
hereto without the written consent of the other parties.
This contract may be executed by the parties hereto in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same instrument.
It is understood that the acceptance by the Company of any Delayed
Delivery Contract (including this contract) is in the sole discretion of the
Company and that, without limiting the foregoing, acceptances of such contract
need not be on a first-come, first-served basis. If this contract is acceptable
to the Company, it is requested that the Company sign the form of acceptance
below and mail or deliver one of the counterparts hereof to the undersigned at
its address set forth below. This will become a binding contract between the
Company and the undersigned when such counterpart is so mailed or delivered.
Yours very truly,
By ___________________________
(Signature)
___________________________
(Name and Title)
___________________________
(Address)
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Accepted, , 2002
THE HERTZ CORPORATION
By: ___________________________
Name:
Title:
THREE SIGNED COPIES OF THIS CONTRACT MUST BE RECEIVED BY [NAME OF
REPRESENTATIVE] NOT LATER THAN 5:00 P.M. ON , ACCOMPANIED BY A
CERTIFICATE OF SECRETARY OR OTHER EVIDENCE, SATISFACTORY TO THE COMPANY, AS TO
THE AUTHORITY OF THE PERSON OR PERSONS SIGNING THIS CONTRACT.
II-3
ANNEX III
Matters to be Covered by Letters of PwC
(i) They are independent certified public accountants with respect to the
Company and its subsidiaries within the meaning of the Act and the applicable
published rules and regulations thereunder, and the statement in each
Registration Statement in answer to Item 10 of Form S-3 is accurate insofar as
it relates to them;
(ii) In their opinion, the audited consolidated financial statements of
the Company and its subsidiaries included or incorporated by reference in the
Company's Annual Report on Form 10-K most recently filed with the Commission and
covered by their report included therein (the "audited financials") comply as to
form in all material respects with the applicable accounting requirements of the
Act or the Exchange Act, as applicable, and the published rules and regulations
under the Act or the Exchange Act, as applicable;
(iii) On the basis of limited procedures, not constituting an audit, which
have been carried out through a specified date not more than two business days
prior to the date of each such letter,* including (1) performing the procedures
specified by the American Institute of Certified Public Accountants for a review
of interim financial information as described in Statements on Auditing
Standards No. 71, "Interim Financial Information," on the unaudited consolidated
financial statements of the Company and its subsidiaries included in the
Company's Quarterly Reports on Form 10-Q filed with the Commission from the
beginning of the Company's fiscal year through the date of such letter (the
"quarterly financials"), (2) a reading of the minutes of the meetings of the
Board of Directors, Executive Committee, Finance Committee, Audit Committee and
stockholders of the Company since the date of the audited financials, (3)
inquiries of certain officials of the Company responsible for financial and
accounting matters as to transactions and events subsequent to the date of the
audited financials, and (4) such other procedures and inquiries as may be
described in each such letter, nothing has come to their attention which has
caused them to believe that:
(A) Any material modifications should be made to the quarterly
financials for them to be in conformity with generally accepted accounting
principles; or
(B) The quarterly financials do not comply as to form in all
material respects with the applicable accounting requirements of the
Exchange Act and the related published rules and regulations; or
(C) As of the last day of the month immediately preceding the date
of such letter, unless such day is less than five business days prior to
the date of such letter, in which case as of the last day of the second
month immediately preceding the date of such letter (or such other date as
shall be mutually agreed upon by the Company and the Representative), (i)
there was any increase in total debt, any decrease in stockholders' equity
or any decrease in total assets of the Company as compared with amounts
shown in the unaudited condensed consolidated financial statements as of
the date of their most recent quarterly statements, or (ii) for the period
from the date of their most recent quarterly statements through the last
day of the month immediately preceding the date of such letter, unless
such day is less than five business days prior to the date of such letter,
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in which case as of the last day of the second month immediately preceding
the date of such letter (or such other date as shall be mutually agreed
upon by the Company and the Representative), there were any decreases, as
compared with the amounts in the corresponding period in the preceding
year, in total revenues or net income; and
(iv) They have performed certain specified procedures, including
comparisons with certain specified accounting records of the Company and its
subsidiaries, with respect to certain items of information included in each
Registration Statement, in the reports filed with the Commission from the
beginning of the Company's fiscal year through the date of such letter* and, in
the case of each letter to be delivered pursuant to Section 6(d) of the Basic
Provisions, in the Prospectus as amended or supplemented through the date of
such letter, and have found such items to be in agreement with such records.
--------
* [In the case of letters delivered pursuant to Section 6(d) of the Basic
Provisions, such procedures will be carried out through a specified date
not more than two business days prior to the effective date of [the] [each]
Registration Statement or not more than two business days prior to the most
recent report filed with the Commission containing financial statements, if
the date of such report is later than such effective date.]
III-2
