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Exhibit 1(a)
THE HERTZ CORPORATION
Debt Securities
Underwriting Agreement Basic Provisions
________, 2001
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
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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- ) 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);
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(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 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
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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 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.
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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 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.
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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 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
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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 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
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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;
(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:
(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
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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 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
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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).
(c) Xxxxx & Xxxx LLP, counsel to the Underwriters, shall have
furnished to the Representative its written opinion, dated the Time of
Delivery for such Designated
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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;
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12
(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, the United States shall not have become
engaged in hostilities which have
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resulted in the declaration of a national emergency or a declaration of
war, which 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; and
(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 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
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14
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.
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
14
15
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.
(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
15
16
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 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 Xxxxx & Wood 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
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17
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.
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
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18
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.
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.
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ANNEX I
Pricing Agreement
[Name of Representative],
as Representative of the Several Underwriters
named in Schedule I hereto
[Address of Representative]
_________, 2001
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]].
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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:
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SCHEDULE I TO PRICING AGREEMENT
Principal Amount
of Designated
Securities to be
Underwriters Purchased
------------ ---------
[Name of Representative]..................... $
[Name of Other Underwriters].................
-----------------
Total........................................ $
=================
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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: Xxxxx & Xxxx LLP, New York, New York
Funds in which Underwriters to make Payment:
Immediately available funds
Delayed Delivery:
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ANNEX II
Delayed Delivery Contract
, 2001
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
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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, , 2001
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.
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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,
III-1
27
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
