Form 8-K
8-K — HERTZ GLOBAL HOLDINGS, INC
Accession: 0001104659-26-078857
Filed: 2026-06-29
Period: 2026-06-24
CIK: 0001657853
SIC: 7510 (SERVICES-AUTO RENTAL & LEASING (NO DRIVERS))
Item: Entry into a Material Definitive Agreement
Item: Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant
Item: Unregistered Sales of Equity Securities
Item: Other Events
Item: Financial Statements and Exhibits
Documents
8-K — tm2619276d1_8k.htm (Primary)
EX-1.1 — EXHIBIT 1.1 (tm2619276d1_ex1-1.htm)
EX-4.1 — EXHIBIT 4.1 (tm2619276d1_ex4-1.htm)
EX-5.1 — EXHIBIT 5.1 (tm2619276d1_ex5-1.htm)
EX-10.1 — EXHIBIT 10.1 (tm2619276d1_ex10-1.htm)
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8501
Williams Road
Estero
Florida
33928
239
301-7000
UNITED STATES
SECURITIES AND EXCHANGE
COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13
or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of
earliest event reported): June 24, 2026
HERTZ
GLOBAL HOLDINGS, INC.
THE
HERTZ CORPORATION
(Exact name of registrant
as specified in its charter)
Delaware
001-37665
61-1770902
Delaware
001-07541
13-1938568
(State or other jurisdiction of
incorporation)
(Commission
File Number)
(I.R.S.
Employer Identification No.)
8501
Williams Road
Estero,
Florida 33928
239
301-7000
(Address, including Zip
Code, and
telephone number, including area code,
of registrant's principal executive offices)
Not
Applicable
Not
Applicable
(Former name or former address, if changed since last report.)
Check the appropriate box below if the Form 8-K
filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
¨ Written communications pursuant
to Rule 425 under the Securities Act (17 CFR 230.425)
¨ Soliciting material pursuant to
Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
¨ Pre-commencement communications
pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
¨ Pre-commencement communications
pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Securities
registered pursuant to Section 12(b) of the Act:
Title
of Each Class
Trading
Symbol(s)
Name
of Each
Exchange on
which Registered
Hertz Global Holdings, Inc.
Common
Stock Par value $0.01 per share
HTZ
The Nasdaq Stock Market LLC
Hertz Global Holdings, Inc.
Warrants
to purchase Common Stock Each exercisable for one share of Hertz Global Holdings, Inc. common stock at an exercise price of $13.61 per share, subject to adjustment
HTZWW
The Nasdaq Stock Market LLC
The Hertz Corporation
None
None
None
Indicate by check mark whether the registrant
is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2
of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth
company ¨
If
an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying
with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ¨
Item 1.01
Entry into a Material Definitive Agreement.
Exchangeable Notes Indenture
On June 29, 2026, The Hertz Corporation (“Hertz
Corp.”), a subsidiary of Hertz Global Holdings, Inc. (the “Company”), completed an offering of $350,000,000 aggregate
principal amount of its 6.75% Exchangeable Senior First-Lien Secured PIK Notes due 2030 (the “Exchangeable Notes”). The initial
purchasers of the Exchangeable Notes have the option to purchase up to an additional $50,000,000 aggregate principal amount of the Exchangeable
Notes for settlement within a period of 13 days from, and including, the date the Exchangeable Notes are first issued.
The Exchangeable Notes were issued at par pursuant
to an Indenture, dated as of June 29, 2026 (the “Exchangeable Notes Indenture”), among Hertz Corp., the guarantors named therein
and Computershare Trust Company, N.A., as trustee and as collateral agent. The Exchangeable Notes will bear interest at a rate of 6.75%
per year payable semi-annually in arrears on January 1 and July 1 of each year, beginning on January 1, 2027. Each payment of interest
(excluding any additional interest, special interest and default interest) will consist of (i) a portion to be paid in cash at the rate
of 3.375% per annum and (ii) a portion to be paid in the form of PIK interest at the rate of 3.375% per annum. The Exchangeable Notes
will mature on July 1, 2030, unless repurchased, redeemed or exchanged in accordance with their terms prior to maturity.
The exchange rate will initially be 279.5248 shares
of common stock of the Company, par value $0.01 (“Common Stock”), per $1,000 capitalized principal amount of Exchangeable
Notes (equivalent to an initial exchange price of approximately $3.58 per share of Common Stock). The initial exchange price of the Exchangeable
Notes represents a premium of approximately 32.5% to the public offering price in the concurrent offering of Borrowed Shares (as defined
below). The Exchangeable Notes will be exchangeable at any time prior to the close of business on the second scheduled trading day immediately
preceding the maturity date on the terms set forth in the Exchangeable Notes Indenture into cash, shares of Common Stock, or a combination
thereof, at Hertz Corp.’s election. In no event will Hertz Corp. be entitled to elect a settlement method with respect to any exchange
that would result in the aggregate number of shares of Common Stock issued upon exchange on or prior to the shareholder approval date
(as defined in the Exchangeable Notes Indenture) exceeding an aggregate share cap of 63,457,320 shares, subject to adjustment. The exchange
rate is subject to adjustment in some circumstances described in the Exchangeable Notes Indenture. In addition, following certain corporate
events that occur prior to the maturity date or Hertz Corp.’s delivery of a notice of redemption, Hertz Corp. will increase, in
certain circumstances, the exchange rate for a holder who elects to exchange its Exchangeable Notes in connection with such a corporate
event or elects to exchange its Exchangeable Notes called for redemption in connection with such notice of redemption, as the case may
be.
Holders of the Exchangeable Notes will have the
right to require Hertz Corp. to repurchase all or a portion of their Exchangeable Notes at 100% of their capitalized principal amount
plus accrued and unpaid cash interest to, but excluding, the date of such repurchase, upon the occurrence of certain corporate events
constituting a “fundamental change” as defined in the Exchangeable Notes Indenture. Hertz Corp. may not redeem the Exchangeable
Notes prior to January 6, 2029. On or after January 6, 2029 and on or prior to the 31st scheduled trading day immediately preceding the
maturity date, if the last reported sale price per share of Common Stock exceeds 130% of the exchange price for the Exchangeable Notes
for certain specified periods, Hertz Corp. may redeem all or any portion (subject to certain limitations) of the Exchangeable Notes at
a cash redemption price equal to the capitalized principal amount of the Exchangeable Notes to be redeemed plus accrued and unpaid cash
interest on such Exchangeable Notes to, but not including, the redemption date.
The Exchangeable Notes are fully and unconditionally
guaranteed, jointly and severally, on a senior unsecured basis by the Company and on a senior first-lien secured basis by the subsidiary
guarantors. The guarantees are subject to release under specified circumstances, including certain circumstances in which such guarantees
may be automatically released without the consent of the holders of the Exchangeable Notes.
The Exchangeable Notes and the guarantees will
be Hertz Corp.’s and each subsidiary guarantor’s senior, first-lien secured obligations, and the Company’s senior, unsecured
obligations, and will be equal in right of payment with the Company’s and the guarantors’ existing and future senior indebtedness
that is not expressly subordinated to the Exchangeable Notes and the guarantees, senior in right of payment to the Company’s and
the guarantors’ existing and future indebtedness that is expressly subordinated to the Exchangeable Notes or the guarantees, as
applicable, pari passu with Hertz Corp.’s and the subsidiary guarantors’ future indebtedness secured
by first-priority liens on the collateral securing the Exchangeable Notes and guarantees and effectively senior to the Company’s,
Hertz Corp.’s and the subsidiary guarantors’ future unsecured indebtedness and future indebtedness secured by liens junior
to the liens on the collateral securing the Exchangeable Notes and the guarantees, in each case to the extent of the value of the collateral
securing the Exchangeable Notes and the guarantees. The Exchangeable Notes and the guarantees are structurally subordinated to all existing
and future indebtedness and other liabilities, including trade payables, and (to the extent Hertz Corp. or a guarantor, as applicable,
is not a holder thereof) preferred equity, if any, of the Company’s or that guarantor’s subsidiaries (other than Hertz Corp.)
that do not guarantee the Exchangeable Notes and effectively subordinated to the Company’s and the guarantors’ existing and
future indebtedness secured by liens on assets that do not constitute a part of the collateral to the extent of the value of such assets
(and in the case of us, any existing and future indebtedness secured by liens).
The Exchangeable Notes Indenture contains high
yield covenants limiting the ability of Hertz Corp. and its restricted subsidiaries to: incur or guarantee additional indebtedness;
incur or guarantee secured indebtedness; pay dividends or distributions on, or redeem or repurchase, capital stock; make certain
investments or other restricted payments; sell assets; transfer intellectual property to unrestricted subsidiaries; merge
or consolidate or sell all or substantially all of their assets; and create restrictions on the ability of Hertz Corp.’s restricted
subsidiaries to pay dividends or other amounts to Hertz Corp. These covenants are subject to a number of important and significant limitations,
qualifications and exceptions.
The Exchangeable Notes Indenture also contains
customary events of default, all as described in the Exchangeable Notes Indenture.
The foregoing description is qualified in its
entirety by reference to the Exchangeable Notes Indenture and the form of Exchangeable Note included therein, which are filed herewith
as Exhibits 4.1 and 4.2, respectively, and incorporated herein by reference.
Item 2.03
Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.
The information required by Item 2.03 contained
in Item 1.01 of this Current Report on Form 8-K is incorporated herein by reference.
Item 3.02
Unregistered Sales of Equity Securities.
The information set forth under the heading “Exchangeable
Notes Indenture” in Item 1.01 above is incorporated into this Item 3.02 by reference. The Exchangeable Notes were issued to
the initial purchasers in reliance on Section 4(a)(2) under the Securities Act of 1933, as amended (the “Securities Act”)
in transactions not involving any public offering, and the initial purchasers resold the Exchangeable Notes in reliance upon Rule
144A under the Securities Act to persons reasonably believed to be “qualified institutional buyers,” as defined
therein. Any shares of Common Stock that may be issued upon exchange of the Exchangeable Notes will be issued in reliance upon Section
3(a)(9) of the Securities Act as involving an exchange by the Company exclusively with its security holders. Initially, a maximum
of 148,226,268 shares of Common Stock may be issued upon exchange of the Exchangeable Notes, based on the initial maximum exchange rate
of 370.3703 shares of Common Stock per $1,000 capitalized principal amount of Exchangeable Notes, which is subject to customary anti-dilution
adjustment provisions. If the initial purchasers of the Exchangeable Notes exercise their right to purchase additional Exchangeable Notes
in full, then a maximum of 169,401,449 shares of Common Stock may be issued upon exchange of the Exchangeable Notes.
Item 8.01
Other Events.
On June 24, 2026, the
Company entered into an underwriting agreement (the “Underwriting Agreement”) with J.P. Morgan Securities LLC and Barclays
Capital Inc. (the “Underwriters”) for the sale by the Underwriters of 37,037,037 shares of Common Stock at
a public offering price of $2.70 per share. Such shares of Common Stock (the “Borrowed Shares”) were loaned by the Company
to J.P. Morgan Securities LLC (in such capacity, the “Share Borrower”), one of the underwriters of the offering of the Borrowed
Shares, pursuant to the share lending agreement, dated June 24, 2026 (the “Share Lending Agreement”), by and between the Company and the Share Borrower.
The Company has filed
with the Securities and Exchange Commission a prospectus dated June 24, 2026, which forms a part of the Company’s Registration Statement
on Form S-3 (File No. 333-296989) (the “Registration Statement”) in connection with the public offering
of the Common Stock.
The Underwriting Agreement
contains customary representations and warranties, agreements and obligations, closing conditions and termination provisions. The Company
has agreed to indemnify the Underwriters against certain liabilities, including liabilities under the Securities Act, and to contribute
to payments the Underwriters may be required to make because of any of those liabilities.
The share loan under
the Share Lending Agreement will terminate, and the Borrowed Shares must be returned to the Company within five business days of such
termination (subject to the Share Borrower’s right to extend the settlement due date of the Borrowed Shares in certain circumstances),
under the following circumstances:
· the Share Borrower may terminate all or any portion of the loan at any time; and
· on the earliest to occur of (i) October 1, 2030; (ii) the date that is three months after the first date following the closing date
of the Exchangeable Notes offering when none of the Exchangeable Notes remains outstanding; and (iii) the date, if any, on which the Share
Lending Agreement is terminated by the parties upon mutual agreement or by one party upon a default with respect to the other party.
All shares that the Company
loans to the Share Borrower will be issued and outstanding for corporate law purposes and, accordingly, the holders of the Borrowed Shares
will have all of the rights of a holder of the shares, including the right to vote the shares on all matters submitted to a vote of the
Company’s shareholders and the right to receive any dividends or other distributions that the Company may pay or make on the outstanding
shares of Common Stock. However, under the Share Lending Agreement, the Share Borrower agrees:
· to pay to the Company an amount equal to cash dividends, if any, that the Company pays on the Borrowed Shares; and
· in the event of any other distribution on the Borrowed Shares, other than in a liquidation or a reorganization in bankruptcy and other
than shares of Common Stock, to either (i) deliver such distribution to the Company in kind or (ii) elect that the number of loaned shares
outstanding under the Share Lending Agreement shall be deemed adjusted in the same manner as the exchange rate of the Exchangeable Notes.
Under the Share Lending
Agreement, the Share Borrower has agreed to post and maintain with JPMorgan Chase Bank, National Association, New York Branch, collateral
in the form of cash or certain eligible non-cash collateral with a market value at least equal to the market value of the Borrowed Shares
as security for the obligation of the Share Borrower to return the Borrowed Shares to the Company when required under the terms of the
Share Lending Agreement. In certain limited circumstances, primarily if the Share Borrower defaults under the Share Lending Agreement
and is prohibited by law or court order from returning the Borrowed Shares, the Company may elect to receive a distribution of the posted
collateral in lieu of the delivery of the shares.
If the Company defaults
under the Share Lending Agreement, the Share Borrower may elect to deliver the posted collateral to the Company in lieu of the delivery
of the shares.
The foregoing
description is not complete and is qualified in its entirety by reference to the full text of the Underwriting Agreement, which is
attached as Exhibit 1.1, and the Share Lending Agreement, which is attached as Exhibit 10.1, to this Current Report on Form 8-K and
are incorporated herein by reference.
An opinion regarding
the legality of the issuance and sale of the Common Stock is being filed as Exhibit 5.1 to this Current Report on Form 8-K and
is incorporated by reference into the Registration Statement; and a consent relating to such incorporation of such opinion is incorporated
by reference into the Registration Statement and is being filed as Exhibit 23.1 to this Current Report on Form 8-K by reference to its
inclusion within Exhibit 5.1.
Cautionary Note Regarding Forward-Looking Statements
This Current Report on Form 8-K contains
“forward-looking statements” within the meaning of the federal securities laws. Words such as “expect,”
“will” and “intend” and similar expressions identify forward-looking statements, which include but are not
limited to statements related to the offering of the Exchangeable Notes and the offering of the Common Stock described herein, our
expectations with respect to the quarter ended June 30, 2026, our ability to achieve the cost savings and revenue enhancements from
our profitability initiatives and other operational programs, our positioning, strategy, vision, forward looking investments,
conditions in the travel industry, our contingent liabilities and our financial and operational condition. We caution you that these
statements are not guarantees of future performance and are subject to numerous evolving risks and uncertainties that we may not be
able to accurately predict or assess, including risks and uncertainties related to completion of the offerings on the anticipated
terms or at all, market conditions (including market interest rates) and the satisfaction of customary closing conditions related to
the offerings, unanticipated uses of capital and those in our risk factors that we identify in the offering documents for these
offerings and our most recent annual report on Form 10-K for the year ended December 31, 2025, as filed with the SEC on February 26,
2026, and any updates thereto in the Company’s quarterly reports on Form 10-Q and current reports on Form 8-K. We caution you
not to place undue reliance on our forward-looking statements, which speak only as of their date, and we undertake no obligation to
update this information.
Item 9.01
Financial Statements and Exhibits.
(d) Exhibits.
Exhibit
Description
1.1
Underwriting Agreement, dated June 24, 2026, by and among Hertz Global Holdings, Inc. and J.P. Morgan Securities LLC and Barclays Capital Inc., as representatives of the several underwriters named in Schedule 1 thereto
4.1
Indenture, dated June 29, 2026, by and among The Hertz Corporation, as Issuer, the guarantors party thereto and Computershare Trust Company, N.A., as trustee and as notes collateral agent, governing the 6.75% Exchangeable Senior First-Lien Secured PIK Notes due 2030
4.2
Form of 6.75% Exchangeable Senior
First-Lien Secured PIK Notes due 2030 (included in Exhibit 4.1)
5.1
Opinion of Davis Polk & Wardwell LLP
10.1
Share Lending Agreement, dated June 24, 2026, by and between Hertz Global Holdings, Inc. and J.P. Morgan Securities LLC
23.1
Consent of Davis Polk & Wardwell LLP (included in Exhibit 5.1)
104.1
Cover page Interactive Data File (embedded within the Inline XBRL document)
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
each registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
HERTZ GLOBAL HOLDINGS, INC.
THE HERTZ CORPORATION
(each, a Registrant)
By:
/s/ Scott M. Haralson
Name:
Scott M. Haralson
Title:
Executive Vice President and Chief Financial Officer
Date: June 29, 2026
EX-1.1 — EXHIBIT 1.1
EX-1.1
Filename: tm2619276d1_ex1-1.htm · Sequence: 2
Exhibit 1.1
$37,037,037 Shares of Common Stock
Hertz Global Holdings, Inc.
Common Stock, Par Value $0.01 Per Share
Underwriting Agreement
June 24, 2026
J.P. Morgan Securities LLC, as Borrower (as defined below)
J.P. Morgan Securities LLC
Barclays Capital Inc.
As Representatives of the several Underwriters
c/o J.P. Morgan Securities LLC
270 Park Avenue
New York, New York 10017
c/o Barclays Capital Inc.
745 Seventh Avenue
New York, New York 10019
And the several Underwriters named in Schedule 1 hereto
Ladies and Gentlemen:
Hertz Global Holdings, Inc.
a Delaware corporation (the “Company”), proposes to issue and lend to J.P. Morgan Securities LLC (“J.P. Morgan”,
and in such capacity as the borrower, the “Borrower”) as a share loan, pursuant to and upon the terms set forth in the share
lending agreement (the “Share Lending Agreement”), dated as of the date hereof, among the Company, J.P. Morgan, and JPMorgan
Chase Bank, National Association, New York Branch, as Collateral Agent, 37,037,037 shares of Common Stock, par value $0.01 per share (the
“Common Stock”) of the Company (the “Borrowed Shares”). The Company has been advised that the several underwriters
listed in Schedule 1 hereto (the “Underwriters”) will sell such Borrowed Shares to the public in a public offering by the
Underwriters described below, and for whom J.P. Morgan and Barclays Capital Inc. (“Barclays”) have agreed to act as representatives
(the “Representatives”). To the extent the firm or firms listed on Schedule 1 hereto include only the Representatives, the
term “Underwriters” as used herein shall mean J.P. Morgan and Barclays, each as Underwriters.
Concurrently with the issuance
of the Borrowed Shares, The Hertz Corporation, a Delaware corporation and a direct subsidiary of the Company (the “Notes Issuer”),
is offering (the “Notes Offering”), in a private offering exempt from the registration requirements of the Securities Act
(as defined below), an aggregate principal amount of $350.0 million Exchangeable Senior First Lien Secured PIK Notes due 2030 (the “Notes”),
assuming no exercise of the initial purchaser’s option to purchase additional Notes in an amount up to $50.0 million. The Notes
will be exchangeable into (i) cash, (ii) shares of the Company’s Common Stock, or (iii) a combination thereof at the Notes Issuer’s
election. In connection with such offering of the Notes, the Company will enter into a purchase agreement dated as of the date hereof
among the Notes Issuer, the Company, the Guarantors, J.P. Morgan and Barclays, as representatives of the several initial purchasers (the
“Initial Purchasers”), relating to the Notes Offering (the “Notes Purchase Agreement”). The Notes are expected
to be issued on the Closing Date (as defined herein). The Notes Offering is not contingent upon the closing of the offering of the Borrowed
Shares, but the offering of the Borrowed Shares is contingent upon the closing of the Notes Offering.
The Company hereby confirms
its agreement with the several Underwriters concerning the purchase and sale of the Borrowed Shares, as follows:
1.
Registration Statement. The Company has prepared and filed with the Securities and Exchange Commission (the “Commission”)
under the Securities Act and the rules and regulations of the Commission thereunder (collectively, the “Securities Act”) an
automatic shelf registration statement on Form S-3ASR (File No. 333-296989), including a prospectus relating to the Borrowed Shares. Such
registration statement, as amended at the time it became effective, including the information, if any, deemed pursuant to Rule 430A, 430B
or 430C under the Securities Act to be part of the registration statement at the time of its effectiveness (“Rule 430 Information”),
is referred to herein as the “Registration Statement”; and as used herein, the term “Preliminary Prospectus” means
each prospectus included in such registration statement (and any amendments thereto) before effectiveness, any prospectus filed with the
Commission pursuant to Rule 424(a) under the Securities Act and the prospectus included in the Registration Statement at the time of its
effectiveness that omits Rule 430 Information, and the term “Prospectus” means the prospectus in the form first used (or made
available upon request of purchasers pursuant to Rule 173 under the Securities Act) in connection with confirmation of sales of the Borrowed
Shares. If the Company has filed an abbreviated registration statement pursuant to Rule 462(b) under the Securities Act (the “Rule
462 Registration Statement”), then any reference herein to the term “Registration Statement” shall be deemed to include
such Rule 462 Registration Statement. Any reference in this underwriting agreement (this “Agreement”) to the Registration
Statement, any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include the documents incorporated by reference
therein pursuant to Item 12 of Form S-3 under the Securities Act, as of the effective date of the Registration Statement or
the date of such Preliminary Prospectus or the Prospectus, as the case may be, and any reference to “amend”, “amendment”
or “supplement” with respect to the Registration Statement, any Preliminary Prospectus or the Prospectus shall be deemed to
refer to and include any documents filed after such date under the Securities Exchange Act of 1934, as amended, and the rules and regulations
of the Commission thereunder (collectively, the “Exchange Act”) that are deemed to be incorporated by reference therein.
Capitalized terms used but not defined herein shall have the meanings given to such terms in the Registration Statement and the Prospectus.
At or prior to the Applicable Time (as defined
below), the Company had prepared the following information (collectively with the pricing information set forth on Annex A, the “Pricing
Disclosure Package”): a Preliminary Prospectus dated June 24, 2026 and each “free-writing prospectus” (as defined pursuant
to Rule 405 under the Securities Act) listed on Annex A hereto.
“Applicable Time” means 8:53 P.M.,
New York City time, on June 24, 2026.
2. Delivery and Acceptance of the Borrowed Shares.
(a)
On the basis of the representations, warranties and agreements contained herein, and upon the terms and conditions herein set forth,
and subject to the terms and conditions in the Share Lending Agreement, (i) the Company agrees to deliver in accordance with the instructions
specified by the Borrower and (ii) the Borrower agrees to borrow from the Company, the Borrowed Shares.
(b)
The Company understands that the Underwriters intend to make a public offering of the Borrowed Shares as soon after the effectiveness
of this Agreement as in the judgment of the Representatives is advisable, and initially to offer the Borrowed Shares on the terms set
forth in the Pricing Disclosure Package. The Company acknowledges and agrees that the Underwriters may offer and sell Borrowed Shares
to or through any affiliate of an Underwriter and that any affiliate may offer and sell Securities purchased by it to or through any Underwriter.
(c)
In accordance with the Share Lending Agreement, delivery of the Borrowed Shares shall be made to the Borrower at 9:00 A.M., New
York City time, on June 29, 2026, or at such other time on the same or such other date, not later than the fifth business day thereafter,
as the Representatives and the Company may agree upon in writing. The time and date of such delivery for the Borrowed Shares is referred
to herein as the “Closing Date.”
(d) The Borrowed Shares shall be delivered by the Company to the Borrower on or before the Closing Date in accordance with the terms
of the Share Lending Agreement and this Section 2. Delivery of the Borrowed Shares shall be made through the facilities of The Depositary
Trust Company unless the Representatives shall otherwise instruct, and the Borrowed Shares shall be registered in such names and in such
denominations as the Representatives shall request in writing not later than one business day prior to the Closing Date.
2
(e)
The Company acknowledges and agrees that each Underwriter and the Borrower are each acting solely in the capacity of an arm’s
length contractual counterparty to the Company with respect to the offering of the Borrowed Shares contemplated hereby and not as a financial
advisor or a fiduciary to, or an agent of, the Company or any other person. Additionally, none of the Representatives, any other Underwriter
or the Borrower is advising the Company or any other person as to any legal, tax, investment, accounting or regulatory matters in any
jurisdiction. The Company shall consult with its own advisors concerning such matters and shall be responsible for making its own independent
investigation and appraisal of the transactions contemplated hereby, and none of the Underwriters or the Borrower shall have any responsibility
or liability to the Company with respect thereto. Any review by the Underwriters or the Borrower of the Company, the transactions contemplated
hereby or other matters relating to such transactions will be performed solely for the benefit of the Underwriters or the Borrower, as
the case may be, and shall not be on behalf of the Company.
3. Representations
and Warranties of the Company. The Company represents and warrants to, and agrees with, each of the Underwriters that:
(a)
Preliminary Prospectus. No order preventing or suspending the use of any Preliminary Prospectus has been issued by the Commission,
and each Preliminary Prospectus included in the Pricing Disclosure Package, at the time of filing thereof, complied in all material respects
with the applicable requirements of the Securities Act, and no Preliminary Prospectus included in the Pricing Disclosure Package, at the
time of filing thereof, contained any 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; provided that the Company makes
no representation or warranty with respect to any statements or omissions made in reliance upon and in conformity with information relating
to any Underwriter or the Borrower furnished to the Company in writing by such Underwriter through the Representatives or the Borrower
expressly for use in any Preliminary Prospectus, it being understood and agreed that the only such information furnished by any Underwriter
or the Borrower consists of the information described as such in Section 7(b) hereof.
(b)
Pricing Disclosure Package. The Pricing Disclosure Package, as of the Applicable Time, did not, and as of the Closing Date
will not, contain any untrue statement of a material fact or omit 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; provided that the Company makes no representation or warranty
with respect to any statements or omissions made in reliance upon and in conformity with information relating to any Underwriter or the
Borrower furnished to the Company in writing by such Underwriter through the Representatives or the Borrower expressly for use in such
Pricing Disclosure Package, it being understood and agreed that the only such information furnished by any Underwriter or the Borrower
consists of the information described as such in Section 7(b) hereof. No statement of material fact included in the Prospectus has been
omitted from the Pricing Disclosure Package and no statement of material fact included in the Pricing Disclosure Package that is required
to be included in the Prospectus has been omitted therefrom.
(c) Issuer Free Writing Prospectus. Other than the Registration Statement, the Preliminary Prospectus and the Prospectus, the
Company (including its agents and representatives, other than the Underwriters or the Borrower in their respective capacities as such)
has not prepared, used, authorized, approved or referred to and will not prepare, use, authorize, approve or refer to any “written
communication” (as defined in Rule 405 under the Securities Act) that constitutes an offer to sell or solicitation of an offer to
buy the Borrowed Shares (each such communication by the Company or its agents and representatives (other than a communication referred
to in clause (i) below) an “Issuer Free Writing Prospectus”) other than (i) any document not constituting a prospectus pursuant
to Section 2(a)(10)(a) of the Securities Act or Rule 134 under the Securities Act or (ii) the documents listed on Annex A hereto, each
electronic road show and any other written communications approved in writing in advance by the Representatives. Each such Issuer Free
Writing Prospectus complied in all material respects with the Securities Act, has been or will be (within the time period specified in
Rule 433) filed in accordance with the Securities Act (to the extent required thereby) and does not conflict with the information contained
in the Registration Statement, the Pricing Disclosure Package or the Prospectus, and, when taken together with the Preliminary Prospectus
filed prior to the first use of such Issuer Free Writing Prospectus, did not, and at the Closing Date will not, contain any untrue statement
of a material fact or omit 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; provided that the Company makes no representation or warranty with respect to any statements
or omissions made in each such Issuer Free Writing Prospectus or Preliminary Prospectus in reliance upon and in conformity with information
relating to any Underwriter or the Borrower furnished to the Company in writing by such Underwriter through the Representatives or the
Borrower expressly for use in such Issuer Free Writing Prospectus or Preliminary Prospectus, it being understood and agreed that the only
such information furnished by any Underwriter or the Borrower consists of the information described as such in Section 7(b) hereof.
3
(d)
Registration Statement and Prospectus. The Registration Statement is an “automatic shelf registration statement”
as defined under Rule 405 of the Securities Act that has been filed with the Commission not earlier than three (3) years prior to the
date hereof; and no notice of objection of the Commission to the use of such Registration Statement or any post-effective amendment thereto
pursuant to Rule 401(g)(2) under the Securities Act has been received by the Company. No order suspending the effectiveness of the Registration
Statement has been issued by the Commission, and no proceeding for that purpose or pursuant to Section 8A of the Securities Act against
the Company or related to the offering of the Borrowed Shares has been initiated or, to the knowledge of the Company, threatened by the
Commission; as of the applicable effective date of the Registration Statement and any post-effective amendment thereto, the Registration
Statement and any such post-effective amendment complied and will comply in all material respects with the Securities Act, and did not
and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary
in order to make the statements therein not misleading; and as of the date of the Prospectus and any amendment or supplement thereto and
as of the Closing Date the Prospectus will comply in all material respects with the Securities Act and does not and will not contain any
untrue statement of a material fact or omit 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; provided that the Company makes no representation or warranty with respect
to any statements or omissions made in reliance upon and in conformity with information relating to the Borrower or the Underwriter furnished
to the Company in writing by any Underwriter or the Borrower expressly for use in the Registration Statement and the Prospectus and any
amendment or supplement thereto, it being understood and agreed that the only such information furnished by any Underwriter or the Borrower
consists of the information described as such in Section 7(b) hereof
(e) Incorporated Documents. The documents incorporated by reference in each of the Registration Statement, the Prospectus and
the Pricing Disclosure Package, when they were filed with the Commission conformed in all material respects to the requirements of the
Exchange Act, and none of such documents contained any untrue statement of a material fact or omitted to state a material fact necessary
to make the statements therein, in the light of the circumstances under which they were made, not misleading; and any further documents
so filed and incorporated by reference in the Registration Statement, the Prospectus or the Pricing Disclosure Package, when such documents
are filed with the Commission, will conform in all material respects to the requirements of the Exchange Act and will not contain any
untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
(f)
Financial Statements. The consolidated historical financial statements of the Company and the related notes thereto included
in and incorporated by reference into each of the Registration Statement, the Prospectus and the Pricing Disclosure Package present fairly
in all material respects the consolidated financial position of the Company and its subsidiaries as of the dates indicated and the results
of their operations, changes in stockholders’ equity and cash flows for the periods specified. The supporting schedules, if any,
present fairly the information required to be stated therein. Such financial statements and supporting schedules have been prepared in
conformity with U.S. GAAP applied on a consistent basis throughout the periods involved, except as may be expressly stated in the related
notes thereto. The interactive data in eXtensible Business Reporting Language included or incorporated by reference in the Registration
Statement, the Prospectus and the Pricing Disclosure Package fairly presents the information called for in all material respects and has
been prepared in accordance with the rules and regulations of the Commission applicable thereto.
(g) No Material Adverse Change. Since the date of the latest audited financial statements included or incorporated by reference
in the Registration Statement, the Prospectus and the Pricing Disclosure Package, (i) there has been no material adverse effect,
or any development that would reasonably be expected to result in a material adverse effect, in (A) the condition, financial or
otherwise, or in the earnings, business, properties, operations, operating results, assets, liabilities or prospects, whether or not arising
from transactions in the ordinary course of business, of the Company and its subsidiaries, considered as one entity, or (B) the
ability of the Company to consummate the transactions contemplated by this Agreement or perform its obligations hereunder (any such effect
being referred to herein as a “Material Adverse Effect”); (ii) except as disclosed in the Registration Statement, the
Prospectus and the Pricing Disclosure Package, the Company and its subsidiaries, considered as one entity, have not incurred any material
liability or obligation, indirect, direct or contingent, including without limitation any losses or interference with their business from
fire, explosion, flood, earthquakes, accident or other calamity, whether or not covered by insurance, or from any strike, labor dispute
or court or governmental action, order or decree, that are material, individually or in the aggregate, to the Company and its subsidiaries,
considered as one entity, and have not entered into any transactions not in the ordinary course of business; and (iii) except as
disclosed in the Registration Statement, the Prospectus and the Pricing Disclosure Package, there has not been any material decrease in
the capital stock or any material increase in any short-term or long-term indebtedness of the Company and there has been no dividend or
distribution of any kind declared, paid or made by the Company or, except for dividends paid to the Company or other subsidiaries, by
any of the Company’s subsidiaries on any class of capital stock, or any repurchase or redemption by the Company or any of its subsidiaries
of any class of capital stock (except for any repurchase by the Company of shares of its common stock pursuant to the Company’s
existing share repurchase programs described in the Registration Statement, the Prospectus and the Pricing Disclosure Package).
4
(h) Organization and Good Standing. Each of the Company and each of its subsidiaries has been duly incorporated or organized
and is validly existing in good standing under the laws of the jurisdiction of its incorporation or organization and has the corporate
or limited liability company (as applicable) power and authority to own, lease and operate its properties and to conduct its business
as described in the Registration Statement, the Prospectus and the Pricing Disclosure Package and to enter into and perform its obligations
under this Agreement, and is duly qualified as a foreign corporation to transact business and is in good standing under the laws of each
other jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of
business, except where the failure to be so incorporated or organized or to be so qualified or to be in good standing or to have such
power or authority would not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect.
(i)
Capitalization. All of the shares of Common Stock outstanding prior to the issuance of the Borrowed Shares have been duly
and validly authorized and are fully paid and non-assessable, and all of the issued shares of capital stock or other equity interests
of each subsidiary of the Company have been duly and validly authorized and issued, are fully paid and non-assessable and, except as otherwise
set forth in the Registration Statement, the Prospectus and the Pricing Disclosure Package, are owned directly or indirectly by the Company,
free and clear of all liens, encumbrances, equities or claims, other than liens granted or to be granted under or otherwise permitted
by the agreements and instruments governing the Company’s and its subsidiaries’ existing indebtedness described in the Registration
Statement, the Prospectus and the Pricing Disclosure Package.
(j)
Due Authorization. The Company has full corporate right, power and authority to execute and deliver this Agreement
and the Share Lending Agreement (together, the “Transaction Documents”) and to perform its obligations hereunder and thereunder;
and all corporate action required to be taken for the due and proper authorization, execution and delivery by it of each of the Transaction
Documents and the consummation by it of the transactions contemplated thereby or hereby has been duly and validly taken.
(k) Description of Capital Stock. The authorized capital stock of the Company conforms as to legal matters to the description
thereof contained in each of the Registration Statement, the Prospectus and the Pricing Disclosure Package.
(l)
Underwriting Agreement. This Agreement has been duly authorized, executed and delivered by the Company.
(m) Share
Lending Agreement. The Share Lending Agreement has been duly authorized, executed and delivered by the Company and constitutes a
valid and legally binding agreement of the Company enforceable against the Company in accordance with its terms, except as enforceability
may be limited by applicable bankruptcy, insolvency or similar laws affecting the enforcement of creditors’ rights generally or
by equitable principles relating to enforceability.
(n)
The Borrowed Shares. The Borrowed Shares to be issued and delivered by the Company hereunder have been duly authorized and,
when issued and delivered as provided in the Transaction Documents, will be duly and validly issued, will be fully paid and nonassessable
and will conform to the descriptions thereof in the Registration Statement, the Pricing Disclosure Package and the Prospectus; and the
issuance of the Borrowed Shares is not subject to any preemptive or similar rights that have not been duly waived.
5
(o) Descriptions of the Transaction Documents. Each Transaction Document conforms in all material respects to the description
thereof contained in the Registration Statement, the Pricing Disclosure Package and the Prospectus.
(p) No Violation or Default. Neither the Company nor any of its subsidiaries is in violation of its charter or by-laws, partnership
agreement or operating agreement or similar organizational documents, as applicable, or is in default (or, with the giving of notice or
lapse of time, would be in default) (“Default”) under any indenture, loan, credit agreement, note, lease, license agreement,
contract, franchise or other instrument (including, without limitation, any pledge agreement, security agreement, mortgage or other instrument
or agreement evidencing, guaranteeing, securing or relating to indebtedness) to which the Company or any of its subsidiaries is a party
or by which it or any of them may be bound, or to which any of their respective properties or assets are subject, except for such Defaults
as would not reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect.
(q)
No Conflicts. The execution, delivery and performance by the Company of each of the Transaction Documents, the issuance
and delivery of the Borrowed Shares by the Company and the consummation by the Company of the transactions contemplated by each of the
Transaction Documents will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute
a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company
or any of its subsidiaries pursuant to, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which
the Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries is bound or to which any of the property
or assets of the Company or any of its subsidiaries is subject, (ii) result in any violation of the provisions of the charter or by-laws
or similar organizational documents of the Company or any of its subsidiaries or (iii) result in the violation of any law or statute or
any judgment, order, rule or regulation of any court or arbitrator or governmental or regulatory authority, except, in the case of clauses
(i) and (iii) above, for any such conflict, breach, violation or default that would not reasonably be expected, individually or in the
aggregate, have a Material Adverse Effect.
(r)
No Consents Required. No consent, approval, authorization, order, license, registration or qualification of or with any
court or arbitrator or governmental or regulatory authority is required for the execution, delivery and performance by the Company of
the Transaction Documents, the issuance and delivery of the Borrowed Shares and the consummation of the transactions contemplated by the
Transaction Documents, except for the registration of the Borrowed Shares under the Securities Act and such consents, approvals, authorizations,
orders and registrations or qualifications as may be required by the Financial Industry Regulatory Authority, Inc. (“FINRA”),
The Nasdaq Stock Market, under applicable state securities laws in connection with the borrowing and distribution of the Borrowed Shares
by the Borrower and the Underwriters.
(s)
Legal Proceedings. Except as described in each of the Registration Statement, the Prospectus and the Pricing Disclosure
Package, there is no action, suit, proceeding, inquiry or investigation brought by or before any legal or governmental entity now pending
or, to the knowledge of the Company, threatened, to which the Company or, to the knowledge of the Company, any of its subsidiaries, are
a party, or of which any property of the Company, or, to the knowledge of the Company, any of its subsidiaries, is subject that would,
individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(t)
Independent Accountants. Ernst & Young LLP, which has expressed its opinion with respect to the financial statements
(which term as used in this Agreement includes the related notes thereto) and supporting schedules filed with the Commission which is
included in or incorporated by reference in the Registration Statement, the Prospectus and the Pricing Disclosure Package, is (i) an
independent registered public accounting firm within the meaning of Rule 101 of the Code of Professional Conduct of the American
Institute of Certified Public Accountants and its interpretations and ruling thereunder within the applicable rules adopted by the
Commission and the Public Company Accounting Oversight Board (“PCAOB”) and as required under the Securities Act and the Exchange
Act and (ii) a registered public accounting firm as defined by the PCAOB whose registration has not been suspended or revoked and
who has not requested such registration to be withdrawn.
(u) Title to Real and Personal Property. The Company and its subsidiaries have good and marketable title to all of the
real and personal property that is material to the respective businesses of the Company and its subsidiaries, and all other assets reflected
as owned in the financial statements included or incorporated by reference in the Registration Statement, the Prospectus and the Pricing
Disclosure Package, free and clear of any security interests, mortgages, liens, encumbrances, equities, adverse claims and other defects,
except for such security interests, mortgages, liens, encumbrances, equities, adverse claims and other defects (collectively, “Liens”)
that (i) do not materially interfere with the use made and proposed to be made of such property by the Company and its subsidiaries
and (ii) would not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect, other than, in each
case, Liens granted or to be granted under or otherwise permitted by the agreements and instruments governing the Company’s and
its subsidiaries’ existing indebtedness described in the Registration Statement, the Prospectus and the Pricing Disclosure Package
and Liens that do not materially interfere with the use of such properties. The real property, improvements, equipment and personal property
held under lease by the Company or any of its subsidiaries are held under valid and enforceable leases, with such exceptions as are not
material and do not materially interfere with the use made or proposed to be made of such real property, improvements, equipment or personal
property by the Company or such subsidiary.
6
(v) Title to Intellectual Property. The Company and each of its subsidiaries collectively own, possess or license adequate
rights to use any patents, patent applications, trademarks, service marks, trade names, trademark registrations, service mark registrations,
copyrights, licenses and know-how including trade secrets and other unpatented and/or unpatentable proprietary or confidential information,
systems or procedures and other intellectual property reasonably necessary for the conduct of their respective businesses as described
in the Registration Statement, the Prospectus and the Pricing Disclosure Package, except where the failure to own or possess such rights
would not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect; and the conduct of their respective
businesses does not and will not conflict with any such rights of others, except which would not reasonably be expected, individually
or in the aggregate, to have a Material Adverse Effect; and the Company and its subsidiaries have not received any notice of any claim
of infringement of or conflict with, any such rights of others, which infringement or conflict, if the subject of an unfavorable decision,
ruling or finding, would reasonably be expected to have a Material Adverse Effect; and, to the knowledge of the Company, such rights of
the Company and each of its subsidiaries is not being infringed, misappropriated or otherwise violated by any person.
(w)
Investment Company Act. The Company is not and, after giving effect to the offering and delivery of the Borrowed Shares
and the application of the proceeds thereof as described in the Registration Statement, the Pricing Disclosure Package, the Prospectus
and the Share Lending Agreement, will not be required to register as an “investment company” or an entity “controlled”
by an “investment company” within the meaning of the Investment Company Act of 1940, as amended, and the rules and regulations
of the Commission thereunder (the “Investment Company Act”).
(x) Taxes. The Company and its subsidiaries have filed all necessary federal, state, local and foreign income and franchise
tax returns due through the date hereof or have properly requested extensions thereof (except in any case in which the failure to so file
would not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect) and have paid all taxes required
to be paid by any of them and, if due and payable, any related or similar assessment, fine or penalty levied against any of them, except
as may be being contested in good faith and by appropriate proceedings or except in any case in which the failure to so pay would not
reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect. The Company has made adequate charges, accruals
and reserves in the applicable financial statements referred to above in respect of all material amounts of federal, state, local and
foreign income and franchise taxes for all periods as to which the tax liability of the Company or any of its subsidiaries has not been
finally determined.
(y) Licenses, Permits or Certifications. The Company and its subsidiaries collectively possess all licenses, permits, certificates,
consents, orders, approvals and other authorizations from, and have made all declarations and filings with, all federal, state and other
governmental authorities, presently required or necessary to own or lease, as the case may be, and to operate their properties and to
carry on the business as set forth in the Registration Statement, the Prospectus and the Pricing Disclosure Package (“Permits”)
except where the failure to possess, make or obtain such Permits (by possession, declaration or filing) would not, individually or in
the aggregate, reasonably be expected to have a Material Adverse Effect.
(z)
No Labor Disputes. No labor disturbance by or dispute with employees of the Company or any of the Company’s
subsidiaries exists or, to the knowledge (without having undertaken any independent inquiry) of the Company, is contemplated, or to the
knowledge of the Company, is threatened, and the Company is not aware (without having undertaken any independent inquiry) of any existing
or imminent labor disturbance by, or dispute with, the employees of any of the Company’s or any of the Company’s subsidiaries’
principal suppliers, contractors or customers, in each case, except as would not have a Material Adverse Effect.
7
(aa)
Compliance with Environmental Laws. (A) Except as disclosed in the Registration Statement, the Prospectus and
the Pricing Disclosure Package, and except as would not reasonably be expected, individually or in the aggregate, to result in a Material
Adverse Effect: (i) neither the Company nor any of its subsidiaries is in violation of any federal, state, local or foreign statute,
law, rule, regulation, ordinance, code, policy or rule of common law or any judicial or administrative interpretation thereof, including
any judicial or administrative order, consent, decree or judgment, relating to pollution or protection of human health, the environment
(including, without limitation, ambient air, surface water, groundwater, land surface or subsurface strata) or wildlife, including, without
limitation, laws and regulations relating to the release or threatened release of chemicals, pollutants, contaminants, wastes, toxic substances,
hazardous substances, petroleum or petroleum products (collectively, “Hazardous Materials”) or to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling of Hazardous Materials (collectively, “Environmental Laws”),
(ii) the Company and its subsidiaries have all permits, authorizations and approvals required under any applicable Environmental
Laws and are each in compliance with their requirements, (iii) there are no pending or, to the Company’s knowledge, threatened
administrative, regulatory or judicial actions, suits, demands, demand letters, claims, liens, notices of noncompliance or violation,
investigation or proceedings relating to any Environmental Law against the Company or any of its subsidiaries and (iv) there are
no events or circumstances that might reasonably be expected to form the basis of an order for clean-up or remediation, or an action,
suit or proceeding by any private party or governmental body or agency, against or affecting the Company or any of its subsidiaries relating
to Hazardous Materials or any Environmental Laws; and (B) except as disclosed in the Registration Statement, the Prospectus and
the Pricing Disclosure Package, (i) there is no proceeding that is pending, or that is known to be contemplated, against the Company
or any of its subsidiaries under any Environmental Laws in which a governmental entity is also a party, other than such proceeding regarding
which it is reasonably believed no monetary sanctions of $300,000 or more will be imposed; (ii) the Company and its subsidiaries
are not aware of any facts or issues regarding compliance with Environmental Laws, or liabilities or other obligations under Environmental
Laws or concerning hazardous or toxic substances or wastes, pollutants or contaminants, that could reasonably be expected to have a material
effect on the capital expenditures, earnings or competitive position of the Company and its subsidiaries; and (iii) none of the
Company or its subsidiaries anticipates material capital expenditures for environmental control facilities.
(bb)
Insurance. The Company and each of its subsidiaries are insured by recognized, financially sound and reputable institutions
with policies in such amounts and with such deductibles and covering such risks as are generally deemed adequate and customary for their
businesses including, but not limited to, policies covering real and personal property owned or leased by the Company and its subsidiaries
against theft, damage, destruction, acts of vandalism and earthquakes and policies covering the Company and its subsidiaries for product
liability claims. The Company has no reason to believe that it or any of its subsidiaries will not be able (i) to renew its existing
insurance coverage as and when such policies expire or (ii) to obtain comparable coverage from similar institutions as may be necessary
or appropriate to conduct its business as now conducted and at a cost that would not reasonably be expected, individually or in the aggregate,
to result in a Material Adverse Effect. Neither the Company nor any of its subsidiaries has been denied any insurance coverage which it
has sought or for which it has applied.
(cc) Accounting Controls. The Company and each of its subsidiaries make and keep books, records and accounts, which in reasonable
detail, accurately and fairly reflect the transactions and dispositions of the assets of the Company and its subsidiaries and maintain
a system of internal accounting controls sufficient to provide reasonable assurance that: (i) transactions are executed in accordance
with management’s general or specific authorization; (ii) transactions are recorded as necessary to permit preparation of
financial statements in conformity with U.S. GAAP and to maintain accountability for assets; (iii) access to assets is permitted
only in accordance with management’s general or specific authorization; (iv) the recorded accountability for assets is compared
with existing assets at reasonable intervals and appropriate action is taken with respect to any differences and (v) interactive
data in eXtensible Business Reporting Language included or incorporated by reference in each of the Registration Statement, the Prospectus
and the Pricing Disclosure Package is prepared in accordance with the Commission’s rules and guidelines applicable thereto.
Except as disclosed in the Registration Statement, the Prospectus and the Pricing Disclosure Package, since the end of the Company’s
most recent audited fiscal year, there has been (i) no material weakness in the Company’s internal accounting controls and
(ii) no change in the Company’s internal accounting controls that has materially affected, or is reasonably likely to materially
affect, the Company’s internal accounting controls.
8
(dd)
No Unlawful Payments. (i) Neither the Company nor any of its subsidiaries or controlled affiliates, nor to
the knowledge of the Company, any director, officer or employee of the Company or any of its subsidiaries, any agent or representative
of the Company or of any of its subsidiaries or affiliates has (A) used any corporate funds for any unlawful contribution, gift,
entertainment or other unlawful expenses relating to political activity; (B) taken or will take any action in furtherance of an
offer, payment, promise to pay, or authorization or approval of the payment, giving or receipt of money, property, gifts or anything else
of value, directly or indirectly, to any foreign or domestic government official or employee, including of any government, government-owned
or controlled entity or public international organization, or any person acting in an official capacity for on behalf of any of the foregoing,
or any political party, party official, or candidate for political office in order to influence official action, or to any person in violation
of any applicable anti-corruption laws; (C) violated or is in violation of any provision of the U.S. Foreign Corrupt Practices Act
of 1977, as amended (the “FCPA”), the UK Bribery Act 2010, or any other applicable anti-bribery or anti-corruption law; or
(D) made, offered, authorized, requested, or taken an act in furtherance of any unlawful bribe, rebate, payoff, influence payment,
kickback or other unlawful payment or benefit; (ii) the Company and its subsidiaries and affiliates have conducted their respective
businesses in compliance with applicable anti-corruption laws, including the FCPA, and have instituted and maintained and will continue
to maintain policies and procedures reasonably designed to promote and achieve compliance with such laws and with the representations
and warranties contained herein; and (iii) neither the Company nor any of its subsidiaries will use, directly or indirectly, the
proceeds of the offering in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything
else of value, to any person in violation of any applicable anti-corruption laws.
(ee) Compliance with Money Laundering and Anti-Terrorism Laws. The operations of the Company and its subsidiaries are and
have been conducted at all times in compliance with all applicable financial recordkeeping and reporting requirements including those
of the Bank Secrecy Act, as amended by Title III of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept
and Obstruct Terrorism Act of 2001 (the “USA PATRIOT Act”), and the applicable anti-money laundering statutes of jurisdictions
where the Company and each of its subsidiaries conduct business, the rules and regulations thereunder and any related or similar
rules, regulations or guidelines, issued, administered or enforced by any governmental agency (collectively, the “Money Laundering
Laws”) and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving
the Company or any of its subsidiaries with respect to the Money Laundering Laws is pending or, to the best knowledge of the Company,
threatened.
(ff)
Office of Foreign Assets Control. (i) Neither the Company nor any of its subsidiaries, directors or officers, nor
to the knowledge of the Company, any employee of the Company or any of its subsidiaries, any agent, affiliate or representative of the
Company or any of its subsidiaries is an individual or entity (“Person”) that is, or is owned or controlled by one or more
Persons that are (A) the subject or the target of any U.S. sanctions administered by the Office of Foreign Assets Control of the
U.S. Department of the Treasury or the U.S. Department of State, the United Nations Security Council, the European Union, His Majesty’s
Treasury of the United Kingdom, or other relevant sanctions authority (collectively, “Sanctions”); (B) located, organized
or resident in a country or territory that is the subject or the target of Sanctions, including, without limitation, the Crimea, Kherson
and Zaporizhzhia regions of Ukraine, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, Cuba, Iran
and North Korea (each a “Sanctioned Country”); (ii) the Company will not directly or indirectly use the proceeds of
the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, or any joint venture partner or other
Person or entity, (A) for the purpose of funding or facilitating the activities or business of or with any Person, or in any country
or territory, that, at the time of such funding or facilitation, is the subject or the target of Sanctions; or (B) in any other
manner that will result in a violation by any Person (including any person participating in the transaction whether as agent, initial
purchaser, underwriter, advisor, investor or otherwise) of applicable Sanctions; and (iii) since April 24, 2019, the Company
and its subsidiaries have not knowingly engaged in, are not now knowingly engaged in, and will not engage in, any dealings or transactions
with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject or the target of
Sanctions or with any Sanctioned Country.
(gg)
Forward-Looking Statements. No forward-looking statement (within the meaning of Section 27A of the Securities
Act and Section 21E of the Exchange Act) included or incorporated by reference in any of the Registration Statement, the Prospectus
or the Pricing Disclosure Package has been made or reaffirmed without a reasonable basis or has been disclosed other than in good faith.
9
(hh)
Market Data. All statistical, demographic and market-related data included or incorporated by reference in the Registration
Statement, the Prospectus and the Pricing Disclosure Package is based on or derived from sources that the Company believes, after reasonable
inquiry, to be reliable and accurate in all material respects.
(ii)
Compliance with SOX. The Company is in compliance, in all material respects, with all applicable provisions
of the Sarbanes-Oxley Act of 2002 and the rules and regulations promulgated thereunder.
(jj)
ERISA. Except as disclosed in the Registration Statement, the Prospectus and the Pricing Disclosure Package, the Company
and its subsidiaries and any “employee benefit plan” (as defined under the Employee Retirement Income Security Act of 1974,
as amended, and the regulations and published interpretations thereunder (collectively, “ERISA”)) established or maintained
by the Company, its subsidiaries or their “ERISA Affiliates” (as defined below) are in compliance in all respects with ERISA,
except as would not reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect. “ERISA Affiliate”
means, with respect to the Company or any of its subsidiaries, any member of any group of organizations described in Sections 414(b),
(c), (m) or (o) of the Internal Revenue Code of 1986, as amended, and the regulations and published interpretations thereunder
(the “Code”) of which the Company or such subsidiary is a member. No “reportable event” (as defined under ERISA)
has occurred or is reasonably expected to occur with respect to any “employee benefit plan” established or maintained by
the Company, its subsidiaries or any of their ERISA Affiliates that would reasonably be expected, individually or in the aggregate, to
have a Material Adverse Effect. Except as would not reasonably be expected, individually or in the aggregate, to have a Material Adverse
Effect, no “employee benefit plan” established or maintained by the Company, its subsidiaries or any of their ERISA Affiliates,
if such “employee benefit plan” were terminated, would have any “amount of unfunded benefit liabilities” (as
defined under ERISA). Neither the Company, its subsidiaries nor any of their ERISA Affiliates has incurred or reasonably expects to incur
any liability under (i) Title IV of ERISA with respect to termination of, or withdrawal from, any “employee benefit plan”
or (ii) Sections 412, 4971, 4975 or 4980B of the Code. Each “employee benefit plan” established or maintained by the
Company, its subsidiaries or any of their ERISA Affiliates that is intended to be qualified under Section 401(a) of the Code
is so qualified and nothing has occurred, whether by action or failure to act, which would cause the loss of such qualification.
(kk)
Franchise Agreements. Except as would not reasonably be expected, individually or in the aggregate, to have
a Material Adverse Effect: (i) each of the franchise agreements entered into by the Company or any of its subsidiaries and described
or referred to in the Registration Statement, the Prospectus and the Pricing Disclosure Package (collectively, the “Franchise Agreements”)
is in full force and effect; (ii) to the Company’s knowledge, none of the persons or entities (the “Franchise Owners”)
holding franchise rights from the Company or any of its subsidiary is in breach or violation of, or in default under (nor has any event
occurred which with notice, lapse of time, or both would result in any breach or violation of, or constitute a default under) any such
Franchise Agreement; (iii) no event or circumstance has occurred which, with notice, lapse of time or both, would create a right
to terminate any Franchise Agreement prior to the termination of its stated term; and (iv) neither the Company nor any of its subsidiaries
has received, or been threatened with, a termination notice from any Franchise Owner or any other party with respect to a Franchise Agreement,
nor is the Company aware that any person or entity intends to furnish such a notice.
(ll)
Franchise Owners. To the Company’s knowledge: (i) each of the Franchise Owners and the franchises operated
by any of the Franchise Owners has all necessary licenses, authorizations, consents and approvals and has made all necessary filings required
under any federal, state, local or foreign law, regulation or rule, and has obtained all necessary licenses, authorizations, consents
and approvals from other persons, in order to conduct its business, except where the failure to obtain any such licenses, authorizations,
consents or approvals or make any such filings could not be expected, individually or in the aggregate, to result in a Material Adverse
Effect; (ii) none of the Franchise Owners is in violation of, or in default under, or has received notice of any proceedings relating
to revocation or modification of, any such license, authorization, consent or approval or any federal, state, local or foreign law, regulation
or rule (including those federal, state, foreign or local laws, regulations or rules applicable to reimbursement for healthcare
or any related services) or any decree, order or judgment applicable to such Franchise Owner or the business conducted thereby, except
where such violation, default, revocation or modification could not, individually or in the aggregate, be expected to result in a Material
Adverse Effect; and (iii) there are no actions, suits, claims, investigations or proceedings pending or threatened or contemplated
to which any of the Franchise Owners is or would be a party or of which any of their respective properties is or would be subject at law
or in equity, before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency,
or before or by any self-regulatory organization or other non-governmental regulatory authority, except any such action, suit, claim,
investigation or proceeding which could not result in a judgment, decree or order resulting, individually or in the aggregate, in a Material
Adverse Effect.
10
(mm) Stabilization. The Company has not taken and will not take, directly or indirectly, any action which is designed to or
which has constituted or which would reasonably be expected to cause or result in stabilization or manipulation of the price of any security
of the Company in connection with the offering of the Borrowed Shares.
(nn)
No Broker’s Fees. Neither the Company nor any of its subsidiaries is a party to any contract, agreement or understanding
with any person (other than this Agreement) that would give rise to a valid claim against any of them or any Underwriter for a brokerage
commission, finder’s fee or like payment in connection with the offering and sale of the Borrowed Shares.
(oo)
No Registration Rights. Except as disclosed in the Registration Statement, the Prospectus and the Pricing Disclosure
Package, there are no contracts, agreements or understandings between the Company and any person granting such person the right to require
the Company to file a registration statement under the Securities Act with respect to any securities of the Company or to require the
Company to include such securities with the Borrowed Shares registered pursuant to the Registration Statement.
(pp)
IT and Data Protection. The Company and its subsidiaries’ information technology assets and equipment, computers,
systems, networks, hardware, software, websites, applications, and databases (collectively, “IT Systems”) are adequate for,
and operate and perform in all material respects as required in connection with the operation of the business of the Company and its
subsidiaries as currently conducted, free and clear of all material bugs, errors, defects, Trojan horses, time bombs, malware and other
corruptants. The Company and its subsidiaries have implemented and maintained commercially reasonable physical, technical and administrative
controls, policies, procedures, and safeguards to maintain and protect their material confidential information and the integrity, continuous
operation, redundancy and security of all IT Systems and data, including “Personal Data,” used or processed in connection
with their businesses. “Personal Data” means (i) a natural person’s name, street address, telephone number, e-mail
address, photograph, social security number or tax identification number, driver’s license number, passport number, credit card
number, bank information, or customer or account number; (ii) any information which would qualify as “personally identifying
information” under the Federal Trade Commission Act, as amended; (iii) “personal data” as defined by GDPR; (iv) any
information which would qualify as “protected health information” under the Health Insurance Portability and Accountability
Act of 1996, as amended by the Health Information Technology for Economic and Clinical Health Act; and (v) any other piece of information
that allows the identification of such natural person, or his or her family or household, or permits the collection or analysis of any
data related to an identified person’s health or sexual orientation. There have been no breaches, violations, outages or unauthorized
uses of or accesses to IT Systems or Personal Data, except for those that have been remedied without material cost or liability or the
duty to notify any other person, nor any incidents under internal review or investigations relating to IT Systems or Personal Data. The
Company and its subsidiaries are presently in material compliance with all applicable laws or statutes and all judgments, orders, rules and
regulations of any court or arbitrator or governmental or regulatory authority, internal policies and contractual obligations relating
to the privacy and security of IT Systems and Personal Data and to the protection of such IT Systems and Personal Data from unauthorized
use, access, misappropriation or modification.
(qq)
Disclosure Controls and Procedures. The Company maintains an effective system of “disclosure controls and procedures”
(as defined in Rule 13a-15(e) of the Exchange Act) that is designed to ensure that information required to be disclosed by the Company
in reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified
in the Commission’s rules and forms, including controls and procedures designed to ensure that such information is accumulated and
communicated to the Company’s management as appropriate to allow timely decisions regarding required disclosure. The Company has
carried out evaluations of the effectiveness of its disclosure controls and procedures as required by Rule 13a-15 of the Exchange Act
and such disclosure controls and procedures were effective as of the end of the Company’s most recently completed fiscal quarter.
11
(rr)
Testing-the-Waters Communications. The Company (i) has not alone engaged in any Testing-the-Waters Communication
with any person and (ii) has not authorized anyone to engage in Testing-the-Waters Communications other than the Representatives.
The Company reconfirms that the Representatives have been authorized to act on its behalf in undertaking Testing-the-Waters Communications.
The Company has not distributed or approved for distribution any Written Testing-the-Waters Communications other than those listed on
Annex A hereto. “Testing-the-Waters Communication” means any communication with potential investors undertaken in reliance
on Section 5(d) or Rule 163B of the Securities Act. “Written Testing-the-Waters Communication” means any
Testing-the-Waters Communication that is a written communication within the meaning of Rule 405 under the Securities Act. Any individual
Written Testing-the-Waters Communication does not conflict with the information contained in the Registration Statement or the Pricing
Disclosure Package, complied in all material respects with the Securities Act, and when taken together with the Pricing Disclosure Package
as of the Applicable Time, did not, and as of the Closing Date and as of the Additional Closing Date, as the case may be, will not, contain
any untrue statement of a material fact or omit 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
(ss) Margin Rules. The application of the proceeds received by the Company from the issuance and delivery of the Borrowed Shares
as described in the Registration Statement, the Pricing Disclosure Package, the Prospectus and the Share Lending Agreement will not violate
Regulation T, U or X of the Board of Governors of the Federal Reserve System or any other regulation of such Board of Governors.
(tt)
Status under the Securities Act. At the time of filing the Registration Statement and any post-effective amendment thereto,
at the earliest time thereafter that the Company or any offering participant made a bona fide offer (within the meaning of Rule 164(h)(2)
under the Securities Act) of the Borrowed Shares and at the date hereof, the Company was not and is not an “ineligible issuer,”
and is a well-known seasoned issuer, in each case as defined in Rule 405 under the Securities Act.
4. Further Agreements of the Company. The Company covenants and agrees with each of the Underwriters:
(a)
Required Filings. The Company will file the final Prospectus with the Commission within the time periods specified by Rule
424(b) and Rule 430A, 430B or 430C under the Securities Act, will file any Issuer Free Writing Prospectus (including the term sheet substantially
in the form of Annex B hereto) to the extent required by Rule 433 under the Securities Act; and the Company will 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 and for so long as the delivery of a prospectus is required
in connection with the offering or sale of the Borrowed Shares; and the Company will furnish copies of the Prospectus and each Issuer
Free Writing Prospectus (to the extent not previously delivered) to the Underwriters and the Borrower in New York City prior to 10:00
A.M., New York City time, on the business day next succeeding the date of this Agreement in such quantities as the Representatives or
the Borrower may reasonably request. The Company will pay the registration fee for this offering within the time period required by Rule
456(b)(1) under the Securities Act (without giving effect to the proviso therein) and in any event prior to the Closing Date.
(b)
Delivery of Copies. The Company will deliver, without charge, (i) to the Representative, two (2) signed copies of the Registration
Statement as originally filed and each amendment thereto, in each case including all exhibits and consents filed therewith and documents
incorporated by reference therein; and (ii) to each Underwriter and the Borrower (A) a conformed copy of the Registration Statement as
originally filed and each amendment thereto (without exhibits) and (B) during the Prospectus Delivery Period (as defined below), as many
copies of the Prospectus (including all amendments and supplements thereto and documents incorporated by reference therein) and each Issuer
Free Writing Prospectus as the Representatives or the Borrower may reasonably request. As used herein, the term “Prospectus Delivery
Period” means such period of time after the first date of the public offering of the Borrowed Shares as in the opinion of counsel
for the Underwriters and the Borrower a prospectus relating to the Borrowed Shares is required by law to be delivered (or required to
be delivered but for Rule 172 under the Securities Act) in connection with sales of the Borrowed Shares by any Underwriter or dealer.
12
(c)
Amendments or Supplements, Issuer Free Writing Prospectuses. Before preparing, using, authorizing, approving, referring
to or filing any Issuer Free Writing Prospectus, and before filing any amendment or supplement to the Registration Statement, the Pricing
Disclosure Package or the Prospectus, whether before or after the time that the Registration Statement becomes effective, the Company
will furnish to the Representatives, the Borrower and counsel for the Underwriters and the Borrower a copy of the proposed Issuer Free
Writing Prospectus, amendment or supplement for review and will not prepare, use, authorize, approve, refer to or file any such Issuer
Free Writing Prospectus or file any such proposed amendment or supplement to which the Representatives or the Borrower reasonably object.
(d) Notice to the Representatives and the Borrower. The Company will advise the Representatives and the Borrower promptly, and
confirm such advice in writing, (i) when the Registration Statement has become effective; (ii) when any amendment to the Registration
Statement has been filed or becomes effective; (iii) when any supplement to the Prospectus or any Issuer Free Writing Prospectus or any
amendment to the Prospectus has been filed or distributed; (iv) of any request by the Commission for any amendment to the Registration
Statement or any amendment or supplement to the Prospectus or the receipt of any comments from the Commission relating to the Registration
Statement or any other request by the Commission for any additional information; (v) of the issuance by the Commission of any order suspending
the effectiveness of the Registration Statement or preventing or suspending the use of any Preliminary Prospectus, any of the Pricing
Disclosure Package or the Prospectus or the initiation or, to the knowledge of the Company, threatening of any proceeding for that purpose
or pursuant to Section 8A of the Securities Act; (vi) of the occurrence of any event or development within the Prospectus Delivery Period
as a result of which the Prospectus, the Pricing Disclosure Package or any Issuer Free Writing Prospectus as then amended or supplemented
would include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein,
in the light of the circumstances existing when the Prospectus, the Pricing Disclosure Package or any such Issuer Free Writing Prospectus
is delivered to a purchaser, not misleading; (vii) of the receipt by the Company of any notice of objection of the Commission to the use
of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities Act; and (viii)
of the receipt by the Company of any notice with respect to any suspension of the qualification of the Borrowed Shares for offer and sale
in any jurisdiction or the initiation or, to the knowledge of the Company, threatening of any proceeding for such purpose; and the Company
will use its commercially reasonable best efforts to prevent the issuance of any such order suspending the effectiveness of the Registration
Statement, preventing or suspending the use of any Preliminary Prospectus, any of the Pricing Disclosure Package or the Prospectus or
suspending any such qualification of the Borrowed Shares and, if any such order is issued, will obtain as soon as possible the withdrawal
thereof.
(e) Ongoing Compliance. (i) If during the Prospectus Delivery Period (A) any event or development shall occur or condition shall
exist as a result of which the Prospectus as then 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 existing when the Prospectus
is delivered to a purchaser, not misleading or (B) it is necessary to amend or supplement the Prospectus to comply with law, the Company
will as soon as practicable, but in no event later than one (1) business day, notify the Underwriters and the Borrower thereof and forthwith
prepare and, subject to paragraph (c) above, file with the Commission and furnish to the Underwriters, at its own expense, the Borrower
and to such dealers as the Representatives may designate, such amendments or supplements to the Prospectus (or any document to be filed
with the Commission and incorporated by reference therein) as may be necessary so that the statements in the Prospectus as so amended
or supplemented (or any document to be filed with the Commission and incorporated by reference therein) will not, in the light of the
circumstances existing when the Prospectus is delivered to a purchaser, be misleading or so that the Prospectus will comply with law and
(ii) if at any time prior to the Closing Date (A) any event or development shall occur or condition shall exist as a result of which the
Pricing Disclosure Package as then 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 existing when the Pricing Disclosure
Package is delivered to a purchaser, not misleading or (B) it is necessary to amend or supplement the Pricing Disclosure Package to comply
with law, the Company will immediately notify the Underwriters and the Borrower thereof and forthwith prepare and, subject to paragraph
(c) above, file with the Commission (to the extent required) and furnish to the Underwriters, the Borrower and to such dealers as the
Representatives may designate, such amendments or supplements to the Pricing Disclosure Package (or any document to be filed with the
Commission and incorporated by reference therein) as may be necessary so that the statements in the Pricing Disclosure Package as so amended
or supplemented will not, in the light of the circumstances existing when the Pricing Disclosure Package is delivered to a purchaser,
be misleading or so that the Pricing Disclosure Package will comply with applicable law; and (iii) if at any time following issuance of
an Issuer Free Writing Prospectus any event occurred or occurs as a result of which such Issuer Free Writing Prospectus would conflict
with the information in the Registration Statement, the Pricing Disclosure Package or the Prospectus or would include an 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
then prevailing, not misleading, the Company will give prompt notice thereof to the Borrower and the Underwriter and, if requested by
the Borrower or the Underwriter, will prepare and furnish without charge to each of the Borrower and the Underwriter an Issuer Free Writing
Prospectus or other document which will correct such conflict, statement or omission. Neither the Borrower’s or the Underwriter’s
consent to, nor the Borrower’s or the Underwriter’s delivery of, any such amendment or supplement shall constitute a waiver
of any of the conditions set forth in Section 6 hereof.
13
(f) Blue
Sky Compliance. The Company will use its commercially reasonable best efforts, with the Underwriters’ and the Borrower’s
cooperation, if necessary, to qualify the Borrowed Shares for offer and sale under the securities or Blue Sky laws of such jurisdictions
as the Representatives and the Borrower shall reasonably request and will use its commercially reasonable best efforts, with the Underwriters’
cooperation, if necessary, to continue such qualifications in effect so long as required for distribution of the Borrowed Shares; provided
that the Company shall not be required to (i) qualify as a foreign corporation or other entity or as a dealer in securities in any such
jurisdiction where it would not otherwise be required to so qualify, (ii) file any general consent to service of process in any such
jurisdiction or (iii) subject itself to taxation in any such jurisdiction if it is not otherwise so subject.
(g) Earning Statement. The Company will make generally available to its security holders and the Representatives as soon as
practicable an earning statement that satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 of the Commission promulgated
thereunder covering a period of at least twelve (12) months beginning with the first fiscal quarter of the Company occurring after the
“effective date” (as defined in Rule 158) of the Registration Statement, it being understood and agreed that such earning
statement shall be deemed to have been made available by the Company if the Company is in compliance with its reporting obligations pursuant
to the Exchange Act, if such compliance satisfies the conditions of Rule 158, and if such earning statement is made available on the Commission’s
Electronic Data Gathering, Analysis and Retrieval system (“EDGAR”).
(h)
Clear Market. For a period of forty-five (45) days after the date of the Prospectus, the Company will not (i) offer, pledge,
sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant
to purchase, or otherwise transfer or dispose of, directly or indirectly, or file with the Commission a registration statement under the
Securities Act relating to, any shares of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock,
or publicly disclose the intention to make any offer, sale, pledge, disposition or filing, or (ii) enter into any swap or other agreement
that transfers, in whole or in part, any of the economic consequences of ownership of the Common Stock or any such other securities, whether
any such transaction described in clause (i) or (ii) above is to be settled by delivery of Common Stock or such other securities, in cash
or otherwise, without the prior written consent of J.P. Morgan Securities LLC, other than (A) the securities to be sold hereunder and
to effect the transactions contemplated by this Agreement and the Share Lending Agreement (including, without limitation, the issuance
of the Borrowed Shares), (B) any shares of Common Stock issued upon the exchange of the Notes Issuer’s existing exchangeable notes
or any shares of Common Stock issued pursuant to options, restricted share units or other rights under the employee benefit plans in effect
as of the date of this Agreement and disclosed in the Registration Statement, the Prospectus and the Pricing Disclosure Package; (C) any
options to purchase Common Stock or restricted share units granted under the employee benefit plans in effect as of the date of this Agreement
and disclosed in the Registration Statement, the Prospectus and the Pricing Disclosure Package; (D) any shares of Common Stock issued
upon the exercise of warrants issued and outstanding as of the date of this Agreement and disclosed in the Registration Statement, the
Prospectus and the Pricing Disclosure Package; (E) any shares of Common Stock issued in connection with the Company’s “at
the market” equity program pursuant to the Equity Distribution Agreement, dated as of May 14, 2025, among the Parent and the financial
institutions party thereto; provided that no sales shall be made pursuant to the Equity Distribution Agreement until the earlier
of (i) the exercise in full by the initial purchasers of the Notes of their option to purchase the Option Securities (as defined in the
Notes Purchase Agreement and (ii) the 13th calendar day following the Closing Date, (F) the Notes to be sold pursuant to the Notes Purchase
Agreement and any Underlying Securities (as defined in the Notes Purchase Agreement) issuable upon exchange of the Notes; and (G) shares
of Common Stock or other securities offered or issued in connection with acquisitions, joint ventures, strategic partnerships or collaboration
agreements; provided that any shares or other securities issued in connection with this clause (G) will (1) not exceed 10% of the outstanding
shares of Common Stock or any other equity security and (2) a recipient of such Common Stock or such other security during the 45-day
restricted period referred to above will execute and deliver to the Representatives a lock-up letter substantially in the form of Exhibit
D hereto.
14
(i)
No Stabilization. The Company will not take, directly or indirectly, any action designed to or that would reasonably be
expected to cause or result in any stabilization or manipulation of the price of the Common Stock.
(j)
Exchange Listing. The Company will cause the Borrowed Shares to be listed, subject to notice of issuance, on The Nasdaq
Stock Market and will maintain the listing of the Borrowed Shares at all times prior to the termination of the Share Lending Agreement.
(k)
Reports. For a period of three (3) years from the date of this Agreement, the Company will furnish to the Representatives,
as soon as commercially reasonable after the date they are available, copies of all reports or other communications (financial or other)
furnished to holders of the Borrowed Shares, and copies of any reports and financial statements furnished to or filed with the Commission
or any national securities exchange or automatic quotation system; provided the Company will be deemed to have furnished such reports
and financial statements to the Representatives to the extent they are filed on EDGAR.
(l)
Record Retention. The Company will, pursuant to reasonable procedures developed in good faith, retain copies of each Issuer
Free Writing Prospectus that is not filed with the Commission in accordance with Rule 433 under the Securities Act.
(m)
Filings. The Company will file with the Commission such reports as may be required by Rule 463 under the Securities Act.
(n)
Investment Company. The Company will not invest, or otherwise use the proceeds received by the Company from its sale of
the Borrowed Shares in such a manner as would require the Company to register as an investment company under the Investment Company Act.
(o) Transfer Agent. The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of
the Company, a registrar for the Common Stock
(p)
Notes Offering. All conditions to closing under the Notes Purchase Agreement shall have been satisfied and the closing of
the transactions to be consummated on the Closing Date under the Notes Purchase Agreement shall have occurred concurrently or substantially
concurrently with the closing of the sale of the Borrowed Shares under this Agreement. The Notes shall have been duly and validly authorized,
executed and authenticated in accordance with the Indenture and issued and delivered against payment thereof substantially concurrently
with the closing of the sale of the Borrowed Shares under this Agreement, as provided in the Notes Purchase Agreement.
(q) Lock-up Agreements. The Company has caused each officer and director and certain shareholders of the Company listed on Annex
C to furnish to the Representatives, on or prior to the date of this Agreement, a “lock-up” agreement, each substantially
in the form of Exhibit A to the Notes Purchase Agreement.
5. Certain Agreements of the Underwriters and the Borrower. Each Underwriter and the Borrower hereby represents and agrees
that:
(a) It has not used, authorized use of, referred to or participated in the planning for use of, and will not use, authorize use of,
refer to or participate in the planning for use of, any “free writing prospectus”, as defined in Rule 405 under the Securities
Act (which term includes use of any written information furnished to the Commission by the Company and not incorporated by reference into
the Registration Statement and any press release issued by the Company) other than (i) a free writing prospectus that contains no “issuer
information” (as defined in Rule 433(h)(2) under the Securities Act) that was not included (including through incorporation by reference)
in the Preliminary Prospectus or a previously filed Issuer Free Writing Prospectus, (ii) any Issuer Free Writing Prospectus listed on
Annex A or prepared pursuant to Section 3(c) or Section 4(c) above (including any electronic road show), or (iii) any free writing prospectus
prepared by such Underwriter and/or the Borrower and approved by the Company in advance in writing (each such free writing prospectus
referred to in clauses (i) or (iii), an “Underwriter Free Writing Prospectus”).
15
(b) It has not used and will not, without the prior written consent of the Company, use any free writing prospectus that contains the
final terms of the Borrowed Shares unless such terms have previously been included in a free writing prospectus filed with the Commission;
provided that the Underwriters and the Borrower may use a term sheet substantially in the form of Annex B hereto without the consent of
the Company; provided further that any Underwriter using such term sheet shall notify the Company, and provide a copy of such term sheet
to the Company, prior to, or substantially concurrently with, the first use of such term sheet.
(c) It is not subject to any pending proceeding under Section 8A of the Securities Act with respect to the offering contemplated by
this Agreement (and will promptly notify the Company if any such proceeding against it is initiated during the Prospectus Delivery Period).
6.
Conditions of Underwriters’ and Borrower’s Obligations. The obligation of each Underwriter and the Borrower
with respect to the Borrowed Shares to be delivered on the Closing Date as provided herein is subject to the performance by the Company
of its covenants and other obligations hereunder and to the following additional conditions:
(a)
Registration Compliance; No Stop Order. No order suspending the effectiveness of the Registration Statement shall be in
effect, and no proceeding for such purpose, pursuant to Rule 401(g)(2) or pursuant to Section 8A under the Securities Act shall be pending
before or threatened by the Commission; the Prospectus and each Issuer Free Writing Prospectus shall have been timely filed with the Commission
under the Securities Act (in the case of an Issuer Free Writing Prospectus, to the extent required by Rule 433 under the Securities Act)
and in accordance with Section 4(a) hereof; and all requests by the Commission for additional information shall have been complied with
to the reasonable satisfaction of the Representatives and the Borrower.
(b) Representations and Warranties; Covenants. The representations and warranties of the Company contained herein shall be true
and correct on the date hereof and on and as of the Closing Date; and the statements of the Company and its officers made in any certificates
delivered pursuant to this Agreement shall be true and correct on and as of the Closing Date. The Company shall have performed and complied
with all covenants, agreements, obligations and conditions contained in this Agreement that are required to be performed or complied with
by the Company on or before the Closing Date.
(c) No Material Adverse Change. No event or condition of a type described in Section 3(g) hereof shall have occurred or shall
exist, which event or condition is not described in the Pricing Disclosure Package (excluding any amendment or supplement thereto) and
the Prospectus (excluding any amendment or supplement thereto) and the effect of which in the judgment of the Representatives or the Borrower
makes it impracticable or inadvisable to proceed with the offering, sale or delivery of the Borrowed Shares on the Closing Date on the
terms and in the manner contemplated by this Agreement, the Share Lending Agreement, the Pricing Disclosure Package and the Prospectus.
(d)
Officer’s Certificate. The Representatives and the Borrower shall have received on and as of the Closing Date a certificate
of the chief financial officer or chief accounting officer of the Company and one additional senior executive officer of the Company who
is satisfactory to the Representatives and the Borrower (i) confirming that such officers have carefully reviewed the Registration Statement,
the Pricing Disclosure Package and the Prospectus and, to the knowledge of such officers, the representations of the Company set forth
in Sections 3(b) and 3(d) hereof are true and correct, (ii) confirming that the other representations and warranties of the Company in
this Agreement are true and correct and that the Company has complied in all material respects with all agreements and satisfied all conditions
on its part to be performed or satisfied hereunder at or prior to the Closing Date and (iii) to the effect set forth in paragraphs (a)
and (c) above.
(e)
Comfort Letters.
i.
On the date of this Agreement and on the Closing Date, Ernst & Young LLP shall have furnished to the Representatives and the
Borrower, at the request of the Company, letters, dated the respective dates of delivery thereof and addressed to the Underwriters and
the Borrower, in form and substance reasonably satisfactory to the Representatives, the Borrower and Ernst & Young LLP, containing
statements and information of the type customarily included in accountants’ “comfort letters” to underwriters with respect
to the financial statements and certain financial information contained or incorporated by reference in the Registration Statement, the
Pricing Disclosure Package and the Prospectus; provided, that the letter delivered on the Closing Date shall use a “cut-off”
date no more than three (3) business days prior to such Closing Date.
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ii.
On the date of this Agreement and on the Closing Date, if requested by the Representatives and the Borrower, the Company shall
have furnished to the Representatives and the Borrower a certificate, dated the respective dates of delivery thereof and addressed to
the Underwriters and the Borrower, of its chief financial officer with respect to certain financial data contained in the Pricing Disclosure
Package and the Prospectus, providing “management comfort” with respect to such information, in form and substance reasonably
satisfactory to the Representatives and the Borrower.
(f)
Opinion and 10b-5 Statement of Counsel for the Company. Davis Polk & Wardwell LLP, counsel for the Company, shall have
furnished to the Representatives and the Borrower, at the request of the Company, their written opinion and 10b-5 statement, dated the
Closing Date, and addressed to the Underwriters and the Borrower, in form and substance reasonably satisfactory to the Representatives
and the Borrower.
(g)
Opinion and 10b-5 Statement of Counsel for the Underwriters and the Borrower. The Representatives shall have received on
and as of the Closing Date, an opinion and 10b-5 statement of Simpson Thacher & Bartlett LLP, counsel for the Underwriters and the
Borrower, with respect to such matters as the Representatives may reasonably request, and such counsel shall have received such documents
and information as they may reasonably request to enable them to pass upon such matters.
(h) No Legal Impediment to Issuance. No action shall have been taken and no statute, rule, regulation or order shall have been
enacted, adopted or issued by any federal, state or foreign governmental or regulatory authority that would, as of the Closing Date, prevent
the issuance, delivery or sale of the Borrowed Shares; and no injunction or order of any federal, state or foreign court shall have been
issued that would, as of the Closing Date, prevent the issuance, delivery or sale of the Borrowed Shares.
(i)
Good Standing. The Representatives and the Borrower shall have received on and as of the Closing Date, satisfactory evidence
of the good standing of the Company and its subsidiaries in their respective jurisdictions of organization and their good standing as
foreign entities in such other jurisdictions as the Representatives and the Borrower may reasonably request, in each case in writing or
any standard form of telecommunication from the appropriate governmental authorities of such jurisdictions.
(j)
Exchange Listing. The Company shall have submitted a listing application to The Nasdaq Stock Market in respect of the Borrowed
Shares, and The Nasdaq Stock Market shall have raised no objections to the listing the Borrowed Shares.
(k) Lock-up Agreements. The “lock-up” agreements, each substantially in the form of Exhibit A to the Notes Purchase
Agreement, between the Representatives and certain officers and directors of the Company, in each case, listed on Annex C, relating to
sales and certain other dispositions of shares of Common Stock or certain other securities, delivered to the Representatives on or before
the date hereof, shall be in full force and effect on the Closing Date.
(l)
Borrowed Shares. The Borrower shall have received from the Company the Borrowed Shares pursuant to the terms of the Share
Lending Agreement prior to 9:00 A.M. New York City time on the Closing Date.
(m) Share Lending Agreement. The Company shall have entered into the Share Lending Agreement as of the date hereof, and the
Borrower shall have received executed copies thereof.
(n) Notes Offering. The Notes Offering, substantially on the terms described in the Prospectus, shall have been consummated.
17
(o) No Downgrade. On or after the Applicable Time (i) no downgrading shall have occurred in the rating accorded the Company's
debt securities (including equity-linked debt securities), or preferred stock by any “nationally recognized statistical rating organization”,
as defined in Section 3(a)(62) of the Exchange Act, and (ii) no such organization shall have publicly announced that it has under surveillance
or review, with possible negative implications, its rating of any of the Company's debt securities or preferred stock;
(p) Additional Documents. On or prior to the Closing Date, the Company shall have furnished to the Representatives and the Borrower
such further certificates and documents as the Representatives or the Borrower may reasonably request.
All opinions, letters, certificates and evidence
mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form
and substance reasonably satisfactory to counsel for the Underwriters and the Borrower.
7. Indemnification and Contribution
(a) The Company will indemnify and hold harmless each of the Borrower, Underwriter and each person, if any, who controls such Borrower
or Underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, each affiliate of such Underwriter
or Borrower within the meaning of Rule 405 under the Securities Act and each of such Borrower’s or Underwriter’s respective
affiliates, directors, employees, officers and selling agents, from and against any and all losses, claims, damages and liabilities (including,
without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such action or claim),
joint or several, that arise out of, or are based upon any untrue statement or alleged untrue statement of a material fact contained in
the Registration Statement, any Preliminary Prospectus, the Pricing Disclosure Package or the Prospectus, or any amendment or supplement
thereto, any Issuer Free Writing Prospectus, any “roadshow” as defined in Rule 433(h) under the Securities Act (a “roadshow”),
any “issuer information” filed or required to be filed pursuant to Rule 433(d) under the Securities Act or any Testing-the-Waters
Communication, 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 the light of the circumstances under which they were made, and
will reimburse each Borrower and the Underwriters for any legal or other expenses reasonably incurred by such Borrower or Underwriter
in connection with investigating or defending any such action or claims as such expenses are incurred; provided, however, that the Company
shall not be liable in any such case to the extent that any such loss, claim, damages or liabilities arise out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission made in the Registration Statement, the Preliminary Prospectus,
or the Prospectus, or any amendment or supplement thereto, or any Issuer Free Writing Prospectus or any Testing-the-Waters Communication,
in reliance upon and in conformity with any information relating to the Borrower or Underwriter furnished to the Company in writing by
such Underwriter expressly for use therein, it being understood and agreed that the only such information furnished by the Borrower or
the Underwriter consists of the information described as such in paragraph (b) below.
(b) Each Underwriter and the Borrower agrees, severally and not jointly, to indemnify and hold harmless the Company, its directors,
its officers who sign the Registration Statement and each person, if any, who controls the Company within the meaning of Section 15 of
the Securities Act or Section 20 of the Exchange Act to the same extent as the indemnity set forth in paragraph (a) above, but only with
respect to any losses, claims, damages or liabilities that arise out of, or are based upon any untrue statement or alleged untrue statement
of a material fact contained in the Registration Statement, the Preliminary Prospectus, or the Prospectus, or any amendment or supplement
thereto, or any Issuer Free Writing Prospectus, or any roadshow, or any Testing-the-Waters Communication, 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 the light of the circumstances under which they were made, in each case to the extent, but only to the extent,
that such untrue statement or alleged untrue statement or omission or alleged omission related to the Underwriters and was made in the
Registration Statement, the Preliminary Prospectus, or the Prospectus, or any amendment or supplement thereto, or any Issuer Free Writing
Prospectus, or any roadshow, or any Testing-the-Waters Communication, in reliance upon and in conformity with any information relating
to the Underwriter or Borrower furnished to the Company in writing by the Representatives or the Borrower expressly for use therein, it
being understood and agreed upon that the only such information furnished by any Underwriter or the Borrower consists of the following
information in the Prospectus under the caption “Underwriting (Conflicts of Interest)”: the name of each Underwriter and the
name of the Borrower.
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(c) If any suit, action, proceeding (including any governmental or regulatory investigation), claim or demand shall be brought or asserted
against any person in respect of which indemnification may be sought pursuant to either paragraph (a) or (b) above, such person (the “Indemnified
Person”) shall promptly notify the person against whom such indemnification may be sought (the “Indemnifying Person”)
in writing; provided that the failure to notify the Indemnifying Person shall not relieve it from any liability that it may have under
this Section 7 except to the extent that it has been materially prejudiced (through the forfeiture of substantive rights or defenses)
by such failure; and provided, further, that the failure to notify the Indemnifying Person shall not relieve it from any liability that
it may have to an Indemnified Person otherwise than under this Section 7. If any such proceeding shall be brought or asserted against
an Indemnified Person and it shall have notified the Indemnifying Person of the commencement thereof, the Indemnifying Person will be
entitled to participate therein and, shall retain counsel reasonably satisfactory to the Indemnified Person (who shall not, without the
consent of the Indemnified Person, be counsel to the Indemnifying Person) to represent the Indemnified Person and any others entitled
to indemnification pursuant to this Section 7 that the Indemnifying Person may designate in such proceeding and shall pay the fees and
expenses in such proceeding and shall pay the fees and expenses of such counsel related to such proceeding, as incurred. In any such proceeding,
any Indemnified Person shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense
of such Indemnified Person unless (i) the Indemnifying Person and the Indemnified Person shall have mutually agreed to the contrary, (ii)
the Indemnifying Person has failed within a reasonable time to retain counsel reasonably satisfactory to the Indemnified Person, (iii)
the Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or in
addition to those available to the Indemnifying Person or (iv) the named parties in any such proceeding (including any impleaded parties)
include both the Indemnifying Person and the Indemnified Person and representation of both parties by the same counsel would be inappropriate
due to actual or potential differing interests between them. It is understood and agreed that the Indemnifying Person shall not, in connection
with any proceeding or related proceeding in the same jurisdiction, be liable for the fees and expenses of more than one separate firm
(in addition to any local counsel) for all Indemnified Persons, and that all such fees and expenses shall be paid or reimbursed as they
are incurred. Any such separate firm for any Underwriter or the Borrower, their respective affiliates, directors and officers and any
control persons of such Underwriter shall be designated in writing by the Representatives and any such separate firm for the Company,
their respective directors and officers who signed the Registration Statement and any control persons of the Company shall be designated
in writing by the Company. The Indemnifying Person shall not be liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final judgment for the plaintiff, the Indemnifying Person agrees to indemnify
each Indemnified Person from and against any loss or liability by reason of such settlement or judgment. Notwithstanding the foregoing
sentence, if at any time an Indemnified Person shall have requested that an Indemnifying Person reimburse the Indemnified Person for fees
and expenses of counsel as contemplated by this paragraph, the Indemnifying Person shall be liable for any settlement of any proceeding
effected without its written consent if (i) such settlement is entered into more than 30 days after receipt by the Indemnifying Person
of such request and (ii) the Indemnifying Person shall not have reimbursed the Indemnified Person in accordance with such request prior
to the date of such settlement. No Indemnifying Person shall, without the written consent of the Indemnified Person, effect any settlement
of any pending or threatened proceeding in respect of which any Indemnified Person is or could have been a party and indemnification could
have been sought hereunder by such Indemnified Person, unless such settlement (x) includes an unconditional release of such Indemnified
Person, in form and substance reasonably satisfactory to such Indemnified Person, from all liability on claims that are the subject matter
of such proceeding and (y) does not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf
of any Indemnified Person.
(d)
If the indemnification provided for in paragraphs (a) and (b) above is unavailable to an Indemnified Person or insufficient in
respect of any losses, claims, damages or liabilities referred to therein, then each Indemnifying Person under such paragraph, in lieu
of indemnifying such Indemnified Person thereunder, shall contribute to the amount paid or payable by such Indemnified Person as a result
of such losses, claims, damages or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the
Company on the one hand and the Underwriters on the other from the offering of the Borrowed Shares or (ii) if the allocation provided
by clause (i) is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) but also the relative fault of the Company on the one hand and the Borrower or the Underwriters on the other, in connection
with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand and the Underwriters and the Borrower on the other, shall
be deemed to be in the same respective proportions as the net proceeds (before deducting expenses) received by the Company from the sale
of the Borrowed Shares and the total discounts and commissions received by the Underwriters (or its affiliates) or the Borrower in connection
with the Notes Offering, in each case as set forth in the Notes Purchase Agreement for the Notes Offering, bear to the aggregate offering
price of the Notes in the Notes Offering. For the purpose of the immediately preceding sentence, the Borrower shall be deemed to be the
same person as its affiliate Underwriter. The relative fault of the Company on the one hand and the Borrower or Underwriters on the other
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 by the Borrower or the Underwriters and
the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
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(e)
The Company, the Borrower and the Underwriters agree that it would not be just and equitable if contribution pursuant to this Section
7 were determined by pro rata allocation (even if the Borrower or Underwriters were treated as one entity for such purpose) or by any
other method of allocation that does not take account of the equitable considerations referred to in the paragraph directly above. The
amount paid or payable by an Indemnified Person as a result of the losses, claims, damages and liabilities referred to in the paragraph
directly above shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred
by such Indemnified Person in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this
Section 7, in no event shall an Underwriter be required to contribute any amount in excess of the amount by which the sum of the total
underwriting discounts and commissions received by such Underwriter with respect to the total sales or brokerage commissions received
by such Underwriter with respect to the offering of the Borrowed Shares exceeds the amount of any damages that such Underwriter has otherwise
been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission (the “maximum amount”).
For the purposes of the immediately preceding sentence, the Borrower shall be deemed to be the same person as its affiliate Underwriter,
and the maximum amount therein shall apply to the Borrower and its affiliate Underwriter without duplication. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. The Borrower’s and the Underwriters’ obligations to contribute pursuant to
this Section 7 are several in proportion to their respective purchase obligations hereunder and not joint.
(f)
The indemnity and contribution provisions contained in this Section 7 and the representations, warranties and other statements
of the Company contained in this Agreement shall remain operative and in full force and effect regardless of (i) any termination
of this Agreement, (ii) any investigation made by or on behalf of any Underwriter or the Borrower, any person controlling any Underwriter
or the Borrower or any affiliate, director, officer, employee or selling agent of any Underwriter or the Borrower or by or on behalf of
the Company, its officers or directors or any person controlling the Company and (iii) acceptance of and payment for any of the
Borrowed Shares. The remedies provided for in this Section 7 are not exclusive and shall not limit any rights or remedies that may otherwise
be available to any Indemnified Person at law or in equity.
8. Effectiveness
of Agreement. This Agreement shall become effective upon the execution and delivery hereof by the parties hereto.
9. Termination.
This Agreement may be terminated in the absolute discretion of the Representatives or the Borrower, by notice to the Company, if after
the execution and delivery of this Agreement and prior to the Closing Date (i) trading generally shall have been suspended or materially
limited on or by any of the New York Stock Exchange or The Nasdaq Stock Market; (ii) trading of any securities issued or guaranteed by
the Company shall have been suspended on any exchange or in any over-the-counter market; (iii) a general moratorium on commercial banking
activities shall have been declared by federal or New York State authorities; or (iv) there shall have occurred any outbreak or escalation
of hostilities or any change in financial markets or any calamity or crisis, either within or outside the United States, that, in the
judgment of the Representatives, is material and adverse and makes it impracticable or inadvisable to proceed with the offering, sale
or delivery of the Borrowed Shares on the Closing Date, on the terms and in the manner contemplated by this Agreement, the Share Lending
Agreement, the Pricing Disclosure Package and the Prospectus.
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10.
Defaulting Underwriter.
(a) If,
on the Closing Date, any Underwriter defaults on its obligation to purchase the Borrowed Shares that it has agreed to purchase hereunder
on such date, the non-defaulting Underwriters may in their discretion arrange for the purchase of such Borrowed Shares by other persons
satisfactory to the Company on the terms contained in this Agreement. If, within 36 hours after any such default by any Underwriter,
the non-defaulting Underwriters do not arrange for the purchase of such Borrowed Shares, then the Company shall be entitled to a further
period of 36 hours within which to procure other persons satisfactory to the non-defaulting Underwriters to purchase such Borrowed Shares
on such terms. If other persons become obligated or agree to purchase the Borrowed Shares of a defaulting Underwriter, either the non-defaulting
Underwriters or the Company may postpone the Closing Date for up to five (5) full business days in order to effect any changes that in
the opinion of counsel for the Company or counsel for the Underwriters may be necessary in the Registration Statement and the Prospectus
or in any other document or arrangement, and the Company agrees to promptly prepare any amendment or supplement to the Registration Statement
and the Prospectus that effects any such changes. As used in this Agreement, the term “Underwriter” includes, for all purposes
of this Agreement unless the context otherwise requires, any person not listed in Schedule 1 hereto that, pursuant to this Section 10,
purchases Borrowed Shares that a defaulting Underwriter agreed but failed to purchase.
(b) If,
after giving effect to any arrangements for the purchase of the Borrowed Shares of a defaulting Underwriter or Underwriters by the non-defaulting
Underwriters and the Company as provided in paragraph (a) above, the aggregate number of Borrowed Shares that remain unpurchased on the
Closing Date does not exceed one-eleventh of the aggregate number of Borrowed Shares to be purchased on such date, then the Company shall
have the right to require each non-defaulting Underwriter to purchase the number of Borrowed Shares that such Underwriter agreed to purchase
hereunder on such date plus such Underwriter’s pro rata share (based on the number of Borrowed Shares that such Underwriter agreed
to purchase on such date) of the Borrowed Shares of such defaulting Underwriter or Underwriters for which such arrangements have not
been made.
(c)
If, after giving effect to any arrangements for the purchase of the Borrowed Shares of a defaulting Underwriter or Underwriters
by the non-defaulting Underwriters and the Company as provided in paragraph (a) above, the aggregate number of Borrowed Shares that remain
unpurchased on the Closing Date exceeds one-eleventh of the aggregate amount of Borrowed Shares to be purchased on such date, or if the
Company shall not exercise the right described in paragraph (b) above, then this Agreement shall terminate without liability on the part
of the non-defaulting Underwriters. Any termination of this Agreement pursuant to this Section 10 shall be without liability on the part
of the Company, except that the Company and the Underwriters will continue to be liable for the payment of expenses as set forth in Section
11 hereof and except that the provisions of Section 7 hereof shall not terminate and shall remain in effect.
(d) Nothing contained herein shall relieve a defaulting Underwriter of any liability it may have to the Company or any non-defaulting
Underwriter for damages caused by its default.
11. Payment of Expenses.
(a) Whether or not the transactions contemplated by this Agreement are consummated or this Agreement is terminated, the Company will
pay or cause to be paid all costs and expenses incident to the performance of its obligations hereunder, including without limitation,
(i) the costs incident to the authorization, issuance, sale, preparation and delivery of the Borrowed Shares and any taxes payable in
that connection; (ii) the costs incident to the preparation, printing and filing under the Securities Act of the Registration Statement,
the Preliminary Prospectus, any Issuer Free Writing Prospectus, any Pricing Disclosure Package and the Prospectus (including all exhibits,
amendments and supplements thereto) and the distribution thereof; (iii) the costs of reproducing and distributing each of the Transaction
Documents; (iv) the fees and expenses of the Company’s counsel and independent accountants; (v) the fees and expenses incurred in
connection with the registration or qualification of the Borrowed Shares and determination of eligibility of investment thereof under
the state or foreign securities or blue sky laws of such jurisdictions as the Representatives may designate and the preparation, printing
and distribution of a Blue Sky Memorandum (including the related fees and expenses of counsel for the Underwriters and the Borrower) not
to exceed $30,000 without the prior written consent of the Company when taken together with the amount incurred in connection with clause
(ix) below); (vi) the cost of preparing stock certificates; (vii) the costs and charges of any transfer agent and any registrar; (viii)
all expenses and application fees incurred in connection with any filing with, and clearance of the offering by, FINRA, in an amount not
to exceed $30,000 (exclusive of filing fees) without the prior written consent of the Company when taken together with the amount incurred
in connection with clause (v) above; (ix) all reasonable and documented expenses incurred by the Company in connection with any “road
show” presentation to potential investors, provided, however, the Company and the Underwriters shall each pay 50% of the total costs
of chartering any aircraft to be used in connection with any such “road shows”; and (x) all expenses and application fees
related to the listing of the Borrowed Shares on The Nasdaq Stock Market.
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(b)
Except as provided for by this Agreement, the Underwriters and the Borrower will pay all of their own expenses, including the fees
of their counsel and travel and lodging expenses of the Representatives.
(c) If (i) this Agreement is terminated pursuant to Section 9, (ii) the Company for any reason fails to tender the Borrowed Shares
for delivery to the Borrower or the Underwriters at the Closing Date in accordance with this Agreement or (iii) the Borrower or the Underwriters
decline to borrow the Borrowed Shares because any of the conditions to the Borrower’s or Underwriters’ obligations set forth
in Section 6 have not been met, the Company agrees to reimburse the Borrower and/or the Underwriters for all reasonable and documented
out-of-pocket costs and expenses (including the reasonable and documented fees and expenses of their counsel) reasonably incurred by the
Borrower and/or the Underwriters in connection with this Agreement and the offering contemplated hereby. For the avoidance of doubt, the
Company will not pay or reimburse any costs, fees or expenses incurred by any Underwriter that defaults on its obligations to purchase
the Borrowed Shares.
12.
Persons Entitled to Benefit of Agreement. This Agreement shall inure to the benefit of and be binding upon the parties hereto
and their respective successors and the officers and directors and any controlling persons referred to herein, and the affiliates of each
Underwriter referred to in Section 7 hereof. Nothing in this Agreement is intended or shall be construed to give any other person any
legal or equitable right, remedy or claim under or in respect of this Agreement or any provision contained herein. No purchaser of Borrowed
Shares from any Underwriter or the Borrower shall be deemed to be a successor merely by reason of such purchase.
13.
Survival. The respective indemnities, rights of contribution, representations, warranties and agreements of the Company,
the Borrower and the Underwriters contained in this Agreement or made by or on behalf of the Company, the Borrower or the Underwriters
pursuant to this Agreement or any certificate delivered pursuant hereto shall survive the delivery of and payment for the Borrowed Shares
and shall remain in full force and effect, regardless of any termination of this Agreement or any investigation made by or on behalf of
the Company, the Borrower or the Underwriters.
14.
Certain Defined Terms. For purposes of this Agreement, (a) except where otherwise expressly provided, the term “affiliate”
has the meaning set forth in Rule 405 under the Securities Act; (b) the term “business day” means any day other than a day
on which banks are permitted or required to be closed in New York City; and (c) the term “subsidiary” has the meaning set
forth in Rule 405 under the Securities Act.
15.
Compliance with USA Patriot Act. In accordance with the requirements of the USA Patriot Act (Title III of Pub. L. 107-56
(signed into law October 26, 2001)), the Underwriters are required to obtain, verify and record information that identifies their respective
clients, including the Company, which information may include the name and address of their respective clients, as well as other information
that will allow the Underwriters and the Borrower to properly identify their respective clients.
16.
Miscellaneous.
(a)
Authority of the Representatives. Any action by the Underwriters hereunder may be taken by the Representatives on behalf
of the Underwriters, and any such action taken by the Representatives shall be binding upon the Underwriters.
(b)
Notices. All notices and other communications hereunder shall be in writing and shall be deemed to have been duly given
if mailed or transmitted and confirmed by any standard form of telecommunication. Notices to the Underwriters shall be given to the Representatives:
c/o J.P. Morgan Securities LLC, 270 Park Avenue, New York, New York 10017 (fax: (212) 622-8358); Attention: Equity Syndicate Desk and
c/o Barclays Capital Inc. 745 Seventh Avenue, New York, New York 10019 (fax: +646.834.8133) Attention: Syndicate Registration and with
a copy to Simpson Thacher & Bartlett LLP, 425 Lexington Avenue, New York, NY 10017 Attention: Roxane Reardon, Jon Lindabury and John
Ericson. Notices to the Borrower shall be given to it at J.P. Morgan Securities LLC, 270 Park Avenue, New York, New York 10017 (fax: (212)
622-8358); Attention: Equity Syndicate Desk and with a copy to Simpson Thacher & Bartlett LLP, 425 Lexington Avenue, New York, NY
10017 Attention: Roxane Reardon, Jon Lindabury and John Ericson. Notices to the Company shall be given to it at The Hertz Corporation,
8501 Williams Road, Estero, FL 33928 (fax: +1.866.444.2755), Attention: Christopher M. Murphy; Adrian Nasr, Email: christopher.murphy2;
adrian.nasr@hertz.com, with a copy to Davis Polk & Wardwell LLP, 450 Lexington Avenue, New York, NY 10017, United States, Attention:
Pedro J. Bermeo, Derek Walters and John Runne.
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(c)
Governing Law. This Agreement and any claim, controversy or dispute arising under or related to this Agreement shall be
governed by and construed in accordance with the laws of the State of New York applicable to agreements made and to be performed in such
state.
(d)
Submission to Jurisdiction. The Company hereby submit to the exclusive jurisdiction of the U.S. federal and New York state
courts in the Borough of Manhattan in The City of New York in any suit or proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby. The Company waives any objection which it may now or hereafter have to the laying of venue of any such
suit or proceeding in such courts. The Company agrees that final judgment in any such suit, action or proceeding brought in such court
shall be conclusive and binding upon the Company and may be enforced in any court to the jurisdiction of which the Company is subject
by a suit upon such judgment.
(e)
Waiver of Jury Trial. Each of the parties hereto hereby waives any right to trial by jury in any suit or proceeding arising
out of or relating to this Agreement.
(f)
Waiver. The Company waives, to the fullest extent permitted by law, any claims it may have against the Underwriters for
breach of fiduciary duty or alleged breach of fiduciary duty and agrees that the Underwriters shall have no liability (whether direct
or indirect) to the Company in respect of such a fiduciary duty claim or to any person asserting a fiduciary duty claim on behalf of or
in right of the Company, including its stockholders, employees or creditors.
(g)
Recognition of the U.S. Special Resolution Regimes.
(i) In the event that any Underwriter that is a Covered
Entity becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer from such Underwriter of this Agreement, and
any interest and obligation in or under this Agreement, will be effective to the same extent as the transfer would be effective under
the U.S. Special Resolution Regime if this Agreement, and any such interest and obligation, were governed by the laws of the United States
or a state of the United States.
(ii) In the event that any Underwriter that is a
Covered Entity or a BHC Act Affiliate of such Underwriter becomes subject to a proceeding under a U.S. Special Resolution Regime, Default
Rights under this Agreement that may be exercised against such Underwriter are permitted to be exercised to no greater extent than such
Default Rights could be exercised under the U.S. Special Resolution Regime if this Agreement were governed by the laws of the United States
or a state of the United States.
As used in this Section 16(e):
“BHC Act Affiliate” has the meaning assigned
to the term “affiliate” in, and shall be interpreted in accordance with, 12 U.S.C. § 1841(k).
“Covered Entity” means any of the following:
(i) a “covered entity” as that term is
defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b);
(ii) a “covered bank” as that term is
defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or
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(iii) a “covered FSI” as that term is
defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).
“Default Right” has the meaning assigned
to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.
“U.S. Special Resolution Regime” means
each of (i) the Federal Deposit Insurance Act and the regulations promulgated thereunder and (ii) Title II of the Dodd-Frank Wall Street
Reform and Consumer Protection Act and the regulations promulgated thereunder.
(h) Counterparts.
This Agreement may be signed in counterparts (which may include counterparts delivered by any standard form of telecommunication),
each of which shall be an original and all of which together shall constitute one and the same instrument. The words “execution,”
“signed,” “signature,” “delivery,” and words of like import in or relating to this Agreement or any
document to be signed in connection with this Agreement shall be deemed to include electronic signatures, deliveries or the keeping of
records in electronic form. Counterparts may be delivered via facsimile, electronic mail (including any electronic signature covered
by the U.S. federal ESIGN Act of 2000, Uniform Electronic Transactions Act, the Electronic Signatures and Records Act or other applicable
law, e.g., www.docusign.com) or other transmission method and any counterpart so delivered shall be of the same legal effect, validity
or enforceability as a manually executed signature, physical delivery thereof or the use of a paper-based recordkeeping system, as the
case may be, and the parties hereto consent to conduct the transactions contemplated hereunder by electronic means.
(i)
Amendments or Waivers. No amendment or waiver of any provision of this Agreement, nor any consent or approval to any departure
therefrom, shall in any event be effective unless the same shall be in writing and signed by the parties hereto.
(j)
Headings. The headings herein are included for convenience of reference only and are not intended to be part of, or to affect
the meaning or interpretation of, this Agreement.
[Remainder of page intentionally left blank.]
24
If the foregoing is in accordance
with your understanding, please indicate your acceptance of this Agreement by signing in the space provided below.
Very truly yours,
Hertz
Global Holdings, Inc.
By:
/s/ Scott Haralson
Name: Scott Haralson
Title: Chief Financial Officer
25
Accepted as of the date above.
J.P.
Morgan Securities llc
By:
/s/ Suraj Vasishtha
BARCLAYS
CAPITAL INC.
By:
/s/ Robert Stowe
26
SCHEDULE I
Underwriter
Total Number of
Borrowed Shares to be
Purchased
J.P. Morgan Securities LLC
21,111,111
Barclays Capital Inc.
15,925,926
Total
37,037,037
27
Annex A
(a)
Pricing Disclosure Package
Pricing term sheet, substantially in the form of Annex B
(b)
Written Testing-the-Waters Communications
None
28
Annex B
Pricing Term Sheet
See attached
29
Issuer Free Writing Prospectus
Filed Pursuant to Rule 433
Relating to the
Prospectus in respect of Offering
of Borrowed Shares dated June 24, 2026
Registration Statement on Form S-3
(No. 333-296989)
PRICING TERM SHEET
Dated June 24, 2026
Hertz Global Holdings, Inc.
Offering of 37,037,037 Borrowed Shares
The information in this
pricing term sheet supplements Hertz Global Holdings, Inc.’s preliminary prospectus, dated June 24, 2026 (the “Prospectus”)
relating to offering of shares of common stock of the Company, par value $0.01 per share (the “Common Stock” and such shares,
the “Borrowed Shares”) including the documents incorporated by reference therein (the “Prospectus”) included in
the Registration Statement on Form S-3 (Registration No. 333-296989), and supersedes the information in the Prospectus to the extent inconsistent
with the information therein. Terms used, but not defined, in this pricing term sheet have the respective meanings as set forth in the
Prospectus. As used in this pricing term sheet, the “Company,” “we,” “our” and “us”
refer to Hertz Global Holdings, Inc. and not to its subsidiaries.
Issuer
Hertz Global Holdings Inc. (“HTZ”)
Ticker / Exchange
HTZ / The Nasdaq Global Market (“NASDAQ”)
Pricing Date
June 24, 2026
Trade Date
June 25, 2026
Settlement Date
June 29, 2026 (T+2)*
We expect that delivery of the Borrowed
Shares will be made against payment therefor on or about June 29, 2026, the second business day following the initial trade date for the
borrowed shares (such settlement being referred to as “T+2”). Under Rule 15c6-1 under the Securities Exchange Act of 1934
(the “Exchange Act”), as amended, trades in the secondary market generally are required to settle in one business day, unless
the parties to any such trade expressly agree otherwise. Accordingly, purchasers who wish to trade the Borrowed Shares more than one business
day preceding the settlement date will be required, by virtue of the fact that the Borrowed Shares settle on T+2, to specify an alternate
settlement arrangement at the time of any such trade.
Public Offering Price per Borrowed Share
$2.70
Number of Borrowed Shares Offered
37,037,037 shares of Common Stock
Last Reported Sale Price of Common Stock on Nasdaq on Pricing Date
$3.00
30
Concurrent Transactions
On June 24, 2026, Hertz Corp. (as defined
below) announced the pricing of the previously announced private offering of $350 million (or, if the initial purchasers of the Concurrent
Notes Offering (as defined below) fully exercise their option to purchase additional Notes, $400 million) aggregate principal amount of
6.75% Exchangeable Senior First-Lien Secured PIK Notes due 2030 (the “Notes”, and such offering, the “Concurrent Notes
Offering”) by The Hertz Corporation, a wholly owned subsidiary of the Company (“Hertz Corp.”), pursuant to a separate
offering memorandum, to persons reasonably believed to be qualified institutional buyers pursuant to Rule 144A under the Securities Act
of 1933, as amended.
We estimate that the net proceeds Hertz Corp.
will receive from the Concurrent Notes Offering, if it is consummated, will be approximately $339.5 million, after deducting the Notes
initial purchasers’ discount but before estimated offering expenses payable by Hertz Corp. in connection with the Concurrent Notes
Offering. If the initial purchasers of the Notes exercise their option to purchase additional Notes in full, Hertz Corp. estimates that
the net proceeds from the concurrent notes offering will be approximately $388.0 million, after deducting the Notes initial purchasers’
discount but before estimated offering expenses payable by Hertz Corp. in connection with the Concurrent Notes Offering. Hertz Corp. intends
to use the net proceeds from the Concurrent Notes Offering for to repay outstanding borrowings under its revolving credit facility and
for general corporate purposes.
The Notes may be exchanged at an initial exchange
rate of 279.5248 shares of Common Stock per $1,000 capitalized principal amount of Notes (equivalent to an initial exchange price of approximately
$3.58 per share of Common Stock). The exchange rate is subject to adjustment if certain events occur. Hertz Corp. will settle exchanges
of the notes by paying or delivering, as the case may be, cash, shares of our common stock or a combination of cash and shares of our
common stock, at Hertz Corp.’s election. The aggregate number of shares of our common stock that may be issued upon exchange of
the Notes may not exceed 19.9% of the number of shares of our common stock outstanding prior to the Concurrent Notes Offering unless and
until our shareholders approve such issuance.
Neither this pricing term sheet nor the Prospectus
constitutes an offer to sell, or the solicitation of an offer to buy, any securities being offered in the Concurrent Notes Offering.
31
Conditionality of Offering of Borrowed Shares and Concurrent Notes Offering
The offering of the Borrowed Shares is contingent upon the closing of the Concurrent Notes Offering. The Concurrent Notes Offering is not contingent upon the closing of the offering of the Borrowed Shares.
Underwriters
J.P. Morgan Securities LLC
Barclays Capital
Inc.
*Delivery of the Borrowed Shares is expected
to be made against payment therefor on or about June 29, 2026, the second business day following the initial trade date for the Borrowed
Shares (such settlement being referred to as “T+2”). Under Rule 15c6-1 under the Securities Exchange Act of 1934 (the “Exchange
Act”), as amended, trades in the secondary market generally are required to settle in one business day, unless the parties to any
such trade expressly agree otherwise. Accordingly, purchasers who wish to trade the Borrowed Shares more than one business day preceding
the settlement date will be required, by virtue of the fact that the borrowed shares settle on T+2, to specify an alternate settlement
arrangement at the time of any such trade.
The Company has filed a prospectus with the
U.S. Securities and Exchange Commission (the “SEC”) for the offering to which this communication relates. Before you invest,
you should read the prospectus and the other documents the Company has filed with the SEC for more complete information about the Company
and this offering. You may get these documents for free by visiting EDGAR on the SEC’s website at http://www.sec.gov.
Alternatively, copies of documents relating to the Offering of Borrowed Shares may be obtained from J.P. Morgan Securities LLC, c/o Broadridge
Financial Solutions, 1155 Long Island Avenue, Edgewood, NY 11717, Attention: Prospectus Department, Email: prospectus-eq_fi@jpmchase.com
and postsalemanualrequests@broadridge.com or Barclays Capital Inc. c/o Broadridge Financial Solutions,
1155 Long Island Avenue, Edgewood, NY 11717, Email: Barclaysprospectus@broadridge.com, Phone:
(888) 603-5847.
The information in this pricing
term sheet is not a complete description of the Borrowed Shares or our Common Stock. You should rely only on the information contained
or incorporated by reference in the prospectus, as supplemented by this pricing term sheet, in making an investment decision with respect
to the Borrowed Shares.
Neither this pricing term sheet nor the Prospectus
constitutes an offer to sell or a solicitation of an offer to buy the Borrowed Shares in any jurisdiction where it is unlawful to do so,
where the person making the offer is not qualified to do so or to any person who cannot legally be offered the Borrowed Shares.
ANY DISCLAIMERS OR OTHER NOTICES
THAT MAY APPEAR BELOW ARE NOT APPLICABLE TO THIS COMMUNICATION AND SHOULD BE DISREGARDED. SUCH DISCLAIMERS OR OTHER NOTICES WERE AUTOMATICALLY
GENERATED AS A RESULT OF THIS COMMUNICATION BEING SENT VIA BLOOMBERG OR ANOTHER EMAIL SYSTEM.
32
Annex C
Lock-Up Parties
W. Gil West
Scott Haralson
Christopher Berg
Sandeep Dube
Piero Bussani
Jyoti Chopra
Mark Kosman
Michael S. Moore
Colin Farmer
Thomas Wagner
Michael Gregory O’Hara
Andrew Shannahan
Francis S. Blake
Lucy Clark Dougherty
Vincent J. Intrieri
Evangeline Vougessis
33
EX-4.1 — EXHIBIT 4.1
EX-4.1
Filename: tm2619276d1_ex4-1.htm · Sequence: 3
Exhibit 4.1
THE
HERTZ CORPORATION
THE GUARANTORS PARTY HERETO
and
Computershare
Trust Company, N.A.
as Trustee and Notes Collateral Agent
INDENTURE
Dated as of June 29, 2026
6.75% Exchangeable Senior First-Lien Secured PIK
Notes due 2030
TABLE OF CONTENTS
Page
Article 1. Definitions; Rules of Construction
1
Section 1.01.
Definitions.
1
Section 1.02.
Other Definitions.
66
Section 1.03.
Rules of Construction.
67
Section 1.04.
Limited Condition Transaction.
68
Section 1.05.
Measuring Compliance.
69
Section 1.06.
Intercreditor Agreements.
71
Article 2. The Notes
71
Section 2.01.
Form, Dating and Denominations.
71
Section 2.02.
Execution, Authentication and Delivery.
72
Section 2.03.
Initial Notes and Additional Notes.
73
Section 2.04.
Method of Payment.
73
Section 2.05.
Cash Interest; PIK Interest; Defaulted Amounts; When Payment Date is Not a Business Day.
74
Section 2.06.
Registrar, Paying Agent and Exchange Agent.
77
Section 2.07.
Paying Agent and Exchange Agent to Hold Property in Trust.
78
Section 2.08.
Holder Lists.
78
Section 2.09.
Legends.
79
Section 2.10.
Transfers and Exchanges; Certain Transfer Restrictions.
80
Section 2.11.
Exchange and Cancellation of Notes to Be Exchanged or to Be Repurchased Pursuant to a Repurchase Upon Fundamental Change or Redemption.
84
Section 2.12.
Removal of Transfer Restrictions.
85
Section 2.13.
Replacement Notes.
85
Section 2.14.
Registered Holders; Certain Rights with Respect to Global Notes.
86
Section 2.15.
Cancellation.
86
Section 2.16.
Notes Held by the Company or its Affiliates.
86
Section 2.17.
Temporary Notes.
86
Section 2.18.
Outstanding Notes.
87
Section 2.19.
Repurchases by the Company.
87
Section 2.20.
CUSIP and ISIN Numbers.
88
Article 3. Covenants
88
Section 3.01.
Payment on Notes.
88
Section 3.02.
Exchange Act Reports.
88
Section 3.03.
Rule 144A Information.
89
Section 3.04.
Additional Interest.
89
Section 3.05.
Compliance and Default Certificates.
90
Section 3.06.
Stay, Extension and Usury Laws.
91
Section 3.07.
Acquisition of Notes by the Company, the Parent Guarantor and their Respective Subsidiaries.
91
- i -
Section 3.08.
Limitation on Indebtedness.
91
Section 3.09.
Limitation on Restricted Payments.
96
Section 3.10.
Limitation on Restrictions on Distributions from Restricted Subsidiaries.
100
Section 3.11.
Limitation on Sales of Assets and Subsidiary Stock.
102
Section 3.12.
Limitation on Liens.
107
Section 3.13.
Future Subsidiary Guarantors.
108
Section 3.14.
After-Acquired Property.
108
Section 3.15.
Further Assurances.
110
Section 3.16.
Real Property Collateral.
110
Article 4. Repurchase and Redemption
111
Section 4.01.
No Sinking Fund.
111
Section 4.02.
Right of Holders to Require the Company to Repurchase Notes Upon a Fundamental Change.
111
Section 4.03.
Right of the Company to Redeem the Notes.
115
Article 5. Exchange
118
Section 5.01.
Right to Exchange.
118
Section 5.02.
Exchange Procedures.
120
Section 5.03.
Settlement Upon Exchange.
121
Section 5.04.
Reserve and Status of Common Stock Delivered Upon Exchange.
125
Section 5.05.
Adjustments to the Exchange Rate.
125
Section 5.06.
Voluntary Adjustments.
136
Section 5.07.
Adjustments to the Exchange Rate in Connection with a Make-Whole Fundamental Change.
137
Section 5.08.
Transfer of Notes to Be Exchanged to a Third Party for Settlement.
138
Section 5.09.
Effect of Common Stock Change Event.
138
Article 6. Successors
140
Section 6.01.
When the Company May Merge, Etc.
140
Section 6.02.
Company Successor Entity Substituted.
142
Section 6.03.
When the Parent Guarantor May Merge, Etc.
142
Section 6.04.
Parent Successor Entity Substituted.
143
Article 7. Defaults and Remedies
143
Section 7.01.
Events of Default.
143
Section 7.02.
Acceleration.
146
Section 7.03.
Sole Remedy for a Failure to Report.
148
Section 7.04.
Other Remedies.
149
Section 7.05.
Waiver of Past Defaults.
149
Section 7.06.
Cure of Defaults; Ability to Cure or Waive Before Event of Default Occurs
149
Section 7.07.
Control by Majority.
150
Section 7.08.
Limitation on Suits.
150
Section 7.09.
Absolute Right of Holders to Institute Suit for the Enforcement of the Right to Receive Payment and Exchange Consideration.
151
- ii -
Section 7.10.
Collection Suit by Trustee.
151
Section 7.11.
Trustee May File Proofs of Claim.
151
Section 7.12.
Priorities.
152
Section 7.13.
Undertaking for Costs.
152
Article 8. Amendments, Supplements
and Waivers
152
Section 8.01.
Without the Consent of Holders.
152
Section 8.02.
With the Consent of Holders.
154
Section 8.03.
Notice of Amendments, Supplements and Waivers.
156
Section 8.04.
Revocation, Effect and Solicitation of Consents; Special Record Dates; Etc.
157
Section 8.05.
Notations and Exchanges.
157
Section 8.06.
Trustee to Execute Supplemental Indentures.
157
Article 9. Guarantee
158
Section 9.01.
Guarantees Generally.
158
Section 9.02.
Continuing Guarantee.
160
Section 9.03.
Release of Subsidiary Guarantees
160
Section 9.04.
Release of Holdings; Parent Guarantor
162
Section 9.05.
Waiver of Subrogation
162
Section 9.06.
Notation not Required
163
Section 9.07.
Successors and Assigns of Guarantors
163
Section 9.08.
Execution and Delivery of Guarantee.
163
Section 9.09.
Notices
163
Section 9.10.
Further Assurances
164
Article 10. Satisfaction and Discharge
164
Section 10.01.
Termination of Company’s Obligations.
164
Section 10.02.
Repayment to Company.
165
Section 10.03.
Reinstatement.
165
Article 11. Trustee
165
Section 11.01.
Duties of the Trustee.
165
Section 11.02.
Rights of the Trustee.
166
Section 11.03.
Individual Rights of the Trustee.
167
Section 11.04.
Trustee’s Disclaimer.
167
Section 11.05.
Notice of Defaults.
168
Section 11.06.
Compensation and Indemnity.
168
Section 11.07.
Replacement of the Trustee.
169
Section 11.08.
Successor Trustee by Merger, Etc.
170
Section 11.09.
Eligibility; Disqualification
170
Section 11.10.
Notes Collateral Agent.
170
Article 12. Collateral
177
Section 12.01.
Notes Collateral Documents.
177
Section 12.02.
Release of Collateral.
177
- iii -
Section 12.03.
Suits to Protect Collateral.
179
Section 12.04.
Authorization of Receipt of Funds by the Trustee Under the Notes Collateral Documents.
179
Section 12.05.
Purchaser Protected.
179
Section 12.06.
Powers Exercisable by Receiver or Trustee.
179
Article 13. Miscellaneous
180
Section 13.01.
Notices.
180
Section 13.02.
Delivery of Officer’s Certificate and Opinion of Counsel as to Conditions Precedent.
182
Section 13.03.
Statements Required in Officer’s Certificate and Opinion of Counsel.
182
Section 13.04.
Rules by the Trustee, the Registrar, the Paying Agent and the Exchange Agent.
183
Section 13.05.
No Personal Liability of Directors, Officers, Employees and Stockholders.
183
Section 13.06.
Governing Law; Waiver of Jury Trial.
183
Section 13.07.
Submission to Jurisdiction.
183
Section 13.08.
No Adverse Interpretation of Other Agreements.
184
Section 13.09.
Successors.
184
Section 13.10.
Force Majeure.
184
Section 13.11.
U.S.A. PATRIOT Act.
184
Section 13.12.
Calculations.
184
Section 13.13.
Severability.
185
Section 13.14.
Counterparts.
185
Section 13.15.
Table of Contents, Headings, Etc.
185
Section 13.16.
Withholding Taxes.
185
Exhibits
Exhibit A: Form of Note
A-1
Exhibit B-1: Form of Restricted Note Legend
B1-1
Exhibit B-2: Form of Global Note Legend
B2-1
Exhibit B-3: Form of Non-Affiliate Legend
B3-1
Exhibit B-4: Form of Original Issue Discount Legend
B4-1
Exhibit C: Form of Supplemental Indenture in Respect of Subsidiary Guarantee
C-1
Exhibit D: Form of Canadian Representation Letter
D-1
- iv -
INDENTURE,
dated as of June 29, 2026, among The Hertz Corporation, a Delaware corporation, as issuer (the “Company”), Hertz
Global Holdings, Inc., a Delaware corporation (the “Parent Guarantor”), Rental Car Intermediate Holdings, LLC,
a Delaware limited liability
company (“Holdings”),
the Subsidiary Guarantors (as defined below) and Computershare Trust Company, N.A., a national banking association, as trustee (the “Trustee”)
and notes collateral agent (the “Notes Collateral Agent”).
Each party to this Indenture
(as defined below) agrees as follows for the benefit of the other parties and for the equal and ratable benefit of the Holders (as defined
below) of the Company’s 6.75% Exchangeable Senior First-Lien Secured PIK Notes due 2030 (the “Notes”).
Article 1. Definitions;
Rules of Construction
Section 1.01. Definitions.
“4.625% Senior Notes”
means the Company’s 4.625% Senior Notes due 2026.
“5.000% Senior Notes”
means the Company’s 5.000% Senior Notes due 2029.
“5.500% Exchangeable
Notes” means the Company’s 5.500% Exchangeable Senior Notes due 2030.
“2026 Notes Indenture”
means the indenture, dated as of November 23, 2021 (as supplemented or otherwise modified from time to time), among the Company,
the subsidiary guarantors party thereto and Computershare Trust Company, N.A., as trustee, as supplemented by a first supplemental indenture,
dated as of November 23, 2021, (as supplemented or otherwise modified from time to time), among the Company, the subsidiary guarantors
party thereto and Computershare Trust Company, N.A., as trustee.
“2029 Notes Indenture”
means the indenture, dated as of November 23, 2021 (as supplemented or otherwise modified from time to time), among the Company,
the subsidiary guarantors party thereto and Computershare Trust Company, N.A., as trustee, as supplemented by a second supplemental indenture,
dated as of November 23, 2021, (as supplemented or otherwise modified from time to time), among the Company, the subsidiary guarantors
party thereto and Computershare Trust Company, N.A., as trustee.
“Accounts”
means all accounts (as defined in the Uniform Commercial Code) of the Company and each Guarantor, including all Accounts (as defined in
the First Lien Credit Agreement) and any right to payment for goods sold or leased or for services rendered, which is not evidenced by
an instrument (as defined in the Uniform Commercial Code) or chattel paper of the Company or such Guarantor, but in any event excluding
all Accounts that have been sold or otherwise transferred (and not transferred back to the Company or a Guarantor) in connection with
a Special Purpose Financing.
“Acquired Indebtedness”
means Indebtedness of a Person (i) existing at the time such Person becomes a Subsidiary or (ii) assumed in connection
with the acquisition of assets from such Person, in each case other than Indebtedness Incurred in connection with, or in contemplation
of, such Person becoming a Subsidiary or such acquisition. Acquired Indebtedness shall be deemed to be Incurred on the date of the related
acquisition of assets from any Person or the date the acquired Person becomes a Subsidiary.
-1-
“Additional Assets”
means (i) any property or assets that replace the property or assets that are the subject of an Asset Disposition; (ii) any
property or assets (other than Indebtedness and Capital Stock) used or to be used by the Company or a Restricted Subsidiary or otherwise
useful in a Related Business and any capital expenditures in respect of any property or assets already so used; (iii) the
Capital Stock of a Person that is engaged in a Related Business and becomes a Restricted Subsidiary as a result of the acquisition of
such Capital Stock by the Company or another Restricted Subsidiary; or (iv) Capital Stock of any Person that at such time
is a Restricted Subsidiary acquired from a third party.
“Additional Interest”
means any interest that accrues on any Note pursuant to Section 3.04.
“Affiliate”
of any specified Person means any other Person, directly or indirectly, controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition, “control” when used with respect to any Person means
the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities,
by contract or otherwise; and the terms “controlling” and “controlled” have meanings correlative to the foregoing.
“Aggregate Share
Cap” means 63,457,320 shares of Common Stock, subject to adjustment in the same manner as, and at the same time and for the
same events for which, the Exchange Rate is adjusted pursuant to Section 5.05(A).
“Amex GBT Contracts”
mean any contracts, agreements or arrangements (including any preferred partner agreements) by and between GBT Travel Services UK Limited
d/b/a American Express Global Business Travel or any of its affiliates (“Amex GBT”) and the Company or any of its Restricted
Subsidiaries, pursuant to which Amex GBT, among other things, designates the Company and/or any of its Restricted Subsidiaries as a preferred
supplier.
“Applicable Intercreditor
Arrangements” means customary intercreditor arrangements (it being understood that (i) any Intercreditor Agreement (or
any substantially similar agreement) and (ii) any intercreditor arrangements satisfactory to the First Lien Credit Agreement Collateral
Agent, are “Applicable Intercreditor Arrangements”).
“Asset Disposition”
means any sale, lease, transfer or other disposition of shares of Capital Stock of a Restricted Subsidiary (other than directors’
qualifying shares, or (in the case of a Foreign Subsidiary) to the extent required by applicable law), property or other assets (each
referred to for purposes of this definition as a “disposition”) by the Company or any of its Restricted Subsidiaries
(including any disposition by means of a merger, consolidation or similar transaction), other than:
(i) a disposition to the Company or a Restricted Subsidiary; provided
that with respect to any disposition of property or assets pursuant to this clause (i) that constitute Collateral, such dispositions
may only be made to the Company or a Subsidiary Guarantor;
-2-
(ii) a disposition in the ordinary course of business;
(iii) a disposition of Cash Equivalents, Investment Grade Securities or Temporary Cash Investments;
(iv) the sale or discount (with or without recourse, and on customary or commercially reasonable terms, as
determined by the Company in good faith, which determination shall be conclusive) of accounts receivable or notes receivable arising in
the ordinary course of business, or the conversion or exchange of accounts receivable for notes receivable;
(v) any Investment or any Restricted Payment Transaction;
(vi) a disposition that is governed by Article 6;
(vii) any Financing Disposition;
(viii) any “fee in lieu” or other disposition of assets to any Governmental Authority that continue
in use by the Company or any Restricted Subsidiary, so long as the Company or any Restricted Subsidiary may obtain title to such assets
upon reasonable notice by paying a nominal fee;
(ix) any exchange of property pursuant to or intended to qualify under Section 1031 (or any successor
section) of the Code, or any exchange of equipment to be leased, rented or otherwise used in a Related Business, including pursuant to
any Rental Car LKE Program;
(x) any financing transaction with respect to property built or acquired by the Company or any Restricted
Subsidiary, including any sale/leaseback transaction or asset securitization;
(xi) any disposition arising from foreclosure, condemnation, eminent domain or similar action with respect
to any property or other assets, or exercise of termination rights under any lease, license, concession or other agreement, or necessary
or advisable (as determined by the Company in good faith, which determination shall be conclusive) in order to consummate any acquisition
of any Person, business or assets, or pursuant to buy/sell arrangements under any joint venture or similar agreement or arrangement, or
of non-core assets acquired in connection with any acquisition of any Person, business or assets or any Investment;
(xii) any disposition of Capital Stock, Indebtedness or other securities of an Unrestricted Subsidiary;
(xiii) a disposition of Capital Stock of a Restricted Subsidiary pursuant to an agreement or other obligation
with or to a Person (other than the Company or a Restricted Subsidiary) from whom such Restricted Subsidiary was acquired, or from whom
such Restricted Subsidiary acquired its business and assets (having been newly formed in connection with such acquisition), entered into
in connection with such acquisition;
-3-
(xiv) a disposition of not more than 5.0% of the outstanding Capital Stock of a Foreign Subsidiary that has
been approved by the Board of Directors;
(xv) any disposition or series of related dispositions for aggregate consideration not to exceed the greater
of $165.0 million and 12.5% of LTM Consolidated EBITDA;
(xvi) any disposition of all or any part of the Capital Stock or business or assets of (a) Etma, Inc.
or any successor in interest thereto or (b) CAR Inc. or any successor in interest thereto;
(xvii) the abandonment or other disposition of trademarks, copyrights, patents or other intellectual property
that are, in the good faith determination of the Company (which determination shall be conclusive), no longer economically practicable
to maintain or useful in the conduct of the business of the Company and its subsidiaries taken as a whole;
(xviii) any license, sublicense or other grant of rights in or to any trademark, copyright, patent or other intellectual
property;
(xix) any lease or sublease of real or other property;
(xx) any disposition for Fair Market Value to any Franchisee or any Franchise Special Purpose Entity;
(xxi) any disposition of securities pursuant to an agreement entered into in connection with any securities
lending or other securities financing transaction to the extent such securities were otherwise permitted to be disposed of at the time
of entering into the agreement for such securities lending or other securities financing transaction;
(xxii) the creation or granting of any Lien permitted under this Indenture; or
(xxiii) any other disposition if on a pro forma basis after giving effect to such disposition (including any application
of proceeds therefrom) the Consolidated Total Net Corporate Leverage Ratio would be equal to or less than 4.50:1.00.
“Authorized Denomination”
means, with respect to a Note, a principal amount thereof equal to $1.00 or any integral multiple of $1.00 in excess thereof.
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“Bank Products Agreement”
means any agreement pursuant to which a bank or other financial institution or other Person agrees to provide (a) treasury
services, (b) credit card, debit card, merchant card, purchasing card, stored value card, non-card electronic payable or other
similar services (including the processing of payments and other administrative services with respect thereto), (c) cash management
or related services (including controlled disbursement, automated clearinghouse transactions, return items, netting, overdraft, depository,
lockbox, stop payment, electronic funds transfer, information reporting, wire transfer and interstate depository network services) and
(d) other banking, financial or treasury products or services as may be requested by the Company or any Restricted Subsidiary
(other than letters of credit and other than loans and advances except indebtedness arising from services described in clauses (a) through
(c) of this definition).
“Bank Products Obligations”
of any Person means the obligations of such Person pursuant to any Bank Products Agreement.
“Bankruptcy Code”
means chapter 11 of title 11 of the United States Code, 11 U.S.C. §§ 101 et seq., as amended.
“Bankruptcy Law”
means the Bankruptcy Code or any similar U.S. federal or state or non-U.S. law for the relief of debtors.
“Board of Directors”
means, for any Person, the board of directors or other governing body of such Person or, if such Person is owned or managed by a single
entity, the board of directors or other governing body of such entity, or, in either case, any committee thereof duly authorized to act
on behalf of such board of directors or other governing body. Unless otherwise provided, “Board of Directors” means the Board
of Directors of the Company.
“Borrowing Base”
means the sum of (1) 95% of the book value of revenue earning equipment of the Company and its Subsidiaries, (2) 95% of the
book value of Fleet Receivables and VAT Receivables of the Company and its Subsidiaries, (3) 95% of the book value of Service Vehicles
of the Company and its Subsidiaries and (4) Restricted Fleet Cash (in each case, determined as of the end of the most recently ended
fiscal month of the Company ending immediately prior to such date of determination for which internal consolidated financial statements
of the Company are available, and, in the case of any determination relating to any Incurrence of Indebtedness, on a pro forma basis including
(x) any property or assets of a type described above acquired since the end of such fiscal month and (y) any property or assets
of a type described above being acquired in connection therewith).
“Business Day”
means a day other than a Saturday, Sunday or other day on which commercial banking institutions are authorized or required by law to close
in New York City (or any other city in which a paying agent maintains its office).
“Capital Stock”
of any Person means any and all shares or units of, rights to purchase, warrants or options for, or other equivalents of or interests
in (however designated) equity of such Person, including any Preferred Stock, but excluding any debt securities convertible or exchangeable
into such equity.
“Captive Insurance
Subsidiary” means any Subsidiary of the Company that is subject to regulation as an insurance company (or any Subsidiary thereof).
-5-
“Cash Equivalents”
means any of the following: (a) money, (b) securities issued or fully guaranteed or insured by the United States of America,
Canada, the United Kingdom or a member state of the European Union or any agency or instrumentality of any thereof, (c) time deposits,
certificates of deposit or bankers’ acceptances of (i) any bank or other institutional lender under the First Lien Credit Facility
or any affiliate thereof or (ii) any commercial bank having capital and surplus in excess of $500.0 million (or the foreign currency
equivalent thereof as of the date of such investment) and the commercial paper of the holding company of which is rated at least A-2 or
the equivalent thereof by S&P or at least P-2 or the equivalent thereof by Moody’s (or if at such time neither is issuing ratings,
then a comparable rating of another rating agency recognized internationally or in the United States of America), (d) repurchase
obligations with a term of not more than seven days for underlying securities of the types described in clauses (b) and (c) above
entered into with any financial institution meeting the qualifications specified in clause (c)(i) or (c)(ii), (e) money
market instruments, commercial paper or other short-term obligations rated at least A-2 or the equivalent thereof by S&P or at least
P-2 or the equivalent thereof by Moody’s (or if at such time neither is issuing ratings, then a comparable rating of another rating
agency recognized internationally or in the United States of America), (f) investments in money market funds subject to the risk
limiting conditions of Rule 2a-7 or any successor rule of the SEC under the Investment Company Act of 1940, as amended, (g) investment
funds investing at least 95.0% of their assets in cash equivalents of the types described in clauses (a) through (f) above
(which funds may also hold reasonable amounts of cash pending investment and/or distribution), (h) investments similar to any of
the foregoing denominated in foreign currencies approved by the Board of Directors, and (i) solely with respect to any Captive Insurance
Subsidiary, any investment that person is permitted to make in accordance with applicable law.
“Close of Business”
means 5:00 p.m., New York City time.
“Code”
means the Internal Revenue Code of 1986, as amended.
“Collateral”
means any and all property of the Company or any Guarantor (other than the Parent Guarantor) subject (or purported to be subject)
to a Lien securing the Notes Obligations, whether now existing or hereafter acquired, together with all rents, issues, profits, products
and proceeds thereof, other than Excluded Property.
“Commodities Agreement”
means, in respect of a Person, any commodity futures contract, forward contract, option or similar agreement or arrangement (including
derivative agreements or arrangements), as to which such Person is a party or beneficiary.
“Common Equity”
of any Person means the Capital Stock of such Person that is generally entitled (A) to vote in the election of directors of such
Person; or (B) if such Person is not a corporation, to vote or otherwise participate in the selection of the governing body, partners,
managers or others that will control the management or policies of such Person.
“Common Stock”
means the common stock, $0.01 par value per share, of the Parent Guarantor, subject to Section 5.09.
“Company”
means the Person named as such in the first paragraph of this Indenture and, subject to Article 6, its successors and
assigns.
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“Company Order”
means a written request or order signed on behalf of the Company by one (1) of its Officers and delivered to the Trustee.
“Consolidated Coverage
Ratio” as of any date of determination means the ratio of (i) the aggregate amount of Consolidated EBITDA for the
period of the most recent four consecutive fiscal quarters of the Company ending prior to the date of such determination for which consolidated
financial statements of the Company are available to (ii) Consolidated Interest Expense for such four fiscal quarters; provided,
that:
(1) if, since the beginning of such period, the Company or any Restricted Subsidiary has Incurred any Indebtedness
or the Company has issued any Designated Preferred Stock that remains outstanding on such date of determination or if the transaction
giving rise to the need to calculate the Consolidated Coverage Ratio is an Incurrence of Indebtedness or an issuance of Designated Preferred
Stock of the Company, Consolidated EBITDA and Consolidated Interest Expense for such period shall be calculated after giving effect on
a pro forma basis to such Indebtedness or Designated Preferred Stock as if such Indebtedness or Designated Preferred Stock had been Incurred
or issued, as applicable, on the first day of such period (except that in making such computation, the amount of Indebtedness under any
revolving credit facility outstanding on the date of such calculation shall be computed based on (A) the average daily balance
of such Indebtedness during such four fiscal quarters or such shorter period for which such facility was outstanding or (B) if
such facility was created after the end of such four fiscal quarters, the average daily balance of such Indebtedness during the period
from the date of creation of such facility to the date of such calculation);
(2) if, since the beginning of such period, the Company or any Restricted Subsidiary has repaid, repurchased,
redeemed, defeased or otherwise acquired, retired or discharged any Indebtedness or any Designated Preferred Stock of the Company that
is no longer outstanding on such date of determination (each, a “Discharge”) or if the transaction giving rise to the need
to calculate the Consolidated Coverage Ratio involves a Discharge of Indebtedness (in each case other than Indebtedness Incurred under
any revolving credit facility except to the extent such Indebtedness has been repaid with an equivalent permanent reduction in commitments
thereunder) or a Discharge of Designated Preferred Stock of the Company, Consolidated EBITDA and Consolidated Interest Expense for such
period shall be calculated after giving effect on a pro forma basis to such Discharge of such Indebtedness or Designated Preferred Stock,
including with the proceeds of such new Indebtedness or new Designated Preferred Stock of the Company, as if such Discharge had occurred
on the first day of such period;
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(3) if, since the beginning of such period, the Company or any Restricted Subsidiary shall have disposed of
any company, any business or any group of assets constituting an operating unit of a business, including any such disposition occurring
in connection with a transaction causing a calculation to be made hereunder, or designated any Restricted Subsidiary as an Unrestricted
Subsidiary (any such disposition or designation, a “Sale”), the Consolidated EBITDA for such period shall be reduced
by an amount equal to the Consolidated EBITDA (if positive) attributable to the assets that are the subject of such Sale for such period
or increased by an amount equal to the Consolidated EBITDA (if negative) attributable thereto for such period and Consolidated Interest
Expense for such period shall be reduced by an amount equal to (A) the Consolidated Interest Expense attributable to any Indebtedness
of the Company or any Restricted Subsidiary repaid, repurchased, redeemed, defeased or otherwise acquired, retired or discharged with
respect to the Company and its continuing Restricted Subsidiaries in connection with such Sale for such period (including through the
assumption of such Indebtedness by another Person) plus (B) if the Capital Stock of any Restricted Subsidiary is disposed
of in such Sale or any Restricted Subsidiary is designated as an Unrestricted Subsidiary, the Consolidated Interest Expense for such period
attributable to the Indebtedness of such Restricted Subsidiary to the extent the Company and its continuing Restricted Subsidiaries are
no longer liable for such Indebtedness after such Sale;
(4) if, since the beginning of such period, the Company or any Restricted Subsidiary (by merger, consolidation
or otherwise) shall have made an Investment in any Person that thereby becomes a Restricted Subsidiary, or otherwise acquired any company,
any business or any group of assets constituting an operating unit of a business, including any such Investment or acquisition occurring
in connection with a transaction causing a calculation to be made hereunder, or designated any Unrestricted Subsidiary as a Restricted
Subsidiary (any such Investment, acquisition or designation, a “Purchase”), Consolidated EBITDA and Consolidated Interest
Expense for such period shall be calculated after giving pro forma effect thereto (including the Incurrence of any related Indebtedness)
as if such Purchase occurred on the first day of such period; and
(5) if, since the beginning of such period, any Person became a Restricted Subsidiary or was merged or consolidated
with or into the Company or any Restricted Subsidiary, and since the beginning of such period such Person shall have Discharged any Indebtedness
or made any Sale or Purchase that would have required an adjustment pursuant to clause (2), (3) or (4) above
if made by the Company or a Restricted Subsidiary since the beginning of such period, Consolidated EBITDA and Consolidated Interest Expense
for such period shall be calculated after giving pro forma effect thereto as if such Discharge, Sale or Purchase occurred on the first
day of such period;
provided,
that (in the event that the Company shall classify Indebtedness Incurred on the date of determination as Incurred in part under Section 3.08(A) and
in part under Section 3.08(B), as provided in Section 3.08(C)) any such pro forma calculation of Consolidated
Interest Expense shall not give effect to any such Incurrence of Indebtedness on the date of determination pursuant to such Section 3.08(B) or
to any Discharge of Indebtedness from the proceeds of any such Incurrence pursuant to such Section 3.08(B).
For purposes of this definition, whenever pro
forma effect is to be given to any Sale, Purchase or other transaction, or the amount of income or earnings relating thereto and the amount
of Consolidated Interest Expense associated with any
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Indebtedness Incurred or repaid, Designated Preferred
Stock issued, or Indebtedness or Designated Preferred Stock repurchased, redeemed, defeased or otherwise acquired, retired or discharged
in connection therewith, the pro forma calculations in respect thereof (including in respect of anticipated cost savings or synergies
relating to any such Sale, Purchase or other transaction) shall be as determined in good faith by the Chief Financial Officer or an authorized
Officer of the Company, which determination shall be conclusive. If any Indebtedness bears a floating rate of interest and is being given
pro forma effect, the interest expense on such Indebtedness shall be calculated as if the rate in effect on the date of determination
had been the applicable rate for the entire period (taking into account any Interest Rate Agreement applicable to such Indebtedness).
If any Indebtedness bears, at the option of the Company or a Restricted Subsidiary, a rate of interest based on a prime or similar rate,
a eurocurrency interbank offered rate or other fixed or floating rate, and such Indebtedness is being given pro forma effect, the interest
expense on such Indebtedness shall be calculated by applying such optional rate as the Company or such Restricted Subsidiary may designate.
If any Indebtedness that is being given pro forma effect was Incurred under a revolving credit facility, the interest expense on such
Indebtedness shall be computed based upon the average daily balance of such Indebtedness during the applicable period. Interest on a Finance
Lease Obligation shall be deemed to accrue at an interest rate determined in good faith by a responsible financial or accounting officer
of the Company (which determination shall be conclusive) to be the rate of interest implicit in such Finance Lease Obligation in accordance
with GAAP.
“Consolidated EBITDA”
means, for any period, the Consolidated Net Income for such period, plus:
(a) the following
to the extent deducted in calculating such Consolidated Net Income, without duplication:
(i) provision for all taxes (whether or not paid, estimated or accrued) based on income, profits or capital
(including penalties and interest, if any);
(ii) Consolidated Interest Expense, all items excluded from the definition of Consolidated Interest Expense
pursuant to clauses (iii)(b) through (iii)(g) thereof and any Special Purpose Financing Fees, and to the extent
not reflected in Consolidated Interest Expense, costs of surety bonds in connection with financing activities;
(iii) depreciation (excluding Consolidated Vehicle Depreciation), amortization (including amortization of goodwill
and intangibles and amortization and write-off of financing costs);
(iv) all other noncash charges or noncash losses, including, without limitation, any non-cash asset retirement
costs, non-cash compensation charges, non-cash translation (gain) loss and non-cash expense relating to the vesting of warrants;
(v) any expenses or charges related to any Equity Offering, Investment or Indebtedness permitted by this
Indenture (whether or not consummated or incurred, and including any offering or sale of Capital Stock to the extent the proceeds thereof
were intended to be contributed to the equity capital of the Company or its Restricted Subsidiaries);
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(vi) the amount of any minority interest expense;
(vii) the amount of loss on any Financing Disposition;
(viii) any costs or expenses pursuant to any management or employee stock option or other equity-related plan,
program or arrangement, or other benefit plan, program or arrangement, or any equity subscription or equityholder agreement, to the extent
funded with cash proceeds contributed to the capital of the Company or an issuance of Capital Stock of the Company (other than Disqualified
Stock);
(ix) realized foreign exchange losses resulting from the impact of foreign currency changes on the valuation
of assets or liabilities on the balance sheet of the Company and its Restricted Subsidiaries;
(x) other accruals, payments and expenses (including rationalization, legal, tax, structuring and other costs
and expenses) related to acquisitions (including acquisitions subject to a letter of intent or purchase agreement), including Investments,
dividends, Restricted Payments, dispositions, refinancings or issuances of debt or equity permitted hereunder or related to any amendment,
modification or waiver in respect of the documentation (including the Loan Documents (as defined in the First Lien Credit Agreement))
governing the transactions described in this clause (x);
(xi) charges, losses or expenses to the extent paid for, reimbursable, indemnifiable or insurable, or reasonably
expected to be paid for, reimbursable, indemnifiable or insured by a third party;
(xii) the amount of any expense or deduction associated with any Restricted Subsidiary that is attributable
to any non-controlling interest and/or minority interest of any third party; and
(xiii) cash expenses relating to contingent or deferred payments in connection with any acquisition or other
Investment permitted under this Indenture or any acquisition or Investment permitted under this Indenture consummated prior to its effective
date (including earn-outs, contingent consideration, non-compete payments, consulting payments and similar obligations), to the extent
included in the calculation of Consolidated Net Income in accordance with GAAP as an accounting adjustment for such period to the extent
that the actual amount payable or paid in respect of such contingent or deferred payments exceeds the liability booked by the applicable
person; plus
(b) the proceeds of any business interruption insurance received or reasonably expected to be received; plus
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(c) adjustments determined on a basis consistent with Article 11 of Regulation S-X.
“Consolidated Interest
Expense” means, for any period:
(i) the total interest expense of the Company and its Restricted Subsidiaries to the extent deducted in calculating
Consolidated Net Income, net of any interest income of the Company and its Restricted Subsidiaries, including any such interest expense
consisting of:
(a) interest expense attributable to Finance Lease Obligations;
(b) amortization of debt discount;
(c) interest in respect of Indebtedness of any other Person that has been Guaranteed by the Company or any
Restricted Subsidiary, but only to the extent that such interest is actually paid by the Company or any Restricted Subsidiary;
(d) noncash interest expense;
(e) the interest portion of any deferred payment obligation; and
(f) commissions, discounts and other fees and charges owed with respect to letters of credit and bankers’
acceptance financing; plus
(ii) Preferred Stock dividends paid in cash in respect of Disqualified Stock of the Company held by Persons
other than the Company or a Restricted Subsidiary, or in respect of Designated Preferred Stock of the Company pursuant to Section 3.09(B)(xiv)(A);
minus
(iii) to the extent otherwise included in such interest expense referred to in clause (i) above:
(a) Consolidated Vehicle Interest Expense;
(b) amortization or write-off of financing costs;
(c) accretion or accrual of discounted liabilities not constituting Indebtedness;
(d) any expense resulting from discounting of Indebtedness in conjunction with recapitalization or purchase
accounting;
(e) any “additional interest” in respect of registration rights arrangements for any securities;
(f) any expensing of bridge, commitment and other financing fees; and
(g) interest with respect to Indebtedness of any Parent appearing upon the balance sheet of the Company solely
by reason of push-down accounting under GAAP,
-11-
in each case under clauses (i) through
(iii) as determined on a Consolidated basis in accordance with GAAP (to the extent applicable, in the case of Consolidated
Vehicle Interest Expense); provided that gross interest expense shall be determined after giving effect to any net payments made
or received by the Company and its Restricted Subsidiaries with respect to Interest Rate Agreements.
“Consolidated Net
Income” means, for any period, the net income (loss) of the Company and its Restricted Subsidiaries, determined on a Consolidated
basis in accordance with GAAP and before any reduction in respect of Preferred Stock dividends; provided that, without duplication,
there shall not be included in such Consolidated Net Income:
(i) any net income (loss) of any Person if such Person is not the Company or a Restricted Subsidiary, except
that (A) the Company’s or any Restricted Subsidiary’s equity in the net income of any such Person for such period
shall be included in such Consolidated Net Income up to the aggregate amount actually dividended or distributed or that (as determined
by the Company in good faith, which determination shall be conclusive) could have been dividended or distributed by such Person during
such period to the Company or a Restricted Subsidiary as a dividend or other distribution (subject, in the case of a dividend or other
distribution to a Restricted Subsidiary, to the limitations contained in clause (ii) below) and (B) the Company’s
or any Restricted Subsidiary’s equity in the net loss of such Person shall be included to the extent of the aggregate Investment
of the Company or any of its Restricted Subsidiaries in such Person;
(ii) solely for purposes of determining the amount available for Restricted Payment under Section 3.09(B)(viii)(y),
any net income (loss) of any Restricted Subsidiary that is not a Subsidiary Guarantor if such Restricted Subsidiary is subject to restrictions,
directly or indirectly, on the payment of dividends or the making of similar distributions by such Restricted Subsidiary, directly or
indirectly, to the Company by operation of the terms of such Restricted Subsidiary’s charter or any agreement, instrument, judgment,
decree, order, statute or governmental rule or regulation applicable to such Restricted Subsidiary or its stockholders (other than
(x) restrictions that have been waived or otherwise released, (y) restrictions pursuant to the indentures governing
the Existing Notes, the Notes or this Indenture and (z) restrictions in effect on the Issue Date with respect to a Restricted
Subsidiary and other restrictions with respect to any Restricted Subsidiary that taken as a whole are not materially less favorable to
the Holders than such restrictions in effect on the Issue Date as determined by the Company in good faith, which determination shall be
conclusive), except that (A) the Company’s equity in the net income of any such Restricted Subsidiary for such period
shall be included in such Consolidated Net Income up to the aggregate amount of any dividend or distribution that was or that could (as
determined by the Company in good faith, which determination shall be conclusive) have been made by such Restricted Subsidiary during
such period to the Company or another Restricted Subsidiary (subject, in the case of a dividend that could have been made to another Restricted
Subsidiary, to the limitation contained in this clause (ii)) and (B) the net loss of such Restricted Subsidiary shall
be included to the extent of the aggregate Investment of the Company or any of its other Restricted Subsidiaries in such Restricted Subsidiary;
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(iii) (x) any gain or loss realized upon the sale, abandonment or other disposition of any asset
of the Company or any Restricted Subsidiary (including pursuant to any sale/leaseback transaction) that is not sold, abandoned or otherwise
disposed of in the ordinary course of business (as determined in good faith by the Company, which determination shall be conclusive) and
(y) any gain or loss realized upon the disposal, abandonment or discontinuation of operations of the Company or any Restricted
Subsidiary and any income (loss) from disposed, abandoned or discontinued operations (but if such operations are classified as discontinued
because they are subject to an agreement to dispose of such operations, only when and to the extent such operations are actually disposed
of), including in each case any closure of any branch;
(iv) any item classified as an extraordinary, unusual or nonrecurring gain, loss or charge (including fees,
expenses and charges associated with any acquisition, merger or consolidation after the Measurement Date or any accounting change) (other
than the accrual of revenue in the ordinary course);
(v) the cumulative effect of a change in accounting principles;
(vi) all deferred financing costs written off and premiums paid in connection with any early extinguishment
of Indebtedness or Hedging Obligations or other derivative instruments;
(vii) any unrealized gains or losses in respect of Hedge Agreements, or any ineffectiveness recognized in earnings
related to qualifying hedge transactions or the fair value of changes therein recognized in earnings for derivatives that do not qualify
as hedge transactions, in each case, in respect of any Hedging Obligations;
(viii) any unrealized foreign currency translation or transaction gains or losses, including in respect of Indebtedness
of any Person denominated in a currency other than the functional currency of such Person;
(ix) (x) any noncash compensation charge arising from any grant of limited liability company interests,
stock, stock options or other equity-based awards and any noncash deemed finance charges in respect of any pension liabilities or other
provisions and (y) income (loss) attributable to deferred compensation plans or trusts;
(x) to the extent otherwise included in Consolidated Net Income, any unrealized foreign currency translation
or transaction gains or losses, including in respect of Indebtedness or other obligations of the Company or any Restricted Subsidiary
owing to the Company or any Restricted Subsidiary;
(xi) any noncash charge, expense or other impact attributable to application of the purchase or recapitalization
method of accounting (including the total amount of depreciation and amortization, cost of sales or other noncash expense resulting from
the write-up of assets to the extent resulting from such purchase or recapitalization accounting adjustments), noncash charges for deferred
tax valuation allowances and noncash gains, losses, income and expenses resulting from fair value accounting required by the applicable
standard under GAAP; and
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(xii) to the extent covered by insurance and actually reimbursed (or the Company has determined that there exists
reasonable evidence that such amount will be reimbursed by the insurer and such amount is not denied by the applicable insurer in writing
within 180 days and is reimbursed within 365 days of the date of such evidence (with a deduction in any future calculation of Consolidated
Net Income for any amount so added back to the extent not so reimbursed within such 365-day period)), any expenses with respect to liability
or casualty events or business interruption;
provided,
further, that the exclusion of any item pursuant to the foregoing clauses (i) through (xii) shall also
exclude the tax impact of any such item, if applicable.
“Consolidated Total
Corporate Indebtedness” means, as of any date of determination, an amount equal to:
(1) the aggregate principal amount of outstanding funded Indebtedness of the Company and its Restricted Subsidiaries
as of such date consisting of (without duplication) Indebtedness for borrowed money (including Purchase Money Obligations and unreimbursed
outstanding drawn amounts under funded letters of credit, but excluding, for the avoidance of doubt, undrawn letters of credit); the amount
of outstanding Finance Lease Obligations in excess of $20.0 million; debt obligations evidenced by bonds, debentures, notes or similar
instruments; Disqualified Stock; and (in the case of any Restricted Subsidiary that is not a Subsidiary Guarantor) Preferred Stock, determined
on a Consolidated basis in accordance with GAAP (excluding items eliminated in Consolidation, and for the avoidance of doubt, excluding
Hedging Obligations); minus
(2) the amount of such Indebtedness consisting of Indebtedness (A) of a Special Purpose Subsidiary
secured by a Lien on all or part of the assets disposed of in, or otherwise Incurred in connection with, a Financing Disposition or (B) otherwise
Incurred in connection with a Special Purpose Financing, in each case to the extent not Incurred to finance or refinance the acquisition
of Rental Car Vehicles; provided that such Indebtedness is not recourse to the Company or any Restricted Subsidiary that is not
a Special Purpose Subsidiary (other than with respect to Special Purpose Financing Undertakings); and minus
(3) the aggregate principal amount of outstanding Consolidated Vehicle Indebtedness as of such date.
“Consolidated Total
Net Corporate Leverage Ratio” means, as of any date of determination, the ratio of (x) (i) Consolidated Total
Corporate Indebtedness as at such date (after giving effect to any Incurrence or Discharge of Indebtedness on such date) minus
(ii) Unrestricted Cash minus (iii) amounts in the Term C Loan Collateral Accounts to (y) the aggregate amount
of Consolidated EBITDA for the period of the most recent four consecutive fiscal quarters ending prior to the date of such determination
for which consolidated financial statements of the Company are available; provided that:
(1) if since the beginning of such period the Company or any Restricted Subsidiary shall have made a Sale
(including any Sale occurring in connection with a transaction causing a calculation to be made hereunder), the Consolidated EBITDA for
such period shall be reduced by an amount equal to the Consolidated EBITDA (if positive) attributable to the assets that are the subject
of such Sale for such period or increased by an amount equal to the Consolidated EBITDA (if negative) attributable thereto for such period;
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(2) if since the beginning of such period the Company or any Restricted Subsidiary (by merger, consolidation
or otherwise) shall have made a Purchase (including any Purchase occurring in connection with a transaction causing a calculation to be
made hereunder), Consolidated EBITDA for such period shall be calculated after giving pro forma effect thereto as if such Purchase occurred
on the first day of such period; and
(3) if since the beginning of such period any Person became a Restricted Subsidiary or was merged or consolidated
with or into the Company or any Restricted Subsidiary, and since the beginning of such period such Person shall have made any Sale or
Purchase that would have required an adjustment pursuant to clause (1) or (2) above if made by the Company or
a Restricted Subsidiary since the beginning of such period, Consolidated EBITDA for such period shall be calculated after giving pro forma
effect thereto as if such Sale or Purchase occurred on the first day of such period.
For purposes of this definition, whenever pro
forma effect is to be given to any Sale, Purchase or other transaction, or the amount of income or earnings relating thereto, the pro
forma calculations in respect thereof (including in respect of anticipated cost savings or synergies relating to any such Sale, Purchase
or other transaction) shall be as determined in good faith by the Company, which determination shall be conclusive.
“Consolidated Vehicle
Depreciation” means, for any period, depreciation on all Rental Car Vehicles (after adjustments thereto), to the extent deducted
in calculating Consolidated Net Income for such period.
“Consolidated Vehicle
Indebtedness” means, as of any date of determination, Indebtedness of the Company and its Restricted Subsidiaries Incurred
in the ordinary course of business, consistent with past practice, in connection with the acquisition, sale, leasing, financing or refinancing
of, or secured by, Vehicles and/or related rights (including under leases, manufacturer warranties and buy-back programs and insurance
policies) and/or assets, as determined in good faith by the Company.
“Consolidated Vehicle
Interest Expense” means, for any period, the aggregate interest expense for such period on any Consolidated Vehicle Indebtedness,
as determined in good faith by the Company (which determination shall be conclusive).
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“Consolidation”
means the consolidation of the accounts of each of the Restricted Subsidiaries with those of the Company in accordance with GAAP; provided
that “Consolidation” will not include consolidation of the accounts of any Unrestricted Subsidiary, but the interest of the
Company or any Restricted Subsidiary in any Unrestricted Subsidiary will be accounted for as an investment. The term “Consolidated”
has a correlative meaning.
“Contribution Indebtedness”
means Indebtedness of the Company or any Restricted Subsidiary in an aggregate principal amount not greater than twice the aggregate amount
of cash contributions (other the proceeds from the issuance of Disqualified Stock or contributions by the Company or any Restricted Subsidiary)
made to the capital of the Company or such Restricted Subsidiary after the Measurement Date (whether through the issuance or sale of Capital
Stock or otherwise), in each case, not otherwise applied.
“Controlled Investment
Affiliate” means as to any person, any other person which directly or indirectly is in control of, is controlled by, or is under
common control with, such person and is organized by such person (or any person controlling such person) primarily for making equity or
debt investments in the Company or its direct or indirect parent company or other portfolio companies of such person.
“Corporate Trust
Office” means the designated office of the Trustee at which at any time this Indenture shall be administered, which office at
the date hereof is located at 1505 Energy Park Drive, St. Paul, MN 55108, Attention: CCT Hertz Administrator – Jacob Sheets, or
such other address in the contiguous United States of America as the Trustee may designate from time to time by notice to the Holders
and the Company, or the designated corporate trust office in the contiguous United States of America of any successor trustee (or such
other address in the contiguous United States of America as such successor trustee may designate from time to time by notice to the Holders
and the Company).
“Credit Facilities”
means one or more of (i) the First Lien Credit Facility and (ii) any other facilities or arrangements designated by the Company,
in each case with one or more banks or other lenders or institutions providing for revolving credit loans, term loans, receivables, fleet
or other financings (including through the sale of receivables, fleet and/or other assets to such institutions or to special purpose entities
formed to borrow from such institutions against such receivables, fleet and/or other assets or the creation of any Liens in respect of
such receivables, fleet and/or other assets in favor of such institutions), letters of credit or other Indebtedness, in each case, including
all agreements, instruments and documents executed and delivered pursuant to or in connection with any of the foregoing, including any
notes and letters of credit issued pursuant thereto and any guarantee and collateral agreement, patent, trademark or copyright security
agreement, mortgages or letter of credit applications and other guarantees, pledge agreements, security agreements and collateral documents,
in each case as the same may be amended, supplemented, waived or otherwise modified from time to time, or refunded, refinanced, restructured,
replaced, renewed, repaid, increased, decreased or extended from time to time (whether in whole or in part, whether with the original
banks, lenders or institutions or other banks, lenders or institutions or otherwise, and whether provided under any original Credit Facility
or one or more other credit agreements, indentures, financing agreements or other Credit Facilities or otherwise). Without limiting the
generality of the foregoing, the term “Credit Facility” shall include any agreement (i) changing the maturity of any
Indebtedness Incurred thereunder or contemplated thereby, (ii) adding Subsidiaries as additional borrowers or guarantors thereunder,
(iii) increasing or decreasing the amount of Indebtedness Incurred thereunder or available to be borrowed thereunder or (iv) otherwise
altering the terms and conditions thereof (including, for the avoidance of doubt, any agreement that is not secured by Liens on the Collateral).
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“Credit Facility
Indebtedness” means any and all amounts, whether outstanding on the Issue Date or thereafter incurred, payable under or in respect
of any Credit Facility, including principal, premium (if any), interest (including interest accruing on or after the filing of any petition
in bankruptcy or for reorganization relating to the Company or any Restricted Subsidiary whether or not a claim for post-filing interest
is allowed in such proceedings), fees, charges, expenses, reimbursement obligations, guarantees, other monetary obligations of any nature
and all other amounts payable thereunder or in respect thereof.
“Currency Agreement”
means, in respect of a Person, any foreign exchange contract, currency swap agreement or other similar agreement or arrangements (including
derivative agreements or arrangements), as to which such Person is a party or a beneficiary.
“Daily Cash Amount”
means, with respect to any VWAP Trading Day, the lesser of (A) the applicable Daily Maximum Cash Amount; and (B) the Daily Exchange
Value for such VWAP Trading Day; provided that, in respect of any Exchange for which the Exchange Date is prior to the Shareholder Approval
Date, if the Daily Share Amount is limited by the proviso in the definition of Daily Share Amount on such VWAP Trading Day, the Daily
Cash Amount in respect of such VWAP Trading Day shall be increased by an amount equal to the product of (x) the Daily VWAP on such
VWAP Trading Day and (y) the difference between the Daily Share Amount determined in respect of such VWAP Trading Day and the Daily
Share Amount that would have been determined in the absence of such proviso.
“Daily Exchange Value”
means, with respect to any VWAP Trading Day, one-thirtieth (1/30th) of the product of (A) the Exchange Rate on such VWAP Trading
Day; and (B) the Daily VWAP per share of Common Stock on such VWAP Trading Day.
“Daily Maximum Cash
Amount” means, with respect to the Exchange of any Note, the quotient obtained by dividing (A) the Specified Dollar Amount
applicable to such Exchange by (B) thirty (30).
“Daily Share Amount”
means, with respect to any VWAP Trading Day, the quotient obtained by dividing (A) the excess, if any, of the Daily Exchange Value
for such VWAP Trading Day over the applicable Daily Maximum Cash Amount by (B) the Daily VWAP for such VWAP Trading Day; provided
that, in respect of any Exchange for which the Exchange Date is prior to the Shareholder Approval Date, the Daily Share Amount shall not
exceed the Daily Share Cap. For the avoidance of doubt, the Daily Share Amount will be zero for such VWAP Trading Day if such Daily Exchange
Value does not exceed such Daily Maximum Cash Amount.
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“Daily Share Cap”
means, with respect to the Exchange of any Note, a number of shares of Common Stock, rounded down to the nearest 1/10,000th of a share,
equal to:
where:
AC = the Aggregate Share Cap;
S = the actual aggregate number of shares of Common
Stock (subject to adjustment in the same manner as, and at the same time and for the same events for which, the Exchange Rate is adjusted
pursuant to the provisions described in Section 5.05(A)) that were issued or otherwise delivered upon settlement of all Exchanges
of Notes prior to the Close of Business on the Exchange Date for such Exchange;
O = 30; and
N = the Notional Principal Amount.
“Daily VWAP”
means, for any VWAP Trading Day, the per share volume-weighted average price of the Common Stock as displayed under the heading “Bloomberg
VWAP” on Bloomberg page “HTZ <EQUITY> AQR” (or, if such page is not available, its equivalent successor
page) in respect of the period from the scheduled open of trading until the scheduled close of trading of the primary trading session
on such VWAP Trading Day (or, if such volume-weighted average price is unavailable, the market value of one share of Common Stock on such
VWAP Trading Day determined, using a volume-weighted average price method, by a nationally recognized independent investment banking firm
selected by the Company, which may be any of the Initial Purchasers). The Daily VWAP will be determined without regard to after-hours
trading or any other trading outside of the regular trading session.
“De-Legending Deadline
Date” means, with respect to any Note, the fifteenth (15th) day after the Free Trade Date of such Note; provided, however,
that if the De-Legending Deadline Date determined as aforesaid would be after the 15th calendar day of the month immediately preceding
the month of an Interest Payment Date and before the fifth Business Day immediately after such Interest Payment Date, then the De-Legending
Deadline Date for such Note will instead be the fifth Business Day immediately after such Interest Payment Date.
“Default”
or “default” means any event or condition that is (or, after notice, passage of time or both, would be) an Event of
Default.
“Default Settlement
Method” means Combination Settlement with a Specified Dollar Amount of $1,000 per $1,000 Capitalized Principal Amount of Notes
(for the avoidance of doubt, with pro-ration for any portion of the Capitalized Principal Amount subject to Exchange that is not an integral
multiple of $1,000); provided, however, that (x) subject to Section 5.03(A)(iii), the Company may, from time to time, change
the Default Settlement Method by sending written notice of the new Default Settlement Method to the Holders, the Trustee and the Exchange
Agent; and (y) the Default Settlement Method will be subject to Section 5.03(A)(ii).
“Depositary”
means The Depository Trust Company or its successor.
“Depositary Participant”
means any member of, or participant in, the Depositary.
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“Depositary Procedures”
means, with respect to any Exchange, transfer, exchange or other transaction involving a Global Note or any beneficial interest therein,
the rules and procedures of the Depositary applicable to such Exchange, transfer, exchange or transaction.
“Designated
Noncash Consideration” means the Fair Market Value of noncash consideration received by the Company or one of its Restricted
Subsidiaries in connection with an Asset Disposition that is so designated as Designated Noncash Consideration pursuant to an Officer’s
Certificate of the Company, setting forth the basis of such valuation.
“Designated Preferred
Stock” means Preferred Stock of the Company (other than Disqualified Stock) or any Parent that is issued after the Issue Date
for cash (other than to a Restricted Subsidiary) and is so designated as Designated Preferred Stock, pursuant to an Officer’s Certificate
of the Company.
“Designated Senior
Indebtedness” means with respect to a Person (i) the Credit Facility Indebtedness under or in respect of the First
Lien Credit Facility and (ii) any other Senior Indebtedness of such Person that, at the date of determination, has an aggregate
principal amount equal to or under which, at the date of determination, the holders thereof are committed to lend up to, at least $25.0
million and is specifically designated by such Person in an agreement or instrument evidencing or governing such Senior Indebtedness as
“Designated Senior Indebtedness” for purposes of this Indenture.
“Discharge”
means, in respect of any series of Indebtedness, such Indebtedness and all obligations in respect thereof have been repaid, repurchased,
redeemed, defeased or otherwise acquired, retired or discharged in full (excluding, for the avoidance of doubt, unasserted contingent
indemnification or other obligations).
“Disqualified Stock”
means, with respect to any Person, any Capital Stock (other than Management Stock) that by its terms (or by the terms of any security
into which it is convertible or for which it is exchangeable or exercisable) or upon the happening of any event (other than following
the occurrence of a Fundamental Change or other similar event described under such terms as a “change of control,” or an Asset
Disposition or other “disposition”) (i) matures or is mandatorily redeemable pursuant to a sinking fund obligation or
otherwise, (ii) is convertible or exchangeable for Indebtedness or Disqualified Stock or (iii) is redeemable at the option of
the holder thereof (other than following the occurrence of a Fundamental Change or other similar event described under such terms as a
“change of control,” or an Asset Disposition or other “disposition”), in whole or in part, in each case on or
prior to the final Stated Maturity of the Notes; provided that Capital Stock issued to any employee benefit plan, or by any such plan
to any employees of the Company or any Subsidiary of the Company, shall not constitute Disqualified Stock solely because it may be required
to be repurchased or otherwise acquired or retired in order to satisfy applicable statutory or regulatory obligations.
“Domestic Subsidiary”
means any Restricted Subsidiary of the Company other than a Foreign Subsidiary.
“DTC” means
The Depository Trust Company or any successor securities clearing agency.
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“Ex-Dividend Date”
means, with respect to an issuance, dividend or distribution on the Common Stock, the first date on which shares of Common Stock trade
on the applicable exchange or in the applicable market, regular way, without the right to receive such issuance, dividend or distribution
(including pursuant to due bills or similar arrangements required by the relevant stock exchange). For the avoidance of doubt, any alternative
trading convention on the applicable exchange or market in respect of the Common Stock under a separate ticker symbol or CUSIP number
will not be considered “regular way” for this purpose.
“Exchange”
means, with respect to any Note, the exchange of such Note pursuant to Article 5 into Exchange Consideration. The terms
“Exchanged,” “Exchanging” and “Exchangeable” have meanings correlative to the foregoing.
“Exchange Act”
means the U.S. Securities Exchange Act of 1934, as amended; provided that for purposes of the definitions of Fundamental Change
and Permitted Holders, “Exchange Act” shall mean the Securities Exchange Act of 1934 as in effect on the Measurement Date.
“Exchange Date”
means, with respect to a Note, the first Business Day on which the requirements set forth in Section 5.02(A) to Exchange
such Note are satisfied.
“Exchange Price”
means, as of any time, an amount equal to (A) one thousand dollars ($1,000) divided by (B) the Exchange Rate in effect
at such time.
“Exchange Rate”
initially means 279.5248 shares of Common Stock per $1,000 Capitalized Principal Amount of Notes; provided, however, that
the Exchange Rate is subject to adjustment pursuant to Article 5; provided, further, that whenever this Indenture
refers to the Exchange Rate as of a particular date without setting forth a particular time on such date, such reference will be deemed
to be to the Exchange Rate immediately after the Close of Business on such date.
“Exchange Share”
means any share of Common Stock delivered or deliverable upon Exchange of any Note.
“Excluded Contribution”
means Net Cash Proceeds, or the Fair Market Value (as of the date of contribution) of property or assets, received by the Company as capital
contributions to the Company after the Measurement Date, or from the issuance or sale (other than to a Restricted Subsidiary) of Capital
Stock (other than Disqualified Stock) of the Company, in each case to the extent designated as an Excluded Contribution pursuant to an
Officer’s Certificate of the Company.
“Excluded Property” means:
(a) any interest in leased real property (including fixtures related thereto) in which a security interest is not perfected by filing
a financing statement in the applicable Grantor’s jurisdiction of organization (and there shall be no requirement to deliver landlord
lien waivers, estoppels or collateral access letters or any other third party consents);
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(b) any fee interest in owned real property (including fixtures related thereto) if the fair market value of such fee interest is less
than $10,000,000 individually (or, in the case of fee-owned real property that is located in a flood zone, if the fair market value of
such fee interest is less than $15,000,000 individually);
(c) any contracts, general intangibles, copyright licenses, patent licenses, trademark licenses, trade secret licenses or other contracts
or agreements with or issued by Persons other than Holdings, a Subsidiary of Holdings or an Affiliate of any of the foregoing, (collectively,
“Restrictive Agreements”) that would otherwise be included in the Collateral (and such Restrictive Agreements shall
not be deemed to constitute a part of the Collateral) for so long as, and to the extent that, the granting of such a security interest
pursuant hereto would result in a breach, default or termination of such Restrictive Agreements or would require third party consent with
respect to such Restrictive Agreement (in each case, except to the extent that, pursuant to the Uniform Commercial Code or other applicable
law, the granting of security interests therein can be made without resulting in a breach, default or termination of such Restrictive
Agreements) (provided that there shall be no obligation to seek such consent);
(d) any assets over which the granting of such a security interest in such assets by the applicable Grantor would be prohibited by any
contract permitted under the Indenture, any applicable law, regulation, permit, order or decree or the organizational or joint venture
documents of any non-wholly owned Subsidiary (including permitted liens, leases and licenses), or requires a consent of any Governmental
Authority that has not been obtained (in each case after giving effect to the applicable anti-assignment provisions of the Uniform Commercial
Code, other than proceeds and receivables thereof to the extent that their assignment is expressly deemed effective under the Uniform
Commercial Code notwithstanding such prohibitions) (provided that there shall be no obligation to seek such consent);
(e) any assets constituting Collateral, to the extent that such security interests would result in material adverse tax consequences to
the Parent Guarantor or Holdings or any one or more of their respective Subsidiaries, as reasonably determined by the Company;
(f) any assets, to the extent that the granting or perfecting of a security interest in such assets or obtaining title insurance would
result in costs or consequences to Holdings or any of its Subsidiaries as reasonably determined by the Company and the First Lien Credit
Agreement Collateral Agent, that are excessive in view of the benefits that would be obtained by the Notes Collateral Agent and the Holders;
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(g) any (i) equipment and/or inventory (and/or related rights and/or assets) that would otherwise be included in the Collateral (and
such equipment and/or inventory (and/or related rights and/or assets) shall not be deemed to constitute a part of the Collateral) if such
equipment and/or inventory (and/or related rights and/or assets) is subject to a Permitted Lien and designated by the Company to the Notes
Collateral Agent (but only for so long as such Permitted Lien remains in place) and (ii) other property that would otherwise be included
in the Collateral (and such other property shall not be deemed to constitute a part of the Collateral) if such other property is subject
to a Permitted Lien securing Hedging Obligations, Bank Product Obligations, Purchase Money Obligations or capitalized lease obligations
or permitted Refinancing Indebtedness under this Indenture (but only with respect to a Lien securing Hedging Obligations, Bank Product
Obligations, Purchase Money Obligations or capitalized lease obligations) and designated by the Company to the Notes Collateral Agent
(but, in each case only for so long as such Liens are in place) and, if such Lien is in respect of Hedging Obligations, such other property
consists solely of (x) cash, Cash Equivalents or Temporary Cash Investments, together with proceeds, dividends and distributions
in respect thereof, (y) any assets relating to such assets, proceeds, dividends or distributions or to any Hedging Obligations, and/or
(z) any other assets consisting of, relating to or arising under or in connection with (1) any agreements in respect of Hedging
Obligations or (2) any other agreements, instruments or documents related to any Hedging Obligations or to any of the assets referred
to in any of subclauses (x) through (z) of this clause (ii);
(h) any property (and/or related rights and/or assets) that (x) would otherwise be included in the Collateral (and such property
(and/or related rights and/or assets) shall not be deemed to constitute a part of the Collateral) if such property has been sold or otherwise
transferred in connection with (i) a Special Purpose Financing (or constitutes the proceeds or products of any property that has
been sold or otherwise transferred in connection with a Special Purpose Financing permitted under this Indenture (except as provided in
the proviso to this subsection)) or (ii) a sale and leaseback transaction permitted under this Indenture, or (y) is subject
to any Permitted Lien and consists of property subject to any such sale and leaseback transaction or general intangibles related thereto
(but only for so long as such Liens are in place); provided that, notwithstanding the foregoing, a security interest of the Notes
Collateral Agent shall attach to any money, securities or other consideration received by any Grantor as consideration for the sale or
other disposition of such property as and to the extent such consideration would otherwise constitute Collateral;
(i) equipment and/or inventory (and/or related rights and/or assets) subject to any Permitted Lien that secures Indebtedness permitted
by this Indenture that is Incurred to finance or refinance such equipment and/or inventory and designated by the Company to the Notes
Collateral Agent (but only for so long as such Permitted Lien is in place);
(j) Capital Stock (including for these purposes any investment deemed to be equity for U.S. tax purposes) which is specifically excluded
from the definition of Pledged Stock by virtue of the proviso contained in such definition or any margin stock;
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(k) Vehicle Rental Concession Rights in which a security interest is not perfected by filing a financing statement in the applicable Grantor’s
jurisdiction of organization and/or to the extent that such security interests would result in adverse business consequences to Holdings
or any one or more of its Subsidiaries as determined in good faith by the Company (which determination shall be conclusive) (and there
shall be no requirement to obtain Public Facility Operator consents or any other third party consents);
(l) any assets covered by a certificate of title;
(m) any aircraft, airframes, aircraft engines or helicopters, or any equipment or other assets constituting a part of any thereof;
(n) without duplication, Fleet Receivables (and related Accounts and/or related rights and cash, Cash Equivalents and deposit accounts
related to any Special Purpose Financing) arising from or otherwise relating to fleet management services to the extent such Fleet Receivables
secure or support any Special Purpose Financing permitted under this Indenture;
(o) for the avoidance of doubt, any deposit account and any money, cash, checks, other negotiable instrument, funds and other evidence
of payment therein held by any “qualified intermediary” in connection with the Rental Car LKE Program;
(p) any money, cash, checks, other negotiable instrument, funds and other evidence of payment held in any deposit account of the Company
or any of its Subsidiaries (i) for the benefit of customers of Hertz Claim Management Corporation or any of its Subsidiaries in the
ordinary course of business and (ii) in the nature of a security deposit with respect to obligations for the benefit of the Company
or any of its Subsidiaries, which must be held for or returned to the applicable counterparty under applicable law or pursuant to contractual
obligations;
(q) any property that would otherwise be included in the Collateral (and such property shall not be deemed to constitute a part of the
Collateral) if such property is subject to other Permitted Liens securing Consolidated Vehicle Indebtedness permitted to be Incurred under
this Indenture (but only for so long as such Permitted Liens are in place);
(r) any Capital Stock and other securities of a Subsidiary of the Company to the extent that the pledge of or grant of any other Lien
on such Capital Stock and other securities for the benefit of any holders of securities would result in the Company or any of its Restricted
Subsidiaries being required to file separate financial statements for such Subsidiary with the Securities and Exchange Commission (or
any other governmental authority) pursuant to either Rule 3-10 or 3-16 of Regulation S-X under the Securities Act, or any other law,
rule or regulation as in effect from time to time, but only to the extent necessary to not be subject to such requirement;
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(s) any right, title or interest in or to any copyrights, copyright licenses, patents, patent applications, patent licenses, trade secrets,
trade secret licenses, trademarks, service marks, trademark and service mark applications, trade names, trade dress, trademark licenses,
technology, know-how and processes or any other intellectual property governed by or arising or existing under, pursuant to or by virtue
of the laws of any jurisdiction other than the United States of America or any state thereof;
(t) any “intent to use” applications for trademark or service mark registrations filed pursuant to Section 1(b) of
the Lanham Act, 15 U.S.C. § 1051, unless and until an Amendment to Allege Use or a Statement of Use under Sections 1(c) and
1(d) of said Act has been filed with and accepted by the United States Patent and Trademark Office, but only if and for so long as
a grant or enforcement of a security interest in such intent to use application would invalidate or otherwise jeopardize the applicable
Grantor’s rights therein or in the resulting registration;
(u) Letter-of-Credit Rights (as defined in the Uniform Commercial Code) (other than supporting obligations);
(v) any assets specifically requiring perfection through control (including cash, Cash Equivalents, deposit accounts or other bank or
securities accounts) to the extent the security interest in such asset is not automatically perfected or perfected by filings under the
Uniform Commercial Code of any applicable jurisdiction or, in the case of Pledged Stock, by being held by the Notes Collateral Agent;
(w) any assets, including any stock or equity interests in another entity, owned by a Foreign Subsidiary or a Foreign Subsidiary Holdco;
(x) any trust and tax withholding accounts;
(y) any Commercial Tort Claim (as defined in the Uniform Commercial Code) for which no claim has been made or with a value of less than
$5,000,000 for which a claim has been made;
(z) assets owned or held by any Special Purpose Entity (including any formed in connection with a funded letter of credit facility) and
securitization entities (including, without limitation, Hertz Vehicle Financing III LLC, Hertz Vehicles LLC and Hertz General Interest
LLC) and each other Subsidiary that issues, or holds collateral supporting, asset backed securities issued pursuant to the HVF III Base
Indenture; and
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(aa) any vehicles beneficially owned by any entity set forth in subclause (z) above and on consignment to, or to be sold by,
a dealer owned by the Company or any of its Restricted Subsidiaries and subject to a perfected security interest in favor of a Special
Purpose Subsidiary (or the creditors thereof);
provided that in each case
set forth above, such assets will immediately cease to constitute Excluded Property when the relevant property ceases to meet this definition
and, with respect to any such property, a security interest hereunder shall attach immediately and automatically without further action;
provided, further, that Excluded Property shall not include any property or asset that is pledged to secure First Lien Priority
Obligations or other Junior Lien Obligations (whether pursuant to the agreements governing such Obligations (and any related documents)
or any amendment or otherwise).
“Exempted Fundamental
Change” means any Fundamental Change with respect to which, in accordance with Section 4.02(I), the Company
does not offer to repurchase any Notes.
“Existing First Lien
Notes” means the Company’s 12.625% First Lien Senior Secured Notes due 2029.
“Existing First Lien
Notes Issue Date” means June 28, 2024.
“Existing Notes”
means the Existing Unsecured Notes and the Existing Secured Notes.
“Existing Second
Lien Exchangeable Notes” means the Company’s 8.000% Second Lien Exchangeable Notes due 2029, which were issued on June 28,
2024.
“Existing Secured
Notes” means the Existing First Lien Notes and the Existing Second Lien Exchangeable Notes.
“Existing Unsecured
Notes” means (i) the 4.625% Senior Notes, (ii) the 5.000% Senior Notes and (iii) the 5.500% Exchangeable Notes.
“Fair Market Value”
means, with respect to any asset or property, the fair market value of such asset or property as determined in good faith by the Company,
which determination shall be conclusive.
“Finance Lease Obligation”
means an obligation that is required to be classified and accounted for as a finance lease for financial reporting purposes in accordance
with GAAP. The Stated Maturity of any Finance Lease Obligation shall be the date of the last payment of rent or any other amount due under
the related lease.
“Financing Disposition”
means any sale, transfer, conveyance or other disposition of, or creation or incurrence of any Lien on, property or assets by the Company
or any Subsidiary thereof to or in favor of any Special Purpose Entity, or by any Special Purpose Subsidiary, in each case in connection
with the Incurrence by a Special Purpose Entity of Indebtedness, or obligations to make payments to the obligor on Indebtedness, which
may be secured by a Lien in respect of such property or assets.
“First Lien”
means a Lien granted, or purported to be granted, by the Company or any other Grantor in favor of any First Lien Collateral Agent, at
any time, upon any property of the Company or any other Grantor to secure First Lien Priority Obligations.
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“First Lien Collateral
Agent” means each of (i) the First Lien Credit Agreement Collateral Agent, (ii) the Notes Collateral Agent, (iii) the
Collateral agent for the holders of Existing First Lien Notes and (iv) each collateral agent or other representative of lenders or
holders of First Lien Priority Obligations designated pursuant to the terms of the First Lien Documents from time to time.
“First Lien Credit
Agreement” means the Credit Agreement, dated as of June 30, 2021, among the Company; the subsidiary borrowers party thereto
from time to time; Barclays Bank PLC, as administrative agent and collateral agent; Barclays Bank PLC, Deutsche Bank Securities Inc.,
BNP Paribas Securities Corp., RBC Capital Markets, Citizens Bank, N.A., BMO Capital Markets Corp., Mizuho Bank, Ltd., JPMorgan Chase
Bank, N.A., Credit Agricole Corporate and Investment Bank and Natixis, New York Branch, as joint lead arrangers and joint bookrunners,
and BofA Securities, Inc., as senior co-manager, and as such agreement may be amended, supplemented, waived or otherwise modified
from time to time or refunded, refinanced, restructured, replaced, renewed, repaid, increased, decreased or extended from time to time
(whether in whole or in part, whether with the original administrative agent and lenders or other agents and lenders or otherwise, and
whether provided under the original First Lien Credit Agreement or one or more other credit agreements or otherwise and whether or not
secured by Liens on the Collateral).
“First Lien Credit
Agreement Collateral Agent” means the collateral agent under the First Lien Credit Agreement and its successors.
“First
Lien Credit Facility” means the collective reference to the First Lien Credit Agreement, any Loan Documents (as defined
therein), any notes and letters of credit issued pursuant thereto and any guarantee and collateral agreement, patent, trademark or copyright
security agreement, mortgages, letter of credit applications and other guarantees, pledge agreements, security agreements and collateral
documents, and other instruments and documents, executed and delivered pursuant to or in connection with any of the foregoing, in each
case as the same may be amended, supplemented, waived or otherwise modified from time to time, or refunded, refinanced, restructured,
replaced, renewed, repaid, increased, decreased or extended from time to time (whether in whole or in part, whether with the original
agent and lenders or other agents and lenders or otherwise, and whether provided under the original First Lien Credit Agreement or one
or more other credit agreements, indentures (including this Indenture) or financing agreements or otherwise). Without limiting the generality
of the foregoing, the term “First Lien Credit Facility” shall include any agreement (i) changing the maturity
of any Indebtedness Incurred thereunder or contemplated thereby, (ii) adding Subsidiaries of the Company as additional borrowers
or guarantors thereunder, (iii) increasing or decreasing the amount of Indebtedness Incurred thereunder or available to be
borrowed thereunder or (iv) otherwise altering the terms and conditions thereof (including, for the avoidance of doubt, any
agreement that is not secured by Liens on the Collateral).
“First Lien Credit
Facility Security Documents” means the “Security Documents” as defined in the First Lien Credit Agreement.
“First Lien Documents”
means, collectively, any indenture (including this Indenture and the indenture that governs the Existing First Lien Notes), supplemental
indenture, credit agreement (including the First Lien Credit Agreement) or other agreement governing each other series of First Lien Priority
Indebtedness and any security documents in respect thereof (other than any security documents that do not secure First Lien Priority Obligations).
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“First Lien Intercreditor
Agreement” means that certain First Lien Intercreditor Agreement, dated as of June 28, 2024, by and among, inter alios,
the Company, the other grantors party thereto, the First Lien Credit Agreement Collateral Agent, the agent for the holders of the Existing
First Lien Notes and each additional authorized representative for the holders of other Indebtedness that ranks pari passu with
the Notes Obligations from time to time party thereto, as amended, restated, replaced, supplemented, modified or otherwise changed (in
whole or in part, and without limitation as to amount, terms, conditions, covenants and other provisions) from time to time.
“First Lien Priority
Obligations” means the First Lien Priority Indebtedness and all other obligations in respect thereof.
“First Lien Priority
Indebtedness” means (i) Indebtedness of the Company and the Guarantors under the First Lien Credit Facility and reimbursement
obligations with respect thereto, (ii) Indebtedness of the Company and the Guarantors under the Existing First Lien Notes and reimbursement
obligations with respect thereto, (iii) Indebtedness of the Company and the Guarantors under the Notes and reimbursement obligations
with respect thereto, and (iv) any other Indebtedness of the Company or any Guarantor that is secured by a First Lien on the Collateral.
“First Lien Representative”
means any duly authorized representative of any holders of First Lien Priority Obligations, which representative is named as “Senior
Priority Representative” (or equivalent) in the Junior Lien Intercreditor Agreement or any joinder thereto.
“First Lien Secured
Parties” means any holders from time to time of any First Lien Priority Obligations (including the obligations under the Notes,
the First Lien Credit Agreement and the Existing First Lien Notes), each First Lien Collateral Agent and the First Lien Representative.
“Fixed GAAP Date”
means December 31, 2020; provided that at any time after the Issue Date, the Company may by written notice to the Trustee
elect to change the Fixed GAAP Date to be the date specified in such notice, and upon such notice, the Fixed GAAP Date shall be such date
for all periods beginning on and after the date specified in such notice.
“Fixed GAAP Terms”
means (a) the definitions of the terms “Consolidated Coverage Ratio,” “Consolidated EBITDA,” “Consolidated
Interest Expense,” “Consolidated Net Income,” “Consolidated Total Corporate Indebtedness,” “Consolidated
Total Net Corporate Leverage Ratio,” “Consolidated Vehicle Depreciation,” “Consolidated Vehicle Indebtedness,”
“Consolidated Vehicle Interest Expense,” “Finance Lease Obligation,” “Inventory,” and “Receivable,”
(b) all defined terms in this Indenture to the extent used in or relating to any of the foregoing definitions, and all ratios
and computations based on any of the foregoing definitions, and (c) any other term or provision of this Indenture or the Notes
that, at the Company’s election, may be specified by the Company by written notice to the Trustee from time to time.
“Fleet Receivables”
means Receivables of the Company and its Subsidiaries consisting of original equipment manufacturer program Receivables, original equipment
manufacturer incentive Receivables, Receivables arising from or otherwise relating to fleet leasing services and, at the election of the
Company, Receivables arising from or otherwise relating to fleet management services.
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“Foreign Subsidiary”
means (a) any Restricted Subsidiary of the Company that is not organized under the laws of the United States of America or any state
thereof or the District of Columbia, (b) any Restricted Subsidiary of the Company that has no material assets other than securities
(including equity interests), Indebtedness or receivables of one or more Foreign Subsidiaries (or Subsidiaries thereof), intellectual
property relating to such Foreign Subsidiaries (or Subsidiaries thereof), and/or other assets (including cash, Cash Equivalents, Investment
Grade Securities and Temporary Cash Investments) relating to an ownership interest in any such securities, Indebtedness, receivables,
intellectual property or Subsidiaries, (c) any Restricted Subsidiary of the Company that is organized under the laws of Puerto Rico
or any other territory of the United States of America and (d) any Subsidiary of an entity described in clause (a) through
(c). As of the date hereof, Hertz International Ltd. is a Restricted Subsidiary described in clause (b) of the foregoing
sentence.
“Foreign Subsidiary
Holdco” means any direct or indirect Subsidiary substantially all the assets of which directly or indirectly consist of the
stock, or the stock and indebtedness (including, for this purpose, any indebtedness or other instrument treated as equity for U.S. federal
income tax purposes), of one or more Foreign Subsidiaries or one or more Foreign Subsidiary Holdcos, and cash or Cash Equivalents from
distributions and payments on such stock and indebtedness.
“Franchise Financing
Disposition” means any sale, transfer, conveyance or other disposition of, or creation or incurrence of any Lien on, property
or assets by the Company or any Subsidiary thereof to or in favor of any Franchise Special Purpose Entity, in connection with the Incurrence
by a Franchise Special Purpose Entity of Indebtedness, or obligations to make payments to the obligor on Indebtedness, which may be secured
by a Lien in respect of such property or assets.
“Franchise Lease
Obligation” means any Finance Lease Obligation, and any other lease, of any Franchisee relating to any property used, occupied
or held for use or occupation by any Franchisee in connection with any of its Franchise Vehicle operations.
“Franchise Rental
Car Vehicles” means all passenger Franchise Vehicles owned by or leased to any Franchisee or any Franchise Special Purpose Entity
that are or have been offered for lease or rental by any Franchisee in its car rental operations, including any such Franchise Vehicles
being held for sale.
“Franchise Special
Purpose Entity” means any Person (a) that is engaged in the business of (i) acquiring, selling, collecting,
financing or refinancing Receivables, accounts (as defined in the Uniform Commercial Code as in effect in any jurisdiction from time to
time), other accounts and/or other receivables, and/or related assets, and/or (ii) acquiring, selling, leasing, financing
or refinancing Franchise Rental Car Vehicles and/or other Franchise Vehicles, and/or related rights (including under leases, manufacturer
warranties and buy-back programs, and insurance policies) and/or assets (including managing, exercising and disposing of any such rights
and/or assets), and (b) is designated as a “Franchise Special Purpose Entity” by the Company.
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“Franchise Vehicle
Indebtedness” as of any date of determination means (a) Indebtedness of any Franchise Special Purpose Entity directly
or indirectly Incurred to finance or refinance the acquisition of, or secured by, Franchise Rental Car Vehicles and/or other Franchise
Vehicles and/or related rights and/or assets, (b) Indebtedness of any Franchisee or any Affiliate thereof that is attributable
to the financing or refinancing of Franchise Rental Car Vehicles and/or other Franchise Vehicles and/or related rights and/or assets,
as determined in good faith by the Company (which determination shall be conclusive) and (c) Indebtedness of any Franchisee.
“Franchise Vehicles”
means vehicles owned or operated by, or leased or rented to or by, any Franchisee, including automobiles, trucks, tractors, trailers,
vans, sport utility vehicles, buses, campers, motor homes, motorcycles and other motor vehicles.
“Franchisee”
means any Person that is a franchisee or licensee of the Company or any of its Subsidiaries (or of any other Franchisee), or any Affiliate
of such Person.
“Free Trade Date”
means, with respect to any Note, the date that is one (1) year after the Last Original Issue Date of such Note.
“Freely Tradable”
means, with respect to any Note, that such Note would be eligible to be offered, sold or otherwise transferred pursuant to Rule 144
or otherwise if held by a Person that is not an Affiliate of the Company, and that has not been an Affiliate of the Company during the
immediately preceding three (3) months, without any requirements as to volume, manner of sale, availability of current public information
or notice under the Securities Act (except that, during the six (6)-month period beginning on, and including, the date that is six (6) months
after the Last Original Issue Date of such Note, any such requirement as to the availability of current public information will be disregarded
if the same is satisfied at that time); provided, however, that from and after the Free Trade Date of such Note, such Note will
not be “Freely Tradable” unless such Note (x) is not identified by a “restricted” CUSIP number; and (y) is
not represented by any certificate that bears the Restricted Note Legend. For the avoidance of doubt, whether a Note is deemed to be identified
by a “restricted” CUSIP number or to bear the Restricted Note Legend is subject to Section 2.12.
“Fundamental Change”
means any of the following events:
(A) (i) a
“person” or “group” (within the meaning of Section 13(d)(3) of the Exchange Act), other than the Company,
the Parent Guarantor or the Company’s or the Parent Guarantor’s respective Wholly Owned Subsidiaries, or their respective
employee benefit plans, or any Permitted Holder, files any report with the SEC indicating that such person or group has become the direct
or indirect “beneficial owner” (as defined below) of shares of the Common Stock representing more than fifty percent (50%)
of the voting power of all of the Common Stock; or (ii) any Permitted Holder or Permitted Holders has become the direct or indirect
“beneficial owner” of shares of Common Stock representing more than seventy-five percent (75%) of the voting power of all
of the Common Stock;
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(B) the
consummation of (i) any sale, lease or other transfer, in one transaction or a series of transactions, of all or substantially all
of the assets of the Parent Guarantor and its Subsidiaries, taken as a whole, to any Person, other than solely to the Company or one or
more of the Company’s or the Parent Guarantor’s respective Wholly Owned Subsidiaries; or (ii) any transaction or series
of related transactions in connection with which (whether by means of merger, consolidation, share exchange, combination, reclassification,
recapitalization, acquisition, liquidation or otherwise) all of the Common Stock is exchanged for, converted into, acquired for, or constitutes
solely the right to receive, other securities, cash or other property; provided, however, that any merger, consolidation,
share exchange or combination of the Parent Guarantor pursuant to which the Persons that directly or indirectly “beneficially owned”
all classes of the Parent Guarantor’s Common Equity immediately before such transaction directly or indirectly “beneficially
own,” immediately after such transaction, more than fifty percent (50%) of all classes of Common Equity of the surviving, continuing
or acquiring company or other transferee, as applicable, or the parent thereof, in substantially the same proportions vis-à-vis
each other as immediately before such transaction will be deemed not to be a Fundamental Change pursuant to this clause (B);
(C) the
stockholders of the Company or the Parent Guarantor approve any plan or proposal for the liquidation or dissolution of the Company or
the Parent Guarantor; or
(D) the
Common Stock ceases to be listed on any of The New York Stock Exchange, The Nasdaq Global Market or The Nasdaq Global Select Market (or
any of their respective successors);
provided,
however, that a transaction or event described in clause (A) or (B) above will not constitute a Fundamental
Change if at least ninety percent (90%) of the consideration received or to be received by the holders of Common Stock (excluding cash
payments for fractional shares or pursuant to dissenters rights), in connection with such transaction or event, consists of shares of
common stock listed on any of The New York Stock Exchange, The Nasdaq Global Market or The Nasdaq Global Select Market (or any of their
respective successors), or that will be so listed when issued or exchanged in connection with such transaction or event, and such transaction
or event constitutes a Common Stock Change Event whose Reference Property consists of such consideration.
For the purposes of this definition,
(x) any transaction or event described in both clause (A) and in clause (B)(i) or (ii) above
(without regard to the proviso in clause (B)) will be deemed to occur solely pursuant to clause (B) above (subject
to such proviso); and (y) whether a Person is a “beneficial owner,” whether shares are “beneficially
owned,” and percentage beneficial ownership, will be determined in accordance with Rule 13d-3 under the Exchange Act.
For the purpose of this definition, so long as
at the time of any Minority Business Disposition or any Minority Business Offering the Minority Business Disposition Condition is met,
the Minority Business Assets shall not be deemed at any time to constitute all or substantially all of the assets of the Parent Guarantor
and its Restricted Subsidiaries, and any sale or transfer of all or any part of the Minority Business Assets (whether directly or indirectly,
whether by sale or transfer of any such assets, or of any Capital Stock or other interest in any Person holding such assets, or by merger
or consolidation, or any combination thereof, and whether in one or more transactions, or otherwise, including any Minority Business Offering
or any Minority Business Disposition) shall not be deemed at any time to constitute a sale or transfer of all or substantially all of
the assets of the Parent Guarantor and its Restricted Subsidiaries.
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For the purpose of this definition, the Reorganization
Assets (whether individually or in the aggregate) shall not be deemed at any time to constitute all or substantially all of the assets
of the Parent Guarantor and its Restricted Subsidiaries, and any sale or transfer of all or any part of the Reorganization Assets (whether
directly or indirectly, whether by sale or transfer of any such assets, or of any Capital Stock or other interest in any Person holding
such assets, or of any combination thereof, and whether in one or more transactions, or otherwise) shall not be deemed at any time to
constitute a sale or transfer of all or substantially all of the assets of the Parent Guarantor and its Restricted Subsidiaries.
“Fundamental Change
Repurchase Date” means the date fixed for the repurchase of any Notes by the Company pursuant to a Repurchase Upon Fundamental
Change.
“Fundamental Change
Repurchase Notice” means a notice (including a notice substantially in the form of the “Fundamental Change Repurchase
Notice” set forth in Exhibit A) containing the information, or otherwise complying with the requirements, set forth
in Section 4.02(F)(i) and Section 4.02(F)(ii).
“Fundamental Change
Repurchase Price” means the cash price payable by the Company to repurchase any Note upon its Repurchase Upon Fundamental Change,
calculated pursuant to Section 4.02(D).
“GAAP”
means generally accepted accounting principles in the United States of America as in effect on the Fixed GAAP Date (for purposes of the
Fixed GAAP Terms) and as in effect from time to time (for all other purposes of this Indenture), including those set forth in the opinions
and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants and statements and pronouncements
of the Financial Accounting Standards Board or in such other statements by such other entity as approved by a significant segment of the
accounting profession, and subject to the following sentence. If at any time the SEC permits or requires U.S.-domiciled companies subject
to the reporting requirements of the Exchange Act to use IFRS in lieu of GAAP for financial reporting purposes, the Company may elect
by written notice to the Trustee to so use IFRS in lieu of GAAP and, upon any such notice, references herein to GAAP shall thereafter
be construed to mean (a) for periods beginning on and after the date specified in such notice, IFRS as in effect on the
date specified in such notice (for purposes of the Fixed GAAP Terms) and as in effect from time to time (for all other purposes of this
Indenture) and (b) for prior periods, GAAP as defined in the first sentence of this definition. All ratios and computations
based on GAAP contained in this Indenture shall be computed in conformity with GAAP.
“Global Note”
means a Note that is represented by a certificate substantially in the form set forth in Exhibit A, registered in the name
of the Depositary or its nominee, duly executed by the Company and authenticated by the Trustee, and deposited with the Trustee, as custodian
for the Depositary.
“Global Note Legend”
means a legend substantially in the form set forth in Exhibit B-2.
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“Governmental Authority”
means any nation or government, any state or other political subdivision thereof and any entity exercising executive, legislative, judicial,
regulatory or administrative functions of or pertaining to government, including the European Union and the United Kingdom.
“Grantor”
means the Company and any Guarantor that shall have granted any Lien in favor of the Notes Collateral Agent on any of its assets or properties
to secure any Obligations under secured Indebtedness.
“Guarantees”
means any obligation, contingent or otherwise, of any Person directly or indirectly guaranteeing any Indebtedness or other obligation
of any other Person; provided that the term “Guarantee” shall not include endorsements for collection or deposit
in the ordinary course of business. The term “Guarantee” used as a verb has a corresponding meaning.
“Guarantors”
means the Parent Guarantor, Holdings and each Subsidiary Guarantor and their respective successors and assigns until released from their
obligations under their Guarantees and this Indenture in accordance with the terms of this Indenture.
“Guarantor Subordinated
Obligations” means, with respect to a Guarantor, any Indebtedness of such Guarantor (whether outstanding on the Issue Date or
thereafter Incurred) that is expressly subordinated in right of payment to the obligations of such Guarantor under its Notes Guarantee
pursuant to a written agreement.
“Hedge Agreements”
means, collectively, Interest Rate Agreements, Currency Agreements and Commodities Agreements.
“Hedging Obligations”
of any Person means the obligations of such Person pursuant to any Interest Rate Agreement, Currency Agreement or Commodities Agreement.
“Holder”
means a person in whose name a Note is registered on the Registrar’s books.
“Holdings”
means the Person named as such in the first paragraph of this Indenture and, subject to Article 6, its successors and assigns.
“HVF III Base Indenture”
means that certain Base Indenture, dated as of June 29, 2021, between Hertz Vehicle Financing III LLC and The Bank of New York Mellon
Trust Company, N.A., as trustee, as amended, restated, modified or supplemented from time to time, exclusive of Series Supplements
(as defined therein) creating a new Series of Notes (as defined therein).
“IFRS”
means International Financial Reporting Standards and applicable accounting requirements set by the International Accounting Standards
Board or any successor thereto (or the Financial Accounting Standards Board, the Accounting Principles Board of the American Institute
of Certified Public Accountants, or any successor to either such board, or the SEC, as the case may be), as in effect from time to time.
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“Incur”
means issue, assume, enter into any Guarantee of, incur or otherwise become liable for; and the terms “Incurs,” “Incurred”
and “Incurrence” shall have a correlative meaning; provided that any Indebtedness or Capital Stock of a Person existing at
the time such Person becomes a Subsidiary (whether by merger, consolidation, acquisition or otherwise) shall be deemed to be Incurred
by such Subsidiary at the time it becomes a Subsidiary. Accrual of interest, the accretion of accreted value, the payment of interest
in the form of additional Indebtedness and the payment of dividends on Capital Stock constituting Indebtedness in the form of additional
shares of the same class of Capital Stock will be deemed not to be an Incurrence of Indebtedness. Any Indebtedness issued at a discount
(including Indebtedness on which interest is payable through the issuance of additional Indebtedness) shall be deemed Incurred at the
time of original issuance of the Indebtedness at the initial accreted amount thereof.
“Indebtedness”
means, with respect to any Person on any date of determination (without duplication):
(i) the principal of indebtedness of such Person for borrowed money;
(ii) the principal of obligations of such Person evidenced by bonds, debentures, notes or other similar instruments;
(iii) all reimbursement obligations of such Person in respect of letters of credit, bankers’ acceptances
or other similar instruments (the amount of such obligations being equal at any time to the aggregate then undrawn and unexpired amount
of such letters of credit, bankers’ acceptances or other instruments plus the aggregate amount of drawings thereunder that have
not then been reimbursed) (except to the extent such reimbursement obligations relate to Trade Payables and such obligations are expected
to be satisfied within 30 days of becoming due and payable);
(iv) all obligations of such Person to pay the deferred and unpaid purchase price of property, which purchase
price is due more than one year after the date of placing such property in final service or taking final delivery and title thereto (in
each case, except (x) Trade Payables and (y) any earn-out obligations until such obligation is reflected as a
liability on the balance sheet of such Person in accordance with GAAP and if not expected to be paid within 60 days after becoming due
and payable);
(v) all Finance Lease Obligations of such Person;
(vi) the redemption, repayment or other repurchase amount of such Person with respect to any Disqualified Stock
of such Person or (if such Person is a Subsidiary of the Company other than a Subsidiary Guarantor) any Preferred Stock of such Subsidiary,
but excluding, in each case, any accrued dividends (the amount of such obligation to be equal at any time to the maximum fixed involuntary
redemption, repayment or repurchase price for such Capital Stock, or if less (or if such Capital Stock has no such fixed price), to the
involuntary redemption, repayment or repurchase price therefor calculated in accordance with the terms thereof as if then redeemed, repaid
or repurchased, and if such price is based upon or measured by the fair market value of such Capital Stock, such fair market value shall
be as determined in good faith by the Company, which determination shall be conclusive);
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(vii) all Indebtedness of other Persons secured by a Lien on any asset of such Person, whether or not such Indebtedness
is assumed by such Person; provided that the amount of Indebtedness of such Person shall be the lesser of (A) the Fair
Market Value of such asset at such date of determination and (B) the amount of such Indebtedness of such other Persons;
(viii) all Guarantees by such Person of Indebtedness of other Persons, to the extent so Guaranteed by such Person;
and
(ix) to the extent not otherwise included in this definition, net Hedging Obligations of such Person (the amount
of any such obligation to be equal at any time to the termination value of such agreement or arrangement giving rise to such Hedging Obligation
that would be payable by such Person at such time);
provided
that Indebtedness shall exclude any Indebtedness of any Parent appearing upon the balance sheet of the Company solely by reason of push-down
accounting under GAAP.
The amount of Indebtedness of any Person at any
date shall be determined as set forth above or as otherwise provided for in this Indenture, or otherwise shall equal the amount thereof
that would appear as a liability on a balance sheet of such Person (excluding any notes thereto) prepared in accordance with GAAP.
“Indenture”
means this Indenture, as amended or supplemented from time to time.
“Initial Principal
Amount” means the principal amount of such Note at the time of original issuance of such Note. For the avoidance of doubt, the
“Initial Principal Amount” of each minimum denomination of Notes on their issue date shall be $1.00.
“Initial Purchasers”
means J.P. Morgan Securities LLC, Barclays Capital Inc., BMO Capital Markets Corp., Citizens JMP Securities, LLC, Credit Agricole Securities
(USA) Inc., Deutsche Bank Securities Inc., Goldman Sachs & Co. LLC, Morgan Stanley & Co. LLC, RBC Capital Markets, LLC,
Truist Securities, Inc., CIBC World Markets Corp. and Regions Securities LLC.
“Intellectual
Property” means any trademark, copyright, patent or other intellectual property (or rights therein).
“Intercreditor Agreement”
means the Junior Lien Intercreditor Agreement, the First Lien Intercreditor Agreement or any other intercreditor agreement entered into
from time to time pursuant to the Indenture or any Notes Document.
“Interest Payment
Date” means, with respect to a Note, each January 1 and July 1 of each year, commencing on January 1, 2027 (or
commencing on such other date specified in the certificate representing such Note). For the avoidance of doubt, the Maturity Date is an
Interest Payment Date.
“Interest Rate Agreement”
means, with respect to any Person, any interest rate protection agreement, future agreement, option agreement, swap agreement, cap agreement,
collar agreement, hedge agreement or other similar agreement or arrangement (including derivative agreements or arrangements), as to which
such Person is a party or a beneficiary.
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“Inventory”
means goods held for sale, lease or use by a Person in the ordinary course of business, net of any reserve for goods that have been segregated
by such Person to be returned to the applicable vendor for credit, as determined in accordance with GAAP.
“Investment”
in any Person by any other Person means any direct or indirect advance, loan or other extension of credit (other than to customers, dealers,
licensees, franchisees, suppliers, consultants, directors, officers or employees of any Person in the ordinary course of business) or
capital contribution (by means of any transfer of cash or other property to others or any payment for property or services for the account
or use of others) to, or any purchase or acquisition of Capital Stock, Indebtedness or other similar instruments issued by, such
Person. For purposes of the definition of “Unrestricted Subsidiary” and Section 3.09 only, (i) “Investment”
shall include the portion (proportionate to the Company’s equity interest in such Subsidiary) of the Fair Market Value of the net
assets of any Subsidiary of the Company at the time that such Subsidiary is designated an Unrestricted Subsidiary; provided that
upon a redesignation of such Subsidiary as a Restricted Subsidiary, the Company shall be deemed to continue to have a permanent “Restricted
Investment” in an amount (if positive) equal to (x) the Company’s “Investment” in such Subsidiary
at the time of such redesignation less (y) the portion (proportionate to the Company’s equity interest in such
Subsidiary) of the Fair Market Value of the net assets of such Subsidiary at the time of such redesignation and (ii) any property
transferred to or from an Unrestricted Subsidiary shall be valued at its Fair Market Value at the time of such transfer. Guarantees shall
not be deemed to be Investments. The amount of any Investment outstanding at any time shall be the original cost of such Investment, reduced
(at the Company’s option) by any dividend, distribution, interest payment, return of capital, repayment or other amount or value
received in respect of such Investment; provided that to the extent that the amount of Restricted Payments outstanding at any time
is so reduced by any portion of any such amount or value that would otherwise be included in the calculation of Consolidated Net Income,
such portion of such amount or value shall not be so included for purposes of calculating the amount of Restricted Payments that may be
made pursuant to Section 3.09(B)(viii)(y).
“Investment Grade
Rating” means a rating of Baa3 or better (or, in the case of short-term obligations, P-3 or better) by Moody’s and BBB-
or better (or, in the case of short-term obligations, A-3 or better) by S&P (or, in either case, the equivalent of such rating by
such organization), or an equivalent rating by any other Rating Agency.
“Investment Grade
Securities” means (i) securities issued or directly and fully guaranteed or insured by the government of the United
States of America or any agency or instrumentality thereof (other than Cash Equivalents); (ii) debt securities or debt instruments
with an Investment Grade Rating, but excluding any debt securities or instruments constituting loans or advances among the Company and
its Subsidiaries; (iii) investments in any fund that invests exclusively in investments of the type described in clauses
(i) and (ii), which fund may also hold cash pending investment or distribution; and (iv) corresponding instruments
in countries other than the United States of America customarily utilized for high quality investments.
“Issue Date”
means June 29, 2026.
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“Junior Lien Collateral
Agent” means the Notes Collateral Agent and each other collateral agent or other representative of lenders or holders of Junior
Lien Obligations designated pursuant to the Junior Lien Documents from time to time.
“Junior Lien Documents”
means the credit and security documents governing the Junior Lien Obligations, including, without limitation, the related Junior Lien
Intercreditor Agreement or any joinder thereto.
“Junior Lien Intercreditor
Agreement” means that certain First Lien/Second Lien Intercreditor Agreement, dated as of June 28, 2024, by and among,
inter alios, the Company, the other grantors party thereto, the First Lien Credit Agreement Collateral Agent, the agent for the holders
of the Existing First Lien Notes, the agent for the holders of the Existing Second Lien Exchangeable Notes and each additional authorized
representative from time to time party thereto, as amended, restated, replaced, supplemented, modified or otherwise changed (in whole
or in part, and without limitation as to amount, terms, conditions, covenants and other provisions) from time to time.
“Junior Lien Obligations”
means any Obligations (including the Existing Second Lien Exchangeable Notes and the guarantees thereof) with respect to Indebtedness
permitted to be incurred under the Indenture, which is by its terms intended to be secured by the Collateral with a Junior Lien Priority
relative to the First Lien Priority Obligations (including the Notes Obligations, the Obligations under the First Lien Credit Agreement
and the Obligations under the Existing First Lien Notes); provided that the holders of such Indebtedness or their Junior Lien Collateral
Agent shall become party to the Junior Lien Intercreditor Agreement and any other applicable Intercreditor Agreements.
“Junior Lien Priority”
means, relative to specified Indebtedness, having junior Lien priority on specified Collateral.
“Junior Lien Representative”
means the Junior Lien Collateral Agent that is the “Junior Priority Representative” under and as defined in the Junior Lien
Intercreditor Agreement.
“Junior Lien Secured
Parties” means any holders from time to time of any Junior Lien Obligations, each Junior Lien Collateral Agent and any Junior
Lien Representative.
“Junior Lien Security
Agreement” means any security agreement covering a portion of the Collateral to be entered into by the Grantors and a Junior
Lien Collateral Agent.
“Junior Lien Security
Documents” means, collectively, the Junior Lien Intercreditor Agreement, any Junior Lien Security Agreement, other security
agreements relating to the Collateral and the mortgages and instruments filed and recorded in appropriate jurisdictions to preserve and
protect the Liens on the Collateral (including, without limitation, financing statements under the Uniform Commercial Code of the relevant
states), in each case, relating to any Junior Lien Obligations, as amended, amended and restated, modified, renewed or replaced from time
to time.
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“Last Original Issue
Date” means (A) with respect to any Notes issued pursuant to the Purchase Agreement (including any Notes issued pursuant
to the exercise of the Shoe Option by the Initial Purchasers), and any Notes issued in exchange therefor or in substitution thereof, the
later of (i) the Issue Date and (ii) the last date any Notes are originally issued pursuant to the exercise of the Shoe Option;
and (B) with respect to any Notes issued pursuant to Section 2.03(B), and any Notes issued in exchange therefor or in substitution
thereof, either (i) the later of (x) the date such Notes are originally issued and (y) the last date any Notes are originally
issued as part of the same offering pursuant to the exercise of an option granted to the initial purchaser(s) of such Notes to purchase
additional Notes; or (ii) such other date as is specified in an Officer’s Certificate delivered to the Trustee before the original
issuance of such Notes.
“Last Reported Sale
Price” of the Common Stock for any Trading Day means the closing sale price per share (or, if no closing sale price is reported,
the average of the last bid price and the last ask price per share or, if more than one in either case, the average of the average last
bid prices and the average last ask prices per share) of Common Stock on such Trading Day as reported in composite transactions for the
principal U.S. national or regional securities exchange on which the Common Stock is then listed. If the Common Stock is not listed on
a U.S. national or regional securities exchange on such Trading Day, then the Last Reported Sale Price will be the last quoted bid price
per share of Common Stock on such Trading Day in the over-the-counter market as reported by OTC Markets Group Inc. or a similar organization.
If the Common Stock is not so quoted on such Trading Day, then the Last Reported Sale Price will be the average of the mid-point of the
last bid price and the last ask price per share of Common Stock on such Trading Day from a nationally recognized independent investment
banking firm selected by the Company, which may be any of the Initial Purchasers. Neither the Trustee nor the Exchange Agent will have
any duty to determine the Last Reported Sale Price.
“Lien”
means any mortgage, pledge, security interest, encumbrance, lien or charge of any kind (including any conditional sale or other title
retention agreement or lease in the nature thereof).
“Limited Condition
Transaction” means (x) any acquisition, including by way of merger, amalgamation, consolidation or other business
combination or the acquisition of Capital Stock or otherwise, by one or more of the Company and its Restricted Subsidiaries of any assets,
business or Person or any other Investment permitted by this Indenture whose consummation is not conditioned on the availability of, or
on obtaining, third-party financing or (y) any redemption, repurchase, defeasance, satisfaction and discharge or repayment
of Indebtedness, Disqualified Stock or Preferred Stock requiring irrevocable notice in advance of such redemption, repurchase, defeasance,
satisfaction and discharge or prepayment.
“LTM Consolidated
EBITDA” means, as of any date of determination, the aggregate amount of Consolidated EBITDA for the Most Recent Four Quarter
Period (determined for any fiscal quarter (or portion thereof) ending prior to the Issue Date); provided that:
(1) if since the beginning of such period the Company or any Restricted Subsidiary shall have made a Sale
(including any Sale occurring in connection with a transaction causing a calculation to be made hereunder), the Consolidated EBITDA for
such period shall be reduced by an amount equal to the Consolidated EBITDA (if positive) attributable to the assets that are the subject
of such Sale for such period or increased by an amount equal to the Consolidated EBITDA (if negative) attributable thereto for such period;
(2) if since the beginning of such period the Company or any Restricted Subsidiary (by merger, consolidation
or otherwise) shall have made a Purchase (including any Purchase occurring in connection with a transaction causing a calculation to be
made hereunder), Consolidated EBITDA for such period shall be calculated after giving pro forma effect thereto as if such Purchase occurred
on the first day of such period; and
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(3) if since the beginning of such period any Person became a Restricted Subsidiary or was merged or consolidated
with or into the Company or any Restricted Subsidiary, and since the beginning of such period such Person shall have made any Sale or
Purchase that would have required an adjustment pursuant to clause (1) or (2) above if made by the Company or
a Restricted Subsidiary since the beginning of such period, Consolidated EBITDA for such period shall be calculated after giving pro forma
effect thereto as if such Sale or Purchase occurred on the first day of such period.
For purposes of this definition, whenever pro
forma effect is to be given to any Sale, Purchase or other transaction, or the amount of income or earnings relating thereto, the pro
forma calculations in respect thereof (including in respect of anticipated cost savings or synergies relating to any such Sale, Purchase
or other related transaction (subject, in each case, to the provisions and limitations set forth in the definition of “Consolidated
EBITDA”)) shall be as determined in good faith by the Company.
“Make-Whole Fundamental
Change” means (A) a Fundamental Change (determined after giving effect to the proviso immediately after clause (D) of
the definition thereof, but without regard to the proviso to clause (B)(ii) of such definition); or (B) the sending of
a Redemption Notice pursuant to Section 4.03(F); provided, however, that, subject to Section 4.03(I),
the sending of a Redemption Notice will constitute a Make-Whole Fundamental Change only with respect to the Notes called for a Redemption
(or deemed called pursuant to Section 4.03(I)) pursuant to such Redemption Notice and not with respect to any other Notes.
“Make-Whole Fundamental
Change Effective Date” means (A) with respect to a Make-Whole Fundamental Change pursuant to clause (A) of
the definition thereof, the date on which such Make-Whole Fundamental Change occurs or becomes effective; and (B) with respect to
a Make-Whole Fundamental Change pursuant to clause (B) of the definition thereof, the applicable Redemption Notice Date.
“Make-Whole Fundamental
Change Exchange Period” has the following meaning:
(A) in
the case of a Make-Whole Fundamental Change pursuant to clause (A) of the definition thereof, the period from, and including,
the Make-Whole Fundamental Change Effective Date of such Make-Whole Fundamental Change to, and including, the thirty-fifth (35th) Trading
Day after such Make-Whole Fundamental Change Effective Date (or, if such Make-Whole Fundamental Change also constitutes a Fundamental
Change (other than an Exempted Fundamental Change), to, but excluding, the related Fundamental Change Repurchase Date); and
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(B) in
the case of a Make-Whole Fundamental Change pursuant to clause (B) of the definition thereof, the period from, and including,
the Redemption Notice Date for the related Redemption to, and including, the second (2nd) Scheduled Trading Day immediately before the
related Redemption Date;
provided,
however, that if the Exchange Date for the Exchange of a Note that has been called for Redemption (or deemed, pursuant to Section 4.03(I),
to be called) occurs during the Make-Whole Fundamental Change Exchange Period for both a Make-Whole Fundamental Change occurring pursuant
to clause (A) of the definition of “Make-Whole Fundamental Change” and a Make-Whole Fundamental Change resulting
from such Redemption pursuant to clause (B) of such definition, then, notwithstanding anything to the contrary in Section 5.07,
solely for purposes of such Exchange, (x) such Exchange Date will be deemed to occur solely during the Make-Whole Fundamental Change
Exchange Period for the Make-Whole Fundamental Change with the earlier Make-Whole Fundamental Change Effective Date; and (y) the
Make-Whole Fundamental Change with the later Make-Whole Fundamental Change Effective Date will be deemed not to have occurred.
“Management Advances”
means (1) loans or advances made to directors, officers, employees or consultants of any Parent, the Company or any Restricted
Subsidiary (x) in respect of travel, entertainment or moving-related expenses incurred in the ordinary course of business,
(y) in respect of moving-related expenses incurred in connection with any closing or consolidation of any facility, or (z) in
the ordinary course of business and (in the case of this clause (z)) not exceeding $65.0 million in the aggregate outstanding at
any time, (2) promissory notes of Management Investors acquired in connection with the issuance of Management Stock to such
Management Investors, (3) Management Guarantees, or (4) other Guarantees of borrowings by Management Investors
in connection with the purchase of Management Stock.
“Management Guarantees”
means guarantees (x) of up to an aggregate principal amount outstanding at any time of $65.0 million of borrowings by Management
Investors in connection with their purchase of Management Stock or (y) made on behalf of, or in respect of loans or advances
made to, directors, officers, employees or consultants of any Parent, the Company or any Restricted Subsidiary (1) in respect
of travel, entertainment and moving-related expenses incurred in the ordinary course of business or (2) in the ordinary course
of business and (in the case of this clause (2)) not exceeding $65.0 million in the aggregate outstanding at any time.
“Management Investors”
means the officers, directors, employees and other members of the management of any Parent, the Company or any of their respective Subsidiaries,
or family members or relatives of any of the foregoing (provided that, solely for purposes of the definition of “Permitted
Holders,” such relatives shall include only those Persons who are or become Management Investors in connection with estate planning
for or inheritance from other Management Investors, as determined in good faith by the Company, which determination shall be conclusive),
or trusts, partnerships or limited liability companies for the benefit of any of the foregoing, or any of their heirs, executors, successors
and legal representatives, who at any date beneficially own or have the right to acquire, directly or indirectly, Capital Stock of the
Company, any Restricted Subsidiary or any Parent.
“Management Stock”
means Capital Stock of the Company, any Restricted Subsidiary or any Parent (including any options, warrants or other rights in respect
thereof) held by any of the Management Investors.
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“Market Capitalization”
means, an amount equal to (i) the total number of issued and outstanding shares of capital stock of the Company or any Parent
(including all shares of Capital Stock of such Parent reserved for issuance upon conversion or exchange of Capital Stock of another Parent
outstanding on such date) on the date of declaration of the relevant dividend or making of any other Restricted Payment, as applicable,
multiplied by (ii) the arithmetic mean of the closing prices per share of such capital stock on The Nasdaq Stock Market (or,
if the primary listing of such capital stock is on another exchange, on such other exchange) for the 30 consecutive trading days immediately
preceding such date.
“Market Disruption
Event” means, with respect to any date, the occurrence or existence, during the one-half hour period ending at the scheduled
close of trading on such date on the principal U.S. national or regional securities exchange or other market on which the Common Stock
is listed for trading or trades, of any material suspension or limitation imposed on trading (by reason of movements in price exceeding
limits permitted by the relevant exchange or otherwise) in the Common Stock or in any options contracts or futures contracts relating
to the Common Stock.
“Maturity Date”
means July 1, 2030.
“Measurement Date”
means November 23, 2021.
“Minority Business”
means any business unit of the Company that represents less than 50.0% of LTM Consolidated EBITDA of the Company and its Restricted Subsidiaries.
“Minority Business
Assets” means the assets of the Company and its Subsidiaries, including Capital Stock of Subsidiaries, that relate to or form
part of a Minority Business.
“Minority Business
Disposition” means (i) any sale or other disposition of Capital Stock of any Minority Business Subsidiary (whether
by issuance or sale of Capital Stock, merger, or otherwise) to one or more Persons (other than the Company or a Restricted Subsidiary)
in any transaction or series of related transactions following the consummation of which such Minority Business Subsidiary is no longer
a Restricted Subsidiary of the Company (excluding any Minority Business Offering) or (ii) any sale or other disposition of
any assets of any Minority Business Subsidiary or other Minority Business Assets, including all or substantially all of the assets of
any Minority Business Subsidiary, to one or more Persons (other than the Company or a Restricted Subsidiary) in any transaction or series
of related transactions.
“Minority Business
Disposition Condition” means at any date of determination after giving effect to the Minority Business Disposition or Minority
Business Offering, either the (1) Consolidated Coverage Ratio would be greater than or equal to 2.00 to 1.00, (2) Consolidated
Coverage Ratio is equal or exceeds the Consolidated Coverage Ratio or (3) Consolidated Total Net Corporate Leverage Ratio
would not exceed the Consolidated Total Net Corporate Leverage Ratio, in the case of each of (2) and (3) immediately prior to
giving effect thereto.
“Minority Business
Offering” means a public offering of Capital Stock of any Minority Business Subsidiary pursuant to a registration statement
filed with the SEC.
“Minority Business
Subsidiary” means any of the Subsidiaries and successors in interest thereto to the extent any of such Subsidiaries form part
of the relevant Minority Business.
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“Moody’s”
means Moody’s Investors Service, Inc. and its successors.
“Most
Recent Four Quarter Period” means, the four fiscal quarter period of the Company ending on the last date of the most recently
completed fiscal year or quarter for which financial statements of the Company have been (or have been required to be) delivered under
this Indenture; provided that, at the election of the Company, for purpose of determining the permissibility of any transaction
hereunder by reference to the Most Recent Four Quarter Period, the Company may for any four fiscal quarter period ended at the fiscal
year end, deliver internal unaudited financial statements of the Company for the last quarter of such four fiscal quarter period.
“Net Available Cash”
from an Asset Disposition means an amount equal to the cash payments received (including any cash payments received by way of deferred
payment of principal pursuant to a note or installment receivable or otherwise, but only as and when received, but excluding any other
consideration received in the form of assumption by the acquiring Person of Indebtedness or other obligations relating to the properties
or assets that are the subject of such Asset Disposition or received in any other noncash form) therefrom, in each case net of (i) all
legal, title and recording tax expenses, commissions and other fees and expenses incurred, and all U.S. federal, state, provincial, foreign
and local taxes required to be paid or to be accrued as a liability under GAAP, in each case as a consequence of, or in respect of, such
Asset Disposition (including as a consequence of any transfer of funds in connection with the application thereof in accordance with Section 3.11),
(ii) all payments made, and all installment payments required to be made, on any Indebtedness (x) that is secured
by any assets subject to such Asset Disposition, in accordance with the terms of any Lien upon such assets or (y) that must
by its terms, or in order to obtain a necessary consent to such Asset Disposition, or by applicable law, be repaid out of the proceeds
from such Asset Disposition, including any payments required to be made to increase borrowing availability under any revolving credit
facility, (iii) all distributions and other payments required to be made to minority interest holders in Subsidiaries or joint
ventures as a result of such Asset Disposition, or to any other Person (other than the Company or a Restricted Subsidiary) owning a beneficial
interest in the assets disposed of in such Asset Disposition, (iv) any liabilities or obligations associated with the assets
disposed of in such Asset Disposition and retained, indemnified or insured by the Company or any Restricted Subsidiary after such Asset
Disposition, including pension and other post-employment benefit liabilities, liabilities related to environmental matters, and liabilities
relating to any indemnification obligations associated with such Asset Disposition and (v) the amount of any purchase price
or similar adjustment (x) claimed by any Person to be owed by the Company or any Restricted Subsidiary, until such time as
such claim shall have been settled or otherwise finally resolved or (y) paid or payable by the Company or any Restricted Subsidiary,
in either case in respect of such Asset Disposition.
“Net Cash Proceeds”
with respect to any issuance or sale of any securities of the Company or any Subsidiary by the Company or any Subsidiary, or any capital
contribution, or any Incurrence of Indebtedness, means the cash proceeds of such issuance, sale, contribution or Incurrence net of attorneys’
fees, accountants’ fees, underwriters’ or placement agents’ fees, discounts or commissions and brokerage, consultant
and other fees actually incurred in connection with such issuance, sale, contribution or Incurrence and net of taxes paid or payable as
a result, or in respect, thereof.
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“Non-Affiliate Legend”
means a legend substantially in the form set forth in Exhibit B-3.
“Note Agent”
means any Registrar, Paying Agent or Exchange Agent.
“Notes”
means the 6.75% Exchangeable Senior First-Lien Secured PIK Notes due 2030 issued by the Company pursuant to this Indenture.
“Notes Collateral
Agent” means Computershare Trust Company, N.A. in its capacity as “Notes Collateral Agent” or “Collateral
Agent” under this Indenture and under the Notes Collateral Documents or any successor or assign thereto in such capacity.
“Notes
Collateral Documents” means, collectively, the Intercreditor Agreements entered into from time to time, the Notes Security
Agreement and the supplements thereto and each other mortgage, instrument and document pursuant to which the Company or a Guarantor grants
(or purports to grant) a Lien on any Collateral as security for payment of the Notes Obligations (including, without limitation, financing
statements under the Uniform Commercial Code of relevant states applicable to the Collateral).
“Notes Documents”
means, collectively, (a) the Notes (including Additional Notes), (b) the Notes Guarantees, (c) the Notes Collateral Documents
and (d) this Indenture.
“Notes Guarantee”
means the Parent Guarantor’s guarantee of the Notes, Holdings’ guarantee of the Notes and any Subsidiary Guarantee.
“Notes Liens”
means all Liens securing the Notes Obligations.
“Notes Obligations”
means all Obligations of the Company and the Guarantors under the Notes, this Indenture and the Notes Collateral Documents.
“Notes Security Agreement”
means that certain Notes Collateral Agreement, dated as of the Issue Date, among the Company, the Guarantors and the Notes Collateral
Agent, as it may be amended, supplemented, restated, replaced or otherwise modified from time to time pursuant to this Indenture.
“Note Share Cap”
means, with respect to the Exchange of any Note, the Daily Share Cap that would result if “O” for purposes of the calculation
of the Daily Share Cap were equal to 1.
“Notional Principal
Amount” means, with respect to the Exchange of any Note, the sum of the aggregate outstanding Capitalized Principal Amount of
the Notes at the Close of Business on the applicable Exchange Date (which shall be deemed to be $400,000,000 at any time prior to expiration
of the Shoe Option) plus the aggregate amount of PIK Interest that would be issuable in respect of such aggregate outstanding Capitalized
Principal Amount (including PIK Interest issuable on PIK Interest) after such time and on or prior to the Maturity Date assuming all of
such aggregate outstanding Capitalized Principal Amount and PIK Interest remains outstanding until the Maturity Date; provided that
the Capitalized Principal Amount of any Note that is Exchanged will be deemed for this purpose to cease to be outstanding only if settlement
of such Exchange has occurred before the Close of Business on the applicable Exchange Date.
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“Obligations”
means, with respect to any Indebtedness, any principal, premium (if any), interest (including interest accruing on or after the filing
of any petition in bankruptcy or for reorganization relating to the Company, the Guarantors or any Restricted Subsidiary whether or not
a claim for post-filing interest is allowed in such proceedings), fees, charges, expenses, reimbursement obligations, Guarantees of such
Indebtedness (or of Obligations in respect thereof), other monetary obligations of any nature and all other amounts payable thereunder
or in respect thereof.
“Observation Period”
means, with respect to any Note to be Exchanged, (A) subject to clause (B) below, if the Exchange Date for such Note
occurs on or before April 1, 2030, the thirty (30) consecutive VWAP Trading Days beginning on, and including, the second (2nd) VWAP
Trading Day immediately after such Exchange Date; (B) if such Exchange Date occurs on or after the date the Company has sent a Redemption
Notice calling all or any Notes for Redemption pursuant to Section 4.03(F) and on or before the second (2nd) Scheduled
Trading Day before the related Redemption Date and such Note has been called for Redemption, the thirty (30) consecutive VWAP Trading
Days beginning on, and including, the thirty first (31st) Scheduled Trading Day immediately before such Redemption Date; and (C) subject
to clause (B) above, if such Exchange Date occurs after April 1, 2030, the thirty (30) consecutive VWAP Trading Days
beginning on, and including, the thirty first (31st) Scheduled Trading Day immediately before the Maturity Date.
“Officer”
means, with respect to the Company or any other obligor upon the Notes, the Chairman of the Board, the President, the Chief Executive
Officer, the Chief Financial Officer, any Vice President, the Controller, the Treasurer or the Secretary (a) of such Person or (b) if
such Person is owned or managed by a single entity, of such entity (or any other individual designated as an “Officer” for
the purposes of this Indenture by the Board of Directors).
“Officer’s
Certificate” means, with respect to the Company or any other obligor upon the Notes, a certificate signed by one Officer
of such Person that meets the requirements of Section 13.03.
“Open of Business”
means 9:00 a.m., New York City time.
“Opinion
of Counsel” means a written opinion from legal counsel who is reasonably acceptable to the Trustee. The counsel may be an employee
of or counsel to the Company.
“Original Issue Discount
Legend” means a legend substantially in the form set forth in
Exhibit B-4.
“Parent”
means any of the Parent Guarantor, Holdings and any Other Parent and any other Person that is a Subsidiary of the Parent Guarantor, Holdings
or any Other Parent and of which the Company is a Subsidiary. As used herein, “Other Parent” means a Person of which the Company
becomes a Subsidiary after the Issue Date; provided that immediately after the Company first becomes a Subsidiary of such Person, more
than 50.0% of the Voting Stock of such Person shall be held by one or more Persons that held more than 50.0% of the Voting Stock of the
Company or a Parent of the Company immediately prior to the Company first becoming such Subsidiary.
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“Parent Expenses”
means (i) costs (including all professional fees and expenses) incurred by any Parent in connection with maintaining its existence
or in connection with its reporting obligations under, or in connection with compliance with, applicable laws or applicable rules of
any governmental, regulatory or self-regulatory body or stock exchange, this Indenture or any other agreement or instrument relating to
Indebtedness of the Company or any Restricted Subsidiary, including in respect of any reports filed with respect to the Securities Act,
the Exchange Act or the respective rules and regulations promulgated thereunder, (ii) expenses incurred by any Parent
in connection with the acquisition, development, maintenance, ownership, prosecution, protection and defense of its intellectual property
and associated rights (including trademarks, service marks, trade names, trade dress, domain names, social media identifiers and accounts,
patents, copyrights and similar rights, including registrations and registration or renewal applications in respect thereof; inventions,
processes, designs, formulae, trade secrets, know-how, confidential information, computer software, data, databases and documentation,
and any other intellectual property rights; and licenses of any of the foregoing) to the extent such intellectual property and associated
rights relate to the business or businesses of the Company or any Subsidiary thereof, (iii) indemnification obligations of
any Parent owing to directors, officers, employees or other Persons under its charter or by-laws or pursuant to written agreements with
or for the benefit of any such Person, or obligations in respect of director and officer insurance (including premiums therefor), (iv) other
administrative and operational expenses of any Parent incurred in the ordinary course of business, and (v) fees and expenses
incurred by any Parent in connection with any offering of Capital Stock or Indebtedness, (w) which offering is not completed,
or (x) where the net proceeds of such offering are intended to be received by or contributed or loaned to the Company or a
Restricted Subsidiary, or (y) in a prorated amount of such expenses in proportion to the amount of such net proceeds intended
to be so received, contributed or loaned, or (z) otherwise on an interim basis prior to completion of such offering so long
as any Parent shall cause the amount of such expenses to be repaid to the Company or the relevant Restricted Subsidiary out of the proceeds
of such offering promptly if completed.
“Parent Guarantor”
means the Person named as such in the first paragraph of this Indenture and, subject to Article 6, its successors and assigns.
“Parity Lien Indebtedness”
means (i) the Notes Obligations and (ii) any other Indebtedness of the Company or any Subsidiary Guarantor that is secured equally
and ratably with the Notes Obligations by parity Liens on the Collateral.
“Parity Lien Obligations”
means Parity Lien Indebtedness, the Notes Obligations and all other Obligations in respect thereof.
“Parity Lien Secured
Parties” means any holders from time to time of any Parity Lien Obligations and each any duly authorized collateral agent, trustee
or other representative of any holders of Parity Lien Obligations.
“Permitted Holder”
means any of the following: (i) any of the Management Investors; (ii) the Plan Sponsors, (iii) any “group”
(as such term is used in Sections 13(d) and 14(d) of the Exchange Act) of which any of the Persons specified in clause (i) or
(ii) above is a member (provided that (without giving effect to the existence of such “group” or any other “group”)
one or more of such Persons collectively have beneficial ownership, directly or indirectly, of more than 50% of the total voting power
of the Voting Stock of the relevant Parent entity held by such “group”), and any other Person that is a member of such “group”
and (iv) any Person acting in the capacity of an underwriter in connection with a public or private offering of Capital Stock of
the Parent Guarantor or any Subsidiary thereof or any Parent entity. In addition, any “person” (as such term is used in Sections
13(d) and 14(d) of the Exchange Act) whose status as a “beneficial owner” (as defined in Rules 13d-3 and 13d-5
under the Exchange Act) constitutes or results in a Fundamental Change in respect of which the Company is required to repurchase Notes
pursuant to the exercise of Fundamental Change Repurchase Rights, together with its Affiliates, shall thereafter constitute a Permitted
Holder.
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“Permitted Investment”
means an Investment by the Company or any Restricted Subsidiary in, or consisting of, any of the following:
(a) a
Restricted Subsidiary, the Company or a Person that will, upon the making of such Investment, become a Restricted Subsidiary of the Company
(and any Investment held by such Person that was not acquired by such Person in contemplation of so becoming a Restricted Subsidiary);
provided that with respect to any Investment pursuant to this clause (a) of property or assets that constitute Collateral,
such Investment shall only be made in the Company or any Subsidiary Guarantor;
(b) another
Person if as a result of such Investment such other Person is merged or consolidated with or into, or transfers or conveys all or substantially
all its assets to, or is liquidated into, the Company or a Restricted Subsidiary (and, in each case, any Investment held by such other
Person that was not acquired by such Person in contemplation of such merger, consolidation or transfer);
(c) Temporary
Cash Investments, Investment Grade Securities or Cash Equivalents;
(d) receivables
owing to the Company or any Restricted Subsidiary, if created or acquired in the ordinary course of business;
(e) any
securities or other Investments received as consideration in, or retained in connection with, sales or other dispositions of property
or assets, including Asset Dispositions made in compliance with Section 3.11;
(f) securities
or other Investments received in settlement of debts created in the ordinary course of business and owing to, or of other claims asserted
by, the Company or any Restricted Subsidiary, or as a result of foreclosure, perfection or enforcement of any Lien, or in satisfaction
of judgments, including in connection with any bankruptcy proceeding or other reorganization of another Person;
(g) Investments
in existence or made pursuant to legally binding written commitments in existence on the Issue Date;
(h) Hedge
Agreements and related Hedging Obligations;
(i) pledges
or deposits (x) with respect to leases or utilities provided to third parties in the ordinary course of business or (y) otherwise
described in, or made in connection with Liens permitted under Section 3.12;
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(j) (1) Investments
in or by any Special Purpose Subsidiary, or in connection with a Financing Disposition by, to, in or in favor of any Special Purpose Entity,
including Investments of funds held in accounts permitted or required by the arrangements governing such Financing Disposition or any
related Indebtedness, or (2) any promissory note issued by the Company, or any Parent; provided that if such Parent receives cash
from the relevant Special Purpose Entity in exchange for such note, an equal cash amount is contributed by any Parent to the Company;
(k) bonds
secured by assets leased to and operated by the Company or any Restricted Subsidiary that were issued in connection with the financing
of such assets so long as the Company or any Restricted Subsidiary may obtain title to such assets at any time by paying a nominal fee,
canceling such bonds and terminating the transaction;
(l) any
Investment to the extent made using Capital Stock of the Company (other than Disqualified Stock), or Capital Stock of any Parent, as consideration;
(m) Management
Advances;
(n) Investments
consisting of, or arising out of or related to, Vehicle Rental Concession Rights, including any Investments referred to in the definition
of “Vehicle Rental Concession Rights,” and any Investments in Franchisees arising as a result of the Company or any Restricted
Subsidiary being party to any Vehicle Rental Concession or any related agreement jointly with any Franchisee, or leasing or subleasing
any part of a Public Facility or other property to any Franchisee, or guaranteeing any obligation of any Franchisee in respect of any
Vehicle Rental Concession or any related agreement;
(o) any
transaction between or among any of the Company, one or more Restricted Subsidiaries or one or more Special Purpose Entities;
(p) any
transaction arising out of agreements or instruments in existence on the Issue Date, and any payments made pursuant thereto;
(q) Investments
in Related Businesses in an aggregate amount not to exceed $225.0 million;
(r) (1) Investments
in Franchise Special Purpose Entities directly or indirectly to finance or refinance the acquisition of Franchise Vehicles and/or related
rights and/or assets, (2) Investments in Franchisees attributable to the acquisition, sale, leasing, financing or refinancing of
Franchise Vehicles and/or related rights and/or assets, as determined in good faith by the Company, (3) Investments in Franchisees,
(4) Investments in Capital Stock of Franchisees and Franchise Special Purpose Entities (including pursuant to capital contributions),
and (5) Investments in Franchisees arising as the result of Guarantees of Franchise Vehicle Indebtedness or Franchise Lease Obligations;
(s) any
Investment by any Captive Insurance Subsidiary in connection with the provision of insurance to the Company or any of its Subsidiaries,
which Investment is made in the ordinary course of business of such Captive Insurance Subsidiary, or by reason of applicable law, rule,
regulation or order, or that is required or approved by any regulatory authority having jurisdiction over such Captive Insurance Subsidiary
or its business, as applicable;
(t) any
Investment pursuant to an agreement entered into in connection with any securities lending or other securities financing transaction to
the extent such securities lending or other securities financing transaction is otherwise permitted by Section 3.11;
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(u) Investments
made as part of an Islamic financing arrangement, including Sukuk, if such arrangement, if structured as Indebtedness, would be permitted
hereunder; provided that, the amount that would constitute Indebtedness if such arrangement were structured as Indebtedness, as determined
in good faith by the Company, shall be treated by the Company as Indebtedness (including, to the extent applicable, with respect to the
calculation of any amounts of Indebtedness outstanding thereunder);
(v) Investments
for bona fide tax (or similar) planning activities; provided that the security interest of the Notes Collateral Agent in the Collateral
is not materially impaired thereby, in each case, as determined by the Company in good faith;
(w) (1) payments,
compensation, performance of indemnification or contribution obligations, the making or cancellation of loans or any issuance, grant or
award of stock, options, other equity-related interests or other securities, to any current or former employees, officers, directors or
consultants of or to the Company, any Restricted Subsidiary or any Parent in the ordinary course of business, and (2) any transaction
with an officer or director of the Company or any of its Subsidiaries or any Parent in the ordinary course of business (x) not involving
more than $1.0 million in any one case or (y) approved by a majority of the Board of Directors;
(x) any
issuance or sale of Capital Stock (other than Disqualified Stock) of the Company or any Parent or capital contribution to the Company
or any Restricted Subsidiary;
(y) transactions
between the Company and its Restricted Subsidiaries, on the one hand, and the Plan Sponsors, on the other hand, with respect to the Amex
GBT Contracts;
(z) Investments
in an aggregate amount not to exceed $317.5 million, plus any amounts reallocated (and not otherwise utilized) from clause (xvii) of
the definition of Permitted Payments;
(aa) Investments
in Unrestricted Subsidiaries in an aggregate amount not to exceed $160.0 million; and
(bb) Investments
in joint ventures in an aggregate amount not to exceed $160.0 million.
If any Investment pursuant to clause (viii) of
the definition of Permitted Payments is made in any Person that is not a Restricted Subsidiary and such Person thereafter (A) becomes
a Restricted Subsidiary or (B) is merged or consolidated into, or transfers or conveys all or substantially all its assets to, or
is liquidated into, the Company or a Restricted Subsidiary, then such Investment shall thereafter be deemed to have been made pursuant
to clause (a) or (b) above, respectively, and not clause (viii) of the definition of Permitted Payments.
“Permitted Liens”
means:
(a) Liens for taxes, assessments or other governmental charges (i) not yet delinquent or the nonpayment
of which in the aggregate would not reasonably be expected to have a material adverse effect on the Company and its Restricted Subsidiaries,
taken as a whole, (ii) that are being contested in good faith and by appropriate proceedings if adequate reserves with respect
thereto are maintained on the books of the Company or a Subsidiary thereof, as the case may be, in accordance with GAAP or (iii) that
are excused or prohibited by the Bankruptcy Code or not otherwise authorized by the United States Bankruptcy Court for the District of
Delaware with respect to periods prior to the Existing First Lien Notes Issue Date;
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(b) Liens with respect to outstanding motor vehicle fines and carriers’, warehousemen’s, mechanics’,
landlords’, materialmen’s, repairmen’s or other like Liens arising in the ordinary course of business in respect of
obligations that are not known to be overdue for a period of more than 60 days or that are bonded or that are being contested in good
faith and by appropriate proceedings;
(c) pledges, deposits or Liens in connection with workers’ compensation, professional liability insurance,
unemployment insurance and other social security and other similar legislation or other insurance related obligations (including pledges
or deposits securing liability to insurance carriers under insurance or self-insurance arrangements);
(d) pledges, deposits or Liens to secure the performance of bids, tenders, trade, government or other contracts
(other than for borrowed money), obligations for utilities, leases, licenses, statutory obligations, completion guarantees, surety, judgment,
appeal or performance bonds, other similar bonds, instruments or obligations, and other obligations of a like nature incurred in the ordinary
course of business;
(e) easements (including reciprocal easement agreements), rights-of-way, building, zoning and similar restrictions,
utility agreements, covenants, reservations, restrictions, encroachments, charges and other similar encumbrances or title defects incurred,
or leases or subleases granted to others, in the ordinary course of business, which do not in the aggregate materially interfere with
the ordinary conduct of the business of the Company and its Subsidiaries, taken as a whole;
(f) Liens existing on, or provided for under written arrangements existing on, the Existing First Lien Notes
Issue Date or any Refinancing Indebtedness thereof prior to the Issue Date, and in each case, that are outstanding on the Issue Date,
including Liens securing the Existing First Lien Notes issued on the Existing First Lien Notes Issue Date and the guarantees related thereto,
Liens securing the Existing Second Lien Exchangeable Notes (including any paid-in-kind interest thereon), or securing any Refinancing
Indebtedness in respect of such Indebtedness so long as (i) the Lien securing such Refinancing Indebtedness is limited to all or
part of the same property or assets (plus improvements, accessions, proceeds or dividends or distributions in respect thereof) that secured
(or under such written arrangements could secure) the original Indebtedness and (ii) the Lien securing such Refinancing Indebtedness
has the same or junior priority as the Lien securing the Indebtedness being refinanced or replaced;
(g) (i) mortgages, liens, security interests, restrictions, encumbrances or any other matters
of record that have been placed by any developer, landlord or other third party on property over which the Company or any Restricted Subsidiary
has easement rights or on any leased property and subordination or similar agreements relating thereto and (ii) any condemnation
or eminent domain proceedings affecting any real property;
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(h) Liens securing Indebtedness (including Liens securing any Obligations in respect thereof) consisting of
(i) Hedging Obligations or Bank Products Obligations and (ii) Purchase Money Obligations or Finance Lease Obligations Incurred
under Section 3.08(B)(iv);
(i) Liens arising out of judgments, decrees, orders or awards in respect of which the Company or any Restricted
Subsidiary shall in good faith be prosecuting an appeal or proceedings for review, which appeal or proceedings shall not have been finally
terminated, or if the period within which such appeal or proceedings may be initiated shall not have expired;
(j) leases, subleases, licenses or sublicenses to or from third parties;
(k) Liens securing Indebtedness (including Liens securing any Obligations in respect thereof) consisting of:
(i) Liens on the Collateral securing Indebtedness Incurred pursuant to any Credit Facility (including in respect
of letters of credit or bankers’ acceptances issued or created thereunder) and Indebtedness Incurred other than under any Credit
Facility, and (without limiting the foregoing), in each case, any Refinancing Indebtedness in respect thereof, in a maximum principal
amount at any time outstanding not exceeding in the aggregate the amount equal to the sum of (A) $4,045.0 million, plus (B) $1,000.0
million, plus (C) in the event of any refinancing of any such Indebtedness, the aggregate amount of fees, underwriting discounts,
premiums and other costs and expenses (including accrued and unpaid interest) incurred in connection with such refinancing;
(ii) Indebtedness consisting of (w) Indebtedness supported by a letter of credit issued pursuant
to any Credit Facility in a principal amount not exceeding the face amount of such letter of credit, (x) accommodation guarantees
for the benefit of trade creditors of the Company or any of its Restricted Subsidiaries, (y) Guarantees in connection with
the construction or improvement of all or any portion of a Public Facility to be used by the Company or any Restricted Subsidiary or (z) any
Guarantee in respect of any Franchise Vehicle Indebtedness or Franchise Lease Obligation;
(iii) Indebtedness of the Company or any Restricted Subsidiary (A) arising from the honoring of
a check, draft or similar instrument of such Person drawn against insufficient funds in the ordinary course of business, or (B) consisting
of guarantees, indemnities, obligations in respect of earn-outs or other purchase price adjustments or similar obligations Incurred in
connection with the acquisition or disposition of any business, assets or Person;
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(iv) Indebtedness of the Company or any Restricted Subsidiary in respect of (A) letters of credit,
bankers’ acceptances or other similar instruments or obligations issued, or relating to liabilities or obligations incurred, in
the ordinary course of business (including those issued to governmental entities in connection with self-insurance under applicable workers’
compensation statutes), or (B) completion guarantees, surety, judgment, appeal or performance bonds, or other similar bonds,
instruments or obligations, provided, or relating to liabilities or obligations incurred, in the ordinary course of business, or (C) Management
Guarantees, or (D) the financing of insurance premiums in the ordinary course of business, or (E) take-or-pay
obligations under supply arrangements incurred in the ordinary course of business, or (F) netting, overdraft protection and
other arrangements arising under standard business terms of any bank at which the Company or any Restricted Subsidiary maintains an overdraft,
cash pooling or other similar facility or arrangement;
(v) the Notes Obligations (including any Notes Obligations in respect of PIK Interest or PIK Notes, but excluding
Notes Obligations in respect of any Additional Notes); or
(vi) Indebtedness or other obligations in respect of Management Advances or Management Guarantees,
in each case under the foregoing clauses
(i) through (vi) including Liens securing any Guarantee of any thereof;
(l) Liens existing on property or assets of a Person at, or provided for under written arrangements existing
at, the time such Person becomes a Subsidiary of the Company (or at the time the Company or a Restricted Subsidiary acquires such property
or assets, including any acquisition by means of a merger or consolidation with or into the Company or any Restricted Subsidiary); provided,
however, that such Liens and arrangements are not created in connection with, or in contemplation of, such other Person becoming
such a Subsidiary (or such acquisition of such property or assets), and that such Liens are limited to all or part of the same property
or assets (plus improvements, accessions, proceeds or dividends or distributions in respect thereof) that secured (or, under the written
arrangements under which such Liens arose, could secure) the obligations to which such Liens relate; provided, further,
that for purposes of this clause (l), if a Person other than the Company is the Successor Company with respect thereto, any Subsidiary
thereof shall be deemed to become a Subsidiary of the Company, and any property or assets of such Person or any such Subsidiary shall
be deemed acquired by the Company or a Restricted Subsidiary, as the case may be, when such Person becomes such Successor Company;
(m) Liens on Capital Stock, Indebtedness or other securities of an Unrestricted Subsidiary that secure
Indebtedness or other obligations of such Unrestricted Subsidiary; provided that no Lien on such Capital Stock, Indebtedness
or other securities is granted to secure any Indebtedness for borrowed money of the Company and its Restricted Subsidiaries (other than
Consolidated Vehicle Indebtedness permitted under this Indenture);
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(n) (i) any encumbrance or restriction (including pursuant to put and call agreements or buy/sell
arrangements) with respect to Capital Stock of any joint venture or similar arrangement pursuant to any joint venture or similar agreement
or (ii) Liens on Capital Stock, Indebtedness or other securities of any joint venture that is not a Subsidiary securing
Indebtedness or other obligations of such joint venture;
(o) Liens securing Indebtedness (including Liens securing any Obligations in respect thereof) consisting of
Refinancing Indebtedness Incurred in respect of any Indebtedness secured by, or securing any refinancing, refunding, extension, renewal
or replacement (in whole or in part) of any other obligation secured by, any other Permitted Liens; provided that (i) any
such new Lien is limited to all or part of the same property or assets (plus improvements, accessions, proceeds or dividends or distributions
in respect thereof) that secured (or, under the written arrangements under which the original Lien arose, could secure) the obligations
to which such Liens relate and (ii) any such new Lien has the same or junior priority as the Lien securing the Indebtedness
being refinanced or replaced,;
(p) Liens (1) arising by operation of law (or by agreement to the same effect) in the ordinary
course of business, (2) on property or assets under construction (and related rights) in favor of a contractor or developer
or arising from progress or partial payments by a third party relating to such property or assets, (3) on receivables (including
related rights) not securing any Indebtedness for borrowed money, (4) on cash set aside at the time of the Incurrence of any
Indebtedness or government securities purchased with such cash, in either case to the extent that such cash or government securities prefund
the payment of interest on such Indebtedness and are held in an escrow account or similar arrangement to be applied for such purpose,
(5) securing or arising by reason of any netting or set-off arrangement entered into in the ordinary course of banking or
other trading activities (including in connection with purchase orders and other agreements with customers), (6) in favor
of the Company or any Subsidiary (other than Liens on property or assets of the Company or any Subsidiary Guarantor in favor of any Subsidiary
that is not a Subsidiary Guarantor), (7) arising out of conditional sale, title retention, consignment or similar arrangements
for the sale of goods entered into in the ordinary course of business, (8) on inventory or goods and proceeds securing the
obligations in respect of bankers’ acceptances issued or created to facilitate the purchase, shipment or storage of such inventory
or other goods, (9) relating to pooled deposit or sweep accounts to permit satisfaction of overdraft, cash pooling or similar
obligations incurred in the ordinary course of business, (10) attaching to commodity trading or other brokerage accounts incurred
in the ordinary course of business, (11) arising in connection with repurchase agreements on assets that are the subject of such
repurchase agreements, (12) [reserved], (13) in favor of any Franchise Special Purpose Entity in connection with any Franchise
Financing Disposition, (14) [reserved], or (15) evidenced by the filing of Uniform Commercial Code (or equivalent) financing
statements solely as a precautionary measure in connection with leases or consignment of goods;
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(q) Liens on or under, or arising out of or relating to, any Vehicle Rental Concession Rights (including Liens
securing Indebtedness consisting of Guarantees required (in the good faith determination of the Company, which determination shall be
conclusive) in connection with Vehicle Rental Concession Rights); and
(r) Liens securing Consolidated Vehicle Indebtedness; provided that such Liens are granted on property
or assets that do not constitute Collateral and such property or assets are of a type securing the Consolidated Vehicle Indebtedness of
the Company and its Restricted Subsidiaries as of the Issue Date or consistent with past practice.
For purposes of determining compliance with this
definition, (i) a Lien need not be incurred solely by reference to one category of Permitted Liens described in this definition
but may be incurred under any combination of such categories (including in part under one such category and in part under any other such
category); (ii) in the event that a Lien (or any portion thereof) meets the criteria of one or more of such categories of
Permitted Liens, the Company shall, in its sole discretion, classify or reclassify such Lien (or any portion thereof) in any manner that
complies with this definition; (iii) the principal amount of Indebtedness secured by a Lien outstanding under any category
of Permitted Liens shall be determined after giving effect to the application of proceeds of any such Indebtedness to refinance any such
other Indebtedness; (iv) any Lien securing Indebtedness that was permitted to secure such Indebtedness at the time of the
Incurrence of such Indebtedness shall also be permitted to secure any increase in the amount of such Indebtedness in connection with the
accrual of interest, the accretion of accreted value, the payment of interest in the form of additional Indebtedness and the payment of
dividends on Capital Stock constituting Indebtedness in the form of additional shares of the same class of Capital Stock; (v) if
any Indebtedness or other obligation is secured by any Lien outstanding under any category of Permitted Liens measured by reference to
a Dollar-denominated restriction, the Dollar-equivalent principal amount of such Indebtedness denominated in a foreign currency shall
be calculated based on the relevant currency exchange rate in effect on the date that such Indebtedness was Incurred, in the case of term
Indebtedness, or first committed, in the case of revolving credit or deferred draw Indebtedness; provided that (x) the
Dollar-equivalent principal amount of any such Indebtedness outstanding on the Issue Date shall be deemed to be the same principal amount
of any such Indebtedness recorded for the purposes of the Existing First Lien Notes, (y) if such Indebtedness is refinanced
by any Indebtedness or other obligation secured by any Lien incurred by reference to such category of Permitted Liens, and such refinancing
would cause the applicable Dollar-denominated restriction to be exceeded if calculated at the relevant currency exchange rate in effect
of the date of such refinancing, such Dollar-denominated restriction shall not be deemed to have been exceeded (and such refinancing Lien
shall be deemed permitted) so long as the principal amount of such refinancing Indebtedness or other obligation does not exceed (a) an
amount equal to the outstanding or committed principal amount (whichever is higher) of such Indebtedness being refinanced, plus (b) the
aggregate amount of fees, underwriting discounts, premiums and other costs and expenses (including accrued and unpaid interest) incurred
or payable in connection with such refinancing and (z) the Dollar-equivalent principal amount of Indebtedness denominated
in a foreign currency and Incurred pursuant to the First Lien Credit Facility shall be calculated based on the relevant currency exchange
rate in effect on, at the Company’s option, (i) the Existing First Lien Notes Issue Date, (ii) any date
on which any of the respective commitments under the First Lien Credit Facility shall be reallocated between or among facilities or subfacilities
thereunder, or on which such rate is otherwise calculated for any purpose thereunder or (iii) the date of such Incurrence;
and (vi) the principal amount of any Indebtedness Incurred to refinance other Indebtedness, if Incurred in a different currency
from the Indebtedness being refinanced, shall be calculated based on the currency exchange rate applicable to the currencies in which
such respective Indebtedness is denominated that is in effect on the date of such refinancing.
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“Person”
means any individual, corporation, partnership, joint venture, association, joint stock company, limited liability company, trust, unincorporated
organization, Governmental Authority or any other entity of whatever nature.
“Physical Note”
means a Note (other than a Global Note) that is represented by a certificate substantially in the form set forth in Exhibit A,
registered in the name of the Holder of such Note and duly executed by the Company and authenticated by the Trustee.
“Plan Sponsors”
means, collectively, certain funds and accounts managed or advised by Knighthead Capital Management, LLC or one of its Controlled Investment
Affiliates and certain funds and accounts managed or advised by Certares Opportunities LLC or one of its Controlled Investment Affiliates
and CK Amarillo LP, a Delaware limited partnership formed by Certares and Knighthead.
“Pledged
Stock” means, with respect to the Company or any Guarantor, the shares of Capital Stock that constitute Collateral, together
with any other shares of Capital Stock required to be pledged by such entity (a “Pledgor”) pursuant to this Indenture,
as well as any other shares, stock certificates, options or rights of any nature whatsoever in respect of the Capital Stock of any Person
that may be issued or granted to, or held by, such Pledgor; provided that in no event shall there be pledged, nor shall any Pledgor be
required to pledge, directly or indirectly, (i) more than 65% of the voting stock of any series of the outstanding Capital Stock
(including for these purposes any investment deemed to be equity for U.S. tax purposes) of any first-tier Foreign Subsidiary, (ii) any
Capital Stock of any Subsidiary of a Foreign Subsidiary (including for these purposes any investment deemed to be equity for U.S. tax
purposes), (iii) de minimis shares of a Foreign Subsidiary held by any Pledgor as a nominee or in a similar capacity, (iv) any
Capital Stock of any Unrestricted Subsidiary, (v) any Capital Stock of any Subsidiary of a Special Purpose Subsidiary, (vi) any
Capital Stock of any Captive Insurance Subsidiary (or any Subsidiary thereof), (vii) any Capital Stock of HIRE Bermuda Limited, (viii) any
Capital Stock of Hertz International RE Limited, (ix) any Capital Stock of Navigation Solutions, LLC, (x) any Capital Stock
of Hertz Vehicle Sales Corporation, (xi) any Capital Stock of any joint ventures or any non-wholly owned Subsidiaries, (xii) any
Capital Stock of any direct or indirect Subsidiary of the Parent Guarantor (other than Holdings) that is formed solely for the purpose
of (A) becoming an indirect or direct parent of Holdings, or (B) merging with the Company in connection with another Subsidiary
becoming such a parent entity, in each case, to the extent such entity becomes a parent of Holdings or is merged with the Company within
60 days of the formation thereof, (xiii) any Capital Stock of any direct or indirect Subsidiary of a Foreign Subsidiary or Foreign
Subsidiary Holdco (including for these purposes any investment deemed to be equity for U.S. tax purposes), (xiv) any Capital Stock
of any Subsidiary formed in connection with a funded letter of credit facility or (xv) without duplication, any Excluded Property.
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“Preferred Stock”
as applied to the Capital Stock of any corporation or company means Capital Stock of any class or classes (however designated) that by
its terms is preferred as to the payment of dividends, or as to the distribution of assets upon any voluntary or involuntary liquidation
or dissolution of such corporation or company, over shares of Capital Stock of any other class of such corporation or company.
“Public Company Costs”
means any costs, fees and expenses associated with, in anticipation of, or in preparation for, compliance with the requirements of the
Sarbanes-Oxley Act of 2002 and the rules and regulations promulgated in connection therewith and costs, fees and expenses relating
to compliance with the provisions of the Securities Act and the Exchange Act (as applicable to companies with equity or debt securities
held by the public), the rules of national securities exchanges for companies with listed equity or debt securities, directors’
or managers’ compensation, fees and expense reimbursements, charges relating to investor relations, shareholder meetings and reports
to shareholders and debtholders, directors’ and officers’ insurance and other executive costs, legal and other professional
fees and listing fees.
“Public Facility”
means (i) any airport; marine port; rail, subway, bus or other transit stop, station or terminal; stadium; convention center; or
military camp, fort, post or base or (ii) any other facility owned or operated by any nation or government or political subdivision
thereof, or agency, authority or other instrumentality of any thereof, or other entity exercising regulatory, administrative or other
functions of or pertaining to government, or any organization of nations (including the United Nations, the European Union, the United
Kingdom and the North Atlantic Treaty Organization).
“Public Facility
Operator” means a Person that grants or has the power to grant a Vehicle Rental Concession.
“Purchase”
shall have the meaning set forth in the definition of “Consolidated Coverage Ratio.”
“Purchase Agreement”
means that certain Purchase Agreement, dated June 24, 2026, between the Company and the representatives of the Initial Purchasers.
“Purchase Money Obligations”
means any Indebtedness Incurred to finance or refinance the acquisition, leasing, construction or improvement of property (real or personal)
or assets, and whether acquired through the direct acquisition of such property or assets or the acquisition of the Capital Stock of any
Person owning such property or assets, or otherwise; provided that for purposes of the definition of “Consolidated Total
Corporate Indebtedness,” the term “Purchase Money Obligations” shall not include Indebtedness to the extent Incurred
to finance or refinance the direct acquisition of Inventory or Vehicles (not acquired through the acquisition of Capital Stock of any
Person owning property or assets, or through the acquisition of property or assets, that include Inventory or Vehicles).
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“Qualified IPO”
means any transaction or series of transactions that results in the issuance, sale or listing of common equity interests of the Company
or any Parent pursuant to an effective registration statement filed with the SEC in accordance with the Securities Act (whether alone,
in connection with an underwritten or secondary public offering or otherwise) including by merger, consolidation or otherwise with and
into a special purpose acquisition company or other Person that has consummated (or will consummate) an offering of the common Capital
Stock of the Parent Guarantor or any Parent and such equity interests are listed on a nationally-recognized stock exchange or over-the-counter
market in the U.S. or any analogous exchange or other recognized securities exchange in Canada, the United Kingdom or any country of the
European Union.
“Qualified Successor
Entity” means, with respect to a Parent Guarantor Business Combination Event, a corporation; provided, however,
that a limited liability company, limited partnership or other similar entity will also constitute a Qualified Successor Entity with respect
to such Parent Guarantor Business Combination Event if either (i) such Parent Guarantor Business Combination Event is an Exempted
Fundamental Change; or (ii) such Parent Guarantor Business Combination Event constitutes a Common Stock Change Event whose Reference
Property consists solely of any combination of cash and shares of common stock or other corporate Common Equity interests of an entity
that is (x) treated as a corporation for U.S. federal income tax purposes; (y) duly organized and existing under the laws of
the United States of America, any State thereof or the District of Columbia; and (z) such limited liability company, limited partnership
or other similar entity or a direct or indirect parent of such limited liability company, limited partnership or other similar entity,
as applicable.
“Rating Agency”
means Moody’s or S&P or, if Moody’s or S&P or both shall not make a rating on the Notes publicly available, a rating
agency or agencies recognized internationally or in the United States of America, as the case may be, selected by the Company which shall
be substituted for Moody’s or S&P or both, as the case may be.
“Receivable”
means a right to receive payment pursuant to an arrangement with another Person pursuant to which such other Person is obligated to pay,
as determined in accordance with GAAP.
“Redemption”
means the repurchase of any Note by the Company pursuant to Section 4.03.
“Redemption Date”
means the date fixed, pursuant to Section 4.03(D), for the settlement of the repurchase of any Notes by the Company pursuant
to a Redemption.
“Redemption Notice
Date” means, with respect to a Redemption, the date on which the Company sends the Redemption Notice for such Redemption pursuant
to Section 4.03(F).
“Redemption Price”
means the cash price payable by the Company to redeem any Note upon its Redemption, calculated pursuant to Section 4.03(E).
“Reference Discount
Rate” means the yield for U.S. Treasury bills, notes or bonds with a maturity closest to the Maturity Date, as determined by
the Company.
“refinance”
means refinance, refund, replace, renew, repay, modify, restate, defer, substitute, supplement, reissue, resell or extend (including pursuant
to any defeasance or discharge mechanism); and the terms “refinances,” “refinanced” and “refinancing,”
as used for any purpose in this Indenture shall have a correlative meaning.
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“Refinancing Credit
Facility” means any syndicated Credit Facility under which the Company incurs Indebtedness to refinance all or any portion of
its Indebtedness under the First Lien Credit Facility.
“Refinancing Indebtedness”
means Indebtedness that is Incurred to refinance any Indebtedness (or unutilized commitment in respect of Indebtedness) existing on the
Existing First Lien Notes Issue Date or that constituted Refinancing Indebtedness thereof Incurred prior to the Issue Date, and in each
case, is outstanding on the Issue Date or Incurred (or established) in compliance with this Indenture (including Indebtedness of the Company
that refinances Indebtedness of any Restricted Subsidiary and Indebtedness of any Restricted Subsidiary that refinances Indebtedness of
the Company or another Restricted Subsidiary) including Indebtedness that refinances Refinancing Indebtedness, and Indebtedness Incurred
pursuant to a commitment that refinances any Indebtedness or unutilized commitment; provided that such Refinancing Indebtedness
is Incurred in an aggregate principal amount (or if issued with original issue discount, an aggregate issue price) that is equal to or
less than the sum of (x) the aggregate principal amount (or if issued with original issue discount, the aggregate accreted
value) then outstanding of the Indebtedness being refinanced, plus (y) an amount equal to any unutilized commitment relating
to the Indebtedness being refinanced or otherwise then outstanding under a Credit Facility or other financing arrangement being refinanced
to the extent the unutilized commitment being refinanced could be drawn in compliance with this Indenture immediately prior to such refinancing,
plus (z) fees, underwriting discounts, premiums and other costs and expenses (including accrued and unpaid interest) incurred
or payable in connection with such Refinancing Indebtedness.
“Regular Record Date”
means the Business Day immediately preceding the applicable Interest Payment Date.
“Related Business”
means those businesses in which the Company or any of its Subsidiaries is engaged on the Issue Date, or that are similar, related, complementary,
incidental or ancillary thereto or extensions, developments or expansions thereof.
“Related Person”
has the meaning set forth in Section 11.10.
“Related Taxes”
means (i) any taxes, charges or assessments, including sales, use, transfer, rental, ad valorem, value added, stamp, property,
consumption, franchise, license, capital, net worth, gross receipts, excise, occupancy, intangibles or similar taxes, charges or assessments
(other than U.S. federal, state or local taxes measured by income and U.S. federal, state or local withholding imposed by any government
or other taxing authority on payments made by any Parent other than to another Parent), required to be paid by any Parent by virtue of
its being incorporated, organized or having Capital Stock outstanding (but not by virtue of owning stock or other equity interests of
any corporation or other entity other than the Company, any of its Subsidiaries or any Parent), or being a holding company parent of the
Company, any of its Subsidiaries or any Parent or receiving dividends from or other distributions in respect of the Capital Stock of the
Company, any of its Subsidiaries or any Parent, or having guaranteed any obligations of the Company or any Subsidiary thereof, or having
made any payment in respect of any of the items for which the Company or any of its Subsidiaries is permitted to make payments to any
Parent pursuant to Section 3.09, or acquiring, developing, maintaining, owning, prosecuting, protecting or defending its intellectual
property and associated rights (including receiving or paying royalties for the use thereof) relating to the business or businesses of
the Company or any Subsidiary thereof, or (ii) any other U.S. federal, state, foreign, provincial, territorial or local taxes
measured by income up to an amount not to exceed, with respect to U.S. federal taxes, the amount of any such taxes that the Company and
its Subsidiaries would have been required to pay on a separate company basis, or on a consolidated basis as if the Company had filed a
consolidated return on behalf of an affiliated group (as defined in Section 1504 of the Code) of which it were the common parent,
or with respect to state, foreign, provincial, territorial and local taxes, the amount of any such taxes that the Company and its Subsidiaries
would have been required to pay on a separate company basis, or on a consolidated, combined, unitary or affiliated basis as if the Company
had filed a consolidated, combined, unitary or affiliated return on behalf of an affiliated group (as defined in the applicable state,
foreign, provincial, territorial or local tax laws for filing such return) consisting only of the Company and its Subsidiaries. Taxes
include all interest, penalties and additions relating thereto.
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“Rental Car LKE Account”
means any deposit, trust, investment or similar account maintained by, for the benefit of, or under the control of, the “qualified
intermediary” in connection with the Rental Car LKE Program.
“Rental Car LKE Program”
means a “like-kind-exchange program” with respect to certain of the Vehicles of the Company and its Subsidiaries, under which
such Vehicles will be disposed from time to time and proceeds of such dispositions will be held in a Rental Car LKE Account and used to
acquire replacement Vehicles and/or repay Indebtedness secured by such Vehicles, in a series of transactions intended to qualify as a
“like-kind-exchange” within the meaning of the Uniform Commercial Code (or comparable term pursuant to a substantially similar
program under the Uniform Commercial Code).
“Rental Car Vehicles”
means all Vehicles owned by or leased to the Company or a Restricted Subsidiary that are or have been offered for lease or rental by any
of the Company and its Restricted Subsidiaries in their vehicle rental operations, including any such Vehicles being held for sale.
“Reorganization Assets”
means any assets sold, leased, transferred or otherwise disposed of to any Franchisee or any Franchise Special Purpose Entity.
“Repurchase Upon
Fundamental Change” means the repurchase of any Note by the Company pursuant to Section 4.02.
“Responsible
Officer” means (A) any officer within the corporate trust group of the Trustee (or any successor group of the Trustee)
or any other officer of the Trustee customarily performing functions similar to those performed by any of such officers; and (B) with
respect to a particular corporate trust matter relating to this Indenture, any other officer to whom such matter is referred because of
his or her knowledge of, and familiarity with, the particular subject, and who, in each case, has direct responsibility for the
administration of this Indenture.
“Restricted Note
Legend” means a legend substantially in the form set forth in Exhibit B-1.
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“Restricted Fleet
Cash” means cash, Cash Equivalents, Investment Grade Securities and Temporary Cash Investments of the Company and its Subsidiaries
that are classified as “restricted” for financial statement purposes to be used for the purchase of revenue earning vehicles
and other specified uses under the Company’s and its Subsidiaries’ fleet financing facilities, including any Rental Car LKE
Program.
“Restricted Investment”
means any Investment by the Company or any Restricted Subsidiary that is not a Permitted Investment.
“Restricted Payment
Transaction” means any Restricted Payment permitted pursuant to Section 3.09, any Permitted Payment, or any transaction
specifically excluded from the definition of “Restricted Payment” (including pursuant to the exception contained in clause
(i) of such definition and the parenthetical exclusions contained in clauses (ii) and (iii) of such definition).
“Restricted Stock
Legend” means, with respect to any Exchange Share, a legend substantially to the effect that the offer and sale of such Exchange
Share have not been registered under the Securities Act and that such Exchange Share cannot be sold or otherwise transferred except pursuant
to a transaction that is registered under the Securities Act or that is exempt from, or not subject to, the registration requirements
of the Securities Act.
“Restricted Subsidiary”
means any Subsidiary of the Company other than an Unrestricted Subsidiary.
“Rule 144”
means Rule 144 under the Securities Act (or any successor rule thereto), as the same may be amended from time to time.
“Rule 144A”
means Rule 144A under the Securities Act (or any successor rule thereto), as the same may be amended from time to time.
“S&P”
means S&P Global Ratings (a division of S&P Global Inc.) and its successors.
“Sale”
shall have the meaning set forth in the definition of “Consolidated Coverage Ratio.”
“Scheduled
Trading Day” means any day that is scheduled to be a Trading Day on the principal U.S. national or regional securities exchange
on which the Common Stock is then listed or, if the Common Stock is not then listed on a U.S. national or regional securities exchange,
on the principal other market on which the Common Stock is then traded. If the Common Stock is not so listed or traded, then “Scheduled
Trading Day” means a Business Day.
“Screened Affiliate”
means any Affiliate of a Holder (i) that makes investment decisions independently from such Holder and any other Affiliate of such
Holder that is not a Screened Affiliate, (ii) that has in place customary information screens between it and such Holder and any
other Affiliate of such Holder that is not a Screened Affiliate and such screens prohibit the sharing of information with respect to the
Company or its Subsidiaries, (iii) whose investment policies are not directed by such Holder or any other Affiliate of such Holder
that is acting in concert with such Holder in connection with its investment in the Notes, and (iv) whose investment decisions are
not influenced by the investment decisions of such Holder or any other Affiliate of such Holder that is acting in concert with such Holders
in connection with its investment in the Notes.
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“SEC” means
the U.S. Securities and Exchange Commission.
“Securities Act”
means the U.S. Securities Act of 1933, as amended.
“Security”
means any Note or Exchange Share.
“Senior Indebtedness”
means any Indebtedness of the Company or any Restricted Subsidiary other than (x) in the case of the Company, Subordinated
Obligations and (y) in the case of any Subsidiary Guarantor, Guarantor Subordinated Obligations.
“Service Vehicles”
means all Vehicles owned by the Company or a Subsidiary thereof that are classified as “plant, property and equipment” in
the consolidated financial statements of the Company that are not rented or offered for rental by the Company or any of its Subsidiaries,
including any such Vehicles being held for sale.
“Settlement Method”
means Physical Settlement, Cash Settlement or Combination Settlement.
“Shareholder Approval”
means the shareholder approval contemplated by Nasdaq Rule 5635 to issue 20% or more of the outstanding shares of Common Stock in
connection with the Notes.
“Shareholder Approval
Date” means the date on which the Shareholder Approval has been obtained.
“Shoe Option”
means the Initial Purchasers’ option to purchase up to fifty million dollars ($50,000,0000) aggregate Capitalized Principal Amount
of additional Notes as provided for in the Purchase Agreement.
“Significant Subsidiary”
means any Restricted Subsidiary that would be a “significant subsidiary” of the Company within the meaning of Rule 1-02
under Regulation S-X promulgated by the SEC, as such Regulation is in effect on the Measurement Date.
“Special Interest”
means any interest that accrues on any Note pursuant to Section 7.03.
“Special Purpose
Entity” means (x) any Special Purpose Subsidiary or (y) any other Person that is engaged in the business of (i) acquiring,
selling, collecting, financing or refinancing Receivables, accounts (as defined in the Uniform Commercial Code as in effect in any jurisdiction
from time to time), other accounts and/or other receivables, and/or related assets, and/or (ii) acquiring, selling, leasing, financing
or refinancing Vehicles and/or related rights (including under leases, manufacturer warranties and buy-back programs, and insurance policies)
and/or assets (including managing, exercising and disposing of any such rights and/or assets).
“Special Purpose
Financing” means any financing or refinancing of assets consisting of or including Receivables and/or Vehicles of the Company
or any Restricted Subsidiary that have been transferred to a Special Purpose Entity or made subject to a Lien in a Financing Disposition.
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“Special Purpose
Financing Fees” means distributions or payments made directly or by means of discounts with respect to any participation interest
issued or sold in connection with, and other fees paid to a Person that is not a Restricted Subsidiary in connection with, any Special
Purpose Financing.
“Special Purpose
Financing Undertakings” means representations, warranties, covenants, indemnities, guarantees of performance and (subject to
clause (y) of the proviso below) other agreements and undertakings entered into or provided by the Company or any of its Restricted
Subsidiaries that the Company determines in good faith (which determination shall be conclusive) are customary or otherwise necessary
or advisable in connection with a Special Purpose Financing or a Financing Disposition; provided that (x) it is understood
that Special Purpose Financing Undertakings may consist of or include (i) reimbursement and other obligations in respect of
notes, letters of credit, surety bonds and similar instruments provided for credit enhancement purposes or (ii) Hedging Obligations,
or other obligations relating to Interest Rate Agreements, Currency Agreements or Commodities Agreements entered into by the Company or
any Restricted Subsidiary, in respect of any Special Purpose Financing or Financing Disposition, and (y) subject to the preceding
clause (x), any such other agreements and undertakings shall not include any Guarantee of Indebtedness of a Special Purpose Subsidiary
by the Company or a Restricted Subsidiary that is not a Special Purpose Subsidiary.
“Special Purpose
Subsidiary” means a Subsidiary of the Company that (a) is engaged solely in (x) the business of (i) acquiring,
selling, collecting, financing or refinancing Receivables, accounts (as defined in the Uniform Commercial Code as in effect in any jurisdiction
from time to time) and other accounts and receivables (including any thereof constituting or evidenced by chattel paper, instruments or
general intangibles), all proceeds thereof and all rights (contractual and other), collateral and other assets relating thereto, and/or
(ii) acquiring, selling, leasing, financing or refinancing Vehicles and/or related rights (including under leases, manufacturer
warranties and buy-back programs, and insurance policies) and/or assets (including managing, exercising and disposing of any such rights
and/or assets), all proceeds thereof and all rights (contractual and other), collateral and other assets relating thereto, and (y) any
business or activities incidental or related to such business; and (b) is designated as a “Special Purpose Subsidiary”
by the Company.
“Specified Dollar
Amount” means, with respect to the Exchange of a Note to which Combination Settlement applies, the maximum cash amount per $1,000
Capitalized Principal Amount of such Note (for the avoidance of doubt, with pro-ration for any portion of the Capitalized Principal Amount
that is not an integral multiple of $1,000) deliverable upon such Exchange (excluding cash in lieu of any fractional share of Common Stock).
“Stated Maturity”
means, with respect to any Indebtedness, the date specified in such Indebtedness as the fixed date on which the payment of principal of
such Indebtedness is due and payable, including pursuant to any mandatory redemption provision (but excluding any provision providing
for the repurchase or repayment of such Indebtedness at the option of the holder thereof upon the happening of any contingency).
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“Stock Price”
has the following meaning for any Make-Whole Fundamental Change: (A) if the holders of Common Stock receive only cash in consideration
for their shares of Common Stock in such Make-Whole Fundamental Change and such Make-Whole Fundamental Change is pursuant to clause
(B) of the definition of “Fundamental Change,” then the Stock Price is the amount of cash paid per share of Common
Stock in such Make-Whole Fundamental Change; and (B) in all other cases, the Stock Price is the average of the Last Reported Sale
Prices per share of Common Stock for the five (5) consecutive Trading Days ending on, and including, the Trading Day immediately
before the Make-Whole Fundamental Change Effective Date of such Make-Whole Fundamental Change.
“Subordinated Obligations”
means any Indebtedness of the Company (whether outstanding on the date of this Indenture or thereafter Incurred) that is expressly subordinated
in right of payment to the Notes pursuant to a written agreement and, as such term is used in Section 3.08 through Section 3.12,
in an aggregate amount in excess of the greater of $100.0 million and 15.0% of LTM Consolidated EBITDA.
“Subsidiary”
of any Person means any corporation, association, partnership or other business entity of which more than 50.0% of the total voting power
of shares of Capital Stock or other equity interests (including partnership interests) entitled (without regard to the occurrence of any
contingency) to vote in the election of directors, managers or trustees thereof is at the time owned or controlled, directly or indirectly,
by (i) such Person or (ii) one or more Subsidiaries of such Person.
“Subsidiary Guarantee”
means any guarantee of the Notes that may from time to time be entered into by a Restricted Subsidiary of the Company on or after the
Issue Date pursuant to Section 3.13. As used in this Indenture, “Subsidiary Guarantee” refers to a Subsidiary
Guarantee of the Notes.
“Subsidiary Guarantor”
means any Restricted Subsidiary of the Company that enters into a Subsidiary Guarantee, in each case, unless and until such Subsidiary
is released from such Subsidiary Guarantee in accordance with the terms of this Indenture. As used in this Indenture, “Subsidiary
Guarantor” refers to a Subsidiary Guarantor of the Notes.
“Successor Company”
shall have the meaning assigned thereto in Section 6.01(A)(i).
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“Temporary Cash Investments”
means any of the following: (i) any investment in (x) direct obligations of the United States of America, Canada,
the United Kingdom, a member state of the European Union or any country in whose currency funds are being held pending their application
in the making of an investment or capital expenditure by the Company or a Restricted Subsidiary in that country or with such funds, or
any agency or instrumentality of any thereof or obligations Guaranteed by the United States of America, Canada, the United Kingdom, a
member state of the European Union or any country in whose currency funds are being held pending their application in the making of an
investment or capital expenditure by the Company or a Restricted Subsidiary in that country or with such funds, or any agency or instrumentality
of any of the foregoing, or obligations guaranteed by any of the foregoing or (y) direct obligations of any foreign country
recognized by the United States of America rated at least “A” by S&P or “A-1” by Moody’s (or, in either
case, the equivalent of such rating by such organization or, if no rating of S&P or Moody’s then exists, the equivalent of such
rating by any rating agency recognized internationally or in the United States of America); (ii) overnight bank deposits,
and investments in time deposit accounts, certificates of deposit, bankers’ acceptances and money market deposits (or, with respect
to foreign banks, similar instruments) maturing not more than one year after the date of acquisition thereof issued by (x) any
bank or other institutional lender under a Credit Facility or any affiliate thereof or (y) a bank or trust company that is
organized under the laws of the United States of America, any state thereof or any foreign country recognized by the United States of
America having capital and surplus aggregating in excess of $250.0 million (or the foreign currency equivalent thereof); (iii) repurchase
obligations with a term of not more than 30 days for underlying securities or instruments of the types described in clause (i) or
(ii) above entered into with a bank meeting the qualifications described in clause (ii) above; (iv) Investments
in commercial paper, maturing not more than 270 days after the date of acquisition, issued by a Person (other than that of the Company
or any of its Subsidiaries), with a rating at the time as of which any Investment therein is made of “P-2” (or higher) according
to Moody’s or “A-2” (or higher) according to S&P (or, in either case, the equivalent of such rating by such organization
or, if no rating of S&P or Moody’s then exists, the equivalent of such rating by any rating agency recognized internationally
or in the United States of America); (v) Investments in securities maturing not more than one year after the date of acquisition
issued or fully guaranteed by any state, commonwealth or territory of the United States of America, or by any political subdivision or
taxing authority thereof, and rated at least “A-2” by S&P or “P-2” by Moody’s (or, in either case, the
equivalent of such rating by such organization or, if no rating of S&P or Moody’s then exists, the equivalent of such rating
by any rating agency recognized internationally or in the United States of America); (vi) Indebtedness or Preferred Stock
(other than of the Company or any of its Subsidiaries) having a rating of “A” or higher by S&P or “A2” or
higher by Moody’s (or, in either case, the equivalent of such rating by such organization or, if no rating of S&P or Moody’s
then exists, the equivalent of such rating by any rating agency recognized internationally or in the United States of America); (vii) investment
funds investing 95.0% or more of their assets in securities of the type described in clauses (i) through (vi) above
(which funds may also hold cash pending investment and/or distribution); (viii) any money market deposit accounts issued or
offered by a domestic commercial bank or a commercial bank organized and located in a country recognized by the United States of America,
in each case, having capital and surplus in excess of $250.0 million (or the foreign currency equivalent thereof), or investments in money
market funds subject to the risk limiting conditions of Rule 2a-7 (or any successor rule) of the SEC under the Investment Company
Act of 1940, as amended; and (ix) similar investments approved by the Board of Directors in the ordinary course of business.
For the avoidance of doubt, for purposes of this definition and the definitions of “Cash Equivalents” and “Investment
Grade Rating,” rating identifiers, watches and outlooks will be disregarded in determining whether any obligations satisfy the rating
requirement therein.
“Term C Loan Collateral
Accounts” means the cash collateral accounts or securities accounts established pursuant to, and subject to the terms of, the
First Lien Credit Agreement for the purpose of cash collateralizing the Term L/C Obligations in respect of Term Letters of Credit (as
each such term is defined in the First Lien Credit Agreement).
“TIA” means
the Trust Indenture Act of 1939 (15 U.S.C. §§ 77aaa-7bbbb), as amended.
“Trade Payables”
means, with respect to any Person, any accounts payable or any indebtedness or monetary obligation to trade creditors created, assumed
or guaranteed by such Person arising in the ordinary course of business in connection with the acquisition of goods or services.
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“Trading
Day” means any day on which (A) trading in the Common Stock generally occurs on the principal U.S. national or regional
securities exchange on which the Common Stock is then listed or, if the Common Stock is not then listed on a U.S. national or regional
securities exchange, on the principal other market on which the Common Stock is then traded; and (B) there is no Market Disruption
Event. If the Common Stock is not so listed or traded, then “Trading Day” means a Business Day.
“Transfer-Restricted
Security” means any Security that constitutes a “restricted security” (as defined in Rule 144); provided,
however, that such Security will cease to be a Transfer-Restricted Security upon the earliest to occur of the following events:
(A) such
Security is sold or otherwise transferred to a Person (other than the Company or an Affiliate of the Company) pursuant to a registration
statement that was effective under the Securities Act at the time of such sale or transfer;
(B) such
Security is sold or otherwise transferred to a Person (other than the Company or an Affiliate of the Company) pursuant to an available
exemption (including Rule 144) from the registration and prospectus-delivery requirements of, or in a transaction not subject to,
the Securities Act and, immediately after such sale or transfer, such Security ceases to constitute a “restricted security”
(as defined in Rule 144); and
(C) such
Security is eligible for resale, by a Person that is not an Affiliate of the Company and that has not been an Affiliate of the Company
during the immediately preceding three (3) months, pursuant to Rule 144 without any limitations thereunder as to volume, manner
of sale, availability of current public information or notice.
The Trustee is under no obligation
to determine whether any Security is a Transfer-Restricted Security and may conclusively rely on an Officer’s Certificate with respect
thereto.
“Trust Indenture
Act” means the U.S. Trust Indenture Act of 1939, as amended.
“Trustee”
means the Person named as such in the first paragraph of this Indenture until a successor replaces it in accordance with the provisions
of this Indenture and, thereafter, means such successor.
“Uniform Commercial
Code” means, except as otherwise provided herein, the Uniform Commercial Code as in effect in the State of New York from time
to time.
“Unrestricted Cash”
means, as at any date of determination, the aggregate amount of cash, Cash Equivalents and Temporary Cash Investments included in the
cash accounts listed on the consolidated balance sheet of the Company and its consolidated Subsidiaries as of the last day of the Company’s
fiscal month ending immediately prior to such date of determination for which a consolidated balance sheet is available to the extent
such cash is not classified as “restricted” for financial statement purposes (unless so classified solely (w) because
of any provision under this Indenture or any other agreement or instrument governing other Indebtedness that is subject to any Intercreditor
Agreement or (x) because they are subject to a Lien securing the Notes Obligations or other Indebtedness that is subject to any Intercreditor
Agreement or (y) because they are (or will be) used to cash collateralize or otherwise support any funded letter of credit facility
or (z) because they are to be used for specified purposes in connection with a Special Purpose Financing relating to, or other financing
secured by, customer Receivables); provided that (i) Unrestricted Cash shall not include any amounts on deposit in or credited
to any Term C Loan Collateral Account and (ii) for purposes of any calculation of the Consolidated Total Net Corporate Leverage Ratio,
“Unrestricted Cash” shall not include any proceeds of such Indebtedness borrowed at the time of determination of such ratio.
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“Unrestricted
Subsidiary” means (i) any Subsidiary of the Company that at the time of determination is an Unrestricted Subsidiary, as
designated by the Board of Directors in the manner provided below, and (ii) any Subsidiary of an Unrestricted Subsidiary. The Board
of Directors may designate any Subsidiary of the Company (including any newly acquired or newly formed Subsidiary of the Company) to be
an Unrestricted Subsidiary unless such Subsidiary or any of its Subsidiaries owns any Capital Stock or Indebtedness of, or owns or holds
any Lien on any property of, the Company or any other Restricted Subsidiary of the Company that is not a Subsidiary of the Subsidiary
to be so designated; provided that (A) such designation was made at or prior to the Issue Date or (B) the Subsidiary to be so
designated has total consolidated assets of $1,000 or less or (C) if such Subsidiary has consolidated assets greater than $1,000,
then such designation would be permitted under Section 3.09. The Board of Directors may designate any Unrestricted Subsidiary
to be a Restricted Subsidiary; provided that immediately after giving effect to such designation (x) the Consolidated Coverage Ratio
would be equal to or greater than 2.00:1.00 or (y) such Subsidiary shall be a Special Purpose Subsidiary with no Indebtedness outstanding
other than Indebtedness that is not recourse to the Company or any Restricted Subsidiary of the Company that is not a Special Purpose
Subsidiary (other than with respect to Special Purpose Financing Undertakings). Any such designation by the Board of Directors shall be
evidenced to the Trustee by promptly filing with the Trustee a copy of the resolution of the Company’s Board of Directors giving
effect to such designation and an Officer’s Certificate of the Company certifying that such designation complied with the foregoing
provisions. Notwithstanding anything else herein to the contrary, (i) the Board of Directors shall not designate any Subsidiary
of the Company (including any newly acquired or newly formed Subsidiary of the Company) that owns, or holds an exclusive license to, any
Intellectual Property to be an Unrestricted Subsidiary and (ii) the Company shall not, and shall not permit any of its Restricted
Subsidiaries to, sell, convey, transfer or otherwise dispose of (including pursuant to an Investment) any Intellectual Property that is
owned by, or exclusively licensed to, the Company or any Restricted Subsidiary to any Unrestricted Subsidiary.
“Unsecured Senior
Indebtedness” means Senior Indebtedness that is not secured by a Lien on any property or assets (other than property or assets
held in a defeasance or similar trust or arrangement for the benefit of the Indebtedness secured thereby).
“U.S. Government
Obligation” means (x) any security that is (i) a direct obligation of the United States of America for
the payment of which the full faith and credit of the United States of America is pledged or (ii) an obligation of a Person
controlled or supervised by and acting as an agency or instrumentality of the United States of America the payment of which is unconditionally
guaranteed as a full faith and credit obligation by the United States of America, which, in either case under the preceding clause
(i) or (ii), is not callable or redeemable at the option of the issuer thereof, and (y) any depositary receipt
issued by a bank (as defined in Section 3(a)(2) of the Securities Act) as custodian with respect to any U.S. Government Obligation
that is specified in clause (x) above and held by such bank for the account of the holder of such depositary receipt, or with
respect to any specific payment of principal of or interest on any U.S. Government Obligation that is so specified and held; provided
that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such
depositary receipt from any amount received by the custodian in respect of the U.S. Government Obligation or the specific payment of principal
or interest evidenced by such depositary receipt.
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“VAT” means
(a) any tax imposed in compliance with (but subject to the derogations from) the council directive of 28 November 2006 on the
common system of value added tax (EC Directive 2006/112) and Sixth Council directive of 17 May 1977 on the harmonization of the laws
of member states relating to turnover taxes-common system of value added tax: uniform basis of assessment (EC Directive 77/388); and (b) any
other tax of a similar nature, whether imposed in a member state of the European Union in substitution for, or levied in addition to,
such tax referred to in paragraph (a) or elsewhere.
“VAT Receivables”
means, with respect to any Person, the net position of VAT receivables (less VAT payables) such Person is entitled to credit or repayment
from the relevant tax authority.
“Vehicle Rental Concession”
means any right, whether or not exclusive, to conduct a Vehicle rental business at a Public Facility, or to pick up or discharge persons
or otherwise to possess or use all or part of a Public Facility in connection with such a business, and any related rights or interests.
“Vehicle Rental Concession
Rights” means any or all of the following: (a) any Vehicle Rental Concession; (b) any rights of the
Company, any Restricted Subsidiary or any Franchisee under or relating to (i) any law, regulation, license, permit, request
for proposals, invitation to bid, lease, agreement or understanding with a Public Facility Operator in connection with which a Vehicle
Rental Concession has been or may be granted to the Company, any Restricted Subsidiary or any Franchisee and (ii) any agreement
with, or Investment or other interest or participation in, any Person, property or asset required (x) by any such law, ordinance,
regulation, license, permit, request for proposals, invitation to bid, lease, agreement or understanding or (y) by any Public
Facility Operator as a condition to obtaining or maintaining a Vehicle Rental Concession; and (c) any liabilities or obligations
relating to or arising in connection with any of the foregoing.
“Vehicles”
means vehicles owned or operated by, or leased or rented to or by, the Company or any of its Subsidiaries, including automobiles, trucks,
tractors, trailers, vans, sport utility vehicles, buses, campers, motor homes, motorcycles and other motor vehicles.
“Voting Stock”
of an entity means all classes of Capital Stock of such entity then outstanding and normally entitled to vote in the election of directors
or all interests in such entity with the ability to control the management or actions of such entity.
“VWAP
Market Disruption Event” means, with respect to any date, (A) the failure by the principal U.S. national or regional
securities exchange on which the Common Stock is then listed, or, if the Common Stock is not then listed on a U.S. national or regional
securities exchange, the principal other market on which the Common Stock is then traded, to open for trading during its regular trading
session on such date; or (B) the occurrence or existence, for more than one half hour period in the aggregate, of any suspension
or limitation imposed on trading (by reason of movements in price exceeding limits permitted by the relevant exchange or otherwise) in
the Common Stock or in any options contracts or futures contracts relating to the Common Stock, and such suspension or limitation occurs
or exists at any time before 1:00 p.m., New York City time, on such date.
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“VWAP
Trading Day” means a day on which (A) there is no VWAP Market Disruption Event; and (B) trading in the Common Stock
generally occurs on the principal U.S. national or regional securities exchange on which the Common Stock is then listed or, if
the Common Stock is not then listed on a U.S. national or regional securities exchange, on the principal other market on which the Common
Stock is then traded. If the Common Stock is not so listed or traded, then “VWAP Trading Day” means a Business Day.
“Wholly Owned Subsidiary”
of a Person means any Subsidiary of such Person all of the outstanding Capital Stock or other ownership interests of which (other than
directors’ qualifying shares) are owned by such Person or one or more Wholly Owned Subsidiaries of such Person.
Section 1.02. Other
Definitions.
Term
Defined in
Section
“Additional Notes”
2.03(B)
“Additional Shares”
5.07(A)
“Bankruptcy Acceleration Amount”
7.02(A)
“Capitalized Principal Amount”
2.05(A)
“Cash Interest”
2.05(A)
“Cash Settlement”
5.03(A)
“Combination Settlement”
5.03(A)
“Common Stock Change Event”
5.09A)
“Company Business Combination Event”
6.01(A)
“Company Successor Entity”
6.01(A)(i)
“Declined Excess Proceeds”
3.11
“Default Certificate”
3.05(B)
“Default Interest”
2.05(B)
“Defaulted Amount”
2.05(B)
“effective date”
1.04
“Event of Default”
7.01(A)
“Excess Proceeds”
3.11
“Exchange Agent”
2.06(A)
“Exchange Consideration”
5.03(B)(i)
“Expiration Date”
5.05(A)(v)
“Expiration Time”
5.05(A)(v)
“Fixed Amounts”
1.05
“Fundamental Change Notice”
4.02(E)
“Fundamental Change Repurchase Right”
4.02(A)
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“Guaranteed Obligations”
9.01
“Incurrence-Based Amounts”
1.05
“Initial Lien”
3.12
“Initial Notes”
2.03(A)
“LCT Election”
1.04
“LCT Test Date”
1.04
“Offer”
3.11
“Parent Guarantor Business Combination Event”
6.03(A)
“Parent Successor Entity”
6.03(A)
“Paying Agent”
2.05(A)
“Physical Settlement”
5.03(A)
“PIK Interest”
2.05(A)
“PIK Interest Rate”
2.05(A)(i)
“PIK Notes”
2.05(A)(vi)
“PIK Principal Increase”
2.05(A)(ii)
“Redemption Interest Payment Date”
2.05(A)(iii)(2)
“Redemption Notice”
4.03(F)
“Reference Property”
5.09(A)
“Reference Property Unit”
5.09(A)
“Redemption Record Period”
2.05(A)(iii)(2)
“Register”
2.06(B)
“Registrar”
2.06(A)
“Reporting Event of Default”
7.03(A)
“Repurchase Interest Payment Date”
2.05(A)(iii)(3)
“Repurchase Record Period”
2.05(A)(iii)(3)
“Specified Courts”
13.07
“Spin-Off”
5.05(A)(iii)(2)
“Spin-Off Valuation Period”
5.05(A)(iii)(2)
“Stated Interest”
2.05(A)
“Successor Person”
5.09(A)
“Tender/Exchange Offer Valuation Period”
5.05(A)(v)
“Total Leverage Excess Proceeds”
3.11
Section 1.03. Rules of
Construction.
For purposes of this Indenture:
(A) “or”
is not exclusive;
(B) “including”
means “including without limitation”;
(C) “will”
expresses a command;
(D) the
“average” of a set of numerical values refers to the arithmetic average of such numerical values;
(E) a
merger involving, or a transfer of assets by, a limited liability company, limited partnership or trust will be deemed to include any
division of or by, or an allocation of assets to a series of, such limited liability company, limited partnership or trust, or any unwinding
of any such division or allocation;
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(F) words
in the singular include the plural and in the plural include the singular, unless the context requires otherwise;
(G) “herein,”
“hereof” and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or
other subdivision of this Indenture, unless the context requires otherwise;
(H) references
to currency mean the lawful currency of the United States of America, unless the context requires otherwise;
(I) the
exhibits, schedules and other attachments to this Indenture are deemed to form part of this Indenture;
(J) the
term “interest,” when used with respect to a Note, includes any Default Interest, Additional Interest and Special
Interest, unless the context requires otherwise; and
(K) references
to any “Note” herein refer to any authorized denomination of a Note, unless the context requires otherwise. Unless otherwise
indicated, this Indenture refers to the Capitalized Principal Amount of the Notes represented by one or more Global Notes registered
in the name of, or held by, DTC or its nominee. In the event Physical Notes are issued, such references herein to the Capitalized Principal
Amount shall be deemed to refer to the principal amount of the Notes and PIK Notes.
Section 1.04. Limited
Condition Transaction.
In connection with any Limited Condition Transaction
and any related transactions (including any financing, Incurrence or Discharge of Indebtedness and the use of proceeds of any such
Incurrence), for purposes of determining compliance with any provision of this Indenture which requires that no Default, Event of Default
or specified Event of Default, as applicable, has occurred, is continuing or would result from any such action, as applicable, such provision
shall, at the election of the Company, be deemed satisfied, so long as no Default, Event of Default or specified Event of Default, as
applicable, exists on the date a definitive agreement for such Limited Condition Transaction is entered into or irrevocable notice of
redemption, repurchase, defeasance, satisfaction and discharge or repayment of Indebtedness, Disqualified Stock or Preferred Stock is
given and not as of any later date as would otherwise be required under this Indenture. For the avoidance of doubt, if the Company has
exercised its option under the first sentence of this Section 1.04, and any Default or Event of Default occurs following
the date the definitive agreements for the applicable Limited Condition Transaction were entered into or irrevocable notice of redemption,
repurchase, defeasance, satisfaction and discharge or repayment of Indebtedness, Disqualified Stock or Preferred Stock is given, and
prior to the consummation of such Limited Condition Transaction, any such Default or Event of Default shall be deemed to not have occurred
or be continuing for purposes of determining whether any action being taken in connection with such Limited Condition Transaction is
permitted hereunder.
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In connection with any action being taken in connection with a Limited
Condition Transaction, for purposes of:
(a) determining
compliance with any provision of this Indenture which requires the calculation of the Consolidated Coverage Ratio or the Consolidated
Total Net Corporate Leverage Ratio;
(b) determining
compliance with any baskets or ratios set forth in this Indenture; or
(c) determining
whether any such Limited Condition Transaction and any related transactions (including any financing, Incurrence or Discharge of
Indebtedness and the use of proceeds of any such Incurrence) complies with the covenants or agreements contained in this Indenture,
in each case, at the option of the Company (the
Company’s election to exercise such option in connection with any Limited Condition Transaction, an “LCT Election”),
the date of determination of whether any such action is permitted hereunder shall be deemed to be the date the definitive agreements
for such Limited Condition Transaction are entered into (the “LCT Test Date”), and if, after giving pro forma effect
to the Limited Condition Transaction and any related transactions (including any Incurrence or Discharge of Indebtedness and the use
of proceeds of any such Incurrence) as if they had occurred at the beginning of the most recent four consecutive fiscal quarters of the
Company ending prior to the LCT Test Date for which consolidated financial statements of the Company are available, the Company could
have taken such action on the relevant LCT Test Date in compliance with such ratio or basket, such ratio or basket shall be deemed to
have been complied with. For the avoidance of doubt, if the Company has made an LCT Election and any of the ratios, baskets or amounts
for which compliance was determined or tested as of the LCT Test Date are exceeded as a result of fluctuations in any such basket, ratio
or amount (including due to fluctuations in Consolidated EBITDA of the Company or the Person subject to such Limited Condition Transaction
or any applicable currency exchange rate) subsequent to such date of calculation or determination and, at or prior to the consummation
of the relevant Limited Condition Transaction, such basket, ratio or amount will not be deemed to have been exceeded as a result of such
fluctuations. If the Company has made an LCT Election for any Limited Condition Transaction permitted under this Indenture, then in connection
with any subsequent calculation of any ratio or basket availability with respect to the Incurrence of Indebtedness or Liens, or the making
of Restricted Payments, mergers, the conveyance, lease or other transfer of all or substantially all of the assets of the Company or
the designation of an Unrestricted Subsidiary on or following the relevant LCT Test Date and prior to the earlier of the date on which
such Limited Condition Transaction is consummated or the definitive agreement for such Limited Condition Transaction expires or is terminated
without consummation of such Limited Condition Transaction, any such ratio or basket shall be calculated on a pro forma basis assuming
such Limited Condition Transaction and other transactions in connection therewith (including any Incurrence of Indebtedness and the use
of proceeds thereof) have been consummated.
Section 1.05. Measuring
Compliance.
If (a) any of
the baskets set forth in this Indenture are exceeded solely as a result of fluctuations to LTM Consolidated EBITDA for the most recently
completed fiscal quarter after the last time such baskets were calculated for any purpose under this Indenture, such baskets will not
be deemed to have been exceeded solely as a result of such fluctuations or (b) any of the baskets is exceeded or any undertaking
would be breached, or any event that would constitute a Default or an Event of Default, in each case, solely as a result of fluctuations
in applicable currency exchange rates, shall not be deemed to be exceeded, untrue, inaccurate, breached, exceeded or so constituted,
as applicable, solely as a result of such fluctuations in currency exchange rates.
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With respect to any amounts
incurred or transactions entered into (or consummated) in reliance on a provision of this Indenture that does not require compliance
with a financial ratio or test (including, without limitation, the Consolidated Coverage Ratio or the Consolidated Total Net Corporate
Leverage Ratio) (any such amounts (but excluding any amounts incurred under any revolving facility unless such Indebtedness has been
permanently repaid and has not been replaced), the “Fixed Amounts”) substantially concurrently with any amounts incurred
or transactions entered into (or consummated) in reliance on a provision in this Indenture that requires compliance with a financial
ratio or test (including a test based on the Consolidated Total Net Corporate Leverage Ratio or the Consolidated Coverage Ratio) (any
such amounts, the “Incurrence-Based Amounts”), it is understood and agreed that (i) the Fixed Amounts
shall be disregarded in the calculation of the financial ratio or test applicable to the Incurrence-Based Amounts, and (ii) except
as provided in clause (i), pro forma effect shall be given to all applicable and related transactions (including the use of proceeds
of all applicable Indebtedness incurred and any repayments, repurchases and redemptions of Indebtedness) and all other adjustments as
to which pro forma effect may be given under this Indenture.
Notwithstanding
anything to the contrary herein, in the event any item of Lien, Permitted Lien or Restricted Payment or other transaction or action (any
of the foregoing in a single transaction or a series of substantially concurrent related transactions) meets the criteria of one or more
than one categories (or subcategories within any category) of exceptions, thresholds or baskets under this Indenture (including within
any defined terms), including any financial ratio-based exceptions, thresholds or baskets (including the Consolidated Coverage Ratio
or the Consolidated Total Net Corporate Leverage Ratio), the Company shall, in its sole discretion, be entitled to divide and classify
and later re-divide and reclassify on or more occasions (based on circumstances existing on the date of any such re-division and reclassification)
any such item of Lien, Permitted Lien, Restricted Payment or other transaction or action, in whole or in part, among one or more than
one categories (or subcategories within any category) of exceptions, thresholds or baskets under this Indenture; provided
that, notwithstanding anything herein to the contrary, Investments in Unrestricted Subsidiaries shall only be permitted to be made
pursuant to clause (aa) of the definition of “Permitted Investments,” and the Company will not be permitted to divide
and classify or later re-divide and reclassify any such Investment, in whole or in part, among one or more than one categories (or subcategories
within any category) of exceptions, thresholds or baskets under this Indenture.
If any item of Indebtedness
or Preferred Stock, Lien, Permitted Lien, Restricted Payments or other transaction or action (or any portion of the foregoing) previously
divided and classified (or re-divided and reclassified) as set forth above under any category (or subcategories within any category)
of non-financial ratio based exceptions, thresholds or baskets could subsequently be re-divided and reclassified under a category (or
subcategories within any category) of financial ratio based exceptions, thresholds or baskets (including the Consolidated Coverage Ratio
or the Consolidated Total Net Corporate Leverage Ratio), such re-division and reclassification shall be deemed to occur automatically
and such item of Lien, Permitted Lien, Restricted Payment or other transaction or action (or any portion of the foregoing) shall cease
to be deemed made or outstanding for purposes of any category (or subcategories within any category) of exceptions, thresholds and baskets
that are not financial ratio-based. Notwithstanding anything to the contrary herein, in the event an item of Indebtedness (or any portion
thereof) is incurred or issued, any Lien is incurred or other transaction is undertaken in reliance on a ratio basket based on the Consolidated
Coverage Ratio or the Consolidated Total Net Corporate Leverage Ratio, such ratio(s) shall be calculated without regard to the incurrence
of any Indebtedness under any revolving facility (1) prior to or in connection therewith or (2) used to finance
working capital needs of the Company and its Restricted Subsidiaries.
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If any item of Indebtedness,
Lien, Permitted Lien, Restricted Payment or other transaction or action (any of the foregoing in a single transaction or a series of
substantially concurrent related transactions) is incurred, issued, taken or consummated in reliance on categories (or subcategories
within any category) of exceptions, thresholds or baskets measured by reference to a percentage of LTM Consolidated EBITDA on the relevant
testing date pursuant to this Indenture, and such Indebtedness, Lien, Permitted Lien, Restricted Payment or other transaction or action
(including in connection with refinancing thereof) would subsequently exceed the applicable percentage of LTM Consolidated EBITDA if
calculated based on the LTM Consolidated EBITDA on a later date (including the date of any refinancing), such percentage of LTM Consolidated
EBITDA will not be deemed to be exceeded (and in the case of refinancing any Indebtedness, to the extent the principal amount or the
liquidation preference of such newly incurred or issued Indebtedness or Preferred Stock does not exceed the maximum principal amount,
liquidation preference or amount of permitted Refinancing Indebtedness in respect of the Indebtedness, Disqualified Stock or Preferred
Stock being refinanced, extended, replaced, refunded, renewed or defeased).
Section 1.06. Intercreditor
Agreements.
Reference is made to the
First Lien Intercreditor Agreement and each other Intercreditor Agreement (if any). Each Holder, by its acceptance of a Note, (a) agrees
that it will be bound by and will take no actions contrary to the provisions of the First Lien Intercreditor Agreement and any other
Intercreditor Agreement and (b) authorizes and instructs the Trustee and the Notes Collateral Agent to negotiate, agree and enter
into the First Lien Intercreditor Agreement and such other Intercreditor Agreement (including any intercreditor agreement or similar
agreement with respect to Indebtedness permitted to be incurred under this Indenture that will constitute Parity Lien Indebtedness),
as applicable, and any joinders to any of the foregoing as Trustee and as Notes Collateral Agent, as the case may be, and on behalf of
such Holder and without their consent, including without limitation, making the representations of the Holders contained therein. It
is expressly agreed that the other parties to the First Lien Intercreditor Agreement, the Junior Lien Intercreditor Agreement and each
other Intercreditor Agreement shall be third-party beneficiaries of this Section 1.06.
Article 2. The
Notes
Section 2.01. Form,
Dating and Denominations.
The Notes and the Trustee’s
certificate of authentication will be substantially in the form set forth in Exhibit A. The Notes will bear the legends required
by Section 2.09 and may bear notations, legends or endorsements required by law, stock exchange rule or usage or
the Depositary. Each Note will be dated as of the date of its authentication.
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Except to the extent otherwise
provided in a Company Order delivered to the Trustee in connection with the issuance and authentication thereof, the Notes will be issued
initially in the form of one or more Global Notes. Global Notes may be exchanged for Physical Notes, and Physical Notes may be exchanged
for Global Notes, only as provided in Section 2.10.
The Notes will be issuable
only in registered form without interest coupons and only in Authorized Denominations.
Each certificate representing
a Note will bear a unique registration number that is not affixed to any other certificate representing another outstanding Note.
The terms contained in the
Notes constitute part of this Indenture, and, to the extent applicable, the Company and the Trustee, by their execution and delivery
of this Indenture, agree to such terms and to be bound thereby; provided, however, that, to the extent that any provision
of any Note conflicts with the provisions of this Indenture, the provisions of this Indenture will control for purposes of this Indenture
and such Note.
Section 2.02. Execution,
Authentication and Delivery.
(A) Due
Execution by the Company. At least one (1) duly authorized Officer will sign the Notes on behalf of the Company by manual, electronic
or facsimile signature. A Note’s validity will not be affected by the failure of any Officer whose signature is on any Note to
hold, at the time such Note is authenticated, the same or any other office at the Company.
(B) Authentication
by the Trustee and Delivery.
(i) No
Note will be valid until it is authenticated by the Trustee. A Note will be deemed to be duly authenticated only when an authorized signatory
of the Trustee (or a duly appointed authenticating agent) manually signs the certificate of authentication of such Note.
(ii) The
Trustee will cause an authorized signatory of the Trustee (or a duly appointed authenticating agent) to manually sign the certificate
of authentication of a Note only if (1) the Company delivers such Note to the Trustee; (2) such Note is executed by the Company
in accordance with Section 2.02(A); and (3) the Company delivers a Company
Order to the Trustee that (a) requests the Trustee to authenticate such Note; and (b) sets forth the name of the Holder of
such Note and the date as of which such Note is to be authenticated. If such Company Order also requests the Trustee to deliver such
Note to any Holder or to the Depositary, then the Trustee will promptly deliver such Note in accordance with such Company Order.
(iii) The
Trustee may appoint an authenticating agent acceptable to the Company to authenticate Notes. A duly appointed authenticating agent may
authenticate Notes whenever the Trustee may do so under this Indenture, and a Note authenticated as provided in this Indenture by such
an agent will be deemed, for purposes of this Indenture, to be authenticated by the Trustee. Each duly appointed authenticating agent
will have the same rights to deal with the Company as the Trustee would have if it were performing the duties that the authenticating
agent was validly appointed to undertake.
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Section 2.03. Initial
Notes and Additional Notes.
(A) Initial
Notes. On the Issue Date, there will be originally issued three hundred fifty million dollars ($350,000,000) aggregate Capitalized
Principal Amount of Notes, subject to the provisions of this Indenture (including Section 2.02). If the Initial Purchasers
exercise the Shoe Option, then there will be originally issued up to an additional fifty million dollars ($50,000,000) Capitalized Principal
Amount of Notes pursuant to such exercise, subject to the provisions of this Indenture (including Section 2.02). Notes issued
pursuant to this Section 2.03(A), and any Notes issued in exchange therefor or in substitution thereof, are referred to in
this Indenture as the “Initial Notes.”
(B) Additional
Notes. Without the consent of any Holder, the Company may, subject to the provisions of this Indenture (including Section 2.02),
originally issue additional Notes (“Additional Notes”) with the same terms as the Initial Notes (except, to the extent
applicable, with respect to the date as of which interest begins to accrue on such Additional Notes, the first Interest Payment Date
of such Additional Notes, the issue date of such Additional Notes and transfer restrictions applicable to such Additional Notes), which
Additional Notes will, subject to the foregoing, be considered to be part of the same series of, and rank equally and ratably with all
other Notes issued under this Indenture; provided, however, that if any such Additional Notes (and any Notes that are resold
after such Notes have been purchased or otherwise acquired by the Company or any of its Subsidiaries or Affiliates (or any Person that
has been an Affiliate during the three months immediately preceding the applicable date)) are not fungible with the Initial Notes or,
if applicable, other Notes issued under this Indenture for purposes of federal income tax or federal securities laws or, if applicable,
the Depositary Procedures, then such additional or resold Notes will be identified by a separate CUSIP number or by no CUSIP number.
Section 2.04. Method
of Payment.
(A) Global
Notes. The Company will pay, or cause the Paying Agent to pay, the Capitalized Principal Amount (whether due upon maturity on the
Maturity Date, Redemption on a Redemption Date or repurchase on a Fundamental Change Repurchase Date or otherwise) of, the Cash Interest
on, and any cash Exchange Consideration for, any Global Note to the Depositary by wire transfer of immediately available funds no later
than the time the same is due as provided in this Indenture.
(B) Physical
Notes. The Company will pay, or cause the Paying Agent to pay, the Capitalized Principal Amount (whether due upon maturity on the
Maturity Date, Redemption on a Redemption Date or repurchase on a Fundamental Change Repurchase Date or otherwise) of, the Cash Interest
on, and any cash Exchange Consideration for, any Physical Note no later than the time the same is due as provided in this Indenture as
follows: (i) if the principal amount of such Physical Note is at least five million dollars ($5,000,000) (or such lower amount as
the Company may choose in its sole and absolute discretion) and the Holder of such Physical Note entitled to such payment has delivered
to the Paying Agent or the Trustee, no later than the time set forth in the immediately following sentence, a written request that the
Company make such payment by wire transfer to an account of such Holder within the United States, by wire transfer of immediately available
funds to such account; and (ii) in all other cases, by check mailed to the address of the Holder of such Physical Note entitled
to such payment as set forth in the Register. To be timely, such written request must be so delivered no later than the Close of Business
on the date that is fifteen (15) calendar days immediately before the date such payment is due.
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Section 2.05. Cash
Interest; PIK Interest; Defaulted Amounts; When Payment Date is Not a Business Day.
(A) Cash
Interest; PIK Interest.
(i) Each
Note will bear interest (the “Stated Interest”) at an annual rate of 6.75%, payable semi-annually in arrears on January 1
and July 1 of each year, beginning on January 1, 2027, to the Holders of record of the Notes as of the Close of Business on
the immediately preceding Regular Record Date. Each payment of interest on the Notes (excluding any Additional Interest, Special Interest
and Default Interest) will consist of (1) a portion to be paid in cash (“Cash Interest”) at the rate of 3.375%
per annum on the Capitalized Principal Amount and (2) a portion to be paid in the form of PIK Interest at the rate of 3.375% per
annum (the “PIK Interest Rate”) on the Capitalized Principal Amount. Cash Interest on each Note will (i) accrue
from, and including, the most recent date to which Cash Interest has been paid or duly provided for (or, if no Cash Interest has theretofore
been paid or duly provided for, the date set forth in the certificate representing such Note as the date from, and including, which Cash
Interest will begin to accrue in such circumstance) to, but excluding, the date of payment of such Cash Interest; and (ii) be, subject
to Section 5.02(D) (but without duplication of any payment of interest), payable semi-annually in arrears on each Interest
Payment Date, beginning on the first Interest Payment Date set forth in the certificate representing such Note, to the Holder of such
Note as of the Close of Business on the immediately preceding Regular Record Date. Interest on the Notes will be computed on the basis
of a 360-day year comprised of twelve 30-day months.
(ii) With
respect to the Notes represented by one or more Global Notes registered in the name of, or held by, DTC or its nominee on the relevant
record date, “PIK Interest” means, for any Interest Payment Date, an amount per Note equal to the interest accrued
on the Capitalized Principal Amount of such Note as of the immediately preceding Interest Payment Date (or, if there is no immediately
preceding Interest Payment Date, the interest accrued on the Initial Principal Amount), calculated at the PIK Interest Rate on the Capitalized
Principal Amount of such Note for the period from, and including, such immediately preceding Interest Payment Date (or, if there is no
immediately preceding Interest Payment Date, from, and including, the Issue Date of such Note) to, but excluding, such Interest Payment
Date. PIK Interest on the Notes will be payable by increasing the Capitalized Principal Amount of the outstanding Global Notes by an
amount equal to the amount of PIK Interest for the applicable interest period (rounded up to the nearest $1.00) (a “PIK Principal
Increase”). If required to effect any such PIK Principal Increase, the Trustee shall reflect any resulting increase of the
principal amount of any Global Note by notation on the “Schedule of Increases and Decreases in the Global Note” forming part
of such Global Note. Following an increase in the principal amount of the outstanding Global Notes as a result of a PIK Principal Increase,
the Global Notes will bear interest on such increased principal amount from and after the date of such PIK Principal Increase.
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(iii) “Capitalized
Principal Amount” of any Global Note means, for any date, the principal amount per Note equal to the Initial Principal Amount
of such Note, as increased on each Interest Payment Date occurring on or prior to such date by the PIK Interest due on such Interest
Payment Date; provided that:
(1) upon
any Exchange with an Exchange Date occurring after June 15, 2030 (being the day that is the 15th calendar day of the month immediately
preceding the month of the Maturity Date) until the Close of Business on the second Scheduled Trading Day immediately preceding the Maturity
Date, the Capitalized Principal Amount shall be deemed to include, with respect to any Note being Exchanged, accrued and unpaid PIK Interest
(rounded up to the nearest $1.00) from, and including, the immediately preceding Interest Payment Date to, but excluding, the Maturity
Date;
(2) if
the Company has specified a Redemption Date that is (i) after the 15th calendar day of the month immediately preceding the month
of an Interest Payment Date and (ii) on or before the second Scheduled Trading Day immediately after such Interest Payment Date
(the “Redemption Interest Payment Date” and such period, the “Redemption Record Period”), then
upon any Exchange with an Exchange Date occurring during such Redemption Record Period and before the Close of Business on the second
Scheduled Trading Day immediately before the related Redemption Date (or, if the Company fails to pay the Redemption Price due on such
Redemption Date in full, at any time until such time as the Company pays such Redemption Price in full), the Capitalized Principal Amount
shall be deemed to include, with respect to any Note being Exchanged, accrued and unpaid PIK Interest (rounded up to the nearest $1.00)
from, and including, the immediately preceding Interest Payment Date to, but excluding, the Redemption Interest Payment Date;
(3) if
the Company has specified a Fundamental Change Repurchase Date that is (i) after the 15th calendar day of the month immediately
preceding the month of an Interest Payment Date and (ii) on or before the Business Day immediately after such Interest Payment Date
(the “Repurchase Interest Payment Date” and such period, the “Repurchase Record Period”), then
upon any Exchange with an Exchange Date occurring during such Repurchase Record Period and before the Close of Business on the Business
Day immediately before the related Fundamental Change Repurchase Date, the Capitalized Principal Amount shall be deemed to include, with
respect to any Note being Exchanged, accrued and unpaid PIK Interest (rounded up to the nearest $1.00) from, and including, the immediately
preceding Interest Payment Date to, but excluding, the Repurchase Interest Payment Date;
(4) in
the event that the Company fails to timely pay any PIK Interest due on any Global Note on any Interest Payment Date, then upon any Exchange
with an Exchange Date occurring on or after such Interest Payment Date and prior to the time when such PIK Interest has been paid, the
Capitalized Principal Amount shall be deemed to include, with respect to any Note being Exchanged, such overdue and unpaid PIK Interest
(rounded up to the nearest $1.00);
(5) upon
repurchase or redemption, the Capitalized Principal Amount shall be deemed to include, with respect to any Note being repurchased or
redeemed, accrued and unpaid PIK Interest (rounded up to the nearest $1.00) to, but excluding, the date of such repurchase or redemption,
as applicable; and
(6) in
the event of an acceleration, the Capitalized Principal Amount shall be deemed to include the accrued and unpaid PIK Interest (rounded
up to the nearest $1.00) to, but excluding, the date of acceleration.
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(iv) If
any Physical Note is Exchanged in a circumstance that, if such Physical Note were a Global Note, would result in the Capitalized Principal
Amount of such Note being deemed to include any accrued and unpaid PIK Interest pursuant to any of clauses (1) through (4) of
the definition of “Capitalized Principal Amount,” the principal amount of such Physical Note for purposes of determining
the Company’s Exchange obligation shall be deemed to include the amount of accrued and unpaid PIK Interest that would have been
deemed included in the Capitalized Principal Amount of such Global Note pursuant to the applicable such clause.
(v) In
any event in which the Capitalized Principal Amount with respect to any Global Note or the principal amount of any Physical Note is deemed
to include any accrued and unpaid PIK Interest, such PIK Interest shall be deemed to have been paid in full and no separate payment shall
be owed in respect of such PIK Interest.
(vi) In
the limited circumstances when Notes are represented by Physical Notes, PIK Interest will be payable by issuing Notes in physical form
(“PIK Notes”) in an aggregate principal amount equal to the amount of PIK Interest for the applicable interest period
(rounded up to the nearest $1.00), and the Trustee will, at the request of the Company, authenticate and deliver such new PIK Notes in
physical form for original issuance to the Holders on the relevant Regular Record Date, as shown by the records of the register of Holders.
Any PIK Notes issued in physical form will be distributed to Holders, will be dated as of the applicable Interest Payment Date, will
be deemed owned by the Holder thereof as of the applicable Interest Payment Date and will bear interest from and after such date, in
the manner specified for Physical Notes. Any payment of PIK Interest in the form of PIK Notes shall be deemed to have been made on the
applicable Interest Payment Date if such PIK Notes shall have been issued on or prior to such Interest Payment Date. The Company shall
deliver such PIK Notes or cause such PIK Notes to be delivered to the Holders thereof on or promptly following such Interest Payment
Date to the address specified in the register of Holders at the Close of Business on the relevant Regular Record Date. The PIK Notes
deliverable to any Holder shall be in the largest authorized denomination with respect to the aggregate principal amount of PIK Interest
owed to such Holder in respect of the applicable Interest Payment Date. All PIK Notes issued will mature on the Maturity Date and will
be governed by, and subject to the terms, provisions and conditions of, this Indenture and shall have the same rights and benefits as
the Notes issued on the Issue Date. Any PIK Notes in physical form will be issued with the description “PIK” on the face
of such PIK Notes. The Notes issued on the Issue Date and any PIK Notes shall be treated as a single class for all purposes under this
Indenture.
(vii) In
the event that the amount of any PIK Interest is rounded up to the nearest $1.00, such rounding shall be done for any Holder of Notes
based on the aggregate amount of PIK Interest owed to, and the aggregate amount of Notes owned by, such Holder.
(viii) In
addition to the Stated Interest, Additional Interest and Special Interest will accrue on the Notes pursuant to Sections 3.04
and 7.03, respectively, and be payable in Cash Interest. All references in this Indenture
to Cash Interest on the Notes includes any Additional Interest, any Special Interest and any Default Interest payable on the Notes, unless
the context requires otherwise. All references in this Indenture to interest on the Notes includes Cash Interest and PIK Interest.
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(ix) The
calculation of Cash Interest and PIK Interest will be made by the Company or on behalf of the Company by such person as the Company designates,
and the Trustee (in all of its capacities) is entitled to conclusively rely upon such calculation as provided by the Company to the Trustee.
The Trustee will not be responsible or liable for determining, confirming or verifying such calculation of Cash Interest and PIK Interest.
(B) Defaulted
Amounts. If the Company fails to pay any amount (a “Defaulted Amount”) payable on a Note on or before the due
date therefor as provided in this Indenture, then, regardless of whether such failure constitutes an Event of Default, (i) such
Defaulted Amount will forthwith cease to be payable to the Holder of such Note otherwise entitled to such payment; (ii) to the extent
lawful, interest (“Default Interest”) will accrue on such Defaulted Amount at a rate per annum equal to the rate per
annum at which Stated Interest accrues, from, and including, such due date to, but excluding, the date of payment of such Defaulted Amount
and Default Interest; (iii) such Defaulted Amount shall be payable in cash; (iv) such Defaulted Amount and Default Interest
will be paid on a payment date selected by the Company to the Holder of such Note as of the Close of Business on a special record date
selected by the Company, provided that such special record date must be no more than fifteen (15), nor less than ten (10), calendar
days before such payment date; and (v) at least fifteen (15) calendar days before such special record date, the Company will send
notice to the Trustee and the Holders that states such special record date, such payment date and the amount of such Defaulted Amount
and Default Interest to be paid on such payment date. The Trustee shall not at any time be under any duty or responsibility to any Holder
to determine the Defaulted Amount and Default Interest, or with respect to the nature, extent, or calculation of the amount of the Defaulted
Amount and Default Interest owed, or with respect to the method employed in such calculation of the Defaulted Amount and Default Interest.
(C) Delay
of Payment when Payment Date is Not a Business Day. If the due date for a payment on a Note as provided in this Indenture is not
a Business Day, then, notwithstanding anything to the contrary in this Indenture or the Notes, such payment may be made on the immediately
following Business Day and no interest will accrue on such payment as a result of the related delay. Solely for purposes of the immediately
preceding sentence, a day on which the applicable place of payment is authorized or required by law or executive order to close or be
closed will be deemed not to be a “Business Day.”
Section 2.06. Registrar,
Paying Agent and Exchange Agent.
(A) Generally.
The Company will maintain (i) an office or agency in the continental United States where Notes may be presented for registration
of transfer or for exchange (the “Registrar”); (ii) an office or agency in the continental United States where
Notes may be presented for payment (the “Paying Agent”); and (iii) an office or agency in the continental United
States where Notes may be presented for Exchange (the “Exchange Agent”). If the Company fails to maintain a Registrar,
Paying Agent or Exchange Agent, then the Trustee will act as such and will receive compensation therefor in accordance with this Indenture
and any other agreement between the Trustee and the Company. For the avoidance of doubt, the Company or any of its Subsidiaries may act
as Registrar, Paying Agent or Exchange Agent. Notwithstanding anything to the contrary in this Section 2.06(A),
each of the Registrar, Paying Agent and Exchange Agent with respect to any Global Note must at all times be a Person that is eligible
to act in that capacity under the Depositary Procedures.
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(B) Duties
of the Registrar. The Registrar will keep a record (the “Register”) of the names and addresses of the Holders,
the Notes held by each Holder and the transfer, exchange, repurchase, Redemption and Exchange of Notes. Absent manifest error, the entries
in the Register will be conclusive and the Company and the Trustee may treat each Person whose name is recorded as a Holder in the Register
as a Holder for all purposes. The Register will be in written form or in any form capable of being converted into written form reasonably
promptly.
(C) Co-Agents;
Company’s Right to Appoint Successor Registrars, Paying Agents and Exchange Agents. The Company may appoint one or more co-Registrars,
co-Paying Agents and co-Exchange Agents, each of whom will be deemed to be a Registrar, Paying Agent or Exchange Agent, as applicable,
under this Indenture. Subject to Section 2.06(A), the Company may change any Registrar,
Paying Agent or Exchange Agent (including appointing itself or any of its Subsidiaries to act in such capacity) without notice to any
Holder. The Company will notify the Trustee (and, upon request, any Holder) of the name and address of each Note Agent, if any, not a
party to this Indenture and will enter into an appropriate agency agreement with each such Note Agent, which agreement will implement
the provisions of this Indenture that relate to such Note Agent.
(D) Initial
Appointments. The Company appoints the Trustee as the initial Paying Agent, the initial Registrar and the initial Exchange Agent
and designates the Corporate Trust Offices of the Trustee in the continental United States as the offices for the same.
Section 2.07. Paying
Agent and Exchange Agent to Hold Property in Trust.
The
Company will require each Paying Agent or Exchange Agent that is not the Trustee to agree in writing that such Note Agent will (A) hold
in trust for the benefit of Holders or the Trustee all money and other property held by such Note Agent for payment or delivery due on
the Notes; and (B) notify the Trustee of any default by the Company in making any such payment or delivery. The Company,
at any time, may, and the Trustee, while any Default continues, may, require a Paying Agent or Exchange Agent to pay or deliver, as applicable,
all money and other property held by it to the Trustee, after which payment or delivery, as applicable, such Note Agent (if not the Company
or any of its Subsidiaries) will have no further liability for such money or property. If the Company or any of its Subsidiaries acts
as Paying Agent or Exchange Agent, then (A) it will segregate and hold in a separate trust fund for the benefit of the Holders or
the Trustee all money and other property held by it as Paying Agent or Exchange Agent; and (B) references in this Indenture or the
Notes to the Paying Agent or Exchange Agent holding cash or other property, or to the delivery of cash or other property to the Paying
Agent or Exchange Agent, in each case for payment or delivery to any Holders or the Trustee or with respect to the Notes, will be deemed
to refer to cash or other property so segregated and held separately, or to the segregation and separate holding of such cash or other
property, respectively. Upon the occurrence of any event pursuant to clause (ix) or (x) of
Section 7.01(A) with respect to the Company (or with respect to any Subsidiary
of the Company acting as Paying Agent or Exchange Agent), the Trustee will serve as the Paying Agent or Exchange Agent, as applicable,
for the Notes.
Section 2.08. Holder
Lists.
If
the Trustee is not the Registrar, then the Company will furnish to the Trustee, no later than seven (7) Business Days before each
Interest Payment Date, and at such other times as the Trustee may request, a list, in such form and as of such date or time as
the Trustee may reasonably require, of the names and addresses of the Holders.
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Section 2.09. Legends.
(A) Global
Note Legend. Each Global Note will bear the Global Note Legend (or any similar legend, not inconsistent with this Indenture, required
by the Depositary for such Global Note).
(B) Non-Affiliate
Legend. Each Note will bear the Non-Affiliate Legend.
(C) Restricted
Note Legend. Subject to Section 2.12,
(i) each
Note that is a Transfer-Restricted Security will bear the Restricted Note Legend; and
(ii) if
a Note is issued in exchange for, in substitution of, or to effect a partial Exchange of, another Note (such other Note being referred
to as the “old Note” for purposes of this Section 2.09(C)(ii)), including
pursuant to Section 2.10(B), 2.10(C),
2.11 or 2.13, then such Note will bear the Restricted Note Legend if such
old Note bore the Restricted Note Legend at the time of such exchange or substitution, or on the related Exchange Date with respect to
such Exchange, as applicable; provided, however, that such Note need not bear the Restricted Note Legend if such Note does
not constitute a Transfer-Restricted Security immediately after such exchange or substitution, or as of such Exchange Date, as applicable.
(D) Original
Issue Discount Legend. Each Note will bear the Original Issue Discount Legend.
(E) Other
Legends. A Note may bear any other legend or text, not inconsistent with this Indenture, as may be required by applicable law or
by any securities exchange or automated quotation system on which such Note is traded or quoted.
(F) Acknowledgment
and Agreement by the Holders. A Holder’s acceptance of any Note bearing any legend required by this Section 2.09
will constitute such Holder’s acknowledgment of, and agreement to comply with, the restrictions set forth in such legend.
(G) Restricted
Stock Legend.
(i) Each
Exchange Share will bear the Restricted Stock Legend if the Note upon the Exchange of which such Exchange Share was delivered was (or
would have been had it not been Exchanged) a Transfer-Restricted Security at the time such Exchange Share was delivered; provided,
however, that such Exchange Share need not bear the Restricted Stock Legend if the Company determines, in its reasonable discretion,
that such Exchange Share need not bear the Restricted Stock Legend.
(ii) Notwithstanding
anything to the contrary in this Section 2.09(G), an Exchange Share need not bear
a Restricted Stock Legend if such Exchange Share is delivered in an uncertificated form that does not permit affixing legends thereto,
provided the Company takes measures (including the assignment thereto of a “restricted” CUSIP number) that it reasonably
deems appropriate to enforce the transfer restrictions referred to in the Restricted Stock Legend.
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Section 2.10. Transfers
and Exchanges; Certain Transfer Restrictions.
(A) Provisions
Applicable to All Transfers and Exchanges.
(i) Generally.
Subject to this Section 2.10, Physical Notes and beneficial interests in Global
Notes may be transferred or exchanged from time to time and the Registrar will record each such transfer or exchange in the Register.
(ii) Transferred
and Exchanged Notes Remain Valid Obligations of the Company. Each Note issued upon transfer or exchange of any other Note (such other
Note being referred to as the “old Note” for purposes of this Section 2.10(A)(ii))
or portion thereof in accordance with this Indenture will be the valid obligation of the Company, evidencing the same indebtedness, and
entitled to the same benefits under this Indenture, as such old Note or portion thereof, as applicable.
(iii) No
Services Charge; Transfer Taxes. The Company, the Guarantors, the Trustee and the Note Agents will not impose any service charge
on any Holder for any transfer, exchange or Exchange of Notes, but, subject to Section 5.02(E), the Company, the Guarantors,
the Trustee, the Registrar and the Exchange Agent may require payment of a sum sufficient to cover any transfer tax or similar governmental
charge that may be imposed in connection with any transfer, exchange or Exchange of Notes, other than exchanges pursuant to Section 2.11,
2.17 or 8.05 not involving
any transfer.
(iv) Information
in Connection with Tax Reporting Compliance. In connection with any proposed transfer outside the book-entry system, the transferor
shall also provide or cause to be provided to the Trustee all information in its possession that is reasonably necessary to allow the
Trustee to comply with any applicable tax reporting obligations, including without limitation any cost basis reporting obligations under
Section 6045 of the Code. The Trustee may rely on the information provided to it and shall have no responsibility to verify or ensure
the accuracy of such information.
(v) Transfers
and Exchanges Must Be in Authorized Denominations. Notwithstanding anything to the contrary in this Indenture or the Notes, a Note
may not be transferred or exchanged in part unless the portion to be so transferred or exchanged is in an Authorized Denomination. Notwithstanding
anything to the contrary in this Indenture or the Notes, the Company may at its option issue any Physical Notes issuable to any Holder
at any time in a denomination equal to the aggregate amount issuable to such Holder at such time.
(vi) Trustee’s
Disclaimer. The Trustee will have no obligation or duty to monitor, determine or inquire as to compliance with any transfer restrictions
imposed under this Indenture or applicable law with respect to any Security, other than to require the delivery of such certificates
or other documentation or evidence as expressly required by this Indenture and to examine the same to determine substantial compliance
as to form with the requirements of this Indenture. Neither the Trustee nor any Agent shall have any responsibility or liability for
any actions taken or not taken by the Depositary.
(vii) Legends.
Each Note issued upon transfer of, or in exchange for, another Note will bear each legend, if any, required by Section 2.09.
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(viii) Settlement
of Transfers and Exchanges. Upon satisfaction of the requirements of this Indenture to effect a transfer or exchange of any Note,
the Company will cause such transfer or exchange to be effected as soon as reasonably practicable but in no event later than the second
(2nd) Business Day after the date of such satisfaction.
(ix) Interpretation.
For the avoidance of doubt, and subject to the terms of this Indenture, as used in this Section 2.10,
an “exchange” of a Global Note or a Physical Note includes (x) an exchange effected for the sole purpose of removing
any Restricted Note Legend affixed to such Global Note or Physical Note; and (y) if such Global Note or Physical Note is identified
by a “restricted” CUSIP number, an exchange effected for the sole purpose of causing such Global Note or Physical Note to
be identified by an “unrestricted” CUSIP number.
(B) Transfers
and Exchanges of Global Notes.
(i) Certain
Restrictions. Subject to the immediately following sentence, no Global Note may be transferred or exchanged in whole except (x) by
the Depositary to a nominee of the Depositary; (y) by a nominee of the Depositary to the Depositary or to another nominee of the
Depositary; or (z) by the Depositary or any such nominee to a successor Depositary or a nominee of such successor Depositary. No
Global Note (or any portion thereof) may be transferred to, or exchanged for, a Physical Note; provided, however, that
a Global Note will be exchanged, pursuant to customary procedures, for one or more Physical Notes in registered form if:
(1) (x) the
Depositary notifies the Company or the Trustee that the Depositary is unwilling or unable to continue as depositary for such Global Note
or (y) the Depositary ceases to be a “clearing agency” registered under Section 17A of the Exchange Act and, in
each case, the Company fails to appoint a successor Depositary within ninety (90) days of such notice or cessation;
(2) an
Event of Default has occurred and is continuing and the Company, the Trustee or the Registrar has received a written request from the
Depositary, or from a holder of a beneficial interest in such Global Note, to exchange such Global Note or beneficial interest, as applicable,
for one or more Physical Notes; or
(3) the
Company, in its sole discretion, permits the exchange of any beneficial interest in such Global Note for one or more Physical Notes at
the request of the owner of such beneficial interest.
(ii) Effecting
Transfers and Exchanges. Upon satisfaction of the requirements of this Indenture to effect a transfer or exchange of any Global Note
(or any portion thereof):
(1) the
Trustee will reflect any resulting decrease of the Capitalized Principal Amount of such Global Note by notation on the “Schedule
of Increases and Decreases in the Global Note” forming part of such Global Note (and, if such notation results in such Global Note
having a principal amount of zero, then the Company may (but is not required to) instruct the Trustee to cancel such Global Note pursuant
to Section 2.15);
(2) if
required to effect such transfer or exchange, then the Trustee will reflect any resulting increase of the principal amount of any other
Global Note by notation on the “Schedule of Increases and Decreases in the Global Note” forming part of such other Global
Note;
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(3) if
required to effect such transfer or exchange, then the Company will issue, execute and deliver, and the Trustee will authenticate, in
each case in accordance with Section 2.02, a new Global Note bearing
each legend, if any, required by Section 2.09; and
(4) if
such Global Note (or such portion thereof), or any beneficial interest therein, is to be exchanged for one or more Physical Notes, then
the Company will issue, execute and deliver, and the Trustee will authenticate, in each case in accordance with Section 2.02,
one or more Physical Notes that (x) are in Authorized Denominations and have an aggregate principal amount equal to the Capitalized
Principal Amount of such Global Note to be so exchanged; (y) are registered in such name(s) as the Depositary specifies (or
as otherwise determined pursuant to customary procedures); and (z) bear each legend, if any, required by Section 2.09.
(iii) Compliance
with Depositary Procedures. Each transfer or exchange of a beneficial interest in any Global Note will be made in accordance with
the Depositary Procedures.
(C) Transfers
and Exchanges of Physical Notes.
(i) Requirements
for Transfers and Exchanges. Subject to this Section 2.10, a Holder of a Physical
Note may (x) transfer such Physical Note (or any portion thereof in an Authorized Denomination) to one or more other Person(s);
(y) exchange such Physical Note (or any portion thereof in an Authorized Denomination) for one or more other Physical Notes in Authorized
Denominations having an aggregate principal amount equal to the aggregate principal amount of the Physical Note (or portion thereof)
to be so exchanged; and (z) if then permitted by the Depositary Procedures, transfer such Physical Note (or any portion thereof
in an Authorized Denomination) in exchange for a beneficial interest in one or more Global Notes; provided, however, that,
to effect any such transfer or exchange, such Holder must:
(1) surrender
such Physical Note to be transferred or exchanged to the office of the Registrar, together with any endorsements or transfer instruments
reasonably required by the Company, the Trustee or the Registrar; and
(2) deliver
such certificates, documentation or evidence as may be required pursuant to Section 2.10(D).
(ii) Effecting
Transfers and Exchanges. Upon the satisfaction of the requirements of this Indenture to effect a transfer or exchange of any Physical
Note (such Physical Note being referred to as the “old Physical Note” for purposes of this Section 2.10(C)(ii))
of a Holder (or any portion of such old Physical Note in an Authorized Denomination):
(1) such
old Physical Note will be promptly cancelled pursuant to Section 2.15;
(2) if
such old Physical Note is to be so transferred or exchanged only in part, then the Company will issue, execute and deliver, and the Trustee
will authenticate, in each case in accordance with Section 2.02,
one or more Physical Notes that (x) are in Authorized Denominations and have an aggregate principal amount equal to the principal
amount of such old Physical Note not to be so transferred or exchanged; (y) are registered in the name of such Holder; and (z) bear
each legend, if any, required by Section 2.09;
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(3) in
the case of a transfer:
(A)to the Depositary
or a nominee thereof that will hold its interest in such old Physical Note (or such portion thereof) to be so transferred in the form
of one or more Global Notes, the Trustee will reflect an increase of the Capitalized Principal Amount of one or more existing Global
Notes by notation on the “Schedule of Increases and Decreases in the Global Note” forming part of such Global Note(s), which
increase(s) are in Authorized Denominations and aggregate to the Capitalized Principal Amount to be so transferred, and which Global
Note(s) bear each legend, if any, required by Section 2.09;
provided, however, that if such transfer cannot be so effected by notation on one or more existing Global Notes (whether
because no Global Notes bearing each legend, if any, required by Section 2.09
then exist, because any such increase will result in any Global Note having an aggregate Capitalized Principal Amount exceeding the maximum
aggregate Capitalized Principal Amount permitted by the Depositary or otherwise), then the Company will issue, execute and deliver, and
the Trustee will authenticate, in each case in accordance with Section 2.02,
one or more Global Notes that (x) are in Authorized Denominations and have an aggregate Capitalized Principal Amount equal to the
Capitalized Principal Amount that is to be so transferred but that is not effected by notation as provided above; and (y) bear each
legend, if any, required by Section 2.09; and
(B)to a transferee
that will hold its interest in such old Physical Note (or such portion thereof) to be so transferred in the form of one or more Physical
Notes, the Company will issue, execute and deliver, and the Trustee will authenticate, in each case in accordance with Section 2.02,
one or more Physical Notes that (x) are in Authorized Denominations and have an aggregate principal amount equal to the principal
amount to be so transferred; (y) are registered in the name of such transferee; and (z) bear each legend, if any, required
by Section 2.09; and
(4) in
the case of an exchange, the Company will issue, execute and deliver, and the Trustee will authenticate, in each case in accordance with
Section 2.02, one or more Physical Notes that (x) are in Authorized
Denominations and have an aggregate principal amount equal to the principal amount to be so exchanged; (y) are registered in the
name of the Person to whom such old Physical Note was registered; and (z) bear each legend, if any, required by Section 2.09.
(D) Requirement
to Deliver Documentation and Other Evidence. If a Holder of any Note that is identified by a “restricted” CUSIP number
or that bears a Restricted Note Legend or is a Transfer-Restricted Security requests to:
(i) cause
such Note to be identified by an “unrestricted” CUSIP number;
(ii) remove
such Restricted Note Legend; or
(iii) register
the transfer of such Note to the name of another Person,
then the Company, the Guarantors, the Trustee
and the Registrar may refuse to effect such identification, removal or transfer, as applicable, unless there is delivered to the Company,
the Guarantors, the Trustee and the Registrar such certificates or other documentation or evidence as the Company, the Guarantors, the
Trustee and the Registrar may reasonably require for the Company to determine that such identification, removal or transfer, as applicable,
complies with the Securities Act and other applicable securities laws; provided, however, that no such certificates, documentation
or evidence need be so delivered on and after the Free Trade Date with respect to such Note unless the Company determines, in its reasonable
discretion, that such Note is not eligible to be offered, sold or otherwise transferred pursuant to Rule 144 or otherwise without
any requirements as to volume, manner of sale, availability of current public information or notice under the Securities Act.
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(E) Transfers
of Notes Subject to Redemption, Repurchase or Exchange. Notwithstanding anything to the contrary in this Indenture or the Notes,
the Company, the Guarantors, the Trustee and the Registrar will not be required to register the transfer of or exchange any Note that
(i) has been surrendered for Exchange, except to the extent that any portion of such Note is not subject to Exchange; (ii) is
subject to a Fundamental Change Repurchase Notice validly delivered, and not withdrawn, pursuant to Section 4.02(F),
except to the extent that any portion of such Note is not subject to such notice or the Company fails to pay the applicable Fundamental
Change Repurchase Price when due; or (iii) has been called for Redemption pursuant to a Redemption Notice, except to the extent
that any portion of such Note is not subject to Redemption or the Company fails to pay the applicable Redemption Price when due.
Section 2.11. Exchange
and Cancellation of Notes to Be Exchanged or to Be Repurchased Pursuant to a Repurchase Upon Fundamental Change or Redemption.
(A) Partial
Exchanges of Physical Notes and Partial Repurchases of Physical Notes Pursuant to a Repurchase Upon Fundamental Change or Redemption.
If only a portion of a Physical Note of a Holder is to be Exchanged pursuant to Article 5
or repurchased pursuant to a Repurchase Upon Fundamental Change or Redemption, then, as soon as reasonably practicable after such Physical
Note is surrendered for such Exchange or repurchase, as applicable, the Company will cause such Physical Note to be exchanged, pursuant
and subject to Section 2.10(C), for (i) one or more Physical Notes that are
in Authorized Denominations and have an aggregate principal amount equal to the principal amount of such Physical Note that is not to
be so Exchanged or repurchased, as applicable, and deliver such Physical Note(s) to such Holder; and (ii) a Physical Note having
a principal amount equal to the principal amount to be so Exchanged or repurchased, as applicable, which Physical Note will be Exchanged
or repurchased, as applicable, pursuant to the terms of this Indenture; provided, however, that the Physical Note referred
to in this clause (ii) need not be issued at any time after which such principal amount subject to such Exchange or repurchase,
as applicable, is deemed to cease to be outstanding pursuant to Section 2.18.
(B) Cancellation
of Notes that Are Exchanged and Notes that Are Repurchased Pursuant to a Repurchase Upon Fundamental Change or Redemption.
(i) Physical
Notes. If a Physical Note (or any portion thereof that has not theretofore been Exchanged pursuant to Section 2.11(A))
of a Holder is to be Exchanged pursuant to Article 5 or repurchased pursuant
to a Repurchase Upon Fundamental Change or Redemption, then, promptly after the later of the time such Physical Note (or such portion)
is deemed to cease to be outstanding pursuant to Section 2.18 and the time such
Physical Note is surrendered for such Exchange or repurchase, as applicable, (1) such Physical Note will be cancelled pursuant to
Section 2.15; and (2) in the case of a partial Exchange or repurchase,
as applicable, the Company will issue, execute and deliver to such Holder, and the Trustee will authenticate, in each case in accordance
with Section 2.02, one or more Physical Notes that (x) are in Authorized Denominations
and have an aggregate principal amount equal to the principal amount of such Physical Note that is not to be so Exchanged or repurchased,
as applicable; (y) are registered in the name of such Holder; and (z) bear each legend, if any, required by Section 2.09.
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(ii) Global
Notes. If a Global Note (or any portion thereof) is to be Exchanged pursuant to Article 5
or repurchased pursuant to a Repurchase Upon Fundamental Change or Redemption, then, promptly after the time such Note (or such portion)
is deemed to cease to be outstanding pursuant to Section 2.18, the Trustee will
reflect a decrease of the Capitalized Principal Amount of such Global Note in an amount equal to the Capitalized Principal Amount of
such Global Note to be so Exchanged or repurchased, as applicable, by notation on the “Schedule of Increases and Decreases in the
Global Note” forming part of such Global Note (and, if the Capitalized Principal Amount of such Global Note is zero following such
notation, cancel such Global Note pursuant to Section 2.15).
Section 2.12. Removal
of Transfer Restrictions.
Without limiting the generality
of any other provision of this Indenture (including Section 3.04), the Restricted Note Legend affixed to any Note will
be deemed, pursuant to this Section 2.12 and the footnote to such Restricted Note Legend, to be removed therefrom upon
the Company’s delivery to the Trustee of notice, signed on behalf of the Company by one (1) of its Officers, to such effect.
If such Note bears a “restricted” CUSIP number at the time of such delivery, then, upon such delivery, such Note will be
deemed, pursuant to this Section 2.12 and the footnotes to the CUSIP number set forth on the face of the certificate
representing such Note, to thereafter bear the “unrestricted” CUSIP number identified in such footnotes; provided,
however, that if such Note is a Global Note and the Depositary requires a mandatory exchange or other procedure to cause such
Global Note to be identified by an “unrestricted” CUSIP number in the facilities of the Depositary, then (i) the Company
will effect such exchange or procedure as soon as reasonably practicable; and (ii) for purposes of Section 3.04
and the definition of Freely Tradable, such Global Note will not be deemed to be identified by an “unrestricted” CUSIP number
until such time as such exchange or procedure is effected.
Section 2.13. Replacement
Notes.
If a Holder of any Note claims
that such Note has been mutilated, lost, destroyed or wrongfully taken, then the Company will issue, execute and deliver, and the Trustee
will authenticate, in each case in accordance with Section 2.02, a replacement Note upon surrender to the Trustee of
such mutilated Note, or upon delivery to the Trustee of evidence of such loss, destruction or wrongful taking reasonably satisfactory
to the Trustee and the Company. In the case of a lost, destroyed or wrongfully taken Note, the Company and the Trustee may require the
Holder thereof to provide such security or indemnity that is satisfactory to the Company and the Trustee to protect the Company and the
Trustee from any loss that any of them may suffer if such Note is replaced. The Company may charge for its and the Trustee’s expenses
in replacing a Note.
Every
replacement Note issued pursuant to this Section 2.13 will be an additional obligation of the Company
and will be entitled to all of the benefits of this Indenture equally and ratably with all other Notes issued under this Indenture, whether
or not the lost, destroyed or wrongfully taken Note will at any time be enforceable by anyone.
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Section 2.14. Registered
Holders; Certain Rights with Respect to Global Notes.
Except to the extent rights
under this Indenture or the Notes are expressly granted to owners of beneficial interests in any Global Note, only the Holder of a Note
will have rights under this Indenture as the owner of such Note. Without limiting the generality of the foregoing, Depositary Participants
will have no rights as such under this Indenture with respect to any Global Note held on their behalf by the Depositary or its nominee,
or by the Trustee as its custodian, and the Company, the Guarantors, the Trustee and the Note Agents, and their respective agents, may
treat the Depositary as the absolute owner of such Global Note for all purposes whatsoever; provided, however, that (A) the
Holder of any Global Note may grant proxies and otherwise authorize any Person, including Depositary Participants and Persons that hold
interests in Notes through Depositary Participants, to take any action that such Holder is entitled to take with respect to such Global
Note under this Indenture or the Notes; and (B) the Company and the Trustee, and their respective agents, may give effect to any
written certification, proxy or other authorization furnished by the Depositary.
Section 2.15. Cancellation.
The Company may at any time
deliver Notes to the Trustee for cancellation. The Registrar, the Paying Agent and the Exchange Agent will forward to the Trustee each
Note duly surrendered to them for transfer, exchange, payment or Exchange. The Trustee will cancel all Notes so surrendered to it in
accordance with its customary procedures. Without limiting the generality of Section 2.03(B), the Company may not originally
issue new Notes to replace Notes that it has paid or that have been cancelled upon transfer, exchange, payment or Exchange.
Section 2.16. Notes
Held by the Company or its Affiliates.
Without limiting the generality
of Section 2.18, in determining whether the Holders of the required aggregate Capitalized Principal Amount of Notes
have concurred in any direction, waiver or consent, Notes owned by the Company or any Subsidiary of the Company or any other obligor
on the Notes shall be considered as though they are not outstanding; provided, however, that, for purposes of determining
whether the Trustee is protected in relying on any such direction, waiver or consent, only Notes that a Responsible Officer of the Trustee
knows are so owned will be so disregarded.
Section 2.17. Temporary
Notes.
Until definitive Notes are
ready for delivery, the Company may issue, execute and deliver, and the Trustee will authenticate, in each case in accordance with Section 2.02,
temporary Notes. Temporary Notes will be substantially in the form of definitive Notes but may have variations that the Company considers
appropriate for temporary Notes. The Company will promptly prepare, issue, execute and deliver, and the Trustee will authenticate, in
each case in accordance with Section 2.02, definitive Notes in exchange for temporary Notes. Until so exchanged, each
temporary Note will in all respects be entitled to the same benefits under this Indenture as definitive Notes.
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Section 2.18. Outstanding
Notes.
(A) Generally.
The Notes that are outstanding at any time will be deemed to be those Notes that, at such time, have been duly executed and authenticated,
excluding those Notes (or portions thereof) that have theretofore been (i) cancelled by the Trustee or delivered to the Trustee
for cancellation in accordance with Section 2.15; (ii) assigned a principal
amount of zero by notation on the “Schedule of Increases and Decreases in the Global Note” forming part of any a Global Note
representing such Note; (iii) paid in full (including upon Exchange) in accordance with this Indenture; or (iv) deemed to cease
to be outstanding to the extent provided in, and subject to, clause (B), (C) or
(D) of this Section 2.18.
(B) Replaced
Notes. If a Note is replaced pursuant to Section 2.13, then such Note
will cease to be outstanding at the time of its replacement, unless the Trustee and the Company receive proof reasonably satisfactory
to them that such Note is held by a “bona fide purchaser” under applicable law.
(C) Maturing
Notes and Notes Called for Redemption or Subject to Repurchase. If, on a Redemption Date, a Fundamental Change Repurchase Date or
the Maturity Date, the Paying Agent holds money sufficient to pay the aggregate Redemption Price, Fundamental Change Repurchase Price
or Capitalized Principal Amount, respectively, together, in each case, with the aggregate Cash Interest, in each case due on such date,
then (unless there occurs a Default in the payment of any such amount) (i) the Notes (or portions thereof) to be redeemed or repurchased,
or that mature, on such date will be deemed, as of such date, to cease to be outstanding, except to the extent provided in Section 5.02(D);
and (ii) the rights of the Holders of such Notes (or such portions thereof), as such, will terminate with respect to such Notes
(or such portions thereof), other than the right to receive the Redemption Price, Fundamental Change Repurchase Price or Capitalized
Principal Amount, as applicable, of, and accrued and unpaid Cash Interest on, such Notes (or such portions thereof), in each case as
provided in this Indenture.
(D) Notes
to Be Exchanged. At the Close of Business on the Exchange Date for any Note (or any portion thereof) to be Exchanged, such Note (or
such portion) will (unless there occurs a Default in the delivery of the Exchange Consideration or Cash Interest due, pursuant to Section 5.03(B) or
Section 5.02(D), upon such Exchange) be deemed to cease to be outstanding, except to the extent provided in Section 5.02(D) or
Section 5.08.
(E) Cessation
of Accrual of Interest. Except as provided in Section 5.02(D), interest will cease to accrue on each Note from, and including,
the date that such Note is deemed, pursuant to this Section 2.18, to cease to be
outstanding, unless there occurs a default in the payment or delivery of any cash or other property due on such Note.
Section 2.19. Repurchases
by the Company.
Without limiting the generality
of Section 2.15, subject to applicable law, the Company, the Parent Guarantor or their respective Subsidiaries may,
from time to time, repurchase Notes in open market purchases or in negotiated transactions without delivering prior notice to Holders.
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Section 2.20. CUSIP
and ISIN Numbers.
Subject to Section 2.12,
the Company may use one or more CUSIP or ISIN numbers to identify any of the Notes, and, if so, the Company and the Trustee will use
such CUSIP or ISIN number(s) in notices to Holders; provided, however, that (i) the Trustee makes no representation
as to the correctness or accuracy of any such CUSIP or ISIN number; and (ii) the effectiveness of any such notice will not be affected
by any defect in, or omission of, any such CUSIP or ISIN number. The Company will promptly notify the Trustee of any change in the CUSIP
or ISIN number(s) identifying any Notes.
Article 3. Covenants
Section 3.01. Payment
on Notes.
(A) Generally.
The Company will pay or cause to be paid all the Capitalized Principal Amount of, the Fundamental Change Repurchase Price and Redemption
Price for, accrued and unpaid interest on, and other amounts due with respect to, the Notes on the dates and in the manner set forth
in this Indenture.
(B) Deposit
of Funds. Before 11:00 A.M., New York City time, on each Redemption Date, Fundamental Change Repurchase Date or, in the case of Cash
Interest, Interest Payment Date, and on the Maturity Date or any other date on which any cash amount is due on the Notes, the Company
will deposit, or will cause there to be deposited, with the Paying Agent cash, in funds immediately available on such date, sufficient
to pay the cash amount due on the applicable Notes on such date. The Paying Agent will return to the Company, as soon as practicable,
any money not required for such purpose.
Section 3.02. Exchange
Act Reports.
(A) Generally.
The Company will send to the Trustee copies of all reports that the Parent Guarantor is required to file with the SEC pursuant to Section 13(a) or
15(d) of the Exchange Act (other than current reports on Form 8-K (or any successor form)) within fifteen (15) calendar days
after the date that the Parent Guarantor is required to file the same (after giving effect to all applicable grace periods under the
Exchange Act); provided, however, that the Company need not send to the Trustee any material for which the Parent Guarantor
has received, or is seeking in good faith and has not been denied, confidential treatment by the SEC. Any report that the Parent Guarantor
files with the SEC through the EDGAR system (or any successor thereto) will be deemed to be sent to the Trustee and the Holders at the
time such report is so filed via the EDGAR system (or such successor). Upon the request of any Holder, the Trustee will provide to such
Holder a copy of any report that the Parent Guarantor has sent the Trustee pursuant to this Section 3.02(A),
other than a report that is deemed to be sent to the Trustee and the Holders pursuant to the preceding sentence.
(B) Trustee’s
Disclaimer. The Trustee need not determine whether the Company has filed any material via the EDGAR system (or such successor). The
sending or filing of reports pursuant to Section 3.02(A) will not be deemed
to constitute actual or constructive notice to the Trustee of any information contained, or determinable from information contained,
therein, including the Company’s compliance with any of its covenants under this Indenture as to which the Trustee is entitled
to rely conclusively on an Officer’s Certificate. The Trustee shall have no liability or responsibility for the filing, timeliness
or content of such reports (as to which the Trustee is entitled to rely exclusively on Officer’s Certificates).
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Section 3.03. Rule 144A
Information.
At any time when any Notes
or shares of Common Stock deliverable upon Exchange of the Notes are outstanding and constitute “restricted securities” (as
defined in Rule 144), then the Company and the Parent Guarantor (or the Company’s or the Parent Guarantor’s successors,
as applicable) will promptly provide, to the Trustee and, upon written request, to any Holder, beneficial owner or prospective purchaser
of such Notes or shares, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act to facilitate
the resale of such Notes or shares pursuant to Rule 144A, but only to the extent the same is required for such Notes or shares to
be eligible for resale pursuant to Rule 144A.
Section 3.04. Additional
Interest.
(A) Accrual
of Additional Interest.
(i) If,
at any time during the six (6)-month period beginning on, and including, the date that is six (6) months after the Last Original
Issue Date of the Notes,
(1) the
Parent Guarantor fails to timely file any report (other than Form 8-K reports) that the Parent Guarantor is required to file with
the SEC pursuant to Section 13 or 15(d) of the Exchange Act (after giving effect to all applicable grace periods thereunder);
or
(2) such
Note is not otherwise Freely Tradable,
then Additional Interest will accrue on the Notes
for each day during such period on which such failure is continuing or such Note is not Freely Tradable.
(ii) In
addition, Additional Interest will accrue on a Note on each day on which such Note is not Freely Tradable on or after the De-Legending
Deadline Date for such Note; provided, however, that no additional interest shall accrue or be owed until the fifteenth Business
Day following written notification to the Company by any Holder or beneficial owner requesting that the Company comply with its obligations
described in this Section 3.04(A)(ii) (which notice may be given at any time
after the 330th day after the Last Original Issue Date of the Initial Notes or any additional Notes, as the case may be, but in all cases
must be given no later than June 15, 2030, it being understood and agreed that in no event shall Additional Interest be owed for
any period prior to the 380th day after the Last Original Issue Date of the Initial Notes (or any additional Notes, as the case may be).
(B) Amount
and Payment of Additional Interest. Any Additional Interest that accrues on a Note pursuant to Section 3.04(A) will
be payable in cash on the same dates and in the same manner as the Stated Interest on such Note and will accrue at a rate per annum equal
to one quarter of one percent (0.25%) of the Capitalized Principal Amount thereof for the first ninety (90) days on which Additional
Interest accrues and, thereafter, at a rate per annum equal to one half of one percent (0.50%) of the Capitalized Principal Amount thereof;
provided, however, that in no event will Additional Interest, together with any Special Interest, accrue on any day on
a Note at a combined rate per annum that exceeds one half of one percent (0.50%). For the avoidance of doubt, any Additional Interest
that accrues on a Note will be in addition to the Stated Interest that accrues on such Note and is payable in cash and, subject to the
proviso of the immediately preceding sentence, in addition to any Special Interest that accrues on such Note.
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(C) Notice
of Accrual of Additional Interest; Trustee’s Disclaimer. The Company will send written notice to the Holder of each Note, and
to the Trustee, of the commencement and termination of any period in which Additional Interest accrues on such Note. In addition, if
Additional Interest accrues on any Note, then, no later than five (5) Business Days before each date on which such Additional Interest
is to be paid, the Company will deliver an Officer’s Certificate to the Trustee and the Paying Agent stating (i) that the
Company is obligated to pay Additional Interest on such Note on such date of payment; and (ii) the amount of such Additional Interest
that is payable on such date of payment. The Trustee shall not at any time be under any duty or responsibility to any Holder to determine
whether any Additional Interest is payable, whether any Additional Interest is accruing, or with respect to the nature, extent, or calculation
of any taxes or the amount of any Additional Interest that is owed, or with respect to the method employed in such calculation of any
Additional Interest.
(D) Exclusive
Remedy. The accrual of Additional Interest will be the exclusive remedy available to Holders for the failure of their Notes to become
Freely Tradable.
Section 3.05. Compliance
and Default Certificates.
(A) Annual
Compliance Certificate. Within ninety (90) days after the last day of each fiscal year of the Company, beginning with the first such
fiscal year ending after the date of this Indenture, the Company will deliver an Officer’s Certificate to the Trustee stating (i) that
the signatory thereto has supervised a review of the activities of the Company and its Subsidiaries during such fiscal year with a view
towards determining whether any Default or Event of Default has occurred; and (ii) whether, to such signatory’s knowledge,
a Default or Event of Default has occurred or is continuing (and, if so, describing all such Defaults or Events of Default and what action
the Company is taking or proposes to take with respect thereto).
(B) Default
Certificate. If a Default or Event of Default occurs, then the Company will, within thirty (30) days after its first occurrence,
deliver an Officer’s Certificate to the Trustee describing the same and what action the Company is taking or proposes to take with
respect thereto (such Officer’s Certificate, a “Default Certificate”); provided that the Company is not
required to deliver a Default Certificate if such Default has been cured (or deemed cured) or waived prior to the date that such notice
is due; provided, further that the foregoing shall not relieve the Company from a requirement to so deliver a Default Certificate
following any Default in payment of the Capitalized Principal Amount, Fundamental Change Repurchase Price, or Redemption Price, or accrued
and unpaid interest, if any, or in payment or delivery of the consideration due upon Exchange of the Notes, as the case may be.
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Section 3.06. Stay,
Extension and Usury Laws.
To the extent that
it may lawfully do so, the Company and each Guarantor (A) agrees that it will not at any time insist upon, plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay, extension or usury law (wherever or whenever enacted or in force) that
may affect the covenants or the performance of this Indenture; and (B) expressly waives all benefits or advantages of any such law
and agrees that it will not, by resort to any such law, hinder, delay or impede the execution of any power granted to the Trustee by
this Indenture, but will suffer and permit the execution of every such power as though no such law has been enacted.
Section 3.07. Acquisition
of Notes by the Company, the Parent Guarantor and their Respective Subsidiaries.
Without limiting the
generality of Section 2.18, Notes that the Company, the Parent Guarantor or any of their respective Subsidiaries have
purchased or otherwise acquired will be deemed to remain outstanding (except to the extent provided in Section 2.16)
until such time as such Notes are delivered to the Trustee for cancellation. The Company will use commercially reasonable efforts to
prevent any of its controlled Affiliates from acquiring any Note (or any beneficial interest therein).
Section 3.08. Limitation
on Indebtedness.
(A) The Company shall not, and shall not
permit any Restricted Subsidiary to, Incur any Indebtedness; provided, however,
that the Company or any Restricted Subsidiary may Incur Indebtedness if on the date of the
Incurrence of such Indebtedness, after giving effect to the Incurrence thereof, either (i) the
Consolidated Total Net Corporate Leverage Ratio would be equal to or less than 5.25:1.00
or (ii) the Consolidated Coverage Ratio would be equal to or greater than 2.00:1.00.
(B) Notwithstanding Section 3.08(A),
the Company and its Restricted Subsidiaries may Incur the following Indebtedness:
(i) Indebtedness Incurred pursuant to any
Credit Facility (including in respect of letters of credit or bankers’ acceptances
issued or created thereunder) and Indebtedness Incurred other than under any Credit Facility,
and (without limiting the foregoing), in each case, any Refinancing Indebtedness in respect
thereof, in a maximum principal amount at any time outstanding not exceeding in the aggregate
the amount equal to the sum of (A) $4,045.0 million, plus (B) $1,000.0
million, plus (C) in the event of any refinancing of any such Indebtedness, the
aggregate amount of fees, underwriting discounts, premiums and other costs and expenses (including
accrued unpaid interest) incurred in connection with such refinancing;
(ii) Indebtedness (A) of any Restricted
Subsidiary to the Company or (B) of the Company or any Restricted Subsidiary
to any Restricted Subsidiary; provided, that any subsequent issuance or transfer of
any Capital Stock of such Restricted Subsidiary to which such Indebtedness is owed, or other
event, that results in such Restricted Subsidiary ceasing to be a Restricted Subsidiary or
any other subsequent transfer of such Indebtedness (except to the Company or a Restricted
Subsidiary) will be deemed, in each case, an Incurrence of such Indebtedness by the issuer
thereof not permitted by this clause (ii);
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(iii) Indebtedness represented by the Notes
(including any PIK Interest and PIK Notes, but excluding any Additional Notes), the Existing
First Lien Notes issued on the Existing First Lien Notes Issue Date, the Existing Second
Lien Exchangeable Notes (including any paid-in-kind interest thereon and Guarantees thereof)
any Indebtedness (other than the Indebtedness described in clauses (i) and (ii) above)
outstanding on the Existing First Lien Notes Issue Date or any Refinancing Indebtedness thereof
Incurred prior to the Issue Date, and in each case, that is also outstanding on the Issue
Date, including the Existing Unsecured Notes, and any Refinancing Indebtedness Incurred in
respect of any Indebtedness described in this clause (iii) or paragraph (a) above;
(iv) (A) Finance Lease Obligations in
an aggregate principal amount at any time outstanding not to exceed the greater of (x) an
amount equal to $50.0 million and (y) 10.0% of LTM Consolidated EBITDA and (B) Purchase
Money Obligations, and in each case, any Refinancing Indebtedness with respect thereto;
(v) Indebtedness consisting of (w) accommodation
guarantees for the benefit of trade creditors of the Company or any of its Restricted Subsidiaries,
(x) Guarantees in connection with the construction or improvement of all or any portion
of a Public Facility to be used by the Company or any Restricted Subsidiary, (y) Guarantees
required (in the good faith determination of the Company) in connection with Vehicle Rental
Concession Rights or (z) any Guarantee in respect of any Franchise Vehicle Indebtedness
or Franchise Lease Obligation;
(vi) (A) Guarantees by the Company or
any Restricted Subsidiary of Indebtedness or any other obligation or liability of the Company
or any Restricted Subsidiary (other than any Indebtedness Incurred by the Company or such
Restricted Subsidiary, as the case may be, in violation of this Section 3.08),
or (B) without limiting Section 3.12, Indebtedness of the Company or
any Restricted Subsidiary arising by reason of any Lien granted by or applicable to such
Person securing Indebtedness of the Company or any Restricted Subsidiary (other than any
Indebtedness Incurred by the Company or such Restricted Subsidiary, as the case may be, in
violation of this Section 3.08 or Section 3.12); provided
that any Guarantees or other Indebtedness of the Company or any Restricted Subsidiary Incurred
pursuant to this clause (vi) in respect of any Consolidated Vehicle Indebtedness
shall be of a type consistent with that Incurred in respect of the Consolidated Vehicle Indebtedness
of the Company and its Restricted Subsidiaries as of the Issue Date;
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(vii) Indebtedness of the Company or any Restricted
Subsidiary (A) arising from the honoring of a check, draft or similar instrument
of such Person drawn against insufficient funds, provided that such Indebtedness is extinguished
within five Business Days of its Incurrence, or (B) consisting of guarantees,
indemnities, obligations in respect of earnouts or other purchase price adjustments, or similar
obligations, Incurred in connection with the acquisition or disposition of any business,
assets or Person;
(viii) Indebtedness of the Company or any
Restricted Subsidiary in respect of (A) letters of credit, bankers’ acceptances
or other similar instruments or obligations issued, or relating to liabilities or obligations
incurred, in the ordinary course of business (including those issued to governmental entities
in connection with self-insurance under applicable workers’ compensation statutes),
(B) completion guarantees, surety, judgment, appeal or performance bonds, or
other similar bonds, instruments or obligations, provided, or relating to liabilities or
obligations incurred, in the ordinary course of business, (C) Hedging Obligations,
entered into for bona fide hedging purposes, (D) Management Guarantees, (E) the
financing of insurance premiums in the ordinary course of business, (F) take-or-pay
obligations under supply arrangements incurred in the ordinary course of business, (G) netting,
overdraft protection and other arrangements arising under standard business terms of any
bank at which the Company or any Restricted Subsidiary maintains an overdraft, cash pooling
or other similar facility or arrangement or (H) Bank Products Obligations;
(ix) [Reserved];
(x) Indebtedness of (A) the Company
or any Restricted Subsidiary Incurred to finance or refinance, or otherwise Incurred in connection
with, any acquisition of assets (including Capital Stock), business or Person, or any merger
or consolidation of any Person with or into the Company or any Restricted Subsidiary, or
(B) any Person that is acquired by or merged or consolidated with or into the
Company or any Restricted Subsidiary (including Indebtedness thereof Incurred in connection
with any such acquisition, merger or consolidation); provided that on the date of
such acquisition, merger or consolidation, after giving effect thereto, either (1) the
Company could Incur at least $1.00 of additional Indebtedness pursuant to paragraph (a) above
or (2) either (i) the Consolidated Coverage Ratio of the Company would equal or
be greater than the Consolidated Coverage Ratio of the Company immediately prior to giving
effect thereto or (ii) the Consolidated Total Net Corporate Leverage Ratio of the Company
would equal or be less than Consolidated Total Net Corporate Leverage Ratio of the Company
immediately prior to giving effect thereto; and any Refinancing Indebtedness with respect
to any such Indebtedness;
(xi) Consolidated Vehicle Indebtedness in
a maximum principal amount at any time outstanding not exceeding in the aggregate an amount
equal to the sum of (A) an amount equal to the Borrowing Base, plus (B) in the
event of any refinancing of any such Indebtedness, the aggregate amount of fees, underwriting
discounts, premiums and other costs and expenses incurred in connection with such refinancing;
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(xii) Contribution Indebtedness, and any Refinancing
Indebtedness with respect thereto; provided that any such Contribution Indebtedness, and
any Refinancing Indebtedness with respect thereto, constitutes Subordinated Obligations or
Guarantor Subordinated Obligations; and
(xiii) Indebtedness issuable upon the conversion
or exchange of shares of Disqualified Stock issued in accordance with paragraph (a) above,
and any Refinancing Indebtedness with respect thereto.
(C) For purposes of determining compliance
with, and the outstanding principal amount of any particular Indebtedness Incurred pursuant
to and in compliance with, this Section 3.08, (i) any other obligation of
the obligor on such Indebtedness (or of any other Person who could have Incurred such Indebtedness
under this Section 3.08) arising under any Guarantee, Lien or letter of credit,
bankers’ acceptance or other similar instrument or obligation supporting such Indebtedness
shall be disregarded to the extent that such Guarantee, Lien or letter of credit, bankers’
acceptance or other similar instrument or obligation secures the principal amount of such
Indebtedness; (ii) in the event that Indebtedness meets the criteria of more than one
of the types of Indebtedness described in Section 3.08(B), the Company, in its
sole discretion, shall classify such item of Indebtedness and may include the amount and
type of such Indebtedness in one or more of the clauses of Section 3.08(B) (including
in part under one such clause and in part under another such clause); provided that (if the
Company shall so determine) any Indebtedness Incurred pursuant to Section 3.08(B) of
this shall cease to be deemed Incurred or outstanding for purposes of such clause but shall
be deemed Incurred for the purposes of Section 3.08(A) from and after any
date designated by the Company on which the Company or any Restricted Subsidiary could have
Incurred such Indebtedness under Section 3.08(A) without reliance on such
clause, (iii) in the event that Indebtedness could be Incurred in part under Section 3.08(A),
the Company, in its sole discretion, may classify a portion of such Indebtedness as having
been Incurred under Section 3.08(A) and thereafter the remainder of such
Indebtedness as having been Incurred under Section 3.08(B); (iv) the amount
of Indebtedness issued at a price that is less than the principal amount thereof shall be
equal to the amount of the liability in respect thereof determined in accordance with GAAP;
(v) the principal amount of Indebtedness outstanding under any clause of Section 3.08(B) shall
be determined after giving effect to the application of proceeds of any such Indebtedness
to refinance any such other Indebtedness; (vi) if any Indebtedness is Incurred to refinance
Indebtedness initially Incurred (or, Indebtedness Incurred to refinance Indebtedness
initially Incurred) in reliance on any provision of Section 3.08(B) measured
by reference to a percentage of Consolidated EBITDA at the time of Incurrence, and such refinancing
would cause such percentage of Consolidated EBITDA restriction to be exceeded if calculated
based on the Consolidated EBITDA on the date of such refinancing, such percentage of Consolidated
EBITDA shall not be deemed to be exceeded (and such refinancing Indebtedness shall be deemed
permitted) so long as the principal amount of such refinancing Indebtedness does not exceed
the principal amount of such Indebtedness being refinanced, plus the aggregate amount of
fees, underwriting discounts, premiums and other costs and expenses (including accrued and
unpaid interest) Incurred or payable in connection with such refinancing; and (vii) if
any Indebtedness is Incurred to refinance Indebtedness initially Incurred (or, Indebtedness
Incurred to refinance Indebtedness initially Incurred) in reliance on any provision of Section 3.08(B) measured
by a dollar amount, such dollar amount shall not be deemed to be exceeded (and such refinancing
Indebtedness shall be deemed permitted) to the extent the principal amount of such newly
Incurred Indebtedness does not exceed the principal amount of such Indebtedness being refinanced,
plus the aggregate amount of fees, underwriting discounts, premiums and other costs and expenses
(including accrued and unpaid interest) Incurred or payable in connection with such refinancing.
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(D) For purposes of determining compliance
with any dollar-denominated restriction on the Incurrence of Indebtedness or Liens denominated
in a foreign currency, the dollar-equivalent principal amount of such Indebtedness Incurred
pursuant thereto shall be calculated based on the relevant currency exchange rate in effect
on the date that such Indebtedness was Incurred, in the case of term Indebtedness, or first
committed, in the case of revolving or deferred draw Indebtedness; provided that (x) the
dollar-equivalent principal amount of any such Indebtedness outstanding on the Issue Date
shall be calculated based on the relevant currency exchange rate in effect on the Issue Date,
(y) if such Indebtedness is Incurred to refinance other Indebtedness denominated in
a foreign currency (or in a different currency from such Indebtedness so being Incurred),
and such refinancing would cause the applicable dollar-denominated restriction to be exceeded
if calculated at the relevant currency exchange rate in effect on the date of such refinancing,
such dollar-denominated restriction shall be deemed not to have been exceeded so long as
the principal amount of such refinancing Indebtedness does not exceed (i) the outstanding
or committed principal amount (whichever is higher) of such Indebtedness being refinanced
plus (ii) the aggregate amount of fees, underwriting discounts, premiums and other costs
and expenses incurred in connection with such refinancing and (z) the dollar-equivalent
principal amount of Indebtedness denominated in a foreign currency and Incurred pursuant
to a Credit Facility shall be calculated based on the relevant currency exchange rate in
effect on, at the Company’s option, (i) the Issue Date, (ii) any date on
which any of the respective commitments under such Credit Facility shall be reallocated between
or among facilities or subfacilities thereunder, or on which such rate is otherwise calculated
for any purpose thereunder, or (iii) the date of such Incurrence. The principal amount
of any Indebtedness Incurred to refinance other Indebtedness, if Incurred in a different
currency from the Indebtedness being refinanced, shall be calculated based on the currency
exchange rate applicable to the currencies in which such respective Indebtedness is denominated
that is in effect on the date of such refinancing.
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Section 3.09. Limitation
on Restricted Payments.
(A) The Company shall not, and shall not
permit any Restricted Subsidiary to, directly or indirectly:
(i) declare or pay any dividend or make any
distribution on or in respect of its Capital Stock (including any such payment in connection
with any merger or consolidation to which the Company is a party) except (x) dividends
or distributions payable solely in its Capital Stock (other than Disqualified Stock) and
(y) dividends or distributions payable to the Company or any Restricted Subsidiary (and,
in the case of any such Restricted Subsidiary making such dividend or distribution, to other
holders of its Capital Stock on no more than a pro rata basis, measured by value);
(ii) purchase, redeem, retire or otherwise
acquire for value any Capital Stock of the Company held by Persons other than the Company
or a Restricted Subsidiary (other than any acquisition of Capital Stock deemed to occur upon
the exercise of options if such Capital Stock represents a portion of the exercise price
thereof);
(iii) voluntarily purchase, repurchase, redeem,
defease or otherwise voluntarily acquire or retire for value, prior to scheduled maturity,
scheduled repayment or scheduled sinking fund payment, any Subordinated Obligations or Guarantor
Subordinated Obligations (other than Subordinated Obligations or Guarantor Subordinated Obligations
owed to the Company or to a Restricted Subsidiary and other than a purchase, repurchase,
redemption, defeasance or other acquisition or retirement for value in anticipation of satisfying
a sinking fund obligation, principal installment or final maturity, in each case due within
one year of the date of such purchase, repurchase, redemption, defeasance or other acquisition
or retirement); or
(iv) make any Restricted Investment,
any such dividend, distribution, purchase,
repurchase, redemption, defeasance, other acquisition or retirement or Restricted Investment being herein referred to as a “Restricted
Payment.”
(B) The provisions of Section 3.09(A) do
not prohibit any of the following (each, a “Permitted Payment”):
(i) (x) any purchase, redemption,
repurchase, defeasance or other acquisition or retirement of Capital Stock of the Company
(“Treasury Capital Stock”) or Subordinated Obligations made by exchange
(including any such exchange pursuant to the exercise of a conversion right or privilege
in connection with which cash is paid in lieu of the issuance of fractional shares) for,
or out of the proceeds of the issuance or sale of, Capital Stock of the Company (other than
Disqualified Stock and other than Capital Stock issued or sold to a Subsidiary) (“Refunding
Capital Stock”) or a capital contribution to the Company, in each case other than
Excluded Contributions and (y) if immediately prior to such acquisition or retirement
of such Treasury Capital Stock, dividends thereon were permitted pursuant to Section 3.09(B)(xiv),
dividends on such Refunding Capital Stock in an aggregate amount per annum not exceeding
the aggregate amount per annum of dividends so permitted on such Treasury Capital Stock;
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(ii) any purchase, redemption, repurchase,
defeasance or other acquisition or retirement of Subordinated Obligations (w) made
by exchange for, or out of the proceeds of the Incurrence of, Indebtedness of the Company
or any Restricted Subsidiary, (x) from Net Available Cash or an equivalent amount
to the extent permitted by Section 3.11, (y) following the occurrence
of a Fundamental Change (or other similar event described therein as a “Fundamental
Change”), but only if the Company shall have complied with Section 4.02
and, if required, purchased all Notes tendered pursuant to the offer to repurchase all the
Notes required thereby, prior to purchasing or repaying such Subordinated Obligations or
(z) constituting Acquired Indebtedness;
(iii) any dividend paid or redemption made
within 60 days after the date of declaration thereof or of the giving of notice thereof,
as applicable, if at such date of declaration or notice, such dividend or redemption would
have complied with this Section 3.09;
(iv) Restricted Payments in an aggregate amount
outstanding at any time not to exceed the amount of Excluded Contributions;
(v) [Reserved];
(vi) loans, advances, dividends or distributions
by the Company to any Parent (whether made directly or indirectly) to permit any Parent to
repurchase or otherwise acquire its Capital Stock (including any options, warrants or other
rights in respect thereof), or payments by the Company to repurchase or otherwise acquire
Capital Stock of any Parent or the Company (including any options, warrants or other rights
in respect thereof), in each case from current or former Management Investors (including
any repurchase or acquisition by reason of the Company or any Parent retaining any Capital
Stock, option, warrant or other right in respect of tax withholding obligations, and any
related payment in respect of any such obligation), such payments, loans, advances, dividends
or distributions not to exceed an amount (net of repayments of any such loans or advances
and net of any amount thereof repurchased or otherwise acquired due to death, termination,
retirement, or disability or stockholder incentive plan) equal to (x) the greater
of $65.0 million and 10.0% of LTM Consolidated EBITDA per fiscal year (with any unused amounts
being permitted to be carried forward to succeeding fiscal years), plus (y) the
net proceeds received by the Company since the Measurement Date from, or as a capital contribution
from, the issuance or sale to Management Investors of Capital Stock (including any options,
warrants or other rights in respect thereof), plus (z) the cash proceeds of key
man life insurance policies received by the Company or any Restricted Subsidiary (or by any
Parent and contributed to the Company) since the Measurement Date; provided that any
cancellation of Indebtedness owing to the Company or any Restricted Subsidiary by any current
or former Management Investor in connection with any repurchase or other acquisition of Capital
Stock (including any options, warrants or other rights in respect thereof) from any current
or former Management Investor shall not constitute a Restricted Payment for purposes of this
Section 3.09 or any provision of this Indenture;
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(vii) Restricted Payments following a Qualified
IPO in an amount not to exceed in any fiscal year of the Company the sum of (x) 7.0%
of the aggregate gross proceeds received by the Company (whether directly, or indirectly
through a contribution to common equity capital) in or from such Qualified IPO and (y) 7.0%
of Market Capitalization;
(viii) Restricted
Payments (including loans or advances) made since the Issue Date in an aggregate amount outstanding
at any time not to exceed an amount (net of repayments of any such loans or advances) equal
to (x) $250.0 million plus (y) 50.0% of Consolidated Net Income accrued
during the period (treated as one accounting period) beginning on July 1, 2024 to the
end of the most recent fiscal quarter ending prior to the date of such Restricted Payment
for which consolidated financial statements of the Company are available (or, in case
Consolidated Net Income shall be a negative number, 100.0% of such negative number);
(ix) loans, advances, dividends or distributions
to any Parent or other payments by the Company or any Restricted Subsidiary (A) pursuant
to a tax sharing agreement or (B) to pay or permit any Parent to pay any Parent
Expenses or any Related Taxes;
(x) payments by the Company, or loans, advances,
dividends or distributions by the Company to any Parent to make payments, to holders of Capital
Stock of the Company or any Parent in lieu of issuance of fractional shares of such Capital
Stock;
(xi) dividends or other distributions of,
or other Restricted Payments paid for or made with, Capital Stock, Indebtedness or other
securities of Unrestricted Subsidiaries;
(xii) any Restricted Payments in respect of
seller notes and other deferred purchase price obligations in an aggregate amount not to
exceed the greater of $317.5 million and 50.0% of LTM Consolidated EBITDA;
(xiii) the declaration and payment of dividends
to holders of any class or series of Disqualified Stock, or of any Preferred Stock of a Restricted
Subsidiary;
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(xiv) (A) dividends on any Designated
Preferred Stock of the Company issued after the Issue Date; provided that at the time of
such issuance and after giving effect thereto on a pro forma basis, the Consolidated Total
Net Corporate Leverage Ratio would be equal to or less than 3.00:1.00, for the Most Recent
Four Quarter Period (B) loans, advances, dividends or distributions to any Parent
to permit dividends on any Designated Preferred Stock of any Parent issued after the Issue
Date if the net proceeds of the issuance of such Designated Preferred Stock have been contributed
to the Company or any of its Restricted Subsidiaries; provided that the aggregate
amount of all loans, advances, dividends or distributions paid pursuant to this subclause
(B) shall not exceed the net proceeds of such issuance of Designated Preferred Stock
received by or contributed to the Company or any of its Restricted Subsidiaries or (C) any
dividend on Refunding Capital Stock that is Preferred Stock; provided that at the
time of the declaration of such dividend and after giving effect thereto on a pro forma basis,
(x) the Consolidated Coverage Ratio would be equal to or greater than 2.00:1.00 and
(y) the Company would be in compliance with the financial covenants set forth in Section 8.9(a) and
(b) of the First Lien Credit Agreement, as such sections may be amended from time to
time, so long as such sections are in effect;
(xv) Restricted Payments in an aggregate amount
outstanding at any time not to exceed an amount equal to Declined Excess Proceeds;
(xvi) [Reserved]; and
(xvii) Restricted Payments in an aggregate
amount not to exceed $112.5 million;
provided,
that (A) in the case of clause (iii), the net amount of any such Permitted Payment shall be included in subsequent
calculations of the amount of Restricted Payments, (B) in all cases other than pursuant to clause (A) immediately
above, the net amount of any such Permitted Payment shall be excluded in subsequent calculations of the amount of Restricted Payments
and (C) solely with respect to clauses (viii), (xiv) and (xvi), no payment or bankruptcy Event
of Default shall have occurred and be continuing at the time of any such Permitted Payment after giving effect thereto. The Company,
in its sole discretion, may classify any Restricted Payment or Permitted Investment as being made in part under one of the clauses or
subclauses of this Section 3.09 or under one of the clauses or subclauses of the definition of Permitted Investments and
in part under one or more other such clauses or subclauses; provided, further, that, notwithstanding anything in this Section 3.09
to the contrary, Investments in Unrestricted Subsidiaries shall only be permitted to be made pursuant to clause (aa) of the
definition of Permitted Investments.
Notwithstanding anything
in this Section 3.09 to the contrary, the Company shall not, and shall not permit any Restricted Subsidiary to, directly
or indirectly, make any Restricted Payments pursuant to clauses (vi), (vii), (viii), (xii), (xiv),
(xv) and (xvii) of this Section 3.09(B) unless, at the time of making such Restricted Payment
and after giving effect thereto on a pro forma basis, the Consolidated Total Net Corporate Leverage Ratio would be equal to or less than
6.25:1.00 for the Most Recent Four Quarter Period.
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Section 3.10. Limitation
on Restrictions on Distributions from Restricted Subsidiaries.
The Company shall not, and
shall not permit any Restricted Subsidiary to, create or otherwise cause to exist or become effective any consensual encumbrance or restriction
on the ability of any Restricted Subsidiary to (i) pay dividends or make any other distributions on its Capital Stock or
pay any Indebtedness or other obligations owed to the Company, (ii) make any loans or advances to the Company or (iii) transfer
any of its property or assets to the Company (provided that dividend or liquidation priority between classes of Capital Stock,
or subordination of any obligation (including the application of any remedy bars thereto) to any other obligation, will be deemed not
to constitute such an encumbrance or restriction), except any encumbrance or restriction:
(1) pursuant to an agreement or instrument
in effect at or entered into on the Issue Date, any Credit Facility, the indentures governing
the Existing Notes, this Indenture, the Notes, the Notes Collateral Documents or the collateral
documents related to the liens securing the Existing Secured Notes;
(2) pursuant to any agreement or instrument
of a Person, or relating to Indebtedness or Capital Stock of a Person, which Person is acquired
by or merged or consolidated with or into the Company or any Restricted Subsidiary, or which
agreement or instrument is assumed by the Company or any Restricted Subsidiary in connection
with an acquisition of assets from or other transaction with such Person, or any other transaction
entered into in connection with any such acquisition, merger or consolidation, as in effect
at the time of such acquisition, merger, consolidation or transaction (except to the extent
that such Indebtedness was incurred to finance, or otherwise in connection with, such acquisition,
merger, consolidation or transaction); provided that for purposes of this clause
(2), if a Person other than the Company is the Successor Company with respect thereto,
any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall
be deemed acquired or assumed, as the case may be, by the Company or a Restricted Subsidiary,
as the case may be, when such Person becomes such Successor Company;
(3) pursuant to an agreement or instrument
(a “Refinancing Agreement”) effecting a refinancing of Indebtedness Incurred
or outstanding pursuant or relating to, or that otherwise extends, renews, refunds, refinances
or replaces, any agreement or instrument referred to in clause (1) or (2) of
this Section 3.10 or this clause (3) (an “Initial Agreement”)
or that is, or is contained in, any amendment, supplement or other modification to any Initial
Agreement or Refinancing Agreement (an “Amendment”); provided,
however, that the encumbrances and restrictions contained in any such Refinancing
Agreement or Amendment taken as a whole are not materially less favorable to the Holders
of the Notes than the encumbrances and restrictions contained in the Initial Agreement or
Initial Agreements to which such Refinancing Agreement or Amendment relates (as determined
in good faith by the Company, which determination shall be conclusive);
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(4) (A) pursuant to any agreement
or instrument that restricts in a customary manner (as determined in good faith by the Company,
which determination shall be conclusive) the assignment or transfer thereof, or the subletting,
assignment or transfer of any property or asset subject thereto, (B) by virtue
of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any
property or assets of the Company or any Restricted Subsidiary not otherwise prohibited by
this Indenture, (C) contained in mortgages, pledges or other security agreements
securing Indebtedness or other obligations of the Company or a Restricted Subsidiary to the
extent restricting the transfer of the property or assets subject thereto, (D) pursuant
to customary provisions (as determined in good faith by the Company, which determination
shall be conclusive) restricting dispositions of real property interests set forth in any
reciprocal easement agreements of the Company or any Restricted Subsidiary, (E) pursuant
to Purchase Money Obligations that impose encumbrances or restrictions with respect to the
property or assets so acquired, (F) on cash or other deposits, net worth or inventory
imposed by customers or suppliers under agreements entered into in the ordinary course of
business, (G) pursuant to customary provisions (as determined in good faith by
the Company, which determination shall be conclusive) contained in agreements and instruments
entered into in the ordinary course of business (including leases and licenses) or in joint
venture and other similar agreements or in shareholder, partnership, limited liability company
and other similar agreements in respect of non-wholly owned Restricted Subsidiaries, (H) that
arises or is agreed to in the ordinary course of business and does not detract from the value
of property or assets of the Company or any Restricted Subsidiary in any manner material
to the Company or such Restricted Subsidiary, (I) pursuant to Hedging Obligations,
(J) in connection with or relating to any Vehicle Rental Concession Right or
(K) pursuant to Bank Products Obligations;
(5) with respect to any agreement for the
direct or indirect disposition of Capital Stock or property or assets of any Person, imposed
with respect to such Person, Capital Stock, property or assets pending the closing of such
disposition;
(6) any agreement governing or relating to
Indebtedness and/or other obligations and liabilities secured by a Lien permitted under the
provisions of Section 3.12 (in which case any restriction shall only be effective
against the assets subject to such Lien, except as may be otherwise permitted under this
Section 3.10);
(7) by reason of any applicable law, rule,
regulation or order, or required by any regulatory authority having jurisdiction over the
Company or any Subsidiary or any of their businesses, including any such law, rule, regulation,
order or requirement applicable in connection with such Subsidiary’s status (or the
status of any Subsidiary of such Subsidiary) as a Captive Insurance Subsidiary;
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(8) pursuant to an agreement or instrument
(A) relating to any Indebtedness Incurred subsequent to the Issue Date (i) if
the encumbrances and restrictions contained in any such agreement or instrument taken as
a whole are not materially less favorable to the Holders of the Notes than the encumbrances
and restrictions contained in the Initial Agreements (as determined in good faith by the
Company, which determination shall be conclusive), or (ii) if such encumbrance
or restriction is not materially more disadvantageous to the Holders of the Notes than is
customary in comparable financings (as determined in good faith by the Company, which determination
shall be conclusive) and either (x) the Company determines in good faith (which
determination shall be conclusive) that such encumbrance or restriction will not materially
affect the Company’s ability to make principal or interest payments on the Notes or
(y) such encumbrance or restriction applies only if a default occurs in respect
of a payment or financial covenant relating to such Indebtedness, (B) relating
to any sale of receivables by or Indebtedness of a Foreign Subsidiary, (C) relating
to Indebtedness of or a Franchise Financing Disposition by or to or in favor of any Franchisee
or Franchise Special Purpose Entity or to any Franchise Lease Obligation or (D) relating
to Indebtedness of or a Financing Disposition by or to or in favor of any Special Purpose
Entity;
(9) any agreement evidencing any replacement,
renewal, extension or refinancing of any of the foregoing (or any agreement described in
this Section 3.10) that is in compliance with this Section 3.10;
or
(10) any agreement relating to intercreditor
arrangements and related rights and obligations, to or by which the Holders and/or the Trustee,
the Notes Collateral Agent or any other agent, trustee or representative on their behalf
may be party or bound at any time or from time to time, and any agreement providing that
in the event that a Lien is granted for the benefit of the Holders another Person shall also
receive a Lien, which Lien is permitted under the provisions of Section 3.12.
Section 3.11. Limitation
on Sales of Assets and Subsidiary Stock.
(A) The Company shall not, and shall not
permit any Restricted Subsidiary to, make any Asset Disposition unless:
(i) the Company or such Restricted Subsidiary
receives consideration (including by way of relief from, or by any other Person assuming
responsibility for, any liabilities, contingent or otherwise) at the time of such Asset Disposition
at least equal to the fair market value (as of the date on which a legally binding commitment
for such Asset Disposition was entered into) of the shares and assets subject to such Asset
Disposition, as such fair market value shall be determined (including as to the value of
all noncash consideration) in good faith by the Company, which determination shall be conclusive,
(ii) in the case of any Asset Disposition
(or series of related Asset Dispositions) having a Fair Market Value (as of the date on which
a legally binding commitment for such Asset Disposition was entered into) in excess of the
greater of $135.0 million and 10.0% of LTM Consolidated EBITDA, at least 75.0% of the consideration
therefor (excluding, in the case of an Asset Disposition (or series of related Asset Dispositions),
any consideration by way of relief from, or by any other Person assuming responsibility for,
any liabilities, contingent or otherwise, that are not Indebtedness) for such Asset Disposition,
together with all other Asset Dispositions since the Issue Date (on a cumulative basis),
received by the Company or such Restricted Subsidiary is in the form of cash, and
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(iii) an amount equal to 100.0% of the Net
Available Cash from such Asset Disposition is applied by the Company (or any Restricted Subsidiary,
as the case may be) as follows:
(A) first, either (x) to the extent
the Company or such Restricted Subsidiary elects (or is required by the terms of the relevant
Indebtedness) to prepay, redeem, repay or purchase first, (i) any First Lien Priority
Obligations, including any Credit Facility Indebtedness constituting First Lien Priority
Obligations and the Existing First Lien Notes, of the Company or any Subsidiary Guarantor,
provided, that any repayment or purchase of any First Lien Priority Obligations pursuant
to this clause (A)(x)(i) shall not be made unless an offer to purchase or repay the
Notes has been made to the Holders on a pro rata basis with such First Lien Priority Obligations
(it being understood that to the extent any Holders shall decline such offer, such First
Lien Priority Obligations may be repaid or purchased on a more than pro rata basis than the
Notes), second, (ii) any other secured Obligations other than First Lien Priority Obligations
so long as the Net Available Cash used for such prepayment, repayment or purchase are from
an Asset Disposition of assets securing such other secured Obligations and not constituting
Collateral and third, (iii) any Indebtedness of a Restricted Subsidiary that is not
a Subsidiary Guarantor so long as the Net Available Cash used for such prepayment, repayment
or purchase are from an Asset Disposition of assets not constituting Collateral, or in each
case, to prepay, redeem, repay or purchase any such Indebtedness or Obligations in respect
thereof or (in the case of letters of credit, bankers’ acceptances or other similar
instruments) cash collateralize any such Indebtedness or Obligations in respect thereof (in
each case other than Indebtedness owed to the Company or a Restricted Subsidiary) within
18 months after the later of the date of such Asset Disposition and the date of receipt of
such Net Available Cash (or if later, 6 months following the date on which a reinvestment
commitment or letter of intent is entered into (so long as such reinvestment commitment or
letter of intent was entered into during such 18-month period)) or (y) to the extent
the Company or such Restricted Subsidiary elects, to invest in Additional Assets (including
by means of an investment in Additional Assets by a Restricted Subsidiary with an amount
equal to Net Available Cash received by the Company or another Restricted Subsidiary) within
18 months from the later of the date of such Asset Disposition and the date of receipt of
such Net Available Cash (or if later, 6 months following the date on which a reinvestment
commitment or letter of intent is entered into (so long as such reinvestment commitment or
letter of intent was entered into during such 18-month period)), or, if such investment in
Additional Assets is a project authorized by the Board of Directors that will take longer
than such 18 months to complete, the period of time necessary to complete such project; provided
that such Additional Assets shall be pledged as Collateral (unless such Additional Assets
are Excluded Property and are not pledged to secure any other First Lien Priority Obligations)
under the Notes Collateral Documents and in accordance with the Indenture substantially simultaneously
with such investment to the extent the assets disposed of constituted Collateral;
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(B) second, to the extent of the balance
of such Net Available Cash after application in accordance with clause (A) above
(such balance, the “Excess Proceeds”), to make an offer to purchase Notes
and (to the extent the Company or such Restricted Subsidiary elects, or is required by the
terms thereof) to prepay, redeem, repay or purchase any other First Lien Priority Obligations
of the Company or a Restricted Subsidiary, pursuant and subject to the conditions of this
Indenture and the agreements governing such other Indebtedness; and
(C) third, to the extent of the balance
of such Net Available Cash after application in accordance with clauses (A) and (B) above
(the amount of such balance, “Declined Excess Proceeds”), to fund (to
the extent consistent with any other applicable provision of the Indenture) any general corporate
purpose (including the repurchase, repayment or other acquisition or retirement of any Junior
Lien Obligations or Unsecured Senior Indebtedness or Subordinated Obligations or Guarantor
Subordinated Obligations or the making of other Restricted Payments);
provided,
however, that (1) in connection with any prepayment, repayment or purchase of Indebtedness pursuant to Section 3.11(A)(iii)(A)(x) or
Section 3.11(A)(iii)(B), the Company or such Restricted Subsidiary shall retire such Indebtedness and shall cause the related
loan commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased; (2) clause
(ii) above shall not apply to any sale, lease, transfer or other disposition of Capital Stock, Indebtedness or other securities
of, or any other Investments in, or the business or assets of, any Person that is not organized under the laws of the United States of
America or any state thereof or the District of Columbia; (3) the foregoing percentage in clause (iii) shall
be reduced to (x) 50.0% if, on a pro forma basis after giving effect to such Asset Disposition and the use of proceeds
therefrom, the Consolidated Total Net Corporate Leverage Ratio would be equal to or less than 4.00:1.00 and (y) 0% if, on
a pro forma basis after giving effect to such Asset Disposition and the use of proceeds therefrom, the Consolidated Total Net
Corporate Leverage Ratio would be equal to or less than 3.00:1.00 (any Net Available Cash in respect of Asset Dispositions not required
to be applied in accordance with clause (iii) as a result of the application of one or more stepdowns in this clause (3) of
this proviso shall collectively constitute “Total Leverage Excess Proceeds”); and (4) the Company or such
Restricted Subsidiary may elect to invest in Additional Assets prior to receiving the Net Available Cash attributable to any given Asset
Disposition (provided that such investment shall be made no earlier than the earliest of notice to the Trustee of the relevant
Asset Disposition, execution of a definitive agreement for the relevant Asset Disposition, and consummation of the relevant Asset Disposition)
and deem the amount so invested to be applied pursuant to and in accordance with clause (iii)(A)(y) above with respect to
such Asset Disposition.
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(B) Notwithstanding the foregoing provisions
of this Section 3.11, the Company and the Restricted Subsidiaries shall not be
required to apply any Net Available Cash or equivalent amount in accordance with this Section 3.11
except to the extent that the aggregate Net Available Cash from all Asset Dispositions or
equivalent amount that is not applied in accordance with this Section 3.11 (excluding
all Total Leverage Excess Proceeds) exceeds (x) the greater of $165.0 million and 12.5%
of LTM Consolidated EBITDA, individually, and (y) the greater of $330.0 million and
25.0% of LTM Consolidated EBITDA, in the aggregate on an annual basis. If the aggregate principal
amount of the Notes and/or other Indebtedness of the Company or a Restricted Subsidiary validly
tendered and not withdrawn (or otherwise subject to purchase, redemption or repayment) in
connection with an offer pursuant to Section 3.11(A)(iii)(B) above exceeds
the Excess Proceeds, the Excess Proceeds shall be apportioned between the Notes and such
other Indebtedness of the Company or a Restricted Subsidiary, with the portion of the Excess
Proceeds payable in respect of the Notes to equal the lesser of (x) the Excess Proceeds
amount multiplied by a fraction, the numerator of which is the outstanding principal amount
of the Notes and the denominator of which is the sum of the outstanding principal amount
of the Notes and the outstanding principal amount of the relevant other Indebtedness of the
Company or a Restricted Subsidiary, and (y) the aggregate principal amount of Notes
validly tendered and not withdrawn.
(C) Notwithstanding the foregoing provisions
of this Section 3.11, to the extent that repatriating or transferring to the
United States any or all of the Net Available Cash from any Asset Disposition by a Foreign
Subsidiary (w) could reasonably be expected to result in material adverse tax consequences
to the Parent Guarantor, the Company or any of their respective Subsidiaries, (x) is
prohibited or delayed by applicable local law, (y) could reasonably be expected to give
rise to or result in (A) any violation of applicable law, (B) any liability (criminal,
civil, administrative or other) for any of the officers, directors or shareholders of the
Company, any Restricted Subsidiary or any Parent, (C) any violation of the provisions
of any joint venture or other material agreement governing or binding upon the Company or
any Restricted Subsidiary or (D) any material risk of any such violation or liability
referred to in clauses (A), (B) and (C) or (z) could
reasonably be expected to give rise to or result in any cost, expense, liability or obligation
(including any tax) other than routine and immaterial out-of-pocket expenses (in the case
of the foregoing clauses (w), (x), (y) and (z), as determined
by the Company in good faith, which determination shall be conclusive), the portion of such
Net Available Cash so affected will not be required to be applied in compliance with the
foregoing provisions of this Section 3.11, and such amounts may be retained by
the applicable Foreign Subsidiary or invested in, distributed to or otherwise transferred
to any other Foreign Subsidiary; provided that, in the case of the foregoing clause (y),
the Company shall take commercially reasonable efforts to cause the applicable Foreign Subsidiary
to take all actions reasonably required by the applicable local law, applicable organizational
impediments or other impediment to permit such repatriation or transfer, and if such repatriation
or transfer of any of such affected Net Available Cash can be achieved such repatriation
or transfer shall be promptly effected and such repatriated Net Available Cash shall be applied
(whether or not repatriation or transfer actually occurs) in compliance with the foregoing
provisions of this Section 3.11. The time periods set forth in this Section 3.11
shall not start until such time as the Net Available Cash may be repatriated or transferred
whether or not such repatriation or transfer actually occurs.
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(D) For the purposes of Section 3.11(A)(ii),
the following are deemed to be cash: (1) Temporary Cash Investments, Investment
Grade Securities and Cash Equivalents, (2) the assumption of Indebtedness of the Company
(other than Disqualified Stock of the Company) or any Restricted Subsidiary and the release
of the Company or such Restricted Subsidiary from all liability on payment of the principal
amount of such Indebtedness in connection with such Asset Disposition, (3) Indebtedness
of any Restricted Subsidiary that is no longer a Restricted Subsidiary as a result of such
Asset Disposition, to the extent that the Company and each other Restricted Subsidiary are
released from any Guarantee of payment of the principal amount of such Indebtedness in connection
with such Asset Disposition, (4) securities received by the Company or any Restricted
Subsidiary from the transferee that are converted by the Company or such Restricted Subsidiary
into cash within 180 days, (5) consideration consisting of Indebtedness of the Company
or any Restricted Subsidiary, (6) Additional Assets and (7) any Designated Noncash
Consideration received by the Company or any of its Restricted Subsidiaries in an Asset Disposition
having an aggregate Fair Market Value, taken together with all other Designated Noncash Consideration
received pursuant to this clause, not to exceed an aggregate amount at any time outstanding
equal to the greater of $330.0 million and 25.0% of LTM Consolidated EBITDA (with the Fair
Market Value of each item of Designated Noncash Consideration being measured as of the date
on which a legally binding commitment for such Asset Disposition (or, if later, for the payment
of such item) was entered into and without giving effect to subsequent changes in value).
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(E) In the event of an Asset Disposition
that requires the purchase of Notes pursuant to Section 3.11(A)(iii)(B), the
Company shall be required to purchase Notes tendered pursuant to an offer by the Company
for the Notes (the “Offer”) at a purchase price of 100% of their Capitalized
Principal Amount plus accrued and unpaid Cash Interest, if any, thereon (or, if applicable,
the principal amount of the Physical Notes plus accrued and unpaid Cash Interest, if any,
and PIK Interest, if any, thereon from, and including, the immediately preceding Interest
Payment Date (or, if there is no immediately preceding Interest Payment Date, from, and including,
the Issue Date of such Physical Notes) to, but excluding, the date of purchase) to the date
of purchase in accordance with the procedures (including prorating in the event of oversubscription)
set forth in this Indenture. If the aggregate purchase price of the Notes tendered pursuant
to the Offer is less than the Net Available Cash allotted to the purchase of Notes, the remaining
Net Available Cash shall be available to the Company and the Restricted Subsidiaries for
use in accordance with Section 3.11(A)(iii)(B) (to repay such other Indebtedness
of the Company or a Restricted Subsidiary) or Section 3.11(A)(iii)(C). The Company
shall not be required to make an Offer for Notes pursuant to this Section 3.11 if
the Net Available Cash (excluding all Total Leverage Excess Proceeds) available therefor
(after application of the proceeds as provided in Section 3.11(A)(iii)(A)) is
less than (i) $150.0 million for any particular Asset Disposition or (ii) $300.0
million in the aggregate in any fiscal year. No Note will be repurchased in part if less
than the Authorized Denomination in original principal amount of such Note would be left
outstanding.
(F) An Offer may be made at the same time
as consents are solicited with respect to an amendment, supplement or waiver of this Indenture,
the Notes and/or Notes Guarantees (but the Offer may not condition tenders on the delivery
of such consents).
(G) The Company shall comply, to the extent
applicable, with the requirements of Section 14(e) of the Exchange Act and any
other securities laws or regulations in connection with the repurchase of Notes pursuant
to this Section 3.11. To the extent that the provisions of any securities laws
or regulations conflict with provisions of this Section 3.11, the Company shall
comply with the applicable securities laws and regulations and will be deemed not to have
breached its obligations under this Section 3.11 by virtue thereof.
Section 3.12. Limitation
on Liens.
(A) The Company shall not, and shall not
permit any Restricted Subsidiary to, directly or indirectly, create or permit to exist any
Lien on any of its property or assets (including (i) any Capital Stock that does not
constitute Pledged Stock or (ii) any property or asset (including Capital Stock of any
other Person) of any Restricted Subsidiary that is not Collateral (including, without limitation,
any such property or assets of any Foreign Subsidiary)), whether owned on the date of this
Indenture or thereafter acquired, securing any Indebtedness (the “Initial Lien”),
unless:
(1) in
the case of Initial Liens on any asset or property that is Collateral, such Initial Lien is a Permitted Lien; or
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(2) in
the case of Initial Liens on any asset or property that is not Collateral, (i) the Notes (or a Notes Guarantee, in the case of Initial
Liens on any asset or property of a Guarantor) are equally and ratably secured with or are secured on a senior basis to, in the case
such Initial Lien secures any Indebtedness junior in Lien priority to the Notes or any Subordinated Obligations or Guarantor Subordinated
Obligations, the obligations secured by such Initial Lien until such time as such obligations are no longer secured by a Lien or (ii) such
Initial Lien is a Permitted Lien.
(B) Any
Lien on the Collateral created in favor of the Notes or any Notes Guarantee will be automatically
and unconditionally released and discharged under Section 12.02.
Section 3.13. Future
Subsidiary Guarantors.
After the Issue Date, the
Company shall cause each Restricted Subsidiary that is a borrower or guarantees payment by the Company of any Indebtedness of the Company
under a First Lien Credit Facility or other Indebtedness for borrowed money (other than Consolidated Vehicle Indebtedness permitted under
this Indenture) to execute and deliver to the Trustee a supplemental indenture or other instrument pursuant to which such Restricted
Subsidiary shall guarantee payment of the Notes on a first-priority, secured basis, whereupon such Restricted Subsidiary shall become
a Subsidiary Guarantor for all purposes under this Indenture. In addition, the Company may, at its option, elect to cause any Subsidiary
that is not a Subsidiary Guarantor to guarantee payment of the Notes and become a Subsidiary Guarantor.
Section 3.14. After-Acquired
Property.
(A) Subject to the applicable limitations
and exceptions set forth in the Notes Collateral Documents and this Indenture, if the Company
or any other Grantor acquires any property or rights which are of a type constituting Collateral
under any Notes Collateral Document (excluding any Excluded Property or assets not required
to be Collateral pursuant to this Indenture or the Notes Collateral Documents), it will be
required, within the time periods specified therefor or, if not so specified, concurrently
with the grant in favor of any First Lien Collateral Agent, to execute and deliver such security
instruments, surveys, title insurance policies, opinions, financing statements and such certificates
as are required under this Indenture or any Notes Collateral Document to vest in the Notes
Collateral Agent a valid and perfected second-priority security interest (subject to Permitted
Liens) in such after-acquired Collateral and to take such actions to add such after-acquired
Collateral to the Collateral.
(B) Notwithstanding anything to the contrary
in this Indenture or any other Notes Document:
(i) the
First Lien Credit Agreement Collateral Agent may grant extensions of time (including after
the expiration of any relevant period, which may apply retroactively) for the creation
and perfection of security interests in, or obtaining of title insurance, legal opinions,
surveys or other deliverables with respect to, particular assets and such extension shall
automatically apply to this Indenture and the equivalent provisions under the Notes Collateral
Documents;
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(ii) any
Lien required to be granted from time to time pursuant to this Indenture and/or any
action requested in connection therewith shall be subject to the exceptions and limitations
set forth in the Notes Collateral Documents;
(iii) none of the Company nor any other Grantor
nor any of their respective Subsidiaries shall be required, nor shall the Notes Collateral
Agent be authorized with respect to the Collateral, to (1) take any action in any jurisdiction
other than the United States of America, or required by the laws of any such non-U.S. jurisdiction,
or enter into any security agreement or pledge agreement governed by the laws of any such
non-U.S. jurisdiction, in order to create any security interests (or other Liens) in assets
located or titled outside of the United States of America or to perfect any security interests
(or other Liens) in any Collateral, (2) deliver control agreements with respect to,
or confer perfection by “control” over, any deposit accounts, bank or securities
account or other Collateral, except in the case of Collateral that constitutes Capital Stock
or intercompany notes at any time issued to, or held or owned by the Company or any other
Grantor (“Pledged Notes”), in certificated form, delivering such Capital
Stock or Pledged Notes to the Notes Collateral Agent (or another Person as required under
any applicable Intercreditor Agreement), (3) take any action in order to perfect any
security interests in any assets specifically requiring perfection through control (including
cash, cash equivalents, deposit accounts or securities accounts) (except, in each case, to
the extent perfected automatically or by the filing of a financing statement under the Uniform
Commercial Code or, in the case of Pledged Stock, by being held by the Notes Collateral Agent
(or another Person as required under any applicable Intercreditor Agreement)), (4) deliver
landlord lien waivers, estoppels, collateral access letters or any other third party consents
or (5) file any fixture filing with respect to any security interest in fixtures affixed
to or attached to any real property constituting Excluded Property;
(iv) all
Notes Collateral Documents shall be documented under, and governed by, New York law
(and to the extent applicable, federal law governing the intellectual property Collateral),
and no foreign law legal opinions shall be required with respect to the Collateral; and
(v) opinions of counsel will not be required
in connection with the addition of new Guarantors or in connection with such Guarantors entering
into the Notes Collateral Documents or to vest in the Notes Collateral Agent (or its bailee)
a perfected security interest in after-acquired Collateral owned by Grantors (in each case,
unless such opinions are delivered, to the First Lien Credit Agreement Collateral Agent pursuant
to corresponding provisions of the First Lien Credit Agreement).
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Section 3.15. Further
Assurances.
Subject to the First Lien
Intercreditor Agreement and the provisions of this Indenture and each other Notes Document (including, for the avoidance of doubt, Section 3.14(B)),
the Company and each other Grantor shall promptly and duly execute and deliver such further instruments and documents and take such further
actions as the Notes Collateral Agent may reasonably request for the purpose of obtaining or preserving the full benefits of the Notes
Collateral Documents and of the rights and powers herein granted by each applicable Grantor, including the filing of any financing or
continuation statements under the Uniform Commercial Code (or other similar laws) as in effect from time to time in any United States
jurisdiction with respect to the security interests created hereby.
Section 3.16. Real
Property Collateral.
With respect to any real
property owned by a Grantor that constitutes Collateral on the Issue Date, within 150 days after the Issue Date (or as soon as practical
thereafter using commercially reasonable efforts), and with respect to any real property owned or acquired by a Grantor that constitutes
Collateral after the Issue Date, within 150 days after the
date of such real property first constituting
Collateral or being acquired (or as soon as practical thereafter using commercially reasonable efforts) the Notes Collateral Agent shall
have received the following with respect to each such real property:
(a) a
mortgage or deed of trust duly executed and acknowledged by the holder of such real property, in favor of the Notes Collateral Agent
for its benefit and the benefit of the Trustee and the holders of the Notes, in proper form for recording in the land records in the
jurisdiction in which such property is located, and sufficient to create a valid and enforceable mortgage lien on such property in favor
of the Notes Collateral Agent for its benefit and the benefit of the Trustee and the holders of the Notes;
(b) a
title policy (or policies) or an unconditional binding commitment from the title company to issue for such insurance to be replaced by
a final title policy in the form of a pro forma policy or marked up commitment, which policy shall (i) be in the same amount as
the title insurance policies issued under the First Lien Credit Agreement, (ii) insure that the mortgage or deed of trust created
thereby creates a valid lien on the real property encumbered thereby free and clear of all defects and encumbrances, except Permitted
Liens; (iii) name the Notes Collateral Agent for the benefit of the Trustee and the holders of the Notes; (iv) be in the form
of an ALTA Loan Policy, and (v) contain such endorsements, coinsurance, reinsurance, and affirmative coverage as provided in the
title insurance policies issued under the First Lien Credit Agreement (“Title Policy”);
(c) an
American Land Title Association survey (or survey update) or such existing survey together with a no-change affidavit sufficient for
the title company to remove all standard survey exceptions from the Title Policy related to such real property and issue the survey related
endorsements; and
(d) legal
opinions of local counsel in the states where the real properties are located relating to the mortgages or deeds of trust, which opinions
shall be in form and substance substantially similar to those provided under the First Lien Credit Agreement.
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Article 4. Repurchase
and Redemption
Section 4.01. No
Sinking Fund.
No sinking fund is required
to be provided for the Notes.
Section 4.02. Right
of Holders to Require the Company to Repurchase Notes Upon a Fundamental Change.
(A) Right
of Holders to Require the Company to Repurchase Notes Upon a Fundamental Change. Subject to the other terms of this Section 4.02,
if a Fundamental Change occurs, then each Holder will have the right (the “Fundamental Change Repurchase Right”) to
require the Company to repurchase such Holder’s Notes (or any portion thereof in an Authorized Denomination) on the Fundamental
Change Repurchase Date for such Fundamental Change for a cash purchase price equal to the Fundamental Change Repurchase Price.
(B) Repurchase
Prohibited in Certain Circumstances. If the Capitalized Principal Amount of the Notes has been accelerated and such acceleration
has not been rescinded on or before the Fundamental Change Repurchase Date for a Repurchase Upon Fundamental Change (except in the case
of an acceleration resulting from a Default in the payment of the related Fundamental Change Repurchase Price on such Fundamental Change
Repurchase Date), then (i) the Company may not repurchase any Notes pursuant to this Section 4.02;
and (ii) the Company will cause any Notes theretofore surrendered for such Repurchase Upon Fundamental Change to be returned to
the Holders thereof (or, if applicable with respect to Global Notes, cancel any instructions for book-entry transfer to the Company,
the Trustee or the Paying Agent of the applicable beneficial interest in such Notes in accordance with the Depositary Procedures).
(C) Fundamental
Change Repurchase Date. The Fundamental Change Repurchase Date for any Fundamental Change will be a Business Day of the Company’s
choosing that is no more than thirty five (35), nor less than twenty (20), Business Days after the date the Company sends the related
Fundamental Change Notice pursuant to Section 4.02(E).
(D) Fundamental
Change Repurchase Price. The Fundamental Change Repurchase Price for any Note to be repurchased upon a Repurchase Upon Fundamental
Change following a Fundamental Change is an amount in cash equal to the Capitalized Principal Amount of such Note plus accrued and unpaid
Cash Interest thereon, if any, to, but excluding, the Fundamental Change Repurchase Date, (or, if applicable, the principal amount of
the Physical Notes plus accrued and unpaid Cash Interest, if any, and PIK Interest, if any, thereon from, and including, the immediately
preceding Interest Payment Date (or, if there is no immediately preceding Interest Payment Date, from, and including, the issue date
of such Physical Notes) to, but excluding, the Fundamental Change Repurchase Date for such Fundamental Change).
(E) Fundamental
Change Notice. On or before the twentieth (20th) calendar day after the effective date of a Fundamental Change, the Company will
send to each Holder, the Trustee, the Exchange Agent and the Paying Agent in writing a notice of such Fundamental Change (a “Fundamental
Change Notice”).
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Such Fundamental Change Notice
must state:
(i) briefly,
the events causing such Fundamental Change;
(ii) the
effective date of such Fundamental Change;
(iii) the
procedures that a Holder must follow to require the Company to repurchase its Notes pursuant to this Section 4.02,
including the deadline for exercising the Fundamental Change Repurchase Right and the procedures for submitting and withdrawing a Fundamental
Change Repurchase Notice;
(iv) the
Fundamental Change Repurchase Date for such Fundamental Change;
(v) the
Fundamental Change Repurchase Price per $1,000 Capitalized Principal Amount of Notes for such Fundamental Change;
(vi) the
name and address of the Paying Agent and the Exchange Agent;
(vii) the
Exchange Rate in effect on the date of such Fundamental Change Notice and a description and quantification of any adjustments to the
Exchange Rate that may result from such Fundamental Change (including pursuant to Section 5.07);
(viii) that
Notes for which a Fundamental Change Repurchase Notice has been duly tendered and not duly withdrawn must be delivered to the Paying
Agent for the Holder thereof to be entitled to receive the Fundamental Change Repurchase Price;
(ix) that
Notes (or any portion thereof) that are subject to a Fundamental Change Repurchase Notice that has been duly tendered may be Exchanged
only if such Fundamental Change Repurchase Notice is withdrawn in accordance with this Indenture; and
(x) the
CUSIP and ISIN numbers, if any, of the Notes.
Neither the failure to deliver
a Fundamental Change Notice nor any defect in a Fundamental Change Notice will limit the Fundamental Change Repurchase Right of any Holder
or otherwise affect the validity of any proceedings relating to any Repurchase Upon Fundamental Change.
(F) Procedures
to Exercise the Fundamental Change Repurchase Right.
(i) Delivery
of Fundamental Change Repurchase Notice and Notes to Be Repurchased. To exercise its Fundamental Change Repurchase Right for a Note
following a Fundamental Change, the Holder thereof must deliver to the Paying Agent:
(1) before
the Close of Business on the Business Day immediately before the related Fundamental Change Repurchase Date (or such later time as may
be required by law), a duly completed, written Fundamental Change Repurchase Notice with respect to such Note; and
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(2) such
Note, duly endorsed for transfer (if such Note is a Physical Note) or by book-entry transfer (if such Note is a Global Note).
The Paying Agent will promptly deliver
to the Company a copy of each Fundamental Change Repurchase Notice that it receives.
(ii) Contents
of Fundamental Change Repurchase Notices. Each Fundamental Change Repurchase Notice with respect to a Note must state:
(1) if
such Note is a Physical Note, the certificate number of such Note;
(2) the
Capitalized Principal Amount of such Note to be repurchased, which must be an Authorized Denomination; and
(3) that
such Holder is exercising its Fundamental Change Repurchase Right with respect to such Capitalized Principal Amount of such Note;
provided,
however, that if such Note is a Global Note, then such Fundamental Change Repurchase Notice must comply with the Depositary Procedures
(and any such Fundamental Change Repurchase Notice delivered in compliance with the Depositary Procedures will be deemed to satisfy the
requirements of this Section 4.02(F)).
(iii) Withdrawal
of Fundamental Change Repurchase Notice. A Holder that has delivered a Fundamental Change Repurchase Notice with respect to a Note
may withdraw such Fundamental Change Repurchase Notice by delivering a written notice of withdrawal to the Paying Agent at any time before
the Close of Business on the Business Day immediately before the related Fundamental Change Repurchase Date. Such withdrawal notice must
state:
(1) if
such Note is a Physical Note, the certificate number of such Note;
(2) the
Capitalized Principal Amount of such Note to be withdrawn, which must be an Authorized Denomination; and
(3) the
Capitalized Principal Amount of such Note, if any, that remains subject to such Fundamental Change Repurchase Notice, which must be an
Authorized Denomination;
provided,
however, that if such Note is a Global Note, then such withdrawal notice must comply with the Depositary Procedures (and any such
withdrawal notice delivered in compliance with the Depositary Procedures will be deemed to satisfy the requirements of this Section 4.02(F)).
Upon receipt of any such withdrawal
notice with respect to a Note (or any portion thereof), the Paying Agent will (x) promptly deliver a copy of such withdrawal notice
to the Company; and (y) if such Note is surrendered to the Paying Agent, cause such Note (or such portion thereof in accordance
with Section 2.11, treating such Note as having been then surrendered for partial repurchase in the amount set forth
in such withdrawal notice as remaining subject to repurchase) to be returned to the Holder thereof (or, if applicable with respect to
any Global Note, cancel any instructions for book-entry transfer to the Company, the Trustee or the Paying Agent of the applicable beneficial
interest in such Note in accordance with the Depositary Procedures).
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(G) Payment
of the Fundamental Change Repurchase Price. Without limiting the Company’s obligation to deposit the Fundamental Change Repurchase
Price within the time prescribed by Section 3.01(B), the Company will cause the
Fundamental Change Repurchase Price for a Note (or portion thereof) to be repurchased pursuant to a Repurchase Upon Fundamental Change
to be paid to the Holder thereof on or before the later of (i) the applicable Fundamental Change Repurchase Date; and (ii) the
date (x) such Note is delivered to the Paying Agent (in the case of a Physical Note) or (y) the Depositary Procedures relating
to the repurchase, and the delivery to the Paying Agent, of such Holder’s beneficial interest in such Note to be repurchased are
complied with (in the case of a Global Note).
(H) Third
Party May Conduct Repurchase Offer In Lieu of the Company. Notwithstanding anything to the contrary in this Section 4.02,
the Company will be deemed to satisfy its obligations under this Section 4.02
if (i) one or more third parties conduct any Repurchase Upon Fundamental Change and related offer to repurchase Notes otherwise
required by this Section 4.02 in a manner that would have satisfied the requirements
of this Section 4.02 if conducted directly by the Company; and (ii) an owner
of a beneficial interest in any Note repurchased by such third party or parties will not receive a lesser amount (as a result of withholding
or other similar taxes) than such owner would have received had the Company repurchased such Note.
(I) No
Requirement to Conduct an Offer to Repurchase Notes if the Fundamental Change Results in the Notes Becoming Exchangeable into an Amount
of Cash Exceeding the Fundamental Change Repurchase Price. Notwithstanding anything to the contrary in this Section 4.02,
the Company will not be required to send a Fundamental Change Notice pursuant to Section 4.02(E),
or offer to repurchase or repurchase any Notes pursuant to this Section 4.02, in
connection with a Common Stock Change Event that constitutes a Fundamental Change pursuant to clause (B)(ii) of the definition
thereof (regardless of whether such Common Stock Change Event also constitutes a Fundamental Change pursuant to any other clause of such
definition), if (i) the Reference Property of such Common Stock Change Event consists entirely of cash in U.S. dollars; (ii) immediately
after such Fundamental Change, the Notes become Exchangeable, pursuant to Section 5.09(A) and,
if applicable, Section 5.07, into consideration that consists solely of U.S. dollars
in an amount per $1,000 aggregate Capitalized Principal Amount of Notes that equals or exceeds the Fundamental Change Repurchase Price
per $1,000 aggregate Capitalized Principal Amount of Notes (calculated assuming that the same includes accrued and unpaid interest to,
but excluding, the latest possible Fundamental Change Repurchase Date for such Fundamental Change); and (iii) the Company timely
sends the notice relating to such Fundamental Change required pursuant to Section 5.07(C) and includes, in such notice,
a statement that the Company is relying on this Section 4.02(I).
(J) Compliance
with Applicable Securities Laws. To the extent applicable, the Company will comply, in all material respects, with all federal and
state securities laws in connection with a Repurchase Upon Fundamental Change (including complying with Rules 13e-4 and 14e-1 under
the Exchange Act and filing any required Schedule TO, to the extent applicable) so as to permit effecting such Repurchase Upon Fundamental
Change in the manner set forth in this Indenture; provided, however, that, to the extent that the Company’s obligations
pursuant to this Section 4.02 conflict with any law or regulation that is applicable
to the Company and enacted after the Issue Date, the Company’s compliance with such law or regulation will not be considered to
be a Default of such obligations.
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(K) Repurchase
in Part. Subject to the terms of this Section 4.02, Notes may be repurchased
pursuant to a Repurchase Upon Fundamental Change in part, but only in Authorized Denominations. Provisions of this Section 4.02
applying to the repurchase of a Note in whole will equally apply to the repurchase of a permitted portion of a Note.
Section 4.03. Right
of the Company to Redeem the Notes.
(A) No
Right to Redeem Before January 6, 2029. The Company may not redeem the Notes at its option pursuant to this Section 4.03
at any time before January 6, 2029.
(B) Right
to Redeem the Notes On or After January 6, 2029. Subject to the terms of this Section 4.03
(including, for the avoidance of doubt, Section 4.03(J)), the Company has the right, at its election, to redeem all, or any
portion, in an Authorized Denomination, of the Notes, at any time, and from time to time, on a Redemption Date on or after January 6,
2029 and on or before the thirty-first (31st) Scheduled Trading Day immediately before the Maturity Date, for a cash purchase price equal
to the Redemption Price, but only if (i) the Notes are Freely Tradable as of the date the Company sends the related Redemption Notice
(unless the Company elects for Cash Settlement to apply to all Exchanges of Notes with an Exchange Date that occurs on or after the date
the Company sends such Redemption Notice and on or before the second Scheduled Trading Day immediately before the related Redemption
Date) and all accrued and unpaid Additional Interest, if any, has been paid in full as of the first Interest Payment Date occurring on
or before the date the Company sends such notice and (ii) the Last Reported Sale Price per share of Common Stock exceeds one hundred
and thirty percent (130%) of the Exchange Price on (x) each of at least twenty (20) Trading Days (whether or not consecutive) during
the thirty (30) consecutive Trading Days ending on, and including, the Trading Day immediately before the Redemption Notice Date for
such Redemption; and (y) the Trading Day immediately before the Redemption Notice Date for such Redemption. For the avoidance of
doubt, the calling (or deemed calling pursuant to Section 4.03(I)) of any Note for Redemption will constitute a Make-Whole Fundamental
Change with respect to that Note pursuant to clause (B) of the definition thereof. If the Company elects to redeem less than
all of the outstanding Notes, then the Redemption will not constitute a Make-Whole Fundamental Change with respect to the Notes not called
for Redemption, and Holders of the Notes not called for Redemption will not be entitled to an increased Exchange Rate for such Notes
as described in Section 5.07 on account of the Redemption, except to the extent described in Section 4.03(I) below.
(C) Redemption
Prohibited in Certain Circumstances. If the Capitalized Principal Amount of the Notes has been accelerated and such acceleration
has not been rescinded on or before the Redemption Date (except in the case of an acceleration resulting from a Default in the payment
of the related Redemption Price on such Redemption Date), then (i) the Company may not call for Redemption or otherwise redeem any
Notes pursuant to this Section 4.03; and (ii) the Company will cause any Notes
theretofore surrendered for such Redemption to be returned to the Holders thereof (or, if applicable with respect to Global Notes, cancel
any instructions for book-entry transfer to the Company, the Trustee or the Paying Agent of the applicable beneficial interests in such
Notes in accordance with the Depositary Procedures).
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(D) Redemption
Date. The Redemption Date for any Redemption will be a Business Day of the Company’s choosing that is no more than fifty five
(55), nor less than thirty five (35), Scheduled Trading Days after the Redemption Notice Date for such Redemption; provided, however,
that if the Company is then otherwise permitted to settle Exchanges of Notes by Physical Settlement (and, for the avoidance of doubt,
has not irrevocably elected another Settlement Method), and the Company elects to settle all Exchanges of Notes with an Exchange Date
that occurs on or after such Redemption Notice Date and on or before the second Scheduled Trading Day immediately before the Redemption
Date by Physical Settlement, then the Company may instead elect to choose a Redemption Date that is a Business Day no more than fifty
five (55) Scheduled Trading Days, nor less than fifteen (15) calendar days, after such Redemption Notice Date. The Redemption Date shall
be a Business Day and the Company may not specify a Redemption Date that falls after the 31st Scheduled Trading Day immediately preceding
the Maturity Date.
(E) Redemption
Price. The Redemption Price for each Note called for Redemption is an amount in cash equal to the Capitalized Principal Amount of
such Note plus accrued and unpaid Cash Interest thereon, if any, to, but excluding, the Redemption Date (or, if applicable, the principal
amount of such Physical Notes plus accrued and unpaid Cash Interest, if any, and PIK Interest, if any, thereon from, and including, the
immediately preceding Interest Payment Date (or, if there is no immediately preceding Interest Payment Date, from, and including, the
issue date of such Physical Notes) to, but excluding, the Redemption Date for such Redemption).
(F) Redemption
Notice. To call any Notes for Redemption, the Company must send to each Holder of such Notes an irrevocable written notice of such
Redemption (a “Redemption Notice”).
Such Redemption Notice must
state:
(i) that
all or a portion of the Notes have been called for Redemption, briefly describing the Company’s Redemption right under this Indenture;
(ii) the
Redemption Date for such Redemption;
(iii) the
Redemption Price per $1,000 Capitalized Principal Amount of Notes for such Redemption;
(iv) the
name and address of the Paying Agent and the Exchange Agent;
(v) the
Exchange Rate in effect on the Redemption Notice Date for such Redemption and a description and quantification of any adjustments to
the Exchange Rate that may result from such Redemption (including pursuant to Section 5.07)
with respect to the Notes called for Redemption;
(vi) the
Settlement Method that will apply to all Exchanges of Notes with an Exchange Date that occurs on or after such Redemption Notice Date
and on or before the second (2nd) Scheduled Trading Day before such Redemption Date; and
(vii) the
CUSIP and ISIN numbers, if any, of the Notes.
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On or before the Redemption
Notice Date, the Company will send a copy of such Redemption Notice to the Trustee, the Exchange Agent and the Paying Agent.
(G) Selection
and Exchange of Notes to Be Redeemed in Part.
(i) If
the Company elects to redeem fewer than all of the outstanding Notes, and the Notes to be redeemed are Global Notes, the Notes to be
redeemed will be selected by DTC in accordance with applicable DTC procedures.
(ii) If
the Company elects to redeem fewer than all of the outstanding Notes, and the Notes to be redeemed are Physical Notes, the Trustee will
select the Notes to be redeemed (in an Authorized Denomination) by lot, on a pro rata basis or by another method the Trustee considers
to be fair and appropriate.
(iii) If
the Trustee (or DTC, with respect to Global Notes) selects a portion of the Notes for Redemption and the Holder Exchanges a portion of
the same Notes, the Exchanged portion shall be deemed to be from the portion selected for Redemption, subject to applicable DTC procedures.
(H) Payment
of the Redemption Price. Without limiting the Company’s obligation to deposit the Redemption Price by the time prescribed by
Section 3.01(B), the Company will cause the Redemption Price for a Note (or portion
thereof) subject to Redemption to be paid to the Holder thereof on or before the applicable Redemption Date.
(I) Special
Provisions for Partial Calls. If the Company elects to redeem less than all of the outstanding Notes pursuant to this Section 4.03,
and the Holder of any Note, or any owner of a beneficial interest in any Global Note, is reasonably not able to determine, before the
Close of Business on the thirty-second (32nd) Scheduled Trading Day (or, if the Company is then otherwise permitted to settle Exchanges
of Notes by Physical Settlement (and, for the avoidance of doubt, the Company has not irrevocably elected another Settlement Method),
and the Company elects to settle all Exchanges of Notes with an Exchange Date that occurs on or after the date the Company sends such
Redemption Notice and on or before the second Scheduled Trading Day immediately before the related Redemption Date by Physical Settlement,
the 10th calendar day) immediately before the Redemption Date for such Redemption, whether such Note or beneficial interest, as applicable,
is to be redeemed pursuant to such Redemption, then such Holder or owner, as applicable, will be entitled to an increased Exchange Rate
pursuant to Section 5.07 in connection with an Exchange of such Note or beneficial interest, as applicable, at any time before
the Close of Business on the second (2nd) Scheduled Trading Day immediately before such Redemption Date, and each such Exchange will
be deemed to be of a Note called for Redemption for purposes of this Section 4.03 and 5.07. For the avoidance of doubt,
each reference in this Indenture or the Notes to (x) any Note that is called for Redemption (or similar language) includes any Note
that is deemed to be called for Redemption pursuant to this Section 4.03(I); and (y) any Note that is not called for
Redemption (or similar language) excludes any Note that is deemed to be called for Redemption pursuant to this Section 4.03(I).
(J) Partial
Redemption Limitation. If the Company elects to redeem less than all of the outstanding Notes pursuant to this Section 4.03,
then, notwithstanding anything to the contrary in this Indenture or the Notes, the excess of the Capitalized Principal Amount of the
Notes outstanding as of the time the Company sends the related Redemption Notice over the Capitalized Principal Amount of the Notes set
forth in such Redemption Notice as being subject to Redemption must be at least one hundred million dollars ($100,000,000).
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Article 5. Exchange
Section 5.01. Right
to Exchange.
(A) Generally.
Subject to Section 5.01(D), each Holder may, at its option, at any time, from, and including, the Issue Date until the Close of
Business on the second Scheduled Trading Day immediately before the Maturity Date, Exchange such Holder’s Notes into Exchange Consideration.
(B) Exchanges
in Part. Subject to the terms of this Indenture, Notes may be Exchanged in part, but only in Authorized Denominations. Provisions
of this Article 5 applying to the Exchange of a Note in whole will equally apply
to Exchanges of a permitted portion of a Note.
(C) Notice
of Certain Distributions. If the Parent Guarantor elects to:
(i) distribute,
to all or substantially all holders of Common Stock, any rights, options or warrants (other than rights issued pursuant to a stockholder
rights plan, so long as such rights have not separated from the Common Stock and are not exercisable until the occurrence of a triggering
event, except that such rights will be deemed to be distributed under this clause (I) upon their separation from
the Common Stock or upon the occurrence of such triggering event) entitling them, for a period of not more than sixty (60) calendar days
after the record date of such distribution, to subscribe for or purchase shares of Common Stock at a price per share that is less than
the average of the Last Reported Sale Prices per share of Common Stock for the ten (10) consecutive Trading Days ending on, and
including, the Trading Day immediately before the date such distribution is announced (determined in the manner set forth in the third
paragraph of Section 5.05(A)(ii)); or
(ii) distribute,
to all or substantially all holders of Common Stock, assets or securities of the Parent Guarantor or rights to purchase the Parent Guarantor’s
securities, which distribution per share of Common Stock has a value, as determined in good faith by the Parent Guarantor, exceeding
ten percent (10%) of the Last Reported Sale Price per share of Common Stock on the Trading Day immediately before the date such distribution
is announced,
then, in either case, the Company will send written
notice of such distribution to Holders, the Trustee and the Exchange Agent at least forty (40) Scheduled Trading Days before the Ex-Dividend
Date for such distribution (or, if later in the case of any such separation of rights issued pursuant to a stockholder rights plan or
the occurrence of any such triggering event under a stockholder rights plan, as soon as reasonably practicable after the Company becomes
aware that such separation or triggering event has occurred or will occur); provided, however, that if the Company is then
otherwise permitted to settle Exchanges by Physical Settlement (and for the avoidance of doubt, the Company has not elected another Settlement
Method to apply), then the Company may instead elect to provide such notice at least five Scheduled Trading Days prior to such Ex-Dividend
Date. In that event, the Company shall be required to settle all Exchanges with an Exchange Date occurring on or after the date the Company
provides such notice and before such Ex-Dividend Date (or, if earlier, the date the Company announces that such distribution will not
take place) by Physical Settlement, and the Company shall elect the same in such notice.
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(D) Limitations
and Closed Periods. Notwithstanding anything to the contrary in this Indenture or the Notes:
(i) Notes
may be surrendered for Exchange only after the Open of Business and before the Close of Business on a day that is a Business Day (and,
for the avoidance of doubt, a Holder or beneficial owner of the Notes who surrenders a Note for Exchange on a Regular Record Date shall
not be the Holder or beneficial owner of such Note as of the Close of Business on such Regular Record Date and shall not be entitled
to the Cash Interest and PIK Interest due on the related Interest Payment Date); and
(ii) in
no event may any Note be Exchanged after the Close of Business on the second (2nd) Scheduled Trading Day immediately before the Maturity
Date.
(E) Ownership
Limit. Notwithstanding anything to the contrary in this Indenture or the Notes, no Holder of Notes will be entitled to receive any
shares of Common Stock following any Exchange of such Notes to the extent (but only to the extent) that, immediately after the receipt
of such shares of Common Stock, such Holder or a beneficial owner of the Notes (or a person to whom such shares of Common Stock is attributable
under the rules of Section 382 of the Code) would be, directly or indirectly, a “5-percent shareholder” (as such
term is used in Section 382 of the Code and the Treasury Regulations promulgated thereunder); provided, however, that
the Board of Directors of the Parent Guarantor may exempt a Holder from such restrictions. Any attempted Exchange of Notes that would
entitle Holders of Notes to delivery of the Common Stock in violation of the restriction set forth in the preceding sentence will be
void to the extent (but only to the extent) of the number of shares of Common Stock that would cause such violation, and the related
Notes (or portion thereof) will be returned to the Holder as promptly as practicable. Neither the Company nor the Parent Guarantor will
have any further obligation to the Holder of such Notes with respect to such voided Exchange, and such Notes will be treated as if they
had not been submitted for Exchange. The Trustee will have no obligation for monitoring compliance with this Section 5.01(E) or
monitoring any ownership limits upon the transfer or Exchange of Notes that remain outstanding, subject to Exchange, repurchase, Redemption
or repayment at maturity.
(F) Restrictions
Regarding Canada. Notwithstanding any other provision of this Indenture or the Notes, no Holder that is located or resident in Canada
will be entitled to Exchange any of its Notes unless it has first provided to the Exchange Agent, on behalf of the Company, a representation
letter in the form approved by the Company (and substantially in the form attached as Exhibit D hereto and otherwise available from
the Company and/or the Exchange Agent), establishing such Holder’s eligibility to acquire shares of Common Stock under applicable
provisions of Canadian securities laws and providing the Company with the information necessary to report the exempt distribution of
those shares of Common Stock to the applicable Canadian securities regulatory authority.
Each Holder that exercises its exchange rights
under the Notes without first providing a representation letter to the Exchange Agent shall be deemed to have represented and warranted
to the Company that it is not located or resident in any province or territory of Canada. Neither the Exchange Agent nor the Company
shall have any obligation to request a representation letter nor to determine whether a Holder is located or resident in any province
or territory of Canada.
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Section 5.02. Exchange
Procedures.
(A) Generally.
(i) Global
Notes. To Exchange a beneficial interest in a Global Note, the owner of such beneficial interest must (1) comply with the Depositary
Procedures for Exchanging such beneficial interest (at which time such Exchange will become irrevocable); and (2) pay any amounts
due pursuant to Section 5.02(E).
(ii) Physical
Notes. To Exchange all or a portion of a Physical Note, the Holder of such Note must (1) complete, manually sign and deliver
to the Exchange Agent the exchange notice attached to such Physical Note or a facsimile of such exchange notice; (2) deliver such
Physical Note to the Exchange Agent (at which time such Exchange will become irrevocable); (3) furnish any endorsements and transfer
documents that the Company or the Exchange Agent may require; and (4) pay any amounts due pursuant to Section 5.02(E).
(B) Effect
of Exchanging a Note. At the Close of Business on the Exchange Date for a Note (or any portion thereof) to be Exchanged, such Note
(or such portion) will (unless there occurs a Default in the delivery of the Exchange Consideration or Cash Interest due, pursuant to
Section 5.03(B) or Section 5.02(D) upon such Exchange) be deemed to cease to be
outstanding (and, for the avoidance of doubt, no Person will be deemed to be a Holder of such Note (or such portion thereof) as of the
Close of Business on such Exchange Date), except to the extent provided in Section 5.02(D).
(C) Holder
of Record of Exchange Shares. The Person in whose name any share of Common Stock is deliverable upon Exchange of any Note will be
deemed to become the holder of record of such share as of the Close of Business on (i) the Exchange Date for such Exchange, in the
case of Physical Settlement; or (ii) the last VWAP Trading Day of the Observation Period for such Exchange, in the case of Combination
Settlement.
(D) Interest
Payable Upon Exchange in Certain Circumstances. With respect to any Exchange of a Note (i) if the Company has specified a Redemption
Date that is after the 15th calendar day of the month immediately preceding the month of an Interest Payment Date and on or before the
second (2nd) Scheduled Trading Day immediately after such Interest Payment Date and the Exchange Date for such Exchange occurs after
such 15th calendar day and prior to the Close of Business on the Regular Record Date immediately preceding such Interest Payment Date;
(ii) if the Exchange Date for such Exchange occurs after June 15, 2030 and prior to the Close of Business on the second Scheduled
Trading Day immediately preceding the Interest Payment Date coinciding with the Maturity Date; or (iii) if the Company has specified
a Fundamental Change Repurchase Date that is after the 15th calendar day of the month immediately preceding the month of an Interest
Payment Date and on or before the Business Day immediately after such Interest Payment Date and the Exchange Date for such Exchange occurs
after such 15th calendar day and prior to the Close of Business on the Regular Record Date immediately preceding such Interest Payment
Date,
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then, in each case, the Holder who receives the
consideration due upon Exchange shall also receive the full Cash Interest payment that would have been due on such exchanged Notes on
such Interest Payment Date had such Holder been the holder of record of such Notes as of the Close of Business on the Regular Record
Date for such Interest Payment Date.
(E) Taxes
and Duties. If a Holder Exchanges a Note, the Company will pay any documentary, stamp or similar issue or transfer tax or duty due
on the issue or delivery of any shares of Common Stock upon such Exchange; provided, however, that if any tax or duty is
due because such Holder requested such shares to be registered in a name other than such Holder’s name, then such Holder will pay
such tax or duty and, until having received a sum sufficient to pay such tax or duty, the Exchange Agent may refuse to deliver any such
shares to be delivered in a name other than that of such Holder.
(F) Exchange
Agent to Notify Company of Exchanges. If any Note is submitted for Exchange to the Exchange Agent or the Exchange Agent receives
any notice of Exchange with respect to a Note, then the Exchange Agent will promptly (and, in any event, no later than the date the Exchange
Agent receives such Note or notice) notify the Company and the Trustee of such occurrence, together with any other information reasonably
requested by the Company, and will cooperate with the Company to determine the Exchange Date for such Note.
Section 5.03. Settlement
Upon Exchange.
(A) Settlement
Method. Subject to Section 5.01(E) and Section 5.03(A)(i)(4), upon the Exchange of any Note,
the Company will settle such Exchange by paying or delivering, as applicable and as provided in this Article 5,
either (x) shares of Common Stock, together, if applicable, with cash in lieu of fractional shares as provided in Section 5.03(B)(i)(1) (a
“Physical Settlement”); (y) solely cash as provided in Section 5.03(B)(i)(2)
(a “Cash Settlement”); or (z) a combination of cash and shares of Common Stock, together, if applicable, with
cash in lieu of fractional shares as provided in Section 5.03(B)(i)(3) (a
“Combination Settlement”).
(i) The
Company’s Right to Elect Settlement Method. The Company will have the right to elect the Settlement Method applicable to any
Exchange of a Note; provided, however, that:
(1) all
Exchanges of Notes with an Exchange Date that occurs on or after April 1, 2030 will be settled using the same Settlement Method,
and the Company will send notice of such Settlement Method to Holders no later than the Open of Business on April 1, 2030;
(2) subject
to clause (3) below, if the Company elects a Settlement Method with respect to the Exchange of any Note whose Exchange Date
occurs before April 1, 2030, then the Company will send notice of such Settlement Method to the Holder of such Note no later than
the Close of Business on the Business Day immediately after such Exchange Date;
(3) if
the Notes are called for Redemption, then (a) the Company will specify, in the related Redemption Notice sent pursuant to Section 4.03(F),
the Settlement Method that will apply to all Exchanges of Notes called for Redemption with an Exchange Date that occurs on or after the
related Redemption Notice Date and on or before the second (2nd) Scheduled Trading Day immediately before the related Redemption Date;
and (b) if such Redemption Date occurs on or after April 1, 2030, then such Settlement Method must be the same Settlement Method
that, pursuant to clause (1) above, applies to all Exchanges of Notes with
an Exchange Date that occurs on or after April 1, 2030;
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(4) notwithstanding
anything to the contrary in this Indenture, in no event shall the Company be entitled to elect a Settlement Method with respect to any
Exchange that would result in the aggregate number of shares of Common Stock issued upon Exchange of the Notes on or prior to the Shareholder
Approval Date (subject to adjustment in the same manner as, and at the same time and for the same events for which, the Exchange Rate
is adjusted pursuant to Section 5.05(A)) exceeding the Aggregate Share Cap;
(5) the
Company will not be permitted to elect Physical Settlement with respect to any Exchange of Notes if, as of the Exchange Date for such
Exchange, (i) the Shareholder Approval Date has not occurred and (ii) the Exchange Rate with respect to such Exchange would
exceed the Note Share Cap;
(6) the
Company will use the same Settlement Method for all Exchanges of Notes with the same Exchange Date (and, for the avoidance of doubt,
the Company will not be obligated to use the same Settlement Method with respect to Exchanges of Notes with different Exchange Dates,
except as provided in clause (1) or (3) above);
(7) if
the Company does not timely elect a Settlement Method with respect to the Exchange of a Note, then the Company will be deemed to have
elected the Default Settlement Method (and, for the avoidance of doubt, the failure to timely make such election will not constitute
a Default or Event of Default); and
(8) if
the Company timely elects Combination Settlement with respect to the Exchange of a Note but does not timely notify the Holder of such
Note of the applicable Specified Dollar Amount, then the Specified Dollar Amount for such Exchange will be deemed to be $1,000 per $1,000
Capitalized Principal Amount of Notes (and, for the avoidance of doubt, the failure to timely send such notification will not constitute
a Default or Event of Default).
At or before the time the Company sends any notice
referred to in the preceding sentence, the Company will send a copy of such notice to the Trustee and the Exchange Agent, but the failure
to timely send such copy will not affect the validity of any Settlement Method election.
(ii) The
Company’s Right to Irrevocably Fix or Eliminate Settlement Methods. The Company will have the right, exercisable at its election
by sending notice of such exercise to the Holders (with a copy to the Trustee and the Exchange Agent), to (1) irrevocably fix the
Settlement Method that will apply to all Exchanges of Notes with an Exchange Date that occurs on or after the date such notice is sent
to Holders; or (2) irrevocably eliminate any one or more (but not all) Settlement Methods (including eliminating Combination Settlement
with a particular Specified Dollar Amount or range of Specified Dollar Amounts) with respect to all Exchanges of Notes with an Exchange
Date that occurs on or after the date such notice is sent to Holders, provided, in each case, that (w) the Settlement Method(s) so
elected pursuant to clause (1) or clause (2) above, as applicable, must be a Settlement Method or Settlement
Method(s), as applicable, that the Company is then permitted to elect (for the avoidance of doubt, including pursuant to, and subject
to, the other provisions of this Section 5.03(A)); (x) no such irrevocable election or Default Settlement
Method change will affect any Settlement Method theretofore elected (or deemed to be elected) with respect to any Note pursuant to this
Indenture (including pursuant to Section 8.01(G) or this Section 5.03(A));
(y) upon any such irrevocable election pursuant to clause (1) above, the Default Settlement Method will automatically
be deemed to be set to the Settlement Method so fixed; and (z) upon any such irrevocable election pursuant to clause (2) above,
the Company will, if needed, simultaneously change the Default Settlement Method to a Settlement Method that is consistent with such
irrevocable election. Such notice, if sent, must set forth the applicable Settlement Method and expressly state that the election is
irrevocable and applicable to all Exchanges of Notes with an Exchange Date that occurs on or after the date such notice is sent to Holders
(but that no such irrevocable election will affect any Settlement Method theretofore elected (or deemed to be elected) with respect to
any Note pursuant to this Indenture). For the avoidance of doubt, such an irrevocable election, if made, will be effective without the
need to amend this Indenture or the Notes, including pursuant to Section 8.01(G) (it
being understood, however, that the Company may nonetheless choose to execute such an amendment at its option). In addition, the Company
shall be permitted in certain circumstances to irrevocably elect for Physical Settlement to apply to all Exchanges with an Exchange Date
occurring during the periods referred to under Section 4.03 and Section 5.01(C).
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(iii) Requirement
to Publicly Disclose the Fixed or Default Settlement Method. If the Company changes the Default Settlement Method pursuant to clause
(x) of the proviso to the definition of such term or irrevocably fixes the Settlement Method(s) pursuant to Section 5.03(A)(ii),
then the Company will, substantially concurrently, either post the Default Settlement Method or fixed Settlement Method(s), as applicable,
on its website or disclose the same in a Current Report on Form 8-K (or any successor form) that is filed with, or furnished to,
the SEC.
(B) Exchange
Consideration.
(i) Generally.
Subject to Sections 5.01(E), 5.03(A)(i)(4), 5.03(B)(ii),
5.03(B)(iii) and 5.09(A)(2),
the type and amount of consideration (the “Exchange Consideration”) due in respect of each $1,000 Capitalized Principal
Amount of a Note to be Exchanged will be as follows:
(1) if
Physical Settlement applies to such Exchange, a number of shares of Common Stock equal to the Exchange Rate in effect on the Exchange
Date for such Exchange;
(2) if
Cash Settlement applies to such Exchange, cash in an amount equal to the sum of the Daily Exchange Values for each VWAP Trading Day in
the Observation Period for such Exchange; or
(3) if
Combination Settlement applies to such Exchange, consideration consisting of (a) a number of shares of Common Stock equal to the
sum of the Daily Share Amounts for each VWAP Trading Day in the Observation Period for such Exchange; and (b) an amount of cash
equal to the sum of the Daily Cash Amounts for each VWAP Trading Day in such Observation Period.
(ii) Cash
in Lieu of Fractional Shares. If Physical Settlement or Combination Settlement applies to the Exchange of any Note and the number
of shares of Common Stock deliverable pursuant to Section 5.03(B)(i) upon such Exchange is not a whole number,
then such number will be rounded down to the nearest whole number and the Company will deliver, in addition to the other consideration
due upon such Exchange, cash in lieu of the related fractional share in an amount equal to the product of (1) such fraction and
(2) (x) the Daily VWAP on the Exchange Date for such Exchange (or, if such Exchange Date is not a VWAP Trading Day, the immediately
preceding VWAP Trading Day), in the case of Physical Settlement; or (y) the Daily VWAP on the last VWAP Trading Day of the Observation
Period for such Exchange, in the case of Combination Settlement.
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(iii) Exchange
of Multiple Notes by a Single Holder. If a Holder Exchanges more than one (1) Note on a single Exchange Date, then the Exchange
Consideration due in respect of such Exchange will (in the case of any Global Note, to the extent permitted by, and practicable under,
the Depositary Procedures) be computed based on the total Capitalized Principal Amount of Notes Exchanged on such Exchange Date by such
Holder.
(iv) Notice
of Calculation of Exchange Consideration. If any Note is to be Exchanged and Cash Settlement or Combination Settlement is applicable,
then the Company will determine the Exchange Consideration due thereupon promptly following the last VWAP Trading Day of the applicable
Observation Period and will promptly thereafter (and in any event within one Business Day following the last day of the Observation Period)
send notice to the Trustee and the Exchange Agent of the same and the calculation thereof in reasonable detail. Neither the Trustee nor
the Exchange Agent will have any duty to make any such determination.
(C) Delivery
of the Exchange Consideration. Except as set forth in Sections 5.01(E), 5.03(A)(i)(4), 5.01(D) and 5.09,
the Company will pay or deliver, as applicable, the Exchange Consideration due upon the Exchange of any Note to the Holder as follows:
(i) if Cash Settlement or Combination Settlement applies to such Exchange, on the second (2nd) Business Day immediately after the
last VWAP Trading Day of the Observation Period for such Exchange and (ii) if Physical Settlement applies to such Exchange, on the
second Business Day immediately after the Exchange Date for such Exchange; provided, however, that if Physical Settlement
applies to the Exchange of any Note with an Exchange Date that is after June 15, 2030, then, solely for the purposes of such Exchange,
the Company will pay or deliver, as applicable, the consideration due upon such Exchange on the Maturity Date (or, if the Maturity Date
is not a Business Day, the next Business Day), and the Exchange Date will instead be deemed to be the second Business Day immediately
before the Maturity Date.
(D) Deemed
Payment of Principal and Interest; Settlement of Accrued Interest Notwithstanding Exchange. If a Holder Exchanges a Note, then the
Company will not adjust the Exchange Rate to account for any accrued and unpaid interest on such Note and, except as provided in Section 5.02(D),
the Company’s delivery of the Exchange Consideration due in respect of such Exchange will be deemed to fully satisfy and discharge
the Company’s obligation to pay the Capitalized Principal Amount of, and accrued and unpaid interest, if any, on, such Note to,
but excluding the Exchange Date. As a result, except as provided in Section 5.02(D), any accrued and unpaid interest on an
Exchanged Note will be deemed to be paid in full rather than cancelled, extinguished or forfeited. In addition, subject to Section 5.02(D),
if the Exchange Consideration for a Note consists of both cash and shares of Common Stock, then accrued and unpaid interest that is deemed
to be paid therewith will be deemed to be paid first out of such cash.
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For the avoidance of doubt, given that the Regular
Record Date for the Notes is the Business Day immediately preceding the applicable Interest Payment Date, a Holder or beneficial owner
of the Notes who surrenders a Note for Exchange on a Regular Record Date will not be the Holder or beneficial owner of such Note as of
the Close of Business on such Regular Record Date and, except as otherwise provided in Section 5.02(D), will not be entitled
to the Cash Interest or PIK Interest due on the related Interest Payment Date, and the Capitalized Principal Amount (or principal amount
in the case of any Physical Notes) of any Notes owned by a Holder or beneficial owner of the Notes who surrenders a Note for Exchange
on an Interest Payment Date and who was the Holder or beneficial owner of such Note as of the Close of Business on the preceding Regular
Record Date shall include any PIK Interest payable in respect of such Notes on such Interest Payment Date.
Further, for the avoidance of doubt, Section 2.05
addresses the treatment of PIK Interest (and a Holder’s entitlement to the same) with regards to certain Exchanges of Notes occurring
(i) after June 15, 2030; (ii) in certain periods with respect to a Redemption Date that is after the 15th calendar
day of the month immediately preceding the month of an Interest Payment Date and on or before the second Scheduled Trading Day immediately
after such Interest Payment Date; (iii) in certain periods with respect to a Fundamental Change Repurchase Date that is after the
15th calendar day of the month immediately preceding the month of an Interest Payment Date and on or before the Business Day
immediately after such Interest Payment Date; and (iv) with respect to any overdue interest.
Section 5.04. Reserve
and Status of Common Stock Delivered Upon Exchange.
(A) Stock
Reserve. At all times when any Notes are outstanding, the Parent Guarantor will reserve (out of its authorized and not outstanding
shares of Common Stock that are not reserved for other purposes) a number of shares of Common Stock sufficient to permit the Exchange
of all then-outstanding Notes, assuming (x) Physical Settlement will apply to such Exchange; and (y) the Exchange Rate is increased
by the maximum amount pursuant to which the Exchange Rate may be increased pursuant to Section 5.07). To the
extent the Parent Guarantor delivers shares of Common Stock held in its treasury in settlement of the Exchange of any Notes, each reference
in this Indenture or the Notes to the delivery of shares of Common Stock in connection therewith will be deemed to include such delivery,
mutatis mutandis.
(B) Status
of Exchange Shares; Listing. Each Exchange Share, if any, delivered upon Exchange of any Note will be a newly issued or treasury
share (except that any Exchange Share delivered by a designated financial institution pursuant to Section 5.08
need not be a newly issued or treasury share) and will be duly authorized, validly issued, fully paid, non-assessable, free from preemptive
rights and free of any lien or adverse claim (except to the extent of any lien or adverse claim created by the action or inaction of
the Holder of such Note or the Person to whom such Exchange Share will be delivered). If the Common Stock is then listed on any securities
exchange, or quoted on any inter-dealer quotation system, then the Company will use commercially reasonable efforts to cause each Exchange
Share, when delivered upon Exchange of any Note, to be admitted for listing on such exchange or quotation on such system.
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Section 5.05. Adjustments
to the Exchange Rate.
(A) Events
Requiring an Adjustment to the Exchange Rate. The Exchange Rate will be adjusted from time to time as follows:
(i) Stock
Dividends, Splits and Combinations. If the Parent Guarantor issues solely shares of Common Stock as a dividend or distribution on
all or substantially all shares of the Common Stock, or if the Parent Guarantor effects a stock split or a stock combination of the Common
Stock (in each case excluding an issuance solely pursuant to a Common Stock Change Event, as to which Section 5.09
will apply), then the Exchange Rate will be adjusted based on the following formula:
where:
ER0 = the
Exchange Rate in effect immediately before the Open of Business on the Ex-Dividend Date for
such dividend or distribution, or immediately before the Open of Business on the effective
date of such stock split or stock combination, as applicable;
ER1 = the
Exchange Rate in effect immediately after the Open of Business on such Ex-Dividend Date or
effective date, as applicable;
OS0 = the
number of shares of Common Stock outstanding immediately before the Open of Business on such
Ex-Dividend Date or effective date, as applicable, without giving effect to such dividend,
distribution, stock split or stock combination; and
OS1 = the
number of shares of Common Stock outstanding immediately after giving effect to such dividend,
distribution, stock split or stock combination.
If any dividend, distribution, stock
split or stock combination of the type described in this Section 5.05(A)(i) is declared or announced, but not so
paid or made, then the Exchange Rate will be readjusted, effective as of the date the Board of Directors determines not to pay such dividend
or distribution or to effect such stock split or stock combination, to the Exchange Rate that would then be in effect had such dividend,
distribution, stock split or stock combination not been declared or announced.
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(ii) Rights,
Options and Warrants. If the Parent Guarantor distributes, to all or substantially all holders of Common Stock, rights, options or
warrants (other than rights issued or otherwise distributed pursuant to a stockholder rights plan, as to which Sections 5.05(A)(iii)(1) and
5.05(F) will apply) entitling such holders, for a period of not more than sixty
(60) calendar days after the record date of such distribution, to subscribe for or purchase shares of Common Stock at a price per share
that is less than the average of the Last Reported Sale Prices per share of Common Stock for the ten (10) consecutive Trading Days
ending on, and including, the Trading Day immediately before the date such distribution is announced, then the Exchange Rate will be
increased based on the following formula:
where:
ER0 =
the
Exchange Rate in effect immediately before the Open of Business on the Ex-Dividend Date for
such distribution;
ER1 =
the
Exchange Rate in effect immediately after the Open of Business on such Ex-Dividend Date;
OS =
the
number of shares of Common Stock outstanding immediately before the Open of Business on such
Ex-Dividend Date;
X =
the
total number of shares of Common Stock deliverable pursuant to such rights, options or warrants;
and
Y =
a
number of shares of Common Stock obtained by dividing (x) the aggregate price payable
to exercise such rights, options or warrants by (y) the average of the Last Reported
Sale Prices per share of Common Stock for the ten (10) consecutive Trading Days ending
on, and including, the Trading Day immediately before the date such distribution is announced.
To the extent such rights, options
or warrants are not so distributed, the Exchange Rate will be readjusted to the Exchange Rate that would then be in effect had the increase
to the Exchange Rate for such distribution been made on the basis of only the rights, options or warrants, if any, actually distributed.
In addition, to the extent that shares of Common Stock are not delivered after the expiration of such rights, options or warrants (including
as a result of such rights, options or warrants not being exercised), the Exchange Rate will be readjusted to the Exchange Rate that
would then be in effect had the increase to the Exchange Rate for such distribution been made on the basis of delivery of only the number
of shares of Common Stock actually delivered upon exercise of such rights, options or warrants.
For purposes of this Section 5.05(A)(ii) and
Section 5.01(C), in determining whether any rights, options or warrants entitle holders of Common Stock to subscribe
for or purchase shares of Common Stock at a price per share that is less than the average of the Last Reported Sale Prices per share
of Common Stock for the ten (10) consecutive Trading Days ending on, and including, the Trading Day immediately before the date
the distribution of such rights, options or warrants is announced, and in determining the aggregate price payable to exercise such rights,
options or warrants, there will be taken into account any consideration the Parent Guarantor receives for such rights, options or warrants
and any amount payable on exercise thereof, with the value of such consideration, if not cash, to be determined by the Parent Guarantor
in good faith and in a commercially reasonable manner.
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(iii) Spin-Offs
and Other Distributed Property.
(1) Distributions
Other than Spin-Offs. If the Parent Guarantor distributes shares of its Capital Stock, evidences of its indebtedness or other assets
or property of the Parent Guarantor, or rights, options or warrants to acquire Capital Stock of the Parent Guarantor or other securities,
to all or substantially all holders of the Common Stock, excluding:
(u) dividends,
distributions, rights, options or warrants for which an adjustment to the Exchange Rate is required (or would be required without regard
to Section 5.05(C)) pursuant to Section 5.05(A)(i) or 5.05(A)(ii);
(v) dividends
or distributions paid exclusively in cash for which an adjustment to the Exchange Rate is required (or would be required without regard
to Section 5.05(C)) pursuant to Section 5.05(A)(iv);
(w) rights
issued or otherwise distributed pursuant to a stockholder rights plan, except to the extent provided in Section 5.05(F);
(x) Spin-Offs
for which an adjustment to the Exchange Rate is required (or would be required without regard to Section 5.05(C)) pursuant
to Section 5.05(A)(iii)(2);
(y) a
distribution solely pursuant to a tender offer or exchange offer for shares of Common Stock, as to which Section 5.05(A)(v) will
apply; and
(z) a
distribution solely pursuant to a Common Stock Change Event, as to which Section 5.09 will apply,
then the Exchange Rate will be increased
based on the following formula:
where:
ER0 =
the
Exchange Rate in effect immediately before the Open of Business on the Ex-Dividend Date for
such distribution;
ER1 =
the
Exchange Rate in effect immediately after the Open of Business on such Ex-Dividend Date;
SP =
the
average of the Last Reported Sale Prices per share of Common Stock for the ten (10) consecutive
Trading Days ending on, and including, the Trading Day immediately before such Ex-Dividend
Date; and
FMV =
the
fair market value (as determined by the Parent Guarantor in good faith and in a commercially
reasonable manner), as of such Ex-Dividend Date, of the shares of Capital Stock, evidences
of indebtedness, assets, property, rights, options or warrants distributed per share of Common
Stock pursuant to such distribution;
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provided,
however, that if FMV is equal to or greater than SP, then, in lieu of the foregoing adjustment to the Exchange Rate,
each Holder will receive, for each $1,000 Capitalized Principal Amount of Notes held by such Holder on the record date for such distribution
(for the avoidance of doubt, with pro-ration for any portion of the Capitalized Principal Amount that is not an integral multiple of
$1,000), at the same time and on the same terms as holders of Common Stock and without having to Exchange such Notes, the amount and
kind of shares of Capital Stock, evidences of indebtedness, assets, property, rights, options or warrants that such Holder would have
received in such distribution if such Holder had owned, on such record date, a number of shares of Common Stock equal to the Exchange
Rate in effect on such record date.
To the extent such distribution is not
so paid or made, the Exchange Rate will be readjusted to the Exchange Rate that would then be in effect had the adjustment been made
on the basis of only the distribution, if any, actually made or paid.
(2) Spin-Offs.
If the Parent Guarantor distributes or dividends shares of Capital Stock of any class or series, or similar equity interests, of or relating
to an Affiliate, a Subsidiary or other business unit of the Parent Guarantor to all or substantially all holders of the Common Stock
(other than solely pursuant to (x) a Common Stock Change Event, as to which Section 5.09
will apply; or (y) a tender offer or exchange offer for shares of Common Stock, as to which Section 5.05(A)(v) will
apply), and such Capital Stock or equity interests are listed or quoted (or will be listed or quoted upon the consummation of the transaction)
on a U.S. national securities exchange (a “Spin-Off”), then the Exchange Rate will be increased based on the following
formula:
where:
ER0 =
the
Exchange Rate in effect immediately before the Close of Business on the last Trading Day
of the Spin-Off Valuation Period for such Spin-Off;
ER1 =
the
Exchange Rate in effect immediately after the Close of Business on the last Trading Day of
the Spin-Off Valuation Period;
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FMV =
the
product of (x) the average of the Last Reported Sale Prices per share or unit of the
Capital Stock or equity interests distributed in such Spin-Off over the ten (10) consecutive
Trading Day period (the “Spin-Off Valuation Period”) beginning on, and
including, the Ex-Dividend Date for such Spin-Off (such average to be determined as if references
to Common Stock in the definitions of Last Reported Sale Price, Trading Day and Market Disruption
Event were instead references to such Capital Stock or equity interests); and (y) the
number of shares or units of such Capital Stock or equity interests distributed per share
of Common Stock in such Spin-Off; and
SP =
the
average of the Last Reported Sale Prices per share of Common Stock for each Trading Day in
the Spin-Off Valuation Period.
Notwithstanding anything to the contrary
in this Section 5.05(A)(iii)(2), (i) if any VWAP Trading Day of the Observation Period for a Note whose Exchange
will be settled pursuant to Cash Settlement or Combination Settlement occurs during the Spin-Off Valuation Period for such Spin-Off,
then, solely for purposes of determining the Exchange Rate for such VWAP Trading Day for such Exchange, such Spin-Off Valuation Period
will be deemed to consist of the Trading Days occurring in the period from, and including, the Ex-Dividend Date for such Spin-Off to,
and including, such VWAP Trading Day; and (ii) if the Exchange Date for a Note whose Exchange will be settled pursuant to Physical
Settlement occurs during the Spin-Off Valuation Period for such Spin-Off, then, solely for purposes of determining the consideration
due in respect of such Exchange, such Spin-Off Valuation Period will be deemed to consist of the Trading Days occurring in the period
from, and including, the Ex-Dividend Date for such Spin-Off to, and including, such Exchange Date.
To the extent any dividend or distribution
of the type set forth in this Section 5.05(A)(iii)(2) is declared but not made or paid, the Exchange Rate will be readjusted
to the Exchange Rate that would then be in effect had the adjustment been made on the basis of only the dividend or distribution, if
any, actually made or paid.
(iv)Cash Dividends or Distributions. If
any cash dividend or distribution is made to all or substantially all holders of Common Stock, then the Exchange Rate will be increased
based on the following formula:
where:
ER0 =
the
Exchange Rate in effect immediately before the Open of Business on the Ex-Dividend Date for
such dividend or distribution;
ER1 =
the
Exchange Rate in effect immediately after the Open of Business on such Ex-Dividend Date;
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SP =
the
Last Reported Sale Price per share of Common Stock on the Trading Day immediately before
such Ex-Dividend Date; and
D =
the
cash amount distributed per share of Common Stock in such dividend or distribution;
provided,
however, that if D is equal to or greater than SP, then, in lieu of the foregoing adjustment to the Exchange Rate,
each Holder will receive, for each $1,000 Capitalized Principal Amount of Notes held by such Holder on the record date for such dividend
or distribution (for the avoidance of doubt, with pro-ration for any portion of the Capitalized Principal Amount that is not an integral
multiple of $1,000), at the same time and on the same terms as holders of Common Stock, and without having to Exchange such Notes, the
amount of cash that such Holder would have received in such dividend or distribution if such Holder had owned, on such record date, a
number of shares of Common Stock equal to the Exchange Rate in effect on such record date.
To the extent such dividend or distribution
is declared but not made or paid, the Exchange Rate will be readjusted to the Exchange Rate that would then be in effect had the adjustment
been made on the basis of only the dividend or distribution, if any, actually made or paid.
(v) Tender
Offers or Exchange Offers. If the Company, the Parent Guarantor or any of their respective Subsidiaries makes a payment in respect
of a tender offer or exchange offer for shares of Common Stock that is subject to the then-applicable tender offer rules under the
Exchange Act (other than solely pursuant to an odd-lot tender offer pursuant to Rule 13e-4(h)(5) under the Exchange Act), and
the value (determined as of the Expiration Time by the Parent Guarantor in good faith and in a commercially reasonable manner) of the
cash and other consideration paid per share of Common Stock in such tender or exchange offer exceeds the Last Reported Sale Price per
share of Common Stock on the Trading Day immediately after the last date (the “Expiration Date”) on which tenders
or exchanges may be made pursuant to such tender or exchange offer (as it may be amended), then the Exchange Rate will be increased based
on the following formula:
where:
ER0 =
the
Exchange Rate in effect immediately before the Close of Business on the last Trading Day
of the Tender/Exchange Offer Valuation Period for such tender or exchange offer;
ER1 =
the
Exchange Rate in effect immediately after the Close of Business on the last Trading Day of
the Tender/Exchange Offer Valuation Period;
AC =
the
aggregate value (determined as of the time (the “Expiration Time”) such
tender or exchange offer expires by the Parent Guarantor in good faith and in a commercially
reasonable manner) of all cash and other consideration paid or payable for shares of Common
Stock purchased or exchanged in such tender or exchange offer;
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OS0 =
the
number of shares of Common Stock outstanding immediately before the Expiration Time (including
all shares of Common Stock accepted for purchase or exchange in such tender or exchange offer);
OS1 =
the
number of shares of Common Stock outstanding immediately after the Expiration Time (excluding
all shares of Common Stock accepted for purchase or exchange in such tender or exchange offer);
and
SP =
the
average of the Last Reported Sale Prices per share of Common Stock over the ten (10) consecutive
Trading Day period (the “Tender/Exchange Offer Valuation Period”) beginning
on, and including, the Trading Day immediately after the Expiration Date;
provided,
however, that the Exchange Rate will in no event be adjusted down pursuant to this Section 5.05(A)(v), except
to the extent provided in the immediately following paragraph. Notwithstanding anything to the contrary in this Section 5.05(A)(v),
(i) if any VWAP Trading Day of the Observation Period for a Note whose Exchange will be settled pursuant to Cash Settlement or Combination
Settlement occurs during the Tender/Exchange Offer Valuation Period for such tender or exchange offer, then, solely for purposes of determining
the Exchange Rate for such VWAP Trading Day for such Exchange, such Tender/Exchange Offer Valuation Period will be deemed to consist
of the Trading Days occurring in the period from, and including, the Trading Day immediately after the Expiration Date for such tender
or exchange offer to, and including, such VWAP Trading Day; and (ii) if the Exchange Date for a Note whose Exchange will be settled
pursuant to Physical Settlement occurs during the Tender/Exchange Offer Valuation Period for such tender or exchange offer, then, solely
for purposes of determining the consideration due in respect of such Exchange, such Tender/Exchange Offer Valuation Period will be deemed
to consist of the Trading Days occurring in the period from, and including, the Trading Day immediately after the expiration date to,
and including, such Exchange Date.
To the extent such tender or exchange
offer is announced but not consummated (including as a result of the Parent Guarantor being precluded from consummating such tender or
exchange offer under applicable law), or any purchases or exchanges of shares of Common Stock in such tender or exchange offer are rescinded,
the Exchange Rate will be readjusted to the Exchange Rate that would then be in effect had the adjustment been made on the basis of only
the purchases or exchanges of shares of Common Stock, if any, actually made, and not rescinded, in such tender or exchange offer.
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(B)No Adjustments in Certain Cases.
(i)Where Holders
Participate in the Transaction or Event Without Exchange. Notwithstanding anything to the contrary in Section 5.05(A),
the Company will not be obligated to adjust the Exchange Rate on account of a transaction or other event otherwise requiring an adjustment
pursuant to Section 5.05(A) (other than a stock split or combination of the
type set forth in Section 5.05(A)(i) or a tender or exchange offer of the
type set forth in Section 5.05(A)(v)) if each Holder participates, at the same
time and on the same terms as holders of Common Stock, and solely by virtue of being a Holder of Notes, in such transaction or event
without having to Exchange such Holder’s Notes and as if such Holder held a number of shares of Common Stock equal to the product
of (i) the Exchange Rate in effect on the related record date; and (ii) the aggregate Capitalized Principal Amount (expressed
in thousands) of Notes held by such Holder on such date.
(ii)Certain Events.
The Company will not be required to adjust the Exchange Rate except as provided in Section 5.05 or Section 5.07.
Without limiting the foregoing, the Company will not be obligated to adjust the Exchange Rate on account of:
(1) except
as otherwise provided in Section 5.05, the sale of shares of Common
Stock for a purchase price that is less than the market price per share of Common Stock or less than the Exchange Price;
(2) the
issuance of any shares of Common Stock pursuant to any present or future plan providing for the reinvestment of dividends or interest
payable on the Parent Guarantor’s securities and the investment of additional optional amounts in shares of Common Stock under
any such plan;
(3) the
issuance of any shares of Common Stock or options or rights to purchase shares of Common Stock pursuant to any present or future employee,
director or consultant benefit plan or program of, or assumed by, the Company, the Parent Guarantor or any of the Company’s or
the Parent Guarantor’s respective Subsidiaries;
(4) the
issuance of any shares of Common Stock pursuant to any option, warrant, right or convertible or exchangeable security of the Parent Guarantor
or the Company outstanding as of the Issue Date;
(5) for
ordinary course of business Common Stock repurchases that are not tender offers referred to in Section 5.05(A)(v), including
structured or derivative transactions or pursuant to a stock repurchase program approved by the Parent Guarantor’s Board of Directors;
(6) solely
a change in the par value (or from par value to no par value) of the Common Stock; or
(7) accrued
and unpaid interest on the Notes.
(C)Adjustment Deferral.
If an adjustment to the Exchange Rate otherwise required by this Article 5 would result in a change of
less than one percent (1%) to the Exchange Rate, then, notwithstanding anything to the contrary in this Article 5,
the Company may, at its election, defer and carry forward such adjustment, except that all such deferred adjustments must be given effect
immediately upon the earliest of the following: (i) when all such deferred adjustments would, had they not been so deferred and
carried forward, result in a change of at least one percent (1%) to the Exchange Rate; (ii) in the case of any Note to which Physical
Settlement applies, upon the Exchange Date; (iii) in the case of any Note to which Cash Settlement or Combination Settlement applies,
on each VWAP Trading Day of an Observation Period for, any Note; (iii) the date a Fundamental Change or Make-Whole Fundamental Change
occurs; (iv) the date the Company calls any Note for Redemption; and (v) April 1, 2030.
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(D)Adjustments Not Yet Effective. Notwithstanding
anything to the contrary in this Indenture or the Notes, if:
(i)a Note is to
be Exchanged pursuant to Physical Settlement or Combination Settlement;
(ii)the record
date, effective date or Expiration Time for any event that requires an adjustment to the Exchange Rate pursuant to Section 5.05(A) has
occurred on or before the Exchange Date for such Exchange (in the case of Physical Settlement) or on or before any VWAP Trading Day in
the Observation Period for such Exchange (in the case of Combination Settlement), but an adjustment to the Exchange Rate for such event
has not yet become effective as of such Exchange Date or such VWAP Trading Day, as applicable;
(iii)the Exchange Consideration due upon Exchange
includes any whole shares of Common Stock (in the case of Physical Settlement) or due in respect of such VWAP Trading Day includes any
whole or fractional shares of Common Stock (in the case of Combination Settlement); and
(iv)such shares are not entitled to participate
in such event (because they were not held on the related record date or otherwise),
then, solely for purposes of such Exchange, the
Company will, without duplication, give effect to such adjustment on such Exchange Date (in the case of Physical Settlement) or such
VWAP Trading Day (in the case of Combination Settlement). In such case, if the date on which the Company is otherwise required to deliver
the consideration due upon such Exchange is before the first date on which the amount of such adjustment can be determined, then the
Company will delay the settlement of such Exchange until the second (2nd) Business Day after such first date.
(E)Exchange Rate Adjustments Where Exchanging
Holders Participate in the Relevant Transaction or Event. Notwithstanding anything to the contrary in this Indenture or the Notes, if:
(i)an Exchange
Rate adjustment for any dividend or distribution becomes effective on any Ex-Dividend Date pursuant to Section 5.05(A);
(ii)a Note
is to be Exchanged pursuant to Physical Settlement or Combination Settlement;
(iii)the Exchange Date for such Exchange (in
the case of Physical Settlement) or any VWAP Trading Day in the Observation Period for such Exchange (in the case of Combination Settlement)
occurs on or after such Ex-Dividend Date and on or before the related record date;
(iv)the
Exchange Consideration includes any whole shares of Common Stock (in the case of Physical Settlement) or due in respect of such VWAP
Trading Day includes any whole or fractional shares of Common Stock (in the case of Combination Settlement), in each case, based on an
Exchange Rate that is adjusted for such dividend or distribution; and
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(v)such shares
would be entitled to participate in such dividend or distribution (including pursuant to Section 5.02(C)),
then in the case of Physical Settlement, the
Exchange Rate adjustment relating to such Ex-Dividend Date will not be given effect for such Exchange and the shares of Common Stock
issuable upon such Exchange based on such unadjusted Exchange Rate will not be entitled to participate in such dividend or distribution,
but there will be added, to the consideration otherwise due upon such Exchange, the same kind and amount of consideration that would
have been delivered in such dividend or distribution with respect to such shares had such shares been entitled to participate in such
dividend or distribution; and in the case of Combination Settlement, the Exchange Rate adjustment relating to such Ex-Dividend Date will
be made for such Exchange in respect of such VWAP Trading Day, but the shares of Common Stock deliverable with respect to such VWAP Trading
Day based on such adjusted Exchange Rate will not be entitled to participate in such dividend or distribution.
(F)Stockholder
Rights Plans. If any shares of Common Stock are to be delivered upon Exchange of any Note and, at the time of such Exchange, the Parent
Guarantor has in effect any stockholder rights plan, then the Holder of such Note will be entitled to receive, in addition to, and concurrently
with the delivery of, the Exchange Consideration otherwise payable under this Indenture upon such Exchange, the rights set forth in such
stockholder rights plan, unless such rights have separated from the Common Stock at such time, in which case, and only in such case,
the Exchange Rate will be adjusted pursuant to Section 5.05(A)(iii)(1) on account of such separation as
if, at the time of such separation, the Parent Guarantor had made a distribution of the type referred to in such Section to all
holders of the Common Stock, subject to potential readjustment in accordance with the last paragraph of Section 5.05(A)(iii)(1).
(G)Limitation on
Effecting Transactions Resulting in Certain Adjustments. The Company and the Parent Guarantor will not engage in or be a party to any
transaction or event that would require the Exchange Rate to be adjusted pursuant to Section 5.05(A) or
Section 5.07 to an amount that would result in the Exchange Price per share of
Common Stock being less than the par value per share of Common Stock.
(H)Equitable Adjustments
to Prices. Whenever any provision of this Indenture requires the Company to calculate the average of the Last Reported Sale Prices, or
any function thereof, over a period of multiple days (including to calculate the Stock Price or an adjustment to the Exchange Rate),
or to calculate Daily VWAPs, or any function thereof, over an Observation Period, the Company will make appropriate adjustments, if any,
to such calculations to account for any adjustment to the Exchange Rate pursuant to Section 5.05(A) that
becomes effective, or any event requiring such an adjustment to the Exchange Rate where the Ex-Dividend Date or effective date, as applicable,
of such event occurs, at any time during such period or Observation Period, as applicable.
(I)Calculation
of Number of Outstanding Shares of Common Stock. For purposes of Section 5.05(A), the number of shares of Common
Stock outstanding at any time will (i) include shares issuable in respect of scrip certificates issued in lieu of fractions of shares
of Common Stock; and (ii) exclude shares of Common Stock held in the Company’s treasury (unless the Company pays any dividend
or makes any distribution on shares of Common Stock held in its treasury).
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(J)Calculations. All calculations with
respect to the Exchange Rate and adjustments thereto will be made to the nearest 1/10,000th of a share of Common Stock (with 5/100,000ths
rounded upward).
(K)Notice
of Exchange Rate Adjustments. Upon the effectiveness of any adjustment to the Exchange Rate pursuant to Section 5.05(A),
the Company will promptly send notice to the Holders, the Trustee and the Exchange Agent containing (i) a brief description of the
transaction or other event on account of which such adjustment was made; (ii) the Exchange Rate in effect immediately after such
adjustment; and (iii) the effective time of such adjustment.
Whenever the Exchange Rate is adjusted as herein
provided, the Company shall promptly file with the Trustee (and the Exchange Agent if not the Trustee) an Officer’s Certificate
setting forth the Exchange Rate after such adjustment and setting forth a brief statement of the facts requiring such adjustment. In the
absence of an Officer’s Certificate being filed with the Trustee (and the Exchange Agent if not the Trustee), the Trustee may assume
without inquiry (and with no liability) that the Exchange Rate has not been adjusted and that the last Exchange Rate of which it has knowledge
remains in effect.
Section 5.06. Voluntary
Adjustments.
(A)Generally. To the extent permitted by
law and applicable stock exchange rules, the Company, from time to time, may (but is not required to) increase the Exchange Rate by any
amount if (i) the Company’s or the Parent Guarantor’s Board of Directors determines that such increase is either (x) in
the best interest of the Company or the Parent Guarantor; or (y) advisable to avoid or diminish any income tax imposed on holders
of Common Stock or rights to purchase Common Stock as a result of any dividend or distribution of shares (or rights to acquire shares)
of Common Stock or any similar event; (ii) such increase is in effect for a period of at least twenty (20) Business Days; and (iii) such
increase is irrevocable during such period.
(B)Notice of
Voluntary Increases. If the Board of Directors determines to increase the Exchange Rate pursuant to Section 5.06(A),
then, no later than the first Business Day of the related twenty (20) Business Day period referred to in Section 5.06(A),
the Company will send notice to each Holder, the Trustee and the Exchange Agent of such increase, the amount thereof and the period during
which such increase will be in effect.
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Section 5.07. Adjustments
to the Exchange Rate in Connection with a Make-Whole Fundamental Change.
(A) Generally.
If a Make-Whole Fundamental Change occurs and the Exchange Date for the Exchange of a Note occurs during the related Make-Whole Fundamental
Change Exchange Period, then, subject to this Section 5.07, the Exchange Rate applicable to such Exchange will
be increased by a number of shares (the “Additional Shares”) set forth in the table below corresponding (after interpolation
as provided in, and subject to, the provisions below) to the Make-Whole Fundamental Change Effective Date and the Stock Price of such
Make-Whole Fundamental Change:
Stock Price
Make-Whole Fundamental Change Effective Date
$2.70
$3.10
$3.58
$4.10
$4.65
$5.50
$6.50
$10.00
$15.00
$20.00
June 29, 2026
90.8455
90.8455
90.8455
89.7170
78.9660
67.5772
58.9789
45.7714
40.8174
40.0415
July 1, 2027
90.8455
90.8455
90.8455
77.5635
67.1236
55.5132
46.9493
34.3502
30.0214
29.5231
July 1, 2028
90.8455
90.8455
79.0305
64.4645
53.0534
41.5811
33.4877
22.5672
19.4899
19.3509
July 1, 2029
90.8455
83.5705
60.6087
44.5749
33.6232
23.5501
17.2449
10.4390
9.5136
9.5136
July 1, 2030
90.8455
43.0559
0.0000
0.0000
0.0000
0.0000
0.0000
0.0000
0.0000
0.0000
If such Make-Whole Fundamental
Change Effective Date or Stock Price is not set forth in the table above, then:
(i)if such Stock Price is between two Stock Prices
in the table above or the Make-Whole Fundamental Change Effective Date is between two Make-Whole Fundamental Change Effective Dates in
the table above, then the number of Additional Shares will be determined by straight-line interpolation between the numbers of Additional
Shares set forth for the higher and lower Stock Prices in the table above or the earlier and later Make-Whole Fundamental Change Effective
Dates in the table above, based on a 365- or 366-day year, as applicable; and
(ii)if the Stock
Price is greater than $20.00 (subject to adjustment in the same manner as the Stock Prices set forth in the column headings of the table
above are adjusted pursuant to Section 5.07(B)), or less than $2.70 (subject to adjustment in the same manner),
per share, then no Additional Shares will be added to the Exchange Rate.
Notwithstanding anything to
the contrary in this Indenture or the Notes, in no event will the Exchange Rate be increased to an amount that exceeds 370.3703 shares
of Common Stock per $1,000 Capitalized Principal Amount of Notes, which amount is subject to adjustment in the same manner as, and at
the same time and for the same events for which, the Exchange Rate is required to be adjusted pursuant to Section 5.05(A).
For the avoidance of doubt,
but subject to Section 4.03(I), (x) the sending of a Redemption Notice will constitute a Make-Whole Fundamental Change only
with respect to the Notes called (or deemed called pursuant to Section 4.03(I)) for Redemption pursuant to such Redemption Notice,
and not with respect to any other Notes; and (y) the Exchange Rate applicable to the Notes not so called (or deemed called pursuant
to Section 4.03(I)) for Redemption will not be subject to increase pursuant to this Section 5.07 on account of such Redemption
Notice.
(B)Adjustment
of Stock Prices and Number of Additional Shares. The Stock Prices in the first row (i.e., the column headers) of the table set forth
in Section 5.07(A) will be adjusted in the same manner as, and at the same time and for the same events for
which, the Exchange Price is adjusted as a result of the operation of Section 5.05(A).
The numbers of Additional Shares in the table set forth in Section 5.07(A) will
be adjusted in the same manner as, and at the same time and for the same events for which, the Exchange Rate is adjusted pursuant to Section 5.05(A).
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(C)Notice of the Occurrence of a Make-Whole
Fundamental Change. If a Fundamental Change, Make-Whole Fundamental Change or Common Stock Change Event occurs (other than a merger
or other business combination transaction that is effected solely to change the Company’s or the Parent Guarantor’s jurisdiction
of organization and that does not constitute a Fundamental Change or a Make-Whole Fundamental Change), then, in each case, no later than
the Business Day after the effective date of such transaction or event, the Company will send notice to the Holders, the Trustee and the
Exchange Agent of such transaction or event and such effective date.
Section 5.08. Transfer
of Notes to Be Exchanged to a Third Party for Settlement.
Notwithstanding anything to
the contrary in this Article 5, and subject to the terms of this Section 5.08, if a Note is submitted
for Exchange, the Company may elect to arrange to have such Note transferred for settlement, in lieu of Exchange, to a third party financial
institution designated by the Company that will pay and deliver, as the case may be, the Exchange Consideration due upon such Exchange
in lieu of the Company’s payment and delivery of the same. To make such election, the Company must send notice of such election
to the Holder of such Note, the Trustee and the Exchange Agent before the Close of Business on the Business Day immediately following
the Exchange Date for such Note. If the Company has made such election, then:
(A)no later than
the Business Day immediately following such Exchange Date, the Company must deliver (or cause the Exchange Agent to deliver) such Note,
together with delivery instructions for the Exchange Consideration due upon such Exchange (including wire instructions, if applicable),
to a financial institution designated by the Company that has agreed to deliver such Exchange Consideration in the manner and at the time
the Company would have had to deliver the same pursuant to this Article 5;
(B)if such Note is a Global Note, then (i) such
designated institution will send written confirmation to the Exchange Agent promptly after wiring the cash Exchange Consideration, if
any, and delivering any other Exchange Consideration, due upon such Exchange to the Holder of such Note; and (ii) the Exchange Agent
will as soon as reasonably practicable thereafter contact such Holder’s custodian with the Depositary to confirm receipt of the
same; and
(C)such Note will not cease to be outstanding
by reason of such transfer to a third party for settlement;
provided,
however, that if such financial institution does not accept such Note or fails to timely deliver such Exchange Consideration, then
the Company will be responsible for delivering such Exchange Consideration in the manner and at the time provided in this Article 5
as if the Company had not elected to make a transfer to a third party for settlement.
Section 5.09. Effect
of Common Stock Change Event.
(A)Generally. If there occurs any:
(i)recapitalization, reclassification or change
of the Common Stock (other than (x) changes solely resulting from a subdivision or combination of the Common Stock, (y) a change
only in par value or from par value to no par value or no par value to par value or (z) stock splits and stock combinations that
do not involve the issuance of any other series or class of securities);
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(ii)consolidation, merger, combination or binding
or statutory share exchange involving the Parent Guarantor;
(iii)sale, lease or other transfer of all or substantially
all of the assets of the Parent Guarantor and its Subsidiaries, taken as a whole, to any Person; or
(iv)other similar event,
and, as a result, the Common Stock is converted
into, or is exchanged for, or represents solely the right to receive, other securities, cash or other property, or any combination of
the foregoing (such an event, a “Common Stock Change Event,” and such other securities, cash or other property (or
combination thereof), the “Reference Property,” and the amount and kind of Reference Property that a holder of one
(1) share of Common Stock would be entitled to receive on account of such Common Stock Change Event (without giving effect to any
arrangement not to issue or deliver a fractional portion of any security or other property), a “Reference Property Unit”),
then, notwithstanding anything to the contrary in this Indenture or the Notes,
(1) from
and after the effective time of such Common Stock Change Event, (I) the Exchange Consideration due upon Exchange of any Note will
be determined in the same manner as if each reference to any number of shares of Common Stock in this Article 5 (or in
any related definitions) were instead a reference to the same number of Reference Property Units; (II) for purposes of the definitions
of “Fundamental Change” and “Make-Whole Fundamental Change,” references to “Common Stock” and the
Parent Guarantor’s “Common Equity” will be deemed to refer to the Common Equity (including depositary receipts representing
Common Equity), if any, forming part of such Reference Property; and (III) for purposes of Section 4.03, each reference
to any number of shares of Common Stock in such Section (or in any related definitions) will be deemed to be a reference to the same
number of Reference Property Units; and
(2) if
such Reference Property Unit consists entirely of cash, then the Company will be deemed to elect Physical Settlement in respect of all
Exchanges whose Exchange Date occurs on or after the effective date of such Common Stock Change Event, and the Company will pay the cash
due upon Exchange no later than the second Business Day after the relevant Exchange Date; and
(3) for
these purposes, (I) the Daily VWAP of any Reference Property Unit or portion thereof that consists of a class of Common Equity securities
listed on a national securities exchange will be determined by reference to the definition of “Daily VWAP,” substituting,
if applicable, the Bloomberg page for such class of securities in such definition; and (II) the Daily VWAP of any Reference
Property Unit or portion thereof that does not consist of a class of Common Equity securities listed on a national securities exchange,
and the Last Reported Sale Price of any Reference Property Unit or portion thereof that does not consist of a class of securities, will
be the fair value of such Reference Property Unit or portion thereof, as applicable, determined in good faith and in a commercially reasonable
manner by the Company (or, in the case of cash denominated in U.S. dollars, the face amount thereof).
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If the Reference Property
consists of more than a single type of consideration to be determined based in part upon any form of stockholder election, then the composition
of the Reference Property Unit will be deemed to be the weighted average of the types and amounts of consideration actually received,
per share of Common Stock, by the holders of Common Stock. The Company will notify Holders, the Trustee and the Exchange Agent of such
weighted average as soon as practicable after such determination is made.
At or before the effective
time of such Common Stock Change Event, the Company, the Parent Guarantor and the resulting, surviving or transferee Person (if not the
Company or the Parent Guarantor) of such Common Stock Change Event (the “Successor Person”) will execute and deliver
to the Trustee a supplemental indenture pursuant to Section 8.01(F), which supplemental indenture will (x) provide
for subsequent Exchanges of Notes in the manner set forth in this Section 5.09; (y) provide for subsequent adjustments
to the Exchange Rate pursuant to Section 5.05(A) in a manner consistent with this Section 5.09;
and (z) contain such other provisions, if any, that the Company reasonably determines are appropriate to preserve the economic interests
of the Holders and to give effect to the provisions of this Section 5.09(A). If the Reference Property includes shares
of stock or other securities or assets (other than cash) of a Person other than the Successor Person, then such other Person, if an Affiliate
of the Company or the successor or acquiring company, will also execute such supplemental indenture and such supplemental indenture will
contain such additional provisions, if any, that the Company reasonably determines are appropriate to preserve the economic interests
of the Holders.
(B)Notice of Common Stock Change Events.
The Company will provide notice of each Common Stock Change Event to the Holders, the Trustee and the Exchange Agent no later than the
Business Day after the effective date of such Common Stock Change Event.
(C)Compliance
Covenant. The Parent Guarantor will not become a party to any Common Stock Change Event unless its terms are consistent with this
Section 5.09.
Article 6. Successors
Section 6.01. When
the Company May Merge, Etc.
(D)Generally. The Company will not consolidate
with or merge with or into, or convey, transfer or lease all or substantially all of its assets to, any Person (a “Company Business
Combination Event”), unless:
(i)the resulting, surviving or transferee Person
(the “Successor Company”) is a Person organized and existing under the laws of the United States of America, any State
thereof or the District of Columbia and the Successor Company (if not the Company)expressly assumes all the obligations of the Company
under the Notes, this Indenture, the Intercreditor Agreements and the Notes Collateral Documents, by executing and delivering to the Trustee
a supplemental indenture or one or more other documents or instruments in form reasonably satisfactory to the Trustee;
(ii)immediately after giving effect to such transaction
(and treating any Indebtedness that becomes an obligation of the Successor Company or any Restricted Subsidiary as a result of such transaction
as having been Incurred by the Successor Company or such Restricted Subsidiary at the time of such transaction), no Default will have
occurred and be continuing;
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(iii)Holdings and each Subsidiary Guarantor (other
than (x) any Subsidiary Guarantor that will be released from its obligations under its Notes Guarantees in connection with such transaction
and (y) any party to any such consolidation or merger) shall have delivered a supplemental Indenture or other document or instrument
(in a form reasonably satisfactory to the Trustee), confirming its Notes Guarantees (other than any Notes Guarantee that will be discharged
or terminated in connection with such transaction); and
(iv)the Company will have delivered to the Trustee
an Officer’s Certificate and an Opinion of Counsel, each to the effect that such consolidation, merger or transfer complies with
this Section 6.01(A); provided that (x) in giving such opinion such counsel may rely on an Officer’s Certificate
as to compliance with the foregoing clause (ii) and as to any matters of fact and (y) no Opinion of Counsel will be required
for a consolidation, merger or transfer set forth in Section 6.01(C).
(E)Section 6.01(A)(ii) shall
not apply to any transaction in which the Company consolidates or merges with or into or transfers all or substantially all its properties
and assets to (x) an Affiliate incorporated or organized for the purpose of reincorporating or reorganizing the Company in another
jurisdiction or changing its legal structure to a corporation or other entity or (y) a Restricted Subsidiary of the Company so long
as all assets of the Company and the Restricted Subsidiaries immediately prior to such transaction (other than Capital Stock of such Restricted
Subsidiary) are owned by such Restricted Subsidiary and its Restricted Subsidiaries immediately after the consummation thereof. Section 6.01(A) shall
not apply to any transaction in which any Restricted Subsidiary consolidates with, merges into or transfers all or part of its assets
to the Company
(F)For purposes of this Section 6.01,
so long as at the time of any Minority Business Disposition or any Minority Business Offering the Minority Business Disposition Condition
is met, the Minority Business Assets shall not be deemed at any time to constitute all or substantially all of the assets of the Company,
and any sale or transfer of all or any part of the Minority Business Assets (whether directly or indirectly, whether by sale or transfer
of any such assets, or of any Capital Stock or other interest in any Person holding such assets, or by merger or consolidation, or any
combination thereof, and whether in one or more transactions, or otherwise, including any Minority Business Offering or any Minority Business
Disposition) shall not be deemed at any time to constitute a consolidation with or merger with or into, or conveyance, transfer or lease
of all or substantially all of the assets of the Company to, any Person.
(G)For purposes of this Section 6.01,
the Reorganization Assets (whether individually or in the aggregate) shall not be deemed at any time to constitute all or substantially
all of the assets of the Company and its Restricted Subsidiaries, and any sale or transfer of all or any part of the Reorganization Assets
(whether directly or indirectly, whether by sale or transfer of any such assets, or of any Capital Stock or other interest in any Person
holding such assets, or of any combination thereof, and whether in one or more transactions, or otherwise) shall not be deemed at any
time to constitute a sale or transfer of all or substantially all of the assets of the Company and its Restricted Subsidiaries.
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Section 6.02. Company
Successor Entity Substituted.
Upon any transaction involving
the Company in accordance with Section 6.01 in which the Company is not the Successor Company, the Successor Company shall
succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture, the Intercreditor Agreements,
the Notes Collateral Documents and the Notes, and thereafter the predecessor Company shall be relieved of all obligations and covenants
under this Indenture, the Intercreditor Agreements, the Notes Collateral Documents and the Notes, except that the predecessor Company
in the case of a lease of all or substantially all its assets shall not be released from the obligation to pay the Capitalized Principal
Amount and interest on the Notes.
Section 6.03. When
the Parent Guarantor May Merge, Etc.
(D)The Parent Guarantor will not consolidate with
or merge with or into, or sell, convey, transfer or lease all or substantially all of the assets of the Parent Guarantor and its Subsidiaries,
in one transaction or a series of transactions, taken as a whole, to another Person (a “Parent Guarantor Business Combination Event”),
unless:
(i)the resulting, surviving or transferee Person
either (x) is the Parent Guarantor; or (y) if not the Parent Guarantor, is a Qualified Successor Entity (such Qualified Successor
Entity, the “Parent Successor Entity”) duly organized and existing under the laws of the United States of America,
any State thereof or the District of Columbia that expressly assumes (by executing and delivering to the Trustee, at or before the effective
time of such Parent Guarantor Business Combination Event, a supplemental Indenture) all of the Parent Guarantor’s obligations under
this Indenture and the Notes;
(ii)immediately after giving effect to such Parent
Guarantor Business Combination Event, no Default will have occurred and be continuing; and
(iii)the Company will have delivered to the Trustee
an Officer’s Certificate and an Opinion of Counsel, each to the effect that such consolidation, merger or transfer complies with
the provisions described in this paragraph; provided that in giving such opinion such counsel may rely on an Officer’s Certificate
as to compliance with the foregoing clause (ii) and as to any matters of fact.
(E)Notwithstanding anything to the contrary, Section 6.03(A) will
not apply to any transfer of assets (not effected by merger or consolidation) between or among (i) the Parent Guarantor and (ii) the
Company or any one or more of the Parent Guarantor’s Wholly Owned Subsidiaries.
(F)For purposes of this Section 6.03,
so long as at the time of any Minority Business Disposition or any Minority Business Offering the Minority Business Disposition Condition
is met, the Minority Business Assets shall not be deemed at any time to constitute all or substantially all of the assets of the Parent
Guarantor, and any sale or transfer of all or any part of the Minority Business Assets (whether directly or indirectly, whether by sale
or transfer of any such assets, or of any Capital Stock or other interest in any Person holding such assets, or by merger or consolidation,
or any combination thereof, and whether in one or more transactions, or otherwise, including any Minority Business Offering or any Minority
Business Disposition) shall not be deemed at any time to constitute a consolidation with or merger with or into, or conveyance, transfer
or lease of all or substantially all of the assets of the Parent Guarantor to, any Person.
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(G)For purposes of this Section 6.03,
the Reorganization Assets (whether individually or in the aggregate) shall not be deemed at any time to constitute all or substantially
all of the assets of the Parent Guarantor and its Subsidiaries, and any sale or transfer of all or any part of the Reorganization Assets
(whether directly or indirectly, whether by sale or transfer of any such assets, or of any Capital Stock or other interest in any Person
holding such assets, or of any combination thereof, and whether in one or more transactions, or otherwise) shall not be deemed at any
time to constitute a sale or transfer of all or substantially all of the assets of the Parent Guarantor and its Subsidiaries.
Section 6.04. Parent
Successor Entity Substituted.
Upon any transaction involving
the Parent Guarantor in accordance with Section 6.03 in which the Parent Guarantor is not the Parent Successor Entity, the
Parent Successor Entity shall succeed to, and be substituted for, and may exercise every right and power of, the Parent Guarantor under
this Indenture and the Notes, and except in the case of a lease, the predecessor entity shall be discharged from its obligations under
this Indenture and the Notes.
Article 7. Defaults
and Remedies
Section 7.01. Events
of Default.
(A)Definition of Events of Default. “Event
of Default” means the occurrence of any of the following:
(i)a default in the payment when due
(whether at maturity, upon Redemption or Repurchase Upon Fundamental Change or otherwise) of the Capitalized Principal Amount of, or the
Redemption Price or Fundamental Change Repurchase Price for, any Note;
(ii)a
default for thirty (30) consecutive days in the payment when due of interest on any Note;
(iii)the
Company’s failure to deliver, when required by this Indenture, a Fundamental Change Notice or a notice pursuant to Section 5.01(C),
if (in the case of any notice other than a notice pursuant to Section 5.01(C)) such failure is not cured within five (5) days
after its occurrence;
(iv)a
default in the Company’s obligation to Exchange a Note in accordance with Article 5 upon the exercise of
the Exchange right with respect thereto, if such default is not cured within three (3) days after its occurrence;
(v)a default
in the Company’s or the Parent Guarantor’s obligations under Article 6;
(vi)a
default in any of the Company’s obligations or agreements, or in any Guarantor’s obligations or agreements under this Indenture,
the Notes or the Notes Guarantees (other than a default set forth in clause (i), (ii),
(iii), (iv) or (v) of
this Section 7.01(A)) where such default is not cured or waived within sixty (60)
days after notice to the Company by the Trustee, or to the Company and the Trustee by Holders of at least thirty percent (30%) of the
aggregate Capitalized Principal Amount of Notes then outstanding, which notice must specify such default, demand that it be remedied and
state that such notice is a “Notice of Default”;
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(vii)the failure by the Parent Guarantor,
Holdings, the Company or any of the Parent Guarantor’s or the Company’s respective Significant Subsidiaries to pay any Indebtedness
for borrowed money (other than Indebtedness owed to the Company or any Restricted Subsidiary) within any applicable grace period after
final maturity or the acceleration of any such Indebtedness by the holders thereof because of a default, if the total amount of such Indebtedness
so unpaid or accelerated exceeds the greater of (i) $100.0 million or its foreign currency equivalent and (ii) 15.0% of LTM
Consolidated EBITDA; provided that no Default or Event of Default will be deemed to occur with respect to any such Indebtedness that is
paid or otherwise acquired or retired (or for which such failure to pay or acceleration is waived or rescinded) within 20 Business Days
after such failure to pay or such acceleration;
(viii)the rendering of any judgment
or decree for the payment of money in an amount (net of any insurance or indemnity payments actually received in respect thereof prior
to or within 90 days from the entry thereof, or to be received in respect thereof in the event any appeal thereof shall be unsuccessful)
in excess of the greater of (i) $100.0 million or its foreign currency equivalent and (ii) 15.0% of LTM Consolidated EBITDA
against the Parent Guarantor, Holdings, the Company or a Significant Subsidiary of the Company that is not discharged, supported by a
letter of credit or bonded or insured by a third Person, if such judgment or decree remains outstanding for a period of 90 days following
such judgment or decree and is not discharged, waived or stayed;
(ix)the Company or the Parent Guarantor
or any of their respective Significant Subsidiaries or, during any period in which it is required to Guarantee the Notes, Holdings, pursuant
to or within the meaning of any Bankruptcy Law, either:
(1) commences
a voluntary case or proceeding;
(2) consents
to the entry of an order for relief against it in an involuntary case or proceeding;
(3) consents
to the appointment of a custodian of it or for any substantial part of its property; or
(4) makes
a general assignment for the benefit of its creditors;
(x)a court of competent jurisdiction
enters an order or decree under any Bankruptcy Law that either:
(1) is
for relief against the Company or the Parent Guarantor or any of their respective Significant Subsidiaries or, during any period in which
it is required to Guarantee the Notes, Holdings, in an involuntary case or proceeding;
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(2) appoints
a custodian of the Company or the Parent Guarantor or any of their respective Significant Subsidiaries or, during any period in which
it is required to Guarantee the Notes, Holdings, or for any substantial part of its property; or
(3) orders
the winding up or liquidation of the Company or the Parent Guarantor or any of their respective Significant Subsidiaries or, during any
period in which it is required to Guarantee the Notes, Holdings;
and, in each case under this Section 7.01(A)(x),
such order or decree remains unstayed and in effect for at least sixty (60) days.
(xi)the failure of any Notes Guarantee
by the Parent Guarantor or Holdings or any Notes Guarantee by a Subsidiary Guarantor that is a Significant Subsidiary to be in full force
and effect (except as contemplated by the terms thereof or of this Indenture) or the denial or disaffirmation in writing by the Parent
Guarantor or Holdings or any Subsidiary Guarantor that is a Significant Subsidiary of its obligations under this Indenture or any Notes
Guarantee (other than by reason of the termination of this Indenture or such Notes Guarantee or the release of such Guarantor in accordance
with such Notes Guarantee or this Indenture), if such Default continues for 10 days; and
(xii)the Liens created by the Notes
Collateral Documents shall at any time not constitute a valid and perfected Lien with the priority purported to be created thereby on
any material portion of the Collateral intended to be covered thereby (to the extent perfection by filing, registration, recordation or
possession is required by this Indenture or the Notes Collateral Documents), or, except for expiration in accordance with its terms or
amendment, modification, waiver, termination or release in accordance with the terms of this Indenture and such relevant Notes Collateral
Document, any such Notes Collateral Document shall for whatever reason be terminated or cease to be in full force and effect, if in either
case, such default continues for 45 days after notice, or the enforceability thereof shall be contested by the Company or any Guarantor.
(B)Cause Irrelevant.
Each of the events set forth in Section 7.01(A) will constitute an Event of Default regardless of the cause
thereof or whether voluntary or involuntary or effected by operation of law or pursuant to any judgment, decree or order of any court
or any order, rule or regulation of any administrative or governmental body
(C)A notice of Default with respect to any action
taken, and reported publicly or to Holders more than two years prior to such notice of Default, may not be given and any such notice shall
be invalid and have no effect. When a Default or an Event of Default is cured, it ceases. Any time period in this Indenture to cure any
actual or alleged Default or Event of Default may be extended or stayed by a court of competent jurisdiction to the extent such actual
or alleged Default or Event of Default is the subject of litigation
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(D)Subject to Article 11, in case
an Event of Default occurs and is continuing, the Trustee will be under no obligation to exercise any of the rights or powers under this
Indenture at the request or direction of any of the Holders unless such Holders have provided to the Trustee indemnity or security reasonably
satisfactory to it against any loss, liability, claim or expense. Except to institute suit for the enforcement of payment of the Capitalized
Principal Amount of and accrued and unpaid interest on any Note of such Holder on or after the respective Stated Maturity for such Capitalized
Principal Amount or Interest Payment Dates for such interest expressed in such Note, no Holder may pursue any remedy with respect to this
Indenture or the Notes unless (i) such Holder has previously given the Trustee written notice that an Event of Default is continuing,
(ii) Holders of at least 30.0% in Capitalized Principal Amount of the outstanding Notes have requested the Trustee in writing to
pursue the remedy, (iii) such Holders have provided the Trustee security or indemnity reasonably satisfactory to it against any loss,
liability, claim or expense, (iv) the Trustee has not complied with such request within 60 days after the receipt of the request
and the offer of security or indemnity and (v) the Holders of a majority in Capitalized Principal Amount of the outstanding Notes
have not given the Trustee a direction inconsistent with such request within such 60-day period.
Section 7.02. Acceleration.
(A)Automatic Acceleration in Certain Circumstances.
If an Event of Default set forth in Section 7.01(A)(ix) or 7.01(A)(x) occurs with respect to the Company
or the Parent Guarantor (and not solely with respect to a Significant Subsidiary of the Company or of the Parent Guarantor (other than
the Company)), then the Capitalized Principal Amount of, and all accrued and unpaid interest on, all of the Notes then outstanding will
immediately become due and payable without any further action or notice by any Person, and the amount that shall be due and payable with
respect to each Note shall be equal to (i) 100% of the Capitalized Principal Amount then outstanding plus accrued and unpaid
Cash Interest, if any, thereon (or, if applicable, the principal amount of the Physical Notes plus accrued and unpaid Cash Interest,
if any, and PIK Interest, if any, thereon from, and including, the immediately preceding Interest Payment Date (or, if there is no immediately
preceding Interest Payment Date, from, and including, the Issue Date of such Physical Notes) to, but excluding, the date of acceleration)
plus (ii) the present value at the date of acceleration of the remaining interest that would accrue on such Note from the date of
acceleration to, but excluding, the Maturity Date, as though the Notes had been held to maturity (and, for the avoidance of doubt, that
solely PIK Interest accretes as provided in this Indenture on each such remaining Interest Payment Date and that Cash Interest and PIK
Interest for each applicable interest period accrues on the applicable Capitalized Principal Amount so accreted), calculated in a customary
manner by the Company by discounting such amount from the Maturity Date to the date of acceleration using a discount rate equal to the
Reference Discount Rate plus 0.50%. It is understood and agreed that the amounts in clause (ii) of the immediately preceding
sentence (the “Bankruptcy Acceleration Amount”) shall also be due and payable as though the Notes had been held to
maturity and shall constitute part of the obligations with respect to the Notes in view of the impracticability and difficulty of ascertaining
actual damages and by mutual agreement of the parties as to a reasonable calculation of each Holder’s lost profits as a result thereof.
If the Bankruptcy Acceleration Amount becomes due and payable, it shall be deemed to be included in the Capitalized Principal Amount of
the Notes, and interest shall accrue on the full Capitalized Principal Amount of the Notes (including the Bankruptcy Acceleration Amount)
in connection with an Event of Default set forth in Section 7.01(A)(ix) or 7.01(A)(x). Any Bankruptcy Acceleration
Amount payable pursuant to this paragraph shall be presumed to be liquidated damages sustained by each Holder as the result of the acceleration
of the Notes, and the Company agrees that it is reasonable under the circumstances currently existing. The Bankruptcy Acceleration Amount
shall also be payable in the event the Notes or this Indenture are satisfied, released or discharged through foreclosure, whether by judicial
proceeding, deed in lieu of foreclosure or by any other means. THE COMPANY AND EACH GUARANTOR EXPRESSLY WAIVES (TO THE FULLEST EXTENT
THEY MAY LAWFULLY DO SO) THE PROVISIONS OF ANY PRESENT OR FUTURE STATUTE OR LAW THAT PROHIBITS OR MAY PROHIBIT THE COLLECTION
OF THE FOREGOING BANKRUPTCY ACCELERATION AMOUNT IN CONNECTION WITH ANY SUCH ACCELERATION. The Company expressly agrees (to the fullest
extent they may lawfully do so) that: (A) the Bankruptcy Acceleration Amount is reasonable and is the product of an arm’s length
transaction between sophisticated business entities ably represented by counsel; (B) the Bankruptcy Acceleration Amount shall be
payable notwithstanding the then prevailing market rates at the time acceleration occurs; (C) there has been a course of conduct
between the Holders and the Company giving specific consideration in this transaction for such agreement to pay the Bankruptcy Acceleration
Amount; and (D) the Company shall be estopped hereafter from claiming differently than as agreed to in this paragraph. The Company
expressly acknowledges that its agreement to pay the Bankruptcy Acceleration Amount to the Holders as herein described is a material inducement
to the Holders to purchase the Notes.
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Notwithstanding anything to the contrary in this
Indenture or the Notes, in no event shall any Holder be entitled to exercise the Exchange right with respect to the portion of any Note
corresponding to the Bankruptcy Acceleration Amount.
(B)Optional Acceleration.
Subject to Section 7.03, if an Event of Default (other than an Event of Default set forth in Section 7.01(A)(ix) or
7.01(A)(x) with respect to the Company or the Parent Guarantor and not solely with respect to a Significant Subsidiary of
the Company or of the Parent Guarantor (other than the Company)) occurs and is continuing, then the Trustee, by notice to the Company,
or Holders of at least thirty percent (30%) of the aggregate Capitalized Principal Amount of Notes then outstanding, by notice to the
Company and the Trustee, may declare the Capitalized Principal Amount of, plus accrued and unpaid Cash Interest, if any, thereon, all
of the Notes (or, if applicable, the principal amount of the Physical Notes plus accrued and unpaid Cash Interest, if any, and PIK Interest,
if any, thereon from, and including, the immediately preceding Interest Payment Date (or, if there is no immediately preceding Interest
Payment Date, from, and including, the Issue Date of such Physical Notes) to, but excluding, the date of acceleration) then outstanding
to become due and payable immediately.
(C)Rescission
of Acceleration. Notwithstanding anything to the contrary in this Indenture or the Notes, the Holders of a majority in aggregate
Capitalized Principal Amount of the Notes then outstanding, by written notice to the Company and the Trustee, may, on behalf of all Holders,
rescind any acceleration of the Notes and its consequences if (i) such rescission would not conflict with any judgment or decree
of a court of competent jurisdiction; and (ii) all existing Events of Default (except the non-payment of Capitalized Principal Amount
of, or interest on, the Notes that has become due solely because of such acceleration) have been cured or waived. No such rescission will
affect any subsequent Default or impair any right consequent thereto.
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Section 7.03. Sole
Remedy for a Failure to Report.
(A)Generally.
Notwithstanding anything to the contrary in this Indenture or the Notes, the Company may elect that the sole remedy for any Event of Default
(a “Reporting Event of Default”) pursuant to Section 7.01(A)(vi) arising from its failure
to comply with Section 3.02 will, for each of the first three hundred sixty (360)
calendar days on which a Reporting Event of Default has occurred and is continuing, consist exclusively of the accrual of Special Interest
on the Notes. If the Company has made such an election, then (i) the Notes will be subject to acceleration pursuant to Section 7.02
on account of the relevant Reporting Event of Default from, and including, the three hundred and sixty first (361st) calendar day on which
a Reporting Event of Default has occurred and is continuing or if the Company fails to pay any accrued and unpaid Special Interest when
due; and (ii) Special Interest will cease to accrue on any Notes from, and including, such three hundred and sixty first (361st)
calendar day (it being understood that interest on any defaulted Special Interest will nonetheless accrue pursuant to Section 2.05(B)).
For the avoidance of doubt, a Reporting Event of Default shall be deemed cured at such time as the Company files with the Trustee the
applicable document(s) or report(s) that gave rise to such Reporting Event of Default (it being understood that any document
or report filed by the Parent Guarantor with the SEC via EDGAR (or any successor thereto) will be deemed to be filed with the Trustee
as of the time such document or report is filed via EDGAR (or such successor)).
(B)Amount and
Payment of Special Interest. Any Special Interest that accrues on a Note pursuant to Section 7.03(A) will
be payable in cash on the same dates and in the same manner as the Stated Interest on such Note and will accrue at a rate per annum equal
to one quarter of one percent (0.25%) of the Capitalized Principal Amount thereof for the first one hundred and eighty (180) days on which
Special Interest accrues and, thereafter, at a rate per annum equal to one half of one percent (0.50%) of the Capitalized Principal Amount
thereof; provided, however, that in no event will Special Interest, together with any Additional Interest, accrue on any
day on a Note at a combined rate per annum that exceeds one half of one percent (0.50%). For the avoidance of doubt, any Special Interest
that accrues on a Note will be in addition to the Stated Interest that accrues on such Note and, subject to the proviso of the immediately
preceding sentence, in addition to any Additional Interest that accrues on such Note.
(C)Notice of
Election. To make the election set forth in Section 7.03(A), the Company must send to the Holders, the Trustee
and the Paying Agent, before the date on which each Reporting Event of Default first occurs, a written notice that (i) briefly describes
the report(s) that the Company failed to file with the SEC; (ii) states that the Company is electing that the sole remedy for
such Reporting Event of Default consist of the accrual of Special Interest; and (iii) briefly describes the periods during which
and rate at which Special Interest will accrue and the circumstances under which the Notes will be subject to acceleration on account
of such Reporting Event of Default.
(D)Notice to Trustee and Paying Agent; Trustee’s
Disclaimer. If Special Interest accrues on any Note, then, no later than five (5) Business Days before each date on which such
Special Interest is to be paid, the Company will deliver an Officer’s Certificate to the Trustee and the Paying Agent stating (i) that
the Company is obligated to pay Special Interest on such Note on such date of payment; and (ii) the amount of such Special Interest
that is payable on such date of payment. The Trustee will have no duty to determine whether any Special Interest is payable or the amount
thereof.
(E)No Effect
on Other Events of Default. No election pursuant to this Section 7.03 with respect to a Reporting Event of
Default will affect the rights of any Holder with respect to any other Event of Default, including with respect to any other Reporting
Event of Default.
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Section 7.04. Other
Remedies.
(A)Trustee
May Pursue All Remedies. If an Event of Default occurs and is continuing, then the Trustee and the Notes Collateral Agent may
pursue any available remedy to collect the payment of any amounts due with respect to the Notes or to enforce the performance of any provision
of this Indenture or the Notes.
(B)Procedural
Matters. The Trustee or the Notes Collateral Agent may maintain a proceeding even if it does not possess any of the Notes or does
not produce any of them in such proceeding. A delay or omission by the Trustee, the Notes Collateral Agent or any Holder in exercising
any right or remedy following an Event of Default will not impair the right or remedy or constitute a waiver of, or acquiescence in, such
Event of Default. All remedies will be cumulative to the extent permitted by law.
Section 7.05. Waiver
of Past Defaults.
An
Event of Default pursuant to clause (i), (ii), (iv) or (vi) of Section 7.01(A) (that,
in the case of clause (vi) only, results from a Default under any covenant that cannot be amended without the
consent of each affected Holder), and a Default that could lead to such an Event of Default, can be waived only with the consent of each
affected Holder. Each other Default or Event of Default may be waived, on behalf of all Holders, by the Holders of not less than
a majority in aggregate Capitalized Principal Amount of the Notes then outstanding. If an Event of Default is so waived, then it will
cease to exist. If a Default is so waived, then it will be deemed to be cured and any Event of Default arising therefrom will be deemed
not to occur. However, no such waiver will extend to any subsequent or other Default or Event of Default or impair any right arising therefrom.
Section 7.06. Cure
of Defaults; Ability to Cure or Waive Before Event of Default Occurs.
For the avoidance of doubt,
and without limiting the manner in which any Default or Event of Default can be cured: (a) a failure by the Company to send a notice
in accordance with this Indenture and any related Default (or Event of Default) shall be deemed cured and shall cease to continue upon
delivery of such notice to the applicable recipient; (b) if the Company fails to make any payment of principal of or interest on
the Notes (or delivery of any other consideration in respect thereof) when due, such Default (or Event of Default) shall be deemed cured
and shall cease to continue upon the making of such payment or delivery, as applicable, together with any accrued interest thereon, if
applicable; and (c) a Reporting Event of Default shall be deemed cured and shall cease to continue at such time as the Parent Guarantor
files the applicable report or reports that gave rise to such Reporting Event of Default (it being understood that any report that the
Parent Guarantor files with the SEC through the EDGAR system (or any successor thereto) will be deemed to be filed with the Trustee at
the time such report is so filed via the EDGAR system (or such successor)); provided that, for the avoidance of doubt, (x) the
cure of any Event of Default shall not invalidate any acceleration of the Notes on account of such Event of Default that was properly
effected prior to such time as such Event of Default was cured and (y) the cure of any Reporting Event of Default shall not affect
the Company’s obligation to pay any Special Interest or Additional Interest that accrues prior to the time of such cure. In addition,
if an Event of Default is cured or waived before any related notice of acceleration is delivered, such Event of Default shall be deemed
cured, and the Notes shall not be subject to acceleration on account of such Event of Default. For the avoidance of doubt, nothing in
the immediately preceding two sentences shall constitute a waiver of or in any way limit the Trustee’s or any Holder’s right
to institute suit for any damages incurred as a result of the Company’s breach of any covenant under this Indenture even if such
breach is subsequently cured.
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Section 7.07. Control
by Majority.
Holders
of a majority in aggregate Capitalized Principal Amount of the Notes then outstanding may direct the time, method and place of
conducting any proceeding for exercising any remedy available to the Trustee the Notes Collateral Agent or exercising any trust or power
conferred on the Trustee or the Notes Collateral Agent. However, the Trustee or the Notes Collateral Agent, as applicable, may refuse
to follow any direction that conflicts with law, this Indenture or the Notes, or that, subject to Section 11.01,
the Trustee or the Notes Collateral Agent, as applicable, determines may be unduly prejudicial to the rights of other Holders or may involve
the Trustee or the Notes Collateral Agent, as applicable, in liability, unless the Trustee or the Notes Collateral Agent, as applicable,
is offered security and indemnity satisfactory to the Trustee or the Notes Collateral Agent, as applicable, against any loss, cost, liability,
damage, fee or expense to the Trustee or the Notes Collateral Agent, as applicable, that may result from following such direction.
Section 7.08. Limitation
on Suits.
No
Holder may pursue any remedy with respect to this Indenture or the Notes (except to enforce (x) its rights to receive the
Capitalized Principal Amount of, or the Fundamental Change Repurchase Price or Redemption Price for, or any interest on, or any Notes;
or (y) the Company’s obligations to Exchange any Notes pursuant to Article 5), unless:
(A)such Holder
has previously delivered to the Trustee written notice that an Event of Default is continuing;
(B)Holders
of at least thirty percent (30%) in aggregate Capitalized Principal Amount of the Notes then outstanding deliver a written request to
the Trustee to pursue such remedy;
(C)such Holder
or Holders provide to the Trustee security and indemnity satisfactory to the Trustee against any loss, cost, liability, damage, fee or
expense to the Trustee that may result from the Trustee’s following such request;
(D)the Trustee
does not comply with such request within sixty (60) calendar days after its receipt of such request and such offer of security or indemnity;
and
(E)during
such sixty (60) calendar day period, Holders of a majority in aggregate Capitalized Principal Amount of the Notes then outstanding do
not deliver to the Trustee a direction that is inconsistent with such request.
A
Holder of a Note may not use this Indenture to prejudice the rights of another Holder or to obtain a preference or priority over another
Holder. The Trustee will have no duty to determine whether any Holder’s use of this Indenture complies with the preceding
sentence.
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Section 7.09. Absolute
Right of Holders to Institute Suit for the Enforcement of the Right to Receive Payment and Exchange Consideration.
Notwithstanding
anything to the contrary in this Indenture or the Notes (but without limiting Section 8.01), the right of each
Holder of a Note to bring suit for the enforcement of any payment or delivery, as applicable, of the Capitalized Principal Amount of,
or the Fundamental Change Repurchase Price or Redemption Price for, or any interest on, or the Exchange Consideration due pursuant to
Article 5 upon Exchange of, such Note on or after the respective due dates therefor provided in this Indenture and the
Notes, will not be impaired or affected without the consent of such Holder.
Section 7.10. Collection
Suit by Trustee.
The
Trustee will have the right, upon the occurrence and continuance of an Event of Default pursuant to clause (i),
(ii) or (iv) of Section 7.01(A), to recover judgment in its own name and as trustee
of an express trust against the Company for the total unpaid or undelivered Capitalized Principal Amount of, or Fundamental Change Repurchase
Price or Redemption Price for, or any accrued and unpaid interest on, or Exchange Consideration due pursuant to Article 5
upon Exchange of, the Notes, as applicable, and, to the extent lawful, any Default Interest on any Defaulted Amounts, and such further
amounts sufficient to cover the costs and expenses of collection, including compensation provided for in Section 11.06.
Section 7.11. Trustee
May File Proofs of Claim.
The
Trustee has the right to (A) file such proofs of claim and other papers or documents as may be necessary or advisable in order to
have the claims of the Trustee and the Holders allowed in any judicial proceedings relative to the Company (or any other obligor upon
the Notes) or its creditors or property and (B) collect, receive and distribute any money or other property payable or deliverable
on any such claims. Each Holder authorizes any custodian in such proceeding to make such payments to the Trustee, and, if the Trustee
consents to the making of such payments directly to the Holders, to pay to the Trustee any amount due to the Trustee for the reasonable
compensation, expenses, disbursements and advances of the Trustee, and its agents and counsel, and any other amounts payable to the Trustee
pursuant to Section 11.06. To the extent that the payment of any such compensation, expenses, disbursements, advances
and other amounts out of the estate in such proceeding, is denied for any reason, payment of the same will be secured by a lien (senior
to the rights of Holders) on, and will be paid out of, any and all distributions, dividends, money, securities and other properties that
the Holders may be entitled to receive in such proceeding (whether in liquidation or under any plan of reorganization or arrangement or
otherwise). Nothing in this Indenture will be deemed to authorize the Trustee to authorize, consent to, accept or adopt on behalf of any
Holder any plan of reorganization, arrangement, adjustment or composition affecting the Notes or the rights of any Holder, or to authorize
the Trustee to vote in respect of the claim of any Holder in any such proceeding.
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Section 7.12. Priorities.
Subject
to the terms of the Notes Collateral Documents and the Intercreditor Agreements, the Trustee or the Notes Collateral Agent will pay or
deliver in the following order any money or other property that it collects pursuant to this Article 7 (including
upon any relation of any Lien upon Collateral):
First: to
the Trustee or the Notes Collateral Agent, as the case may be, and each of their respective agents and attorneys for amounts due under
Section 11.06, including payment of all fees and compensation of, and all expenses and liabilities incurred, and all
advances made, by, the Trustee (in each of its capacities under this Indenture, including as Note Agent) and the costs and expenses of
collection;
Second: to
Holders for unpaid amounts or other property due on the Notes, including the Capitalized Principal Amount of, or the Fundamental Change
Repurchase Price or Redemption Price for, or any accrued and unpaid interest on, or any Exchange Consideration due upon Exchange of, the
Notes, ratably, and without preference or priority of any kind, according to such amounts or other property due and payable on all of
the Notes; and
Third: to
the Company or such other Person as a court of competent jurisdiction directs.
The Trustee may fix a record
date and payment date for any payment or delivery to the Holders pursuant to this Section 7.12, in which case the Trustee
will instruct the Company to, and the Company will, deliver, at least fifteen (15) calendar days before such record date, to each Holder
and the Trustee a notice stating such record date, such payment date and the amount of such payment or nature of such delivery, as applicable.
Section 7.13. Undertaking
for Costs.
In
any suit for the enforcement of any right or remedy under this Indenture or the Notes or in any suit against the Trustee for any action
taken or omitted by it as Trustee, a court, in its discretion, may (A) require the filing by any litigant party in such suit of an
undertaking to pay the costs of such suit; and (B) assess reasonable costs (including reasonable attorneys’ fees) against any
litigant party in such suit, having due regard to the merits and good faith of the claims or defenses made by such litigant party; provided,
however, that this Section 7.13 does not apply to any suit by the Trustee, any suit by a Holder pursuant
to Section 7.09 or any suit by one or more Holders of more than ten percent (10%)
in aggregate Capitalized Principal Amount of the Notes then outstanding.
Article 8. Amendments,
Supplements and Waivers
Section 8.01. Without
the Consent of Holders.
Notwithstanding anything to
the contrary in Section 8.02, the Company, the Guarantors, the Trustee and the Notes Collateral Agent may amend or supplement
this Indenture, the Notes Collateral Documents, the Intercreditor Agreements, the Notes or the Guarantees without the consent of any Holder
to:
(A)cure any ambiguity or correct any omission,
defect or inconsistency in this Indenture or the Notes;
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(B)add additional guarantees with respect to the
Company’s obligations under this Indenture or the Notes;
(C)secure the Guarantee of the Parent Guarantor;
(D)add to the Company’s or the Guarantors’
covenants or Events of Default for the benefit of the Holders or surrender any right or power conferred on the Company or any Guarantor;
(E)provide for the
assumption of the Company’s or a Guarantor’s obligations under this Indenture, the applicable Notes Collateral Documents,
the Intercreditor Agreements and the Notes pursuant to, and in compliance with, Article 6, Section 9.07
or Section 9.08 as applicable;
(F)enter into supplemental
indentures pursuant to, and in accordance with, Section 5.09 in connection with a Common Stock Change Event;
(G)irrevocably elect
or eliminate any Settlement Method or Specified Dollar Amount; provided, however, that no such election or elimination will
affect any Settlement Method theretofore elected (or deemed to be elected) with respect to any Note pursuant to Section 5.03(A);
(H)evidence or provide for the acceptance of the
appointment, under this Indenture, of a successor Trustee or a successor Notes Collateral Agent;
(I)conform the provisions of this Indenture, the
Notes Collateral Documents, the Intercreditor Agreements and the Notes to the “Description of Notes” section of the Company’s
preliminary offering memorandum, dated June 24, 2026, as supplemented by the related pricing term sheet, dated June 24, 2026,
in each case, as it relates to the Notes;
(J)provide
for or confirm the issuance of Additional Notes pursuant to Section 2.03(B);
(K)provide for the issuance of PIK Notes pursuant
to this Indenture;
(L)mortgage, pledge, hypothecate or grant any
other Lien in favor of the Notes Collateral Agent for its benefit and the benefit of the Trustee, the Holders and the holders of any future
Parity Lien Obligations, as additional security for the payment and performance of all or any portion of the Notes Obligations;
(M)secure additional Parity Lien Obligations and
add additional secured creditors holding other Parity Lien Obligations so long as such Parity Lien Obligations are not prohibited by the
provisions of the Notes Documents;
(N)provide
for the accession of any parties to the Notes Collateral Documents and the Intercreditor Agreements (and other amendments that are administrative
or ministerial in nature) in connection with an incurrence of additional secured Indebtedness permitted by this Indenture;
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(O)confirm
and evidence the release, termination or discharge of any Lien securing the Notes and the Notes Guarantees pursuant to this Indenture,
the Notes Collateral Documents and the Intercreditor Agreements in accordance with this Indenture, the applicable Notes Collateral Documents
and the Intercreditor Agreements;
(P)comply with any requirement of the SEC in connection
with any qualification of this Indenture or any supplemental indenture under the Trust Indenture Act, as then in effect; or
(Q)make any other change to this Indenture or
the Notes that does not, individually or in the aggregate with all other such changes, adversely affect the rights of the Holders, as
such, in any material respect, as determined by the Company in good faith.
At the written request of
any Holder of a Note or owner of a beneficial interest in a Global Note, the Company will provide a copy of the “Description of
Notes” section and pricing term sheet referred to in Section 8.01(I).
Section 8.02. With
the Consent of Holders.
(A)Generally.
Subject to Sections 1.06, 8.01, 7.05
and 7.09 and the immediately following sentence, the Company, the Guarantors, the Trustee
and the Notes Collateral Agent may, with the consent of the Holders of not less than a majority in aggregate Capitalized Principal Amount
of the Notes then outstanding (including, without limitation, consents obtained in connection with a purchase of, or tender offer or exchange
offer for, Notes), amend or supplement this Indenture, the Intercreditor Agreements, the Notes Collateral Documents, the Notes or the
Notes Guarantees or waive compliance with any provision of this Indenture, the Intercreditor Agreements, the Notes Collateral Documents,
the Notes or the Notes Guarantees. Notwithstanding anything to the contrary in the foregoing sentence, but subject to Section 8.01,
without the consent of each affected Holder, no amendment or supplement to this Indenture, the Notes or the Notes Guarantees, or waiver
of any provision of this Indenture, the Notes or the Notes Guarantees, may:
(i)reduce the Capitalized Principal Amount, or
change the stated maturity, of any Note;
(ii)reduce the Redemption Price or the Fundamental
Change Repurchase Price for any Note or change the times at which, or the circumstances under which, the Notes may or will be redeemed
or repurchased by the Company;
(iii)reduce the rate, or extend the time for the
payment, of interest on any Note;
(iv)make any change that adversely affects the
Exchange rights of any Note;
(v)impair the rights
of any Holder set forth in Section 7.09 (as such section is in effect on the Issue Date);
(vi)change the ranking of the Notes or the Notes
Guarantees;
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(vii)modify or amend the terms and conditions
of the obligations of any Guarantor, as a guarantor of the Notes, in any manner that is adverse to the rights of the Holders, as such,
other than (x) any elimination of a Notes Guarantee in accordance with this Indenture; or (y) to give effect to any Parent Guarantor
Business Combination Event or any Subsidiary Guarantor Business Combination Event, in each case, in accordance with this Indenture;
(viii)make any Note payable in money, or at a
place of payment, other than that stated in this Indenture or the Note;
(ix)reduce the amount of Notes whose Holders must
consent to any amendment, supplement, waiver or other modification;
(x)make any direct or indirect change to any amendment,
supplement, waiver or modification provision of this Indenture or the Notes that requires the consent of each affected Holder;
(xi)modify or change any provision that (A) adversely
affects the ranking as to right of payment, Lien priority or payment priority of any Note or (B) has the effect of permitting (to
the extent not otherwise permitted by the terms of this Indenture as in effect on the Issue Date) the Incurrence of additional Indebtedness
in the form of Additional Notes for the purpose of influencing voting thresholds; or
(xii)make any change to the provisions in the
immediately following paragraph.
The Company will not, and
will not permit any of its Subsidiaries to, directly or indirectly, pay or cause to be paid any consideration to or for the benefit of
any Holder of Notes for or as an inducement to any consent, waiver or amendment of any of the terms or provisions of this Indenture or
the Notes unless such consideration is offered to be paid and is paid to all Holders of the Notes that consent, waive or agree to amend
in the time frame set forth in the solicitation documents relating to such consent, waiver or agreement.
In addition, without the consent
of Holders of at least 85.0% in Capitalized Principal Amount of Notes then outstanding, no amendment, supplement or waiver may modify
any Notes Collateral Document or the provisions in this Indenture dealing with the Collateral or the Notes Collateral Documents that would
have the impact of releasing a material portion of the Collateral from the Liens of the Notes Collateral Documents (except as permitted
by the terms of this Indenture and the Notes Collateral Documents) or change or alter the priority of the security interests in the Collateral.
For the avoidance of doubt,
pursuant to clauses (i), (ii), (iii), and (iv) of this Section 8.02(A) and
except as provided in Section 8.01(G), no amendment or supplement to this Indenture or the Notes, or waiver of any provision
of this Indenture or the Notes, may change the amount or type of consideration due on any Note (whether on an Interest Payment Date, Redemption
Date, Fundamental Change Repurchase Date or the Maturity Date or upon Exchange, or otherwise), or the date(s) or time(s) such
consideration is payable or deliverable, as applicable, without the consent of each affected Holder.
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Any Intercreditor
Agreement may be entered into without notice to or the consent of any Holder or the Trustee (and each Holder expressly authorizes
the entry into any Intercreditor Agreement) and the Notes Collateral Documents and any applicable Intercreditor Agreement may be
amended without notice to or the consent of any Holder, the Trustee or the Notes Collateral Agent in connection with the entry into
the Intercreditor Agreement or any other Applicable Intercreditor Arrangements or any such Notes Collateral Documents of any class
of additional secured creditors holding other Parity Lien Obligations in a transaction permitted under this Indenture. The consent
of the Holders is not necessary under this Indenture to approve the particular form of any proposed amendment, supplement or waiver.
It is sufficient if such consent approves the substance of the proposed amendment, supplement or waiver. Until an amendment,
supplement or waiver becomes effective, a consent to it by a Holder is a continuing consent by such Holder and every subsequent
Holder of all or part of the related Note. Any such Holder or subsequent Holder may revoke such consent as to its Note by written
notice to the Trustee or the Company, received thereby before the date on which the Company certifies to the Trustee that the
Holders of the requisite Capitalized Principal Amount of Notes have consented to such amendment, supplement or waiver. After an
amendment, supplement or waiver that requires consent of Holders under this Indenture becomes effective, the Company is required to
send to Holders a notice briefly describing such amendment, supplement or waiver. However, the failure to give such notice to all
Holders, or any defect therein, will not impair or affect the validity of the amendment, supplement or waiver.
In determining whether the
Holders of the required Capitalized Principal Amount of Notes have concurred in any request, demand, authorization, notice, direction,
amendment, supplement, waiver or consent, Notes owned of record or beneficially by the Company or any Subsidiary of the Company or any
other obligor on the Notes shall be considered as though they are not outstanding. However, the Notes owned of record or beneficially
by any other Affiliates shall be deemed outstanding for all purposes under this Indenture, including voting. In determining whether the
Trustee shall be protected in relying on any such request, demand, authorization, notice, direction, amendment, supplement, waiver or
consent, only Notes owned by the Company, its Subsidiaries or any other obligor on the Notes which a responsible officer of the Trustee
actually knows are so owned shall be considered as though they are not outstanding.
(B)Holders Need
Not Approve the Particular Form of any Amendment. A consent of any Holder pursuant to this Section 8.02
need approve only the substance, and not necessarily the particular form, of the proposed amendment, supplement or waiver.
Section 8.03. Notice
of Amendments, Supplements and Waivers.
As soon as reasonably practicable
after any amendment, supplement or waiver pursuant to Section 8.01 or 8.02 becomes effective, the Company
will send to the Holders and the Trustee notice that (A) describes the substance of such amendment, supplement or waiver in reasonable
detail and (B) states the effective date thereof; provided, however, that the Company will not be required to provide
such notice to the Holders if such amendment, supplement or waiver is included in a periodic report filed by the Company with the SEC
within four (4) Business Days of its effectiveness. The failure to send, or the existence of any defect in, such notice will not
impair or affect the validity of such amendment, supplement or waiver.
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Section 8.04. Revocation,
Effect and Solicitation of Consents; Special Record Dates; Etc.
(A)Revocation
and Effect of Consents. The consent of a Holder of a Note to an amendment, supplement or waiver will bind (and constitute the
consent of) each subsequent Holder of any Note to the extent the same evidences any portion of the same indebtedness as the consenting
Holder’s Note, subject to the right of any Holder of a Note to revoke (if not prohibited pursuant to Section 8.04(B))
any such consent with respect to such Note by delivering notice of revocation to the Trustee before the time such amendment, supplement
or waiver becomes effective.
(B)Special
Record Dates. The Company may, but is not required to, fix a record date for the purpose of determining the Holders entitled to consent
or take any other action in connection with any amendment, supplement or waiver pursuant to this Article 8.
If a record date is fixed, then, notwithstanding anything to the contrary in Section 8.04(A),
only Persons who are Holders as of such record date (or their duly designated proxies) will be entitled to give such consent, to revoke
any consent previously given or to take any such action, regardless of whether such Persons continue to be Holders after such record date;
provided, however, that no such consent will be valid or effective for more than one hundred and twenty (120) calendar days
after such record date.
(C)Solicitation
of Consents. For the avoidance of doubt, each reference in this Indenture or the Notes to the consent of a Holder will be deemed to
include any such consent obtained in connection with a repurchase of, or tender or exchange offer for, any Notes.
(D)Effectiveness
and Binding Effect. Each amendment, supplement or waiver pursuant to this Article 8 will become effective
in accordance with its terms and, when it becomes effective with respect to any Note (or any portion thereof), will thereafter bind every
Holder of such Note (or such portion).
Section 8.05. Notations
and Exchanges.
If
any amendment, supplement or waiver changes the terms of a Note or a Guarantee, then the Trustee or the Company may, in its discretion,
require the Holder of such Note to deliver such Note to the Trustee so that the Trustee may place an appropriate notation prepared by
the Company on such Note and return such Note to such Holder. Alternatively, at its discretion, the Company may, in exchange for such
Note, issue, execute and deliver, and the Trustee will authenticate, in each case in accordance with Section 2.02, a
new Note that reflects the changed terms. The failure to make any appropriate notation or issue a new Note pursuant to this Section 8.05
will not impair or affect the validity of such amendment, supplement or waiver.
Section 8.06. Trustee
to Execute Supplemental Indentures.
The Trustee will execute and
deliver any amendment or supplemental indenture authorized pursuant to this Article 8; provided, however,
that the Trustee need not (but may, in its sole and absolute discretion) execute or deliver any such amendment or supplemental indenture
that the Trustee concludes adversely affects the Trustee’s rights, duties, liabilities or immunities. In executing any amendment
or supplemental indenture, the Trustee shall receive, and (subject to Sections 11.01 and 11.02) will be fully
protected in relying on, an Officer’s Certificate and an Opinion of Counsel stating that (A) the execution and delivery of
such amendment or supplemental indenture is authorized or permitted by this Indenture; and (B) in the case of the Opinion of Counsel,
such amendment or supplemental indenture is legal, valid, binding and enforceable against the Company in accordance with its terms.
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Article 9. Guarantee
Section 9.01. Guarantees
Generally.
(A)Generally.
By its execution of this Indenture (or any amended or supplemental indenture pursuant to Section 8.01(B)),
each Guarantor acknowledges and agrees that it receives substantial benefits from the Company and that such Guarantor is providing its
Guarantee for good and valuable consideration, including such substantial benefits. Subject to this Article 9,
each Guarantor hereby fully, irrevocably and unconditionally guarantees, jointly and severally, on a senior unsubordinated basis, to each
Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, regardless of the validity
or enforceability of this Indenture, the Intercreditor Agreements, the Notes Collateral Documents or the Notes or the obligations of the
Company under this Indenture, the Intercreditor Agreements, the Notes Collateral Documents or the Notes, that:
(i)the Capitalized
Principal Amount of, any interest on, and any Exchange Consideration for, the Notes will be promptly paid in full when due, whether at
maturity, by acceleration, on a Fundamental Change Repurchase Date, upon Redemption or otherwise, and interest on the overdue Capitalized
Principal Amount of, any accrued and unpaid interest on, or any Exchange Consideration for, the Notes, if lawful, and all other obligations
of the Company to the Holders or the Trustee under this Indenture or the Notes, will be promptly paid or delivered in full or performed,
as applicable, in each case in accordance with this Indenture and the Notes; and
(ii)in case
of any extension of time of payment or renewal of any Notes or any of such other obligations, that the same will be promptly paid in full
when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration, on a Fundamental
Change Repurchase Date, upon Redemption or otherwise,
(collectively, the “Guaranteed Obligations”),
in each case subject to Section 9.02.
The obligations of each Guarantor
will be limited to the maximum amount as will, after giving effect to all other contingent and fixed liabilities of such Guarantor (including
any Guarantee by it of any Credit Facility Indebtedness), and after giving effect to any collections from or payments made by or on behalf
of any other Guarantor in respect of the obligations of such other Guarantor under its Notes Guarantee or pursuant to its contribution
obligations under this Indenture, result in the obligations of such Guarantor under the Notes Guarantee not constituting a fraudulent
conveyance or fraudulent transfer under applicable law, a breach of applicable capital preservation rule, or being void or unenforceable
under any law relating to insolvency of debtors.
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(B)Further
Agreements of Each Guarantor.
(i)Each Guarantor hereby agrees that (to the fullest
extent permitted by law) its obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability
of this Indenture, the Notes or the obligations of the Company or any other Guarantor to the Holders or the Trustee hereunder or thereunder,
the absence of any action to enforce the same, any waiver or consent by any Holder with respect to any provisions hereof or thereof, any
release of any other Guarantor, the recovery of any judgment against the Company, any action to enforce the same, whether or not a notation
concerning its Guarantee is made on any particular Note, or any other circumstance that might otherwise constitute a legal or equitable
discharge or defense of a Guarantor.
(ii)Each Guarantor hereby waives (to the fullest
extent permitted by law) the benefit of diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency
or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever
and covenants that (except as otherwise provided in this Article 9) its Notes Guarantee will not be discharged except by complete
performance of the obligations contained in the Notes, this Indenture and this Notes Guarantee. Such Notes Guarantee is a guarantee of
payment and not of collection. Each Guarantor further agrees (to the fullest extent permitted by law) that, as between it, on the one
hand, and the Holders of Notes and the Trustee, on the other hand, subject to this Article 9, (1) the maturity of the
obligations guaranteed by its Notes Guarantee may be accelerated as and to the extent provided in Article 7 for the purposes
of such Notes Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations
guaranteed by such Notes Guarantee, and (2) in the event of any acceleration of such obligations as provided in Article 7,
such obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor in accordance with the terms
of this Section 9.01 for the purpose of such Notes Guarantee. Neither the Trustee nor any other Person shall have any obligation
to enforce or exhaust any rights or remedies or to take any other steps under any security for the Guaranteed Obligations or against the
Company or any other Person or any property of the Company or any other Person before the Trustee is entitled to demand payment and performance
by any or all Guarantors of their obligations under their respective Notes Guarantees or under this Indenture.
(iii)Until terminated in accordance with Section 9.03
or Section 9.04, as applicable, each Notes Guarantee shall remain in full force and effect and continue to be effective should
any petition be filed by or against the Company for liquidation or reorganization, should the Company become insolvent or make an assignment
for the benefit of creditors or should a receiver or trustee be appointed for all or any significant part of the Company’s assets,
and shall, to the fullest extent permitted by law, continue to be effective or be reinstated, as the case may be, if at any time payment
and performance of the Notes are, pursuant to applicable law, rescinded or reduced in amount, or must otherwise be restored or returned
by any obligee on such Notes, whether as a “voidable preference,” “fraudulent transfer” or otherwise, all as though
such payment or performance had not been made. In the event that any payment, or any part thereof, is rescinded, reduced, restored or
returned, the Notes shall, to the fullest extent permitted by law, be reinstated and deemed reduced only by such amount paid and not so
rescinded, reduced, restored or returned.
(C)Each Guarantor
that makes a payment or distribution under its Notes Guarantee shall have the right to seek contribution from the Company or any non-paying
Guarantor that has also Guaranteed the relevant Guaranteed Obligations in respect of which such payment or distribution is made, so long
as the exercise of such right does not impair the rights of the Holders under the Notes Guarantees.
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(D)Each Guarantor acknowledges that it will receive
direct and indirect benefits from the financing arrangements contemplated by this Indenture and that its Notes Guarantee, and the waiver
set forth in Section 9.05, are knowingly made in contemplation of such benefits.
(E)Each Guarantor,
pursuant to its Notes Guarantee, also hereby agrees to pay any and all reasonable out-of-pocket expenses (including reasonable counsel
fees and expenses) incurred by the Trustee or the Holders in enforcing any rights under its Notes Guarantee.
(F)Exchange
of Notes. The Guarantees shall not be Exchangeable and shall automatically terminate with respect to a given Note when such Note is
Exchanged.
Section 9.02. Continuing
Guarantee.
(A)Each Notes
Guarantee shall be a continuing Guarantee and shall (i) subject to Section 9.01(F) and Section 9.03, remain
in full force and effect until payment in full of the Capitalized Principal Amount of all outstanding Notes (whether at maturity, by acceleration,
on a Fundamental Change Repurchase Date, upon Redemption or otherwise), and all other Guaranteed Obligations of the Guarantor then due
and owing, (ii) be binding upon such Guarantor and (iii) inure to and be enforceable for the benefit of the Trustee, the Holders
and their permitted successors, transferees and assigns.
(B)The obligations of each Guarantor hereunder
shall continue to be effective or shall be reinstated, as the case may be, if at any time any payment which would otherwise have reduced
or terminated the obligations of any Guarantor hereunder and under its Notes Guarantee (whether such payment shall have been made by or
on behalf of the Company or by or on behalf of a Guarantor) is rescinded or reclaimed from any of the Holders upon the insolvency, bankruptcy,
liquidation or reorganization of the Company or any Guarantor or otherwise, all as though such payment had not been made.
Section 9.03. Release
of Subsidiary Guarantees
Notwithstanding the provisions
of Section 9.02, Subsidiary Guarantees will be subject to termination and discharge under the circumstances described in this
Section 9.03. Any Subsidiary Guarantor will automatically and unconditionally be released from all obligations under its Subsidiary
Guarantee, and such Subsidiary Guarantee shall thereupon terminate and be discharged and of no further force or effect:
(i) concurrently with
any direct or indirect sale or disposition (by merger or otherwise) of any such Subsidiary Guarantor or any interest therein, or any other
transaction, in accordance with the terms of this Indenture (including Section 3.11 and Section 6.01), following
which such Subsidiary Guarantor is no longer a Restricted Subsidiary of the Company;
(ii) at any time that
any such Subsidiary Guarantor is (or substantially concurrently with the release of the Subsidiary Guarantee of such Subsidiary Guarantor
or, if as a result of the release of the Subsidiary Guarantee of such Subsidiary Guarantor, will be) released from all of its obligations
as borrower or under its Guarantee of payment by the Company of any Indebtedness of the Company under the First Lien Credit Facility,
any applicable Refinancing Credit Facility and all other Indebtedness for borrowed money (other than Consolidated Vehicle Indebtedness
permitted under this Indenture) (it being understood that a release subject to contingent reinstatement is still a release, and that if
any such Guarantee is so reinstated, such Subsidiary Guarantee shall also be reinstated to the extent that such Subsidiary Guarantor would
then be required to provide a Subsidiary Guarantee pursuant to Section 3.13);
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(iii) upon the merger
or consolidation of any such Subsidiary Guarantor with and into the Company or another Subsidiary Guarantor that is the surviving Person
in such merger or consolidation, or upon the liquidation of such Subsidiary Guarantor following the transfer of all of its assets to the
Company or another Subsidiary Guarantor;
(iv) concurrently with
any such Subsidiary Guarantor becoming an Unrestricted Subsidiary or ceasing to constitute a Domestic Subsidiary of the Company (or, if
such Subsidiary Guarantor is a Foreign Subsidiary that is required to Guarantee the Notes pursuant to Section 3.13, concurrently
with such Subsidiary Guarantor becoming an Unrestricted Subsidiary or ceasing to constitute a Restricted Subsidiary of the Company);
(v) [Reserved];
(vi) upon satisfaction
and discharge of this Indenture;
(vii) subject to Section 9.02(B),
upon the discharge in full after the same has become due of all remaining obligations to make payments or deliveries of other Exchange
Consideration; or
(viii) upon a Subsidiary
Guarantor becoming (or substantially concurrently with it becoming) a Special Purpose Subsidiary, or if as a result of the release of
the Subsidiary Guarantee of such Subsidiary Guarantor, it will become a Special Purpose Subsidiary.
In addition, the Company will
have the right, upon 10 days’ written notice to the Trustee (or such shorter period as agreed to by the Trustee), to cause
any Subsidiary Guarantor that has not guaranteed payment by the Company of any Indebtedness of the Company under a First Lien Credit Facility,
any applicable Refinancing Credit Facility or any other Indebtedness for borrowed money (other than Consolidated Vehicle Indebtedness
permitted under this Indenture) to be unconditionally released from all obligations under its Subsidiary Guarantee, and such Subsidiary
Guarantee shall thereupon terminate and be discharged and of no further force or effect.
Upon any such occurrence specified
in this Section 9.03 and upon receipt of an Officer’s Certificate and an Opinion of Counsel certifying that such release
is in compliance with this Indenture, the Trustee shall execute any documents reasonably requested by the Company in order to evidence
such release, discharge and termination in respect of the applicable Subsidiary Guarantee.
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Section 9.04. Release
of Holdings; Parent Guarantor
(A) Holdings will automatically and unconditionally
be released from all obligations under its Guarantee, and the Guarantee of Holdings shall thereupon terminate and be discharged and of
no further force or effect:
(i) at
any time that Holdings is (or substantially concurrently with the release of the Notes Guarantee of Holdings or, if as a result of the
release of the Notes Guarantee of Holdings, will be) released from all of its obligations as borrower or under its Guarantee of payment
by the Company of any Indebtedness of the Company under the First Lien Credit Facility, any applicable Refinancing Credit Facility and
all other Indebtedness for borrowed money (other than Consolidated Vehicle Indebtedness permitted under this Indenture) (it being understood
that a release subject to contingent reinstatement is still a release, and that if any such Guarantee is so reinstated, such Notes Guarantee
shall also be reinstated);
(ii)upon the merger or consolidation
of Holdings with and into the Company or a Subsidiary Guarantor that is the surviving Person in such merger or consolidation, or upon
the liquidation of Holdings following the transfer of all of its assets to the Company or a Subsidiary Guarantor;
(iii)[Reserved];
(iv) upon satisfaction
and discharge of this Indenture; or
(v)upon the discharge in
full after the same has become due of all remaining obligations to make payments or deliveries of other Exchange Consideration with respect
to the Notes, and all other Notes Guaranteed Obligations then due and owing.
(B) The Parent Guarantor will automatically
and unconditionally be released from all obligations under its Guarantee, and such Guarantee shall thereupon terminate and be discharged
and of no further force or effect, (i) upon satisfaction and discharge of this Indenture or (ii) upon the discharge in full
after the same has become due of all remaining obligations to make payments or deliveries of other Exchange consideration with respect
to the Notes, and all other Notes Guaranteed Obligations then due and owing.
Upon any such occurrence specified
in this Section 9.04 and upon receipt of an Officer’s Certificate and an Opinion of Counsel certifying that such release
is in compliance with this Indenture, the Trustee shall execute any documents reasonably requested by the Company in order to evidence
such release, discharge and termination in respect of the applicable Notes Guarantee.
Section 9.05. Waiver
of Subrogation
Each Guarantor hereby irrevocably
waives any claim or other rights that it may now or hereafter acquire against the Company that arise from the existence, payment, performance
or enforcement of the Company’s obligations under the Notes, this Indenture, the Intercreditor Agreements and the Notes Collateral
Documents or such Guarantor’s obligations under its Notes Guarantee and this Indenture, the Intercreditor Agreements and the Notes
Collateral Documents including any right of subrogation, reimbursement, exoneration, indemnification, and any right to participate in
any claim or remedy of any Holder of Notes against the Company, whether or not such claim, remedy or right arises in equity, or under
contract, statute or common law, until this Indenture is discharged and all of the Notes are discharged and paid in full. If any amount
shall be paid to any Guarantor in violation of the preceding sentence and the Notes shall not have been paid in full, such amount shall
be deemed to have been paid to such Guarantor for the benefit of, and held in trust for the benefit of, the Holders of the Notes, and
shall forthwith be paid to the Trustee for the benefit of such Holders to be credited and applied upon the Notes, whether matured or unmatured,
in accordance with the terms of this Indenture.
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Section 9.06. Notation
not Required
Neither the Company nor any
Guarantor shall be required to make a notation on the Notes to reflect any Notes Guarantee or any release, termination or discharge thereof.
Section 9.07. Successors
and Assigns of Guarantors
All covenants and agreements
in this Indenture by each Guarantor shall bind its respective successors and assigns, whether so expressed or not.
Section 9.08. Execution
and Delivery of Guarantee.
The execution by a Guarantor
of this Indenture (or an amended or supplemental indenture pursuant to Section 8.01(B)) evidences such Guarantee of such
Guarantor, and the delivery of any Note by the Trustee after its authentication constitutes due delivery of the Guarantees on behalf of
the Guarantors. A Guarantee’s validity will not be affected by the failure of any officer of a Guarantor executing this Indenture
or any such amended or supplemental indenture on such Guarantor’s behalf to hold, at the time any Note is authenticated, the same
or any other office at such Guarantor, and each Guarantee will be valid and enforceable even if no notation, certificate or other instrument
is set upon or attached to, or otherwise executed and delivered to the Holder of, any Note.
The Company shall cause each
Restricted Subsidiary that is required to become a Subsidiary Guarantor pursuant to Section 3.13, and each Subsidiary of the
Company that the Company causes to become a Subsidiary Guarantor pursuant to Section 3.13, to promptly execute and deliver
to the Trustee a supplemental indenture substantially in the form set forth in Exhibit C to this Indenture, or otherwise in form
and substance reasonably satisfactory to the Trustee, evidencing its Subsidiary Guarantee on substantially the terms set forth in this
Article 9. Concurrently therewith, the Company shall deliver to the Trustee an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee to the effect that such supplemental indenture has been duly authorized, executed and delivered by such Restricted
Subsidiary and that, subject to applicable bankruptcy, insolvency, fraudulent transfer, fraudulent conveyance, reorganization, moratorium
and other laws now or hereafter in effect affecting creditors’ rights or remedies generally and to general principles of equity
(including standards of materiality, good faith, fair dealing and reasonableness), whether considered in a proceeding at law or at equity,
such supplemental indenture is a valid and binding agreement of such Restricted Subsidiary, enforceable against such Restricted Subsidiary
in accordance with its terms.
Section 9.09. Notices
Notice to any Guarantor shall
be sufficient if addressed to such Guarantor care of the Company at the address, place and manner provided in Section 13.01.
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Section 9.10. Further
Assurances
For the avoidance of doubt,
this Article 9 will not limit the operation of the provisions of Section 5.09. Accordingly, if a Parent Guarantor Business Combination
Event or other merger or consolidation involving the Parent Guarantor constitutes a Common Stock Change Event whose Reference Property
includes any securities of any Person (whether the Parent Guarantor or another Person), then that Person will be required to execute a
supplemental indenture in accordance with the provisions of Section 5.09.
Article 10. Satisfaction
and Discharge
Section 10.01. Termination
of Company’s Obligations.
This Indenture will be discharged,
and will cease to be of further effect as to all Notes issued under this Indenture, and the Liens, if any, on the Collateral securing
the Notes will be released, when:
(A)all Notes then
outstanding (other than Notes replaced pursuant to Section 2.13) have (i) been delivered to the Trustee
for cancellation; or (ii) become due and payable (whether on a Redemption Date, a Fundamental Change Repurchase Date, the Maturity
Date, upon Exchange or otherwise) for an amount of cash or Exchange Consideration, as applicable, that has been fixed;
(B)the Company has
caused there to be irrevocably deposited with the Trustee, or with the Paying Agent (or, with respect to Exchange Consideration, the Exchange
Agent), in each case for the benefit of the Holders, or has otherwise caused there to be delivered to the Holders, cash (or, with respect
to Notes to be Exchanged, Exchange Consideration) sufficient to satisfy all amounts or other property due on all Notes then outstanding
(other than Notes replaced pursuant to Section 2.13);
(C)the Company has paid all other amounts payable
by it under this Indenture; and
(D)the Company has delivered to the Trustee an
Officer’s Certificate and an Opinion of Counsel, each stating that the conditions precedent to the discharge of this Indenture have
been satisfied;
provided,
however, that Article 11 and Section 13.01 will survive such discharge and, until no Notes remain
outstanding, Section 2.15 and the obligations of the Trustee, the Paying Agent and the Exchange Agent with respect to
money or other property deposited with them will survive such discharge.
At the Company’s request,
the Trustee will acknowledge the satisfaction and discharge of this Indenture.
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Section 10.02. Repayment
to Company.
Subject to applicable unclaimed
property law, the Trustee, the Paying Agent and the Exchange Agent will promptly notify the Company if there exists (and, at the Company’s
request, promptly deliver to the Company) any cash, Exchange Consideration or other property held by any of them for payment or delivery
on the Notes that remain unclaimed two (2) years after the date on which such payment or delivery was due. After such delivery to
the Company, the Trustee, the Paying Agent and the Exchange Agent will have no further liability to any Holder with respect to such cash,
Exchange Consideration or other property, and Holders entitled to the payment or delivery of such cash, Exchange Consideration or other
property must look to the Company for payment as a general creditor of the Company.
Section 10.03. Reinstatement.
If the Trustee, the Paying
Agent or the Exchange Agent is unable to apply any cash or other property deposited with it pursuant to Section 10.01
because of any legal proceeding or any order or judgment of any court or other governmental authority that enjoins, restrains or otherwise
prohibits such application, then the discharge of this Indenture pursuant to Section 10.01 will be rescinded; provided,
however, that if the Company thereafter pays or delivers any cash or other property due on the Notes to the Holders thereof, then
the Company will be subrogated to the rights of such Holders to receive such cash or other property from the cash or other property, if
any, held by the Trustee, the Paying Agent or the Exchange Agent, as applicable.
Article 11. Trustee
Section 11.01. Duties
of the Trustee.
(A)If an Event of
Default has occurred and is continuing, and a Responsible Officer of the Trustee has written notice or actual knowledge of the
same, then, without limiting the generality of Section 11.02(F), the Trustee will
exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in its exercise, as a
prudent person would exercise or use under the circumstances in the conduct of such person’s own affairs.
(B)Except during the continuance of an Event of
Default:
(i)the duties
of the Trustee will be determined solely by the express provisions of this Indenture, and the Trustee need perform only those duties that
are specifically set forth in this Indenture and no others, and no implied covenants or obligations will be read into this Indenture against
the Trustee; and
(ii)in the
absence of bad faith or willful misconduct on its part, the Trustee may, without investigation, conclusively rely, as to the truth of
the statements and the correctness of the opinions expressed therein, upon Officer’s Certificates or Opinions of Counsel that are
provided to the Trustee and conform to the requirements of this Indenture; but in the case of any such certifications or opinions that
by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same
to determine whether or not they conform to the requirements of this Indenture, but need not verify the contents thereof.
(C)The Trustee may not be relieved from liabilities
for its negligence or willful misconduct, except that:
(i)this paragraph
will not limit the effect of Section 11.01(B);
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(ii)the Trustee
will not be liable for any error of judgment made in good faith by a Responsible Officer, unless it is proved that the Trustee was grossly
negligent in ascertaining the pertinent facts; and
(iii)the
Trustee will not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received
by it pursuant to Section 7.06.
(D)No provision of this Indenture will require
the Trustee to expend or risk its own funds or incur any liability.
(E)The Trustee will
not be liable for interest on any money received by it, except as the Trustee may agree in writing with the Company. Money held
in trust by the Trustee need not be segregated from other funds, except to the extent required by law.
(F)The Trustee
will not be liable in its individual capacity for the obligations evidenced by the Notes.
(G)Each provision
of this Indenture that in any way relates to the Trustee (including any provision that affects the liability of, or affords protection
to, the Trustee) is subject to this Section 11.01, regardless of whether such provision so expressly provides.
Section 11.02. Rights
of the Trustee.
(A)The Trustee may conclusively rely on any document
that it believes to be genuine and signed or presented by the proper Person, and the Trustee need not investigate any fact or matter stated
in such document.
(B)Before the Trustee
acts or refrains from acting, it may require an Officer’s Certificate, an Opinion of Counsel or both. The Trustee will not
be liable for any action it takes or omits to take in good faith in reliance on such Officer’s Certificate or Opinion of Counsel.
The Trustee may consult with counsel of its selection; and the advice of such counsel, or any Opinion of Counsel, will constitute full
and complete authorization of the Trustee to take or omit to take any action in good faith in reliance thereon without liability.
(C)The Trustee may act through its attorneys and
agents and will not be responsible for the misconduct or negligence of any such agent appointed with due care.
(D)The Trustee will not be liable for any action
it takes or omits to take in good faith and that it believes to be authorized or within the rights or powers vested in it by this Indenture
and the Notes Collateral Documents.
(E)Unless otherwise specifically provided in this
Indenture, any demand, request, direction or notice from the Company will be sufficient if signed by an Officer of the Company.
(F)The Trustee need not exercise any rights or
powers vested in it by this Indenture at the request or direction of any Holder unless such Holder has offered (and, if requested, provided)
the Trustee security or indemnity satisfactory to the Trustee against any loss, liability or expense that it may incur in complying with
such request or direction.
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(G)The Trustee will not be responsible or liable
for any punitive, special, indirect or consequential loss or damage (including lost profits), even if the Trustee has been advised of
the likelihood of such loss or damage and regardless of the form of action.
(H)The permissive rights of the Trustee set forth
in this Indenture will not be construed as duties imposed on the Trustee.
(I)The Trustee will not be required to give any
bond or surety in respect of the execution or performance of this Indenture or otherwise.
(J)Unless a Responsible Officer of the Trustee
has received a written notice from the Company that Additional Interest or Special Interest is owing or accruing, on the Notes, the Trustee
may assume that no Additional Interest or Special Interest, as applicable, is payable or accruing.
(K)The rights, privileges, protections, immunities
and benefits given to the Trustee, including its right to be indemnified, are extended to, and will be enforceable by, the Trustee in
each of its capacities under this Indenture, including as Note Agent and Notes Collateral Agent.
(L)The Trustee will not be charged with knowledge
of any document or agreement other than this Indenture and the Notes.
(M)Neither the Trustee nor any Note Agent will
have any responsibility or liability to any person for any action taken or not taken by, or any records or any other aspect of the operations
of, the Depositary (including the delivery of notices, or the making of payments, through the facilities of the Depositary) and may conclusively
rely, without investigation, on any information provided by the Depositary.
Section 11.03. Individual
Rights of the Trustee.
The
Trustee, in its individual or any other capacity, may become the owner or pledgee of any Note and may otherwise deal with the Company
or any of its Affiliates with the same rights that it would have if it were not Trustee; provided, however, that if the
Trustee acquires a “conflicting interest” (within the meaning of Section 310(b) of the Trust Indenture Act), then
it must eliminate such conflict within ninety (90) days or resign as Trustee. Each Note Agent will have the same rights and duties as
the Trustee under this Section 11.03.
Section 11.04. Trustee’s
Disclaimer.
The Trustee will not be (A) responsible
for, and makes no representation as to, the validity or adequacy of this Indenture or the Notes; (B) accountable for the Company’s
use of the proceeds from the Notes or any money paid to the Company or upon the Company’s direction under any provision of this
Indenture; (C) responsible for the use or application of any money received by any Paying Agent other than the Trustee; and (D) responsible
for any statement or recital in this Indenture, the Notes or any other document relating to the sale of the Notes or this Indenture, other
than the Trustee’s certificate of authentication.
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Section 11.05. Notice
of Defaults.
If
a Default or Event of Default occurs and is continuing and is actually known to a Responsible Officer of the Trustee, then the Trustee
will send Holders a notice of such Default or Event of Default within ninety (90) days after it occurs or, if it is not actually
known to a Responsible Officer of the Trustee at such time, promptly (and in any event within ten (10) Business Days) after it becomes
actually known to a Responsible Officer of the Trustee; provided, however, that, except in the case of a Default or Event
of Default in the payment of the Capitalized Principal Amount, Fundamental Change Repurchase Price, or Redemption Price, or accrued and
unpaid interest on, any Note, or a default in the payment or delivery of consideration due upon Exchange, the Trustee may withhold such
notice if and for so long as it in good faith determines that withholding such notice is in the interests of the Holders. The Trustee
will not be deemed to have notice or be charged with knowledge of any Default or Event of Default unless written notice thereof has been
received by a Responsible Officer, and such notice references the Notes and this Indenture and states on its face that a Default or Event
of Default has occurred.
Section 11.06. Compensation
and Indemnity.
(A)The Company will,
from time to time, pay the Trustee such compensation for its acceptance of this Indenture and services under this Indenture, as
separately agreed by the Company and the Trustee. The Trustee’s compensation will not be limited by any law on compensation of a
trustee of an express trust. In addition to the compensation for the Trustee’s services, the Company will reimburse the Trustee
promptly upon request for all reasonable disbursements, advances and expenses incurred or made by it under this Indenture, including the
reasonable compensation, disbursements and expenses of the Trustee’s agents and counsel.
(B)The Company
will indemnify the Trustee (in each of its capacities under this Indenture) and its directors, officers, employees and agents, in their
capacities as such, against any and all losses, liabilities, claims or expenses incurred by it arising out of or in connection with the
acceptance or administration of its duties under this Indenture, including the costs and expenses of enforcing this Indenture against
the Company (including this Section 11.06) and defending itself against any claim
(whether asserted by the Company, any Holder or any other Person) or liability in connection with the exercise or performance of any of
its powers or duties under this Indenture, except to the extent any such loss, liability or expense is attributable (as determined by
a final decision of a court of competent jurisdiction) to its negligence or willful misconduct. The Trustee will promptly notify the Company
of any claim for which it may seek indemnity, but the Trustee’s failure to so notify the Company will not relieve the Company of
its obligations under this Section 11.06(B), except to the extent the Company is
materially prejudiced by such failure. The Company will defend such claim, and the Trustee will cooperate in such defense. If the Trustee
is advised by counsel that it may have defenses available to it that are in conflict with the defenses available to the Company, or that
there is an actual or potential conflict of interest, then the Trustee may retain separate counsel, and the Company will pay the reasonable
fees and expenses of such counsel (including the reasonable fees and expenses of counsel to the Trustee incurred in evaluating whether
such a conflict exists). The Company need not pay for any settlement of any such claim made without its consent, which consent will not
be unreasonably withheld.
(C)The obligations
of the Company under this Section 11.06 will survive the resignation or removal of the Trustee and the discharge
of this Indenture.
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(D)To secure the
Company’s payment obligations in this Section 11.06, the Trustee will have a lien prior to the Notes on
all money or property held or collected by the Trustee, except that held in trust to pay Capitalized Principal Amount of, or accrued and
unpaid interest on, particular Notes, which lien will survive the discharge of this Indenture.
(E)If the Trustee
incurs expenses or renders services after an Event of Default pursuant to clause (ix) or (x) of
Section 7.01(A) occurs, then such expenses and the compensation for such services
(including the fees and expenses of its agents and counsel) are intended to constitute expenses of administration under any Bankruptcy
Law
(F)For the avoidance of doubt, the rights, privileges,
protections, immunities and benefits given to the Trustee in this Section 11.06, including its right to be indemnified, are
extended to, and shall be enforceable by, the Trustee, the Notes Collateral Agent and each other agent, custodian and other Person employed
to act on behalf of the Trustee or the Notes Collateral Agent hereunder.
Section 11.07. Replacement
of the Trustee.
(A)Notwithstanding
anything to the contrary in this Section 11.07, a resignation or removal of the
Trustee, and the appointment of a successor Trustee, will become effective only upon such successor Trustee’s acceptance of appointment
as provided in this Section 11.07.
(B)The Trustee
may resign at any time and be discharged from the trust created by this Indenture by so notifying the Company. The Holders of a majority
in aggregate Capitalized Principal Amount of the Notes then outstanding may remove the Trustee by so notifying the Trustee and the Company
in writing. The Company may remove the Trustee if:
(i)the Trustee fails
to comply with Section 11.09;
(ii)the Trustee is adjudged to be bankrupt or
insolvent or an order for relief is entered with respect to the Trustee under any Bankruptcy Law;
(iii)a custodian or public officer takes charge
of the Trustee or its property; or
(iv)the Trustee becomes incapable of acting.
(C)If the
Trustee resigns or is removed, or if a vacancy exists in the office of the Trustee for any reason, then (i) the Company will promptly
appoint a successor Trustee complying with Section 11.09; and (ii) at
any time within one (1) year after the successor Trustee takes office, the Holders of a majority in aggregate Capitalized Principal
Amount of the Notes then outstanding may appoint a successor Trustee complying with Section 11.09
to replace such successor Trustee appointed by the Company.
(D)If a successor
Trustee does not take office within sixty (60) days after the retiring Trustee resigns or is removed, then the retiring Trustee, the Company
or the Holders of at least ten percent (10%) in aggregate Capitalized Principal Amount of the Notes then outstanding may petition any
court of competent jurisdiction for the appointment of a successor Trustee at the expense of the Company.
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(E)If the
Trustee, after written request by a Holder of at least six (6) months (or such lesser period since the Issue Date), fails to comply
with Section 11.09, then such Holder may petition any court of competent jurisdiction
for the removal of the Trustee and the appointment of a successor Trustee at the expense of the Company.
(F)A successor
Trustee will deliver a written acceptance of its appointment to the retiring Trustee and to the Company, upon which notice the resignation
or removal of the retiring Trustee will become effective and the successor Trustee will have all the rights, powers and duties of the
Trustee under this Indenture. The successor Trustee will send notice of its succession to Holders. The retiring Trustee will, upon payment
of all amounts due to it under this Indenture, promptly transfer all property held by it as Trustee to the successor Trustee, which property
will, for the avoidance of doubt, be subject to the lien provided for in Section 11.06(D).
Section 11.08. Successor
Trustee by Merger, Etc.
Any
entity into which the Trustee may be merged or converted or with which it may be consolidated, or any entity resulting from any merger,
conversion or consolidation to which the Trustee is a party, or any entity succeeding to all or substantially all of the corporate trust
business of the Trustee, will (without the execution or filing of any paper or any further act on the part of any of the parties to this
Indenture) be the successor of the Trustee under this Indenture, provided that such entity must be otherwise qualified and
eligible under this Article 11.
Section 11.09. Eligibility;
Disqualification
There will at all times be
a Trustee under this Indenture that is a corporation organized and doing business under the laws of the United States of America or of
any state thereof, that is authorized under such laws to exercise corporate trustee power, that is subject to supervision or examination
by federal or state authorities and that has a combined capital and surplus of at least $100.0 million as set forth in its most recent
published annual report of condition
Section 11.10. Notes
Collateral Agent.
(1) Each of the Company, the Trustee and each Holder by acceptance
of the Notes hereby designates and appoints the Notes Collateral Agent as its agent under this Indenture, the Intercreditor Agreements
and the other Notes Collateral Documents, and each of the Company, the Trustee and each Holder by acceptance of the Notes hereby irrevocably
authorizes the Notes Collateral Agent to take such action on its behalf under the provisions of this Indenture, the Intercreditor Agreements
and the other Notes Collateral Documents and to exercise such powers and perform such duties as are expressly delegated to the Notes Collateral
Agent by the terms of this Indenture, the Intercreditor Agreements and the other Notes Collateral Documents, including for the purposes
of acquiring, holding and enforcing any and all Liens on Collateral granted by the Issuer and Guarantors thereunder to secure the Notes
Obligations, together with such powers as are reasonably incidental thereto, and consents and agrees to the terms of each Notes Collateral
Document and each Intercreditor Agreement, as the same may be in effect or may be amended, restated, supplemented or otherwise modified
from time to time in accordance with their respective terms. The Notes Collateral Agent agrees to act as such on the express conditions
contained in this Section 11.10. Each Holder agrees that any action taken by the Notes Collateral Agent in accordance with
the provision of this Indenture, the Intercreditor Agreements and the other Notes Collateral Documents, and the exercise by the Notes
Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holders. Notwithstanding
any provision to the contrary contained elsewhere in this Indenture, any Intercreditor Agreement or any other the Notes Collateral Document,
the duties of the Notes Collateral Agent shall be ministerial and administrative in nature, and the Notes Collateral Agent shall not have
any duties or responsibilities, except those expressly set forth herein, in the Intercreditor Agreements and in the other Notes Collateral
Documents to which the Notes Collateral Agent is a party, nor shall the Notes Collateral Agent have or be deemed to have any trust or
other fiduciary relationship with the Trustee, any Holder, the Company or any Guarantor, and no implied covenants, functions, responsibilities,
duties, obligations or liabilities shall be read into this Indenture, the Intercreditor Agreements or the other Notes Collateral Documents
or otherwise exist against the Notes Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term
“agent” in this Indenture with reference to the Notes Collateral Agent is not intended to connote any fiduciary or other implied
(or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used merely as a matter of market
custom and is intended to create or reflect only an administrative relationship between independent contracting parties.
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(2) The Notes Collateral Agent may perform any of its duties under
this Indenture, the Intercreditor Agreements and the other Notes Collateral Documents by or through receivers, agents, employees, attorneys-in-fact
or with respect to any specified Person, such Person’s Affiliates, and the respective officers, directors, employees, agents, advisors
and attorneys-in-fact of such Person and its Affiliates (a “Related Person”), and shall be entitled to advice of counsel concerning
all matters pertaining to such duties, and shall be entitled to act upon, and shall be fully protected in taking action in reliance upon
any advice or opinion given by legal counsel. The Notes Collateral Agent shall not be responsible for the negligence or misconduct of
any receiver, agent, employee, attorney-in-fact or Related Person that it selects as long as such selection was made in good faith and
with due care.
(3)None of the Notes Collateral Agent nor any of its respective Related
Persons shall (i) be liable for any action taken or omitted to be taken by any of them under or in connection with this Indenture
or the transactions contemplated hereby (except for its own gross negligence or willful misconduct) or under or in connection with any
Notes Collateral Document or Intercreditor Agreement or the transactions contemplated thereby (except for its own gross negligence or
willful misconduct), or (ii) be responsible in any manner to any of the Trustee or any Holder for any recital, statement, representation,
warranty, covenant or agreement made by the Company or any Guarantor or Affiliate of any Guarantor, or any Officer or Related Person thereof,
contained in this Indenture, the Intercreditor Agreements or the other Notes Collateral Documents, or in any certificate, report, statement
or other document referred to or provided for in, or received by the Notes Collateral Agent under or in connection with, this Indenture,
the Intercreditor Agreements or the other Notes Collateral Documents, or the validity, effectiveness, genuineness, enforceability or sufficiency
of this Indenture, the Intercreditor Agreements or the Notes Collateral Documents, or for any failure of the Company, any Guarantor or
any other party to this Indenture, the Intercreditor Agreements or the Notes Collateral Documents to perform its obligations hereunder
or thereunder. None of the Notes Collateral Agent nor any of its respective Related Persons shall be under any obligation to the Trustee
or any Holder to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of,
this Indenture, the Intercreditor Agreements or the Notes Collateral Documents or to inspect the properties, books, or records of the
Company or any Guarantor or any of their respective Affiliates.
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(4)The Notes Collateral Agent shall be entitled to rely, and shall
be fully protected in relying, upon any writing or document (including those by telephone or e-mail) believed by it to be genuine and
correct and to have been signed, sent, or made by the proper Person or Persons, and upon advice and statements of legal counsel (including,
without limitation, counsel to the Company or any Guarantor), independent accountants and other experts and advisors selected by the Notes
Collateral Agent. The Notes Collateral Agent shall not be bound to make any investigation into the facts or matters stated in any such
writing or document. The Notes Collateral Agent shall be fully justified in failing or refusing to take any action under this Indenture,
the Intercreditor Agreements or the other Notes Collateral Documents unless it shall first receive such advice or concurrence of the Trustee
or the Holders of a majority in aggregate Capitalized Principal Amount of the Notes as it determines and, if it so requests, it shall
first be indemnified to its satisfaction by the Holders against any and all liability and expense which may be incurred by it by reason
of taking or continuing to take any such action. The Notes Collateral Agent shall in all cases be fully protected in acting, or in refraining
from acting, under this Indenture, the Intercreditor Agreements or the other Notes Collateral Documents in accordance with a request,
direction, instruction or consent of the Trustee or the Holders of a majority in aggregate Capitalized Principal Amount of the then outstanding
Notes (or any such consent otherwise required under Article 8) and such request and any action taken or failure to act pursuant
thereto shall be binding upon all of the Holders.
(5)The Notes Collateral Agent shall not be deemed to have knowledge
or notice of the occurrence of any Default or Event of Default, unless a Responsible Officer of the Notes Collateral Agent shall have
received written notice referring to this Indenture, describing such Default or Event of Default and stating that such notice is a “notice
of default.” The Notes Collateral Agent shall take such action with respect to such Default or Event of Default as may be requested
by the Trustee in accordance with Article 7 or the Holders of a majority in aggregate Capitalized Principal Amount of
the Notes (subject to this Section 11.10).
(6)The Notes Collateral Agent may resign at any time by 30 days’
written notice to the Trustee and the Company, such resignation to be effective upon the acceptance of a successor agent to its appointment
as Notes Collateral Agent. If the Notes Collateral Agent resigns under this Indenture, the Company shall appoint a successor collateral
agent. If no successor collateral agent is appointed prior to the intended effective date of the resignation of the Notes Collateral Agent
(as stated in the notice of resignation), the Trustee, at the direction of the Holders of a majority of the aggregate Capitalized Principal
Amount of the Notes then outstanding, may appoint a successor collateral agent, subject to the consent of the Company (which consent shall
not be unreasonably withheld and which shall not be required during a continuing Event of Default). If no successor collateral agent is
appointed and consented to by the Company pursuant to the preceding sentence within thirty (30) days after the intended effective date
of resignation (as stated in the notice of resignation) the Notes Collateral Agent shall be entitled to petition a court of competent
jurisdiction to appoint a successor. Upon the acceptance of its appointment as successor collateral agent hereunder, such successor collateral
agent shall succeed to all the rights, powers and duties of the retiring Notes Collateral Agent, and the term “Notes Collateral
Agent” shall mean such successor collateral agent, and the retiring Notes Collateral Agent’s appointment, powers and duties
as the Notes Collateral Agent shall be terminated. After the retiring Notes Collateral Agent’s resignation hereunder, the provisions
of this Section 11.10 (and Section 11.06) shall continue to inure to its benefit and the retiring Notes Collateral
Agent shall not by reason of such resignation be deemed to be released from liability as to any actions taken or omitted to be taken by
it while it was the Notes Collateral Agent under this Indenture.
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(7)Computershare Trust Company, N.A. shall initially act as Notes Collateral
Agent and shall be authorized to appoint co-Notes Collateral Agents as necessary in its sole discretion. Except as otherwise explicitly
provided herein or in the Notes Collateral Documents, neither the Notes Collateral Agent nor any of its respective officers, directors,
employees or agents or other Related Persons shall be liable for failure to demand, collect or realize upon any of the Collateral or for
any delay in doing so or shall be under any obligation to sell or otherwise dispose of any Collateral upon the request of any other Person
or to take any other action whatsoever with regard to the Collateral or any part thereof. The Notes Collateral Agent shall be accountable
only for amounts that it actually receives as a result of the exercise of such powers, and neither the Notes Collateral Agent nor any
of its officers, directors, employees or agents shall be responsible for any act or failure to act hereunder, except for its own gross
negligence or willful misconduct. For the avoidance of doubt, the Notes Collateral Agent shall have no discretion under this Indenture,
the Intercreditor Agreements or the other Notes Collateral Documents and shall not be required to make or give any determination, consent,
approval, request or direction without the written direction of the Holders of a majority in aggregate Capitalized Principal Amount of
the then outstanding Notes or the Trustee, as applicable.
(8)The Notes Collateral Agent is authorized and directed to (i) enter
into the Notes Collateral Documents to which it is party, whether executed on or after the Issue Date, (ii) make the representations
of the Holders set forth in the Intercreditor Agreements and the other Notes Collateral Documents, (iii) bind the Holders on the
terms as set forth in the Intercreditor Agreements and the other Notes Collateral Documents and (iv) perform and observe its obligations
under the Intercreditor Agreements and the other Notes Collateral Documents.
(9) Except as otherwise set forth in the Intercreditor Agreements,
the Notes Collateral Agent is each Holder’s agent for the purpose of perfecting the Holders’ security interest in assets which,
in accordance with Article 9 of the Uniform Commercial Code, can be perfected only by possession. Should the Trustee obtain
possession of any such Collateral, upon request from the Company, the Trustee shall notify the Notes Collateral Agent thereof and promptly
shall deliver such Collateral to the Notes Collateral Agent or otherwise deal with such Collateral in accordance with the Notes Collateral
Agent’s instructions.
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(10)The Notes Collateral Agent shall have no obligation whatsoever
to the Trustee or any of the Holders to assure that the Collateral exists or is owned by the Company or any Guarantor or is cared for,
protected, or insured or has been encumbered, or that the Notes Collateral Agent’s Liens have been properly or sufficiently or lawfully
created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all of the Company’s
or such other Guarantor’s property constituting Collateral intended to be subject to the Lien and security interest of the Notes
Collateral Documents has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability
or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity,
or to continue exercising, any of the rights, authorities, and powers granted or available to the Notes Collateral Agent pursuant to this
Indenture, any Intercreditor Agreement or any other Notes Collateral Document other than pursuant to the instructions of the Trustee or
the Holders of a majority in aggregate Capitalized Principal Amount of the Notes or as otherwise provided in the Notes Collateral Documents.
Neither the Trustee nor the Notes Collateral Agent shall have any duty or obligation to monitor the condition, financial or otherwise,
of the Company or any Guarantor.
(11)If the Company or any Guarantor (i) incurs any First Lien
Priority Obligations at any time when no applicable intercreditor agreement is in effect or at any time when Indebtedness constituting
First Lien Priority Obligations entitled to the benefit of an existing intercreditor agreement is concurrently retired, and (ii) delivers
to the Notes Collateral Agent an Officer’s Certificate so stating and requesting the Notes Collateral Agent to enter into an intercreditor
agreement (on substantially the same terms as the Intercreditor Agreements) in favor of a designated agent or representative for the holders
of the First Lien Priority Obligations so incurred, together with an Opinion of Counsel, the Holders acknowledge and agree that the Notes
Collateral Agent shall (and is hereby authorized and directed to) enter into such intercreditor agreement (including any Intercreditor
Agreement) (at the sole expense and cost of the Company, including legal fees and expenses of the Notes Collateral Agent), bind the Holders
on the terms set forth therein and perform and observe its obligations thereunder.
(12)No provision of this Indenture, any Intercreditor Agreement or
any other Notes Collateral Document shall require the Notes Collateral Agent (or the Trustee) to expend or risk its own funds or otherwise
incur any financial liability in the performance of any of its duties hereunder or thereunder or to take or omit to take any action hereunder
or thereunder or take any action at the request or direction of Holders (or the Trustee in the case of the Notes Collateral Agent) unless
it shall have received indemnity satisfactory to the Notes Collateral Agent and the Trustee against potential costs and liabilities incurred
by the Notes Collateral Agent relating thereto. Notwithstanding anything to the contrary contained in this Indenture, the Intercreditor
Agreements or the other Notes Collateral Documents, in the event the Notes Collateral Agent is entitled or required to commence an action
to foreclose or otherwise exercise its remedies to acquire control or possession of the Collateral, the Notes Collateral Agent shall not
be required to commence any such action or exercise any remedy or to inspect or conduct any studies of any property under the mortgages
or take any such other action if the Notes Collateral Agent has determined that the Notes Collateral Agent may incur personal liability
as a result of the presence at, or release on or from, the Collateral or such property, of any hazardous substances. The Notes Collateral
Agent shall at any time be entitled to cease taking any action described in this clause if it no longer reasonably deems any indemnity,
security or undertaking from the Company or the Holders to be sufficient.
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(13)The Notes Collateral Agent (i) shall not be liable for any
action taken or omitted to be taken by it in connection with this Indenture, the Intercreditor Agreements or the Notes Collateral Documents
or any instrument referred to herein or therein, except to the extent that any of the foregoing are found by a final, non-appealable judgment
of a court of competent jurisdiction to have resulted from its own gross negligence or willful misconduct, (ii) shall not be liable
for interest on any money received by it except as the Notes Collateral Agent may agree in writing with the Company (and money held in
trust by the Notes Collateral Agent need not be segregated from other funds except to the extent required by law) and (iii) may consult
with counsel of its selection and the advice or opinion of such counsel as to matters of law shall be full and complete authorization
and protection from liability in respect of any action taken, omitted or suffered by it in good faith and in accordance with the advice
or opinion of such counsel. The grant of permissive rights or powers to the Notes Collateral Agent shall not be construed to impose duties
to act.
(14)Neither the Notes Collateral Agent nor the Trustee shall be liable
for delays or failures in performance resulting from acts beyond its control. Such acts shall include but not be limited to acts of God,
strikes, lockouts, riots, acts of war, epidemics, governmental regulations superimposed after the fact, fire, communication line failures,
computer viruses, power failures, earthquakes or other disasters. Neither the Notes Collateral Agent nor the Trustee shall be liable for
any indirect, special, punitive, incidental or consequential damages (included but not limited to lost profits) whatsoever, even if it
has been informed of the likelihood thereof and regardless of the form of action.
(15)The Notes Collateral Agent does not assume any responsibility for
any failure or delay in performance or any breach by the Company or any Guarantor under this Indenture, the Intercreditor Agreements or
the Notes Collateral Documents. The Notes Collateral Agent shall not be responsible to the Holders or any other Person for any recitals,
statements, information, representations or warranties contained in this Indenture, the Intercreditor Agreements, the other Notes Collateral
Documents, any Notes or in any certificate, report, statement, or other document referred to or provided for in, or received by the Notes
Collateral Agent under or in connection with, this Indenture, the Intercreditor Agreements or any Notes Collateral Document; the execution,
validity, genuineness, effectiveness or enforceability of this Indenture, any Intercreditor Agreement and any other Notes Collateral Documents
of any other party thereto; the genuineness, enforceability, collectability, value, sufficiency, location or existence of any Collateral,
or the validity, effectiveness, enforceability, sufficiency, extent, perfection or priority of any Lien therein; the validity, enforceability
or collectability of any Notes Obligations; the assets, liabilities, financial condition, results of operations, business, creditworthiness
or legal status of any obligor; or for any failure of any obligor to perform its Notes Obligations under this Indenture, the Intercreditor
Agreements and the other Notes Collateral Documents. The Notes Collateral Agent shall have no obligation to any Holder or any other Person
to ascertain or inquire into the existence of any Default or Event of Default, the observance or performance by any obligor of any terms
of this Indenture, the Intercreditor Agreements and the other Notes Collateral Documents, or the satisfaction of any conditions precedent
contained in this Indenture, any Intercreditor Agreement and any other Notes Collateral Document. The Notes Collateral Agent shall not
be required to initiate or conduct any litigation or collection or other proceeding under this Indenture, the Intercreditor Agreements
or the other Notes Collateral Documents unless expressly set forth hereunder or thereunder. The Notes Collateral Agent shall have the
right at any time to seek instructions from the Holders with respect to the administration of this Indenture, the Intercreditor Agreements
and the other Notes Collateral Documents.
(16)Subject to the provisions of the Intercreditor Agreements and the
other applicable Notes Collateral Documents, each Holder, by acceptance of the Notes, agrees that the Notes Collateral Agent shall execute
and deliver the Intercreditor Agreements and the Notes Collateral Documents to which it is a party and all agreements, documents and instruments
incidental thereto, and act in accordance with the terms thereof.
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(17)The Notes Collateral Agent is authorized to receive any funds for
the benefit of itself, the Trustee and the Holders distributed under the Intercreditor Agreements and the Notes Collateral Documents and
to the extent not prohibited under the Intercreditor Agreements, for turnover to the Trustee to make further distributions of such funds
to itself, the Trustee and the Holders in accordance with the provisions of Section 7.11 and the other provisions of this
Indenture.
(18)In each case that the Notes Collateral Agent may or is required
hereunder or under any Intercreditor Agreement or any Notes Collateral Document to take any action (an “Action”), including
without limitation to make any determination, to give consents, to exercise rights, powers or remedies, to release or sell Collateral
or otherwise to act hereunder or under any Intercreditor Agreement or any Notes Collateral Document, the Notes Collateral Agent may seek
direction from the Holders of a majority in aggregate Capitalized Principal Amount of the then outstanding Notes. The Notes Collateral
Agent shall not be liable with respect to any Action taken or omitted to be taken by it in accordance with the direction from the Holders
of a majority in aggregate Capitalized Principal Amount of the then outstanding Notes. If the Notes Collateral Agent shall request direction
from the Holders of a majority in aggregate Capitalized Principal Amount of the then outstanding Notes with respect to any Action, the
Notes Collateral Agent shall be entitled to refrain from such Action unless and until the Notes Collateral Agent shall have received direction
from the Holders of a majority in aggregate Capitalized Principal Amount of the then outstanding Notes, and the Notes Collateral Agent
shall not incur liability to any Person by reason of so refraining.
(19)Notwithstanding anything to the contrary in this Indenture, any
Intercreditor Agreement or any Notes Collateral Document, in no event shall the Notes Collateral Agent or the Trustee be responsible for,
or have any duty or obligation with respect to, the recording, filing, registering, perfection, protection or maintenance of the security
interests or Liens intended to be created by this Indenture, the Intercreditor Agreements or the Notes Collateral Documents (including
without limitation the filing or continuation of any UCC financing or continuation statements or similar documents or instruments), nor
shall the Notes Collateral Agent or the Trustee be responsible for, and neither the Notes Collateral Agent nor the Trustee makes any representation
regarding, the validity, effectiveness or priority of any Intercreditor Agreement or any of the Notes Collateral Documents or the security
interests or Liens intended to be created thereby.
(20)Before the Notes Collateral Agent acts or refrains from acting
in each case at the request or direction of the Company or the Guarantors, it may require an Officer’s Certificate and an Opinion
of Counsel, which shall conform to the provisions of Section 13.02. The Notes Collateral Agent shall not be liable for any
action it takes or omits to take in good faith in reliance on such certificate or opinion.
(21)Notwithstanding anything to the contrary contained herein, the
Notes Collateral Agent shall act pursuant to the instructions of the Holders and the Trustee solely with respect to the Notes Collateral
Documents and the Collateral.
(22)The rights, privileges, benefits, immunities, indemnities and other
protections given to the Trustee are extended to, and shall be enforceable by, the Notes Collateral Agent as if the Notes Collateral Agent
were named as the Trustee herein and the Notes Collateral Documents were named as this Indenture herein.
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Article 12. Collateral
Section 12.01. Notes
Collateral Documents.
The due and punctual payment
of the principal of, premium (if any) and interest on the Notes when and as the same shall be due and payable, whether on an Interest
Payment Date, at maturity, by acceleration, repurchase, redemption or otherwise, and the performance of all other Obligations of the Company
and the Guarantors to the Holders, the Trustee or the Notes Collateral Agent under this Indenture, the Notes, the Notes Guarantees, and
the Notes Collateral Documents, according to the terms hereunder or thereunder, shall be secured as provided in the Notes Collateral Documents
(upon the entry into such documents), which define the terms of the Liens that secure the Notes Obligations, subject to the terms of the
Intercreditor Agreements. The Trustee, the Company and the Guarantors hereby acknowledge and agree that the Notes Collateral Agent holds
the Collateral in trust for the benefit of the Holders, the Trustee and the Notes Collateral Agent and pursuant to the terms of the Notes
Collateral Documents. Each Holder, by accepting a Note, consents and agrees to the terms of the Notes Collateral Documents (including
the provisions providing for the possession, use, release and foreclosure of Collateral), each as may be in effect or may be amended from
time to time in accordance with their terms and this Indenture, and authorizes and directs the Notes Collateral Agent to enter into the
Notes Collateral Documents and the Intercreditor Agreements, prior to, on or following the Issue Date, if applicable, and to perform and
observe its obligations and exercise its rights thereunder in accordance therewith.
Section 12.02. Release
of Collateral.
(A) Notwithstanding
anything to the contrary in the Notes Collateral Documents and this Indenture, the Company and the Guarantors will be entitled to the
release of property and other assets constituting Collateral from the Liens securing the Notes Obligations (without the consent of any
other Person, but subject to the terms of the Intercreditor Agreements) under any one or more of the following circumstances, in which
case such Collateral shall be automatically, and without the need for any further action by any Person, terminated and released (and the
Holders, by their acceptance of the Notes, instruct and direct the Trustee and the Notes Collateral Agent to effect and document such
release):
(i) to
enable the Company and/or one or more Guarantors to consummate the sale, transfer or other disposition of such property or assets (including
Capital Stock) (to a Person that is not the Company or a Guarantor) to the extent consummated in accordance with, or not prohibited by,
Section 3.11;
(ii) in
connection with the designation of any Restricted Subsidiary as an Unrestricted Subsidiary;
(iii) in
the case any Collateral becomes Excluded Property;
(iv) in
the case of a Guarantor that is released from its Guarantee with respect to the Notes pursuant to the terms of this Indenture, the release
of the property and assets of such Guarantor; and
(v) as
described under Article 8.
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(B) The
Liens on the Collateral securing the Notes and the related Notes Guarantees also will be automatically, and without the need for any further
action by any Person, terminated and released:
(i) upon
payment in full of the Capitalized Principal Amount of, together with any accrued and unpaid interest, on, the Notes and all other Obligations
under this Indenture, the related Notes Guarantees and the Notes Collateral Documents that are due and payable at or prior to the time
such Capitalized Principal Amount, together with any accrued and unpaid interest, are paid in full;
(ii) upon
discharge of this Indenture as described under Section 10.01 hereof; or
(iii) pursuant
to the Notes Collateral Documents.
(C) In
addition, and notwithstanding anything to the contrary in the Notes Collateral Documents and this Indenture, upon request of the Company
or any other applicable Grantor any Lien on any Collateral may be subordinated to the holder of any Lien on such Collateral that is created,
incurred, or assumed pursuant to clauses (d), (h), (m), (n), (o) (to the extent such Refinancing
Indebtedness is secured by a Lien on Collateral that is created, incurred or assumed pursuant to clauses (d), (h), (o),
(p), (q) and (r)), (p), (q) and (r) of the definition of “Permitted Liens.”
In addition, notwithstanding anything to the contrary in the Notes Collateral Documents and this Indenture, upon written request of the
Company, the Notes Collateral Agent shall (without notice to, or vote or consent of, any Holder, the Trustee or the Notes Collateral Agent)
take such actions as shall be so requested by the Company to give effect to (by means of an acknowledgement (but not consent) in form
reasonably satisfactory to the Notes Collateral Agent), or to subordinate, the Lien on any Collateral to such Liens listed in the immediately
preceding sentence permitted by this Indenture and to enter into customary subordination or intercreditor agreements as applicable.
(D) With
respect to any release of Collateral, upon receipt of an Officer’s Certificate and an Opinion of Counsel stating that all conditions
precedent under this Indenture and the Notes Collateral Documents, as applicable, to such release have been met and that it is permitted
for the Trustee and/or Notes Collateral Agent to execute and deliver the documents requested by the Company in connection with such release
and any necessary or proper instruments of termination, satisfaction or release prepared by the Company, the Trustee and the Notes Collateral
Agent shall, execute, deliver and/or acknowledge (at the Company’s expense) such instruments or releases to evidence the release
of any Collateral permitted to be released pursuant to this Indenture or the Notes Collateral Documents and shall do or cause to be done
(at the Company’s expense) all acts reasonably requested of them to release such Lien as soon as is reasonably practicable. Neither
the Trustee nor the Notes Collateral Agent shall be liable for any such release undertaken in reliance upon any such Officer’s Certificate
and Opinion of Counsel, and notwithstanding any term hereof or in any Notes Collateral Document to the contrary, the Trustee and the Notes
Collateral Agent shall not be under any obligation to release any such Lien and security interest, or execute and deliver any such instrument
of release, satisfaction or termination, unless and until it receives such Officer’s Certificate, upon which it shall be entitled
to conclusively rely.
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Section 12.03. Suits
to Protect Collateral.
Subject to the provisions
of Article 11 and the Notes Collateral Documents, the Trustee may or may direct the Notes Collateral Agent to take all
actions it determines in order to:
(A) Enforce
any of the terms of the Notes Collateral Documents; and
(B) collect
and receive any and all amounts payable in respect of the Obligations hereunder.
Subject to the provisions
of the Notes Collateral Documents, the Trustee and the Notes Collateral Agent shall have the power to institute and to maintain such suits
and proceedings as the Trustee or the Notes Collateral Agent may determine to prevent any impairment of the Collateral by any acts which
may be unlawful or in violation of any of the Notes Collateral Documents or this Indenture, and such suits and proceedings as the Trustee
or the Notes Collateral Agent may determine to preserve or protect its interests and the interests of the Holders in the Collateral. Nothing
in this Section 12.03 shall be considered to impose any such duty or obligation to act on the part of the Trustee or
the Notes Collateral Agent.
Section 12.04. Authorization
of Receipt of Funds by the Trustee Under the Notes Collateral Documents.
Subject to the provisions
of each Intercreditor Agreement, the Trustee and the Notes Collateral Agent are authorized to receive any funds for the benefit of the
Holders distributed under the Notes Collateral Documents, and to make further distributions of such funds to the Holders according to
the provisions of this Indenture.
Section 12.05. Purchaser
Protected.
In no event shall any purchaser
in good faith of any property purported to be released hereunder be bound to ascertain the authority of the Notes Collateral Agent or
the Trustee to execute the applicable release or to inquire as to the satisfaction of any conditions required by the provisions hereof
for the exercise of such authority or to see to the application of any consideration given by such purchaser or other transferee; nor
shall any purchaser or other transferee of any property or rights permitted by this Article 12 to be sold be under any
obligation to ascertain or inquire into the authority of the Company or the applicable Guarantor to make any such sale or other transfer.
Section 12.06. Powers
Exercisable by Receiver or Trustee.
In case the Collateral shall
be in the possession of a receiver or trustee, lawfully appointed, the powers conferred in this Article 12 upon the Company
or a Guarantor with respect to the release, sale or other disposition of such property may be exercised by such receiver or trustee, and
an instrument signed by such receiver or trustee shall be deemed the equivalent of any similar instrument of the Company or a Guarantor
or of any Officer or Officers thereof required by the provisions of this Article 12; and if the Trustee or the Notes
Collateral Agent shall be in the possession of the Collateral under any provision of this Indenture, then such powers may be exercised
by the Trustee or the Notes Collateral Agent.
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Article 13. Miscellaneous
Section 13.01. Notices.
Any
notice or communication by the Company or the Parent Guarantor or the Trustee or the Notes Collateral Agent to the other will be
deemed to have been duly given if in writing and delivered in person or by first class mail (registered or certified, return receipt requested),
facsimile transmission, electronic transmission or other similar means of unsecured electronic communication or overnight air courier
guaranteeing next day delivery, or to the other’s address, which initially is as follows:
If
to the Company, the Parent Guarantor or any Subsidiary Guarantor:
The Hertz Corporation
8501 Williams Road
Estero, Florida 33928
Attention: Adrian Nasr
With a copy to:
Davis Polk & Wardwell LLP
450 Lexington Avenue
New York, NY 10017
Attention: Richard D. Truesdell, Pedro
J. Bermeo and Derek Walters
If to the Trustee or Notes Collateral
Agent:
Computershare Trust Company, N.A.
Attention: Administrator for the Hertz
Corporation
1505 Energy Park Drive
St. Paul, MN 55108
Attention: CCT Hertz Administrator Jacob
Sheets
Notwithstanding anything to
the contrary in the preceding paragraph, notices to the Trustee or any Note Agent must be in writing and will be deemed to have been given
upon actual receipt by the Trustee or such Note Agent, as applicable.
The
Company, the Guarantors or the Trustee, by notice to the others, may designate additional or different addresses (including facsimile
numbers and electronic addresses) for subsequent notices or communications.
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The Trustee will not have
any duty to confirm that the person sending any notice, instruction or other communication by electronic transmission (including by e-mail,
facsimile transmission, web portal or other electronic methods) is, in fact, a person authorized to do so. Electronic signatures believed
by the Trustee to comply with the ESIGN Act of 2000 or other applicable law (including electronic images of handwritten signatures and
digital signatures provided by DocuSign, Orbit, Adobe Sign or any other digital signature provider acceptable to the Trustee) will be
deemed original signatures for all purposes. Any Person that uses electronic signatures or electronic methods to send communications to
the Trustee assumes all risks arising out of such use, including the risk of the Trustee acting on an unauthorized communication and the
risk of interception or misuse by third parties. Notwithstanding anything to the contrary in this paragraph, the Trustee may, in any instance
and in its sole discretion, require that an original document bearing a manual signature be delivered to the Trustee in lieu of, or in
addition to, any such electronic communication.
This Indenture shall be valid,
binding, and enforceable against a party when executed and delivered by an authorized individual on behalf of the party by means of: (i) an
original manual signature; (ii) a faxed, scanned, or photocopied manual signature; or (iii) any other electronic signature permitted
by the federal Electronic Signatures in Global and National Commerce Act, state enactments of the Uniform Electronic Transactions Act,
and/or any other relevant electronic signatures law, including any relevant provisions of the Uniform Commercial Code (collectively, “Signature
Law”), in each case to the extent applicable. Each faxed, scanned, or photocopied manual signature, or other electronic signature,
shall for all purposes have the same validity, legal effect, and admissibility in evidence as an original manual signature. Each party
hereto shall be entitled to conclusively rely upon, and shall have no liability with respect to, any faxed, scanned, or photocopied manual
signature, or other electronic signature, of any other party and shall have no duty to investigate, confirm or otherwise verify the validity
or authenticity thereof. This Indenture may be executed in any number of counterparts, each of which shall be deemed to be an original,
but such counterparts shall, together, constitute one and the same instrument. For the avoidance of doubt, original manual signatures
shall be used for execution or indorsement of writings when required under the Uniform Commercial Code or other Signature Law due to the
character or intended character of the writings.
All
notices and communications (other than those sent to Holders) will be deemed to have been duly given: (A) at the time delivered by
hand, if personally delivered; (B) five (5) Business Days after being deposited in the mail, postage prepaid, if mailed; (C) when
receipt acknowledged, if transmitted by facsimile, electronic transmission or other similar means of unsecured electronic communication;
and (D) the next Business Day after timely delivery to the courier, if sent by overnight air courier guaranteeing next day delivery.
All
notices or communications required to be made to a Holder pursuant to this Indenture must be made in writing and will be deemed to be
duly sent or given in writing if mailed by first class mail, certified or registered, return receipt requested, or by overnight air courier
guaranteeing next day delivery, to its address shown on the Register; provided, however, that a notice or communication
to a Holder of a Global Note may, but need not, instead be sent pursuant to the Depositary Procedures (in which case, such notice will
be deemed to be duly sent or given in writing). The failure to send a notice or communication to a Holder, or any defect in such notice
or communication, will not affect its sufficiency with respect to any other Holder.
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If
the Trustee is then acting as the Depositary’s custodian for the Notes, then, at the reasonable request of the Company to the Trustee,
the Trustee will cause any notice prepared by the Company to be sent to any Holder(s) pursuant to the Depositary Procedures, provided
such request is evidenced in a Company Order delivered, together with the text of such notice, to the Trustee at least two (2) Business
Days before the date such notice is to be so sent. For the avoidance of doubt, such Company Order need not be accompanied by an
Officer’s Certificate or Opinion of Counsel. The Trustee will not have any liability relating to the contents of any notice that
it sends to any Holder pursuant to any such Company Order.
If a notice or communication
is mailed or sent in the manner provided above within the time prescribed, it will be deemed to have been duly given, whether or not the
addressee receives it.
Notwithstanding anything to
the contrary in this Indenture or the Notes, (A) whenever any provision of this Indenture requires a party to send notice to another
party, no such notice need be sent if the sending party and the recipient are the same Person acting in different capacities; and (B) whenever
any provision of this Indenture requires a party to send notice to more than one receiving party, and each receiving party is the same
Person acting in different capacities, then only one such notice need be sent to such Person.
Section 13.02. Delivery
of Officer’s Certificate and Opinion of Counsel as to Conditions Precedent.
Upon any request or application
by the Company to the Trustee to take any action under this Indenture (other than the initial authentication of Notes under this Indenture),
the Company will furnish to the Trustee:
(A)an Officer’s Certificate that complies
with Section 13.03 and states that, in the opinion of the signatory thereto, all conditions precedent and covenants, if any,
provided for in this Indenture relating to such action have been satisfied; and
(B)an Opinion of Counsel that complies with Section 13.03
and states that, in the opinion of such counsel, all such conditions precedent and covenants, if any, have been satisfied.
Section 13.03. Statements
Required in Officer’s Certificate and Opinion of Counsel.
Each Officer’s Certificate
(other than an Officer’s Certificate pursuant to Section 3.05) or Opinion of Counsel with respect to compliance
with a covenant or condition provided for in this Indenture will include:
(A)a statement
that the signatory thereto has read such covenant or condition;
(B)a brief
statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained therein are based;
(C)a statement
that, in the opinion of such signatory, he, she or it has made such examination or investigation as is necessary to enable him, her or
it to express an informed opinion as to whether or not such covenant or condition has been satisfied; and
(D)a statement as to whether, in the opinion of
such signatory, such covenant or condition has been satisfied.
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Section 13.04. Rules by
the Trustee, the Registrar, the Paying Agent and the Exchange Agent.
The
Trustee may make reasonable rules for action by or at a meeting of Holders. Each of the Registrar, the Paying Agent and the
Exchange Agent may make reasonable rules and set reasonable requirements for its functions.
Section 13.05. No
Personal Liability of Directors, Officers, Employees and Stockholders.
No
past, present or future director, officer, employee, incorporator or stockholder of the Company or any Guarantor, as such, will
have any liability for any obligations of the Company or any Guarantor under this Indenture, the Intercreditor Agreements, the Notes Collateral
Documents, the Notes or the Guarantees or for any claim based on, in respect of, or by reason of, such obligations or their creation.
By accepting any Note, each Holder waives and releases all such liability. Such waiver and release are part of the consideration for the
issuance of the Notes.
Section 13.06. Governing
Law; Waiver of Jury Trial.
THIS INDENTURE, THE GUARANTEES
AND THE NOTES, AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS INDENTURE, THE GUARANTEES OR THE NOTES, WILL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. EACH OF THE COMPANY, THE GUARANTORS AND THE TRUSTEE IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR
RELATING TO THIS INDENTURE, THE NOTES, THE GUARANTEES OR THE TRANSACTIONS CONTEMPLATED BY THIS INDENTURE, THE NOTES OR THE GUARANTEES.
Section 13.07. Submission
to Jurisdiction.
Any legal suit, action or
proceeding arising out of or based upon this Indenture or the transactions contemplated by this Indenture may be instituted in the federal
courts of the United States of America located in the City of New York or the courts of the State of New York, in each case located in
the City of New York (collectively, the “Specified Courts”), and each party irrevocably submits to the non-exclusive
jurisdiction of such courts in any such suit, action or proceeding. Service of any process, summons, notice or document by mail (to the
extent allowed under any applicable statute or rule of court) to such party’s address set forth in Section 13.01
will be effective service of process for any such suit, action or proceeding brought in any such court. Each of the Company, the Guarantors,
the Trustee and each Holder (by its acceptance of any Note) irrevocably and unconditionally waives any objection to the laying of venue
of any suit, action or other proceeding in the Specified Courts and irrevocably and unconditionally waives and agrees not to plead or
claim any such suit, action or other proceeding has been brought in an inconvenient forum.
-183-
Section 13.08. No
Adverse Interpretation of Other Agreements.
Neither this Indenture nor
the Notes may be used to interpret any other indenture, note, loan or debt agreement of the Company or its Subsidiaries or of any other
Person, and no such indenture, note, loan or debt agreement may be used to interpret this Indenture or the Notes.
Section 13.09. Successors.
All
agreements of the Company in this Indenture and the Notes will bind its successors. All agreements of the Trustee in this Indenture
will bind its successors.
Section 13.10. Force
Majeure.
In no event shall the Trustee
and the Notes Collateral Agent be responsible or liable for any failure or delay in the performance of its obligations hereunder arising
out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, any act or provision of any present
or future law or regulation or governmental authority, strikes, work stoppages, labor disputes, accidents, acts of war or terrorism, civil
or military disturbances, nuclear or natural catastrophes, disease, epidemic or pandemic, quarantine, national emergency or acts of God,
and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services, communications system
failure, malware or ransomware or unavailability of the Federal Reserve Bank wire or telex system or other wire or other funds transfer
systems or unavailability of any securities clearing system; it being understood that the Trustee and the Notes Collateral Agents shall
use reasonable efforts that are consistent with accepted practices in the banking industry to resume performance as soon as practicable
under the circumstances.
Section 13.11. U.S.A.
PATRIOT Act.
The Company acknowledges that,
in accordance with Section 326 of the U.S.A. PATRIOT Act, the Trustee and the Notes Collateral Agent, like all financial institutions,
in order to help fight the funding of terrorism and money laundering, is required to obtain, verify and record information that identifies
each person or legal entity that establishes a relationship or opens an account with the Trustee and/or the Notes Collateral Agent. The
Company agrees to provide the Trustee and/or the Notes Collateral Agent with such information as it may request to enable the Trustee
and the Notes Collateral Agent to comply with the U.S.A. PATRIOT Act.
Section 13.12. Calculations.
Except as otherwise provided
in this Indenture, the Company will be responsible for making all calculations called for under this Indenture or the Notes, including
determinations of the Last Reported Sale Price, the Daily Exchange Value, the Daily Cash Amount, the Daily Share Amount, the Daily VWAP,
Daily Share Cap, accrued interest (including Additional Interest or Special Interest) on the Notes, the Redemption Price, the Fundamental
Change Repurchase Price and the Exchange Rate.
-184-
The Company will make all
calculations in good faith, and, absent manifest error, its calculations will be final and binding on all Holders. The Company will provide
a schedule of its calculations to the Trustee and the Exchange Agent, and each of the Trustee and the Exchange Agent may rely conclusively
on the accuracy of the Company’s calculations without independent verification. The Trustee will promptly forward a copy of each
such schedule to a Holder upon its written request therefor. For the avoidance of doubt, the Trustee will not be obligated to make or
confirm any calculations or other amounts called for under this Indenture or the Notes.
Section 13.13. Severability.
If any provision of this Indenture
or the Notes is invalid, illegal or unenforceable, then the validity, legality and enforceability of the remaining provisions of this
Indenture or the Notes will not in any way be affected or impaired thereby.
Section 13.14. Counterparts.
The
parties may sign any number of copies of this Indenture. Each signed copy will be an original, and all of them together represent
the same agreement. Delivery of an executed counterpart of this Indenture by facsimile, electronically in portable document format or
in any other format will be effective as delivery of a manually executed counterpart. All notices, approvals, consents, requests and any
communications hereunder must be in writing (provided that any communication sent to Trustee hereunder that is required to be signed must
be in the form of a document that is signed manually or by way of a digital signature provided by DocuSign (or such other digital signature
provider as specified in writing to the Trustee by the authorized representative)), and in English. The Company agrees to assume all risks
arising out of the use of using digital signatures and electronic methods to submit communications to the Trustee, including without limitation
the risk of the Trustee acting on unauthorized instructions, and the risk of interception and misuse by third parties.
Section 13.15. Table
of Contents, Headings, Etc.
The table of contents and
the headings of the Articles and Sections of this Indenture have been inserted for convenience of reference only, are not to be considered
a part of this Indenture and will in no way modify or restrict any of the terms or provisions of this Indenture.
Section 13.16. Withholding
Taxes.
Each Holder of a Note agrees,
and each beneficial owner of an interest in a Global Note, by its acquisition of such interest, is deemed to agree, that if the Company,
the Guarantors or other applicable withholding agent (including the Trustee) pays withholding taxes (including backup withholding) on
behalf of such Holder or beneficial owner as a result of an adjustment or the non-occurrence of an adjustment to the Exchange Rate, then
the Company, the Guarantors or such withholding agent, as applicable, may, at its option, withhold such payments from or set off such
payments against payments of cash and/or the delivery of shares of Common Stock, if any, in respect of such Note (including upon the Exchange,
repurchase, Redemption or maturity of such Note), any payments on the Common Stock or sales proceeds received by, or other funds or assets
of, such Holder or beneficial owner.
[The Remainder of This Page Intentionally
Left Blank; Signature Page Follows]
-185-
IN WITNESS WHEREOF, the
parties to this Indenture have caused this Indenture to be duly executed as of the date first written above.
The
Hertz Corporation
By:
/s/Mark E. Johnson
Name:
Mark
E. Johnson
Title:
Senior
Vice President, Treasurer
Hertz
Global Holdings, Inc.
By:
/s/Mark E. Johnson
Name:
Mark
E. Johnson
Title:
Senior
Vice President, Treasurer
Rental
Car Intermediate Holdings, LLC
By:
/s/Mark E. Johnson
Name:
Mark
E. Johnson
Title:
Vice
President, Treasurer
COMPUTERSHARE
TRUST COMPANY, N.A., as Trustee and Notes Collateral Agent
By:
/s/
Corey J. Dahlstrand
Name:
Corey
J. Dahlstrand
Title:
Vice
President
SUBSIDIARY
GUARANTORS
DOLLAR
RENT A CAR, INC.
DOLLAR
THRIFTY AUTOMOTIVE GROUP, INC.
DTG OPERATIONS, INC.
DTG
SUPPLY, LLC
FIREFLY RENT A CAR LLC
HERTZ CAR SALES LLC
HERTZ
GLOBAL SERVICES CORPORATION
HERTZ LOCAL EDITION CORP.
HERTZ
LOCAL EDITION TRANSPORTING, INC.
HERTZ SYSTEM, INC.
HERTZ
TECHNOLOGIES, INC.
HERTZ TRANSPORTING, INC.
SMARTZ
VEHICLE RENTAL CORPORATION
RENTAL
CAR GROUP COMPANY, LLC
THRIFTY CAR SALES, INC.
THRIFTY
RENT-A-CAR SYSTEM, LLC
THRIFTY, LLC
TRAC
ASIA PACIFIC, INC.
By:
/s/Mark E. Johnson
Name:
Mark
Johnson
Title:
Vice
President & Treasurer
[Signature Page to Indenture]
HERTZ
FHV #1, LLC
HERTZ
FHV #2, LLC
HERTZ
FHV #3, LLC
HERTZ
FHV #4, LLC
HERTZ
FHV #5, LLC
HERTZ
FHV #6, LLC
HERTZ
FHV #7, LLC
HERTZ
FHV #8, LLC
HERTZ
FHV #9, LLC
SURVEY
AUTOMOTIVE LLC
ORO
FLEET SERVICES, LLC
FLEET
MOBILITY SOLUTIONS (NJ), LLC
HERTZ
LOGISTICS, LLC
FLEET
MOBILITY SOLUTIONS (GA), LLC
FLEET
MOBILITY SOLUTIONS (CA), LLC
FLEET
MOBILITY SOLUTIONS, LLC
HERTZ
MOBILITY HOLDINGS, LLC
By:
/s/Matthew C. Potalivo
Name:
Matthew
C. Potalivo
Title:
Vice
President and Secretary
[Signature Page to Indenture]
EXHIBIT A
FORM OF NOTE
[Insert Global Note Legend, if applicable]
[Insert Restricted Note Legend, if applicable]
[Insert Non-Affiliate Legend, if applicable]
[Insert Original Issue Discount Legend]
THE
HERTZ CORPORATION
6.75%
Exchangeable Senior First-Lien Secured PIK Note due 2030
CUSIP No.: [___][Insert
for a “restricted” CUSIP number: *]
Certificate No. [___]
ISIN No.: [___][Insert
for a “restricted” ISIN number: *]
The Hertz Corporation, a Delaware
corporation, for value received, promises to pay to [Cede & Co.], or its registered assigns, the principal sum of [ ] dollars
($[ ]) [(as revised by the attached Schedule of Increases and Decreases in the Global Note)]† on July 1, 2030 and to
pay interest thereon, as provided in the Indenture referred to below, until the principal and all accrued and unpaid interest are paid
or duly provided for.
Interest
Payment Dates:
January 1
and July 1 of each year, commencing on January 1, 2027
Regular
Record Dates:
the
Business Day immediately preceding the applicable Interest Payment Date
Additional provisions of this
Note are set forth on the other side of this Note.
[The Remainder of This Page Intentionally
Left Blank; Signature Page Follows]
* This Note will be deemed to be identified by CUSIP No. 428040
DL0 and ISIN No. US428040DL07 from and after such time when the Company delivers, pursuant to Section 2.12 of the within-mentioned Indenture,
written notice to the Trustee of the deemed removal of the Restricted Note Legend affixed to this Note, subject to the Depositary Procedures.
† Insert bracketed language for Global Notes only.
A-1
IN
WITNESS WHEREOF, The Hertz Corporation has caused this instrument to be duly executed as of the date set forth below.
The Hertz Corporation
Date:
By:
Name:
Title:
A-2
TRUSTEE’S CERTIFICATE OF AUTHENTICATION
Computershare Trust Company, N.A., as Trustee,
certifies that this is one of the Notes referred to in the within-mentioned Indenture.
Date:
By:
Authorized Signatory
A-3
The
Hertz Corporation
6.75%
Exchangeable Senior First-Lien Secured PIK Note due 2030
This
Note is one of a duly authorized issue of notes of The Hertz Corporation, a Delaware corporation (the “Company”), designated
as its 6.75% Exchangeable Senior First-Lien Secured PIK Notes due 2030 (the “Notes”), all issued or to be issued pursuant
to an indenture, dated as of June 29, 2026 (as the same may be amended from time to time, the “Indenture”), among
the Company, Hertz Global Holdings, Inc., a Delaware corporation (the “Parent Guarantor”), Rental Car Intermediate
Holdings, LLC (“Holdings”) and the other Guarantors, as guarantors, and Computershare Trust Company, N.A., as
Trustee and Notes Collateral Agent. Capitalized terms used in this Note without definition have the respective meanings ascribed to them
in the Indenture.
The Indenture sets forth the
rights and obligations of the Company, the Guarantors, the Trustee and the Holders and the terms of the Notes. Notwithstanding anything
to the contrary in this Note, to the extent that any provision of this Note conflicts with the provisions of the Indenture, the provisions
of the Indenture will control.
1. Interest.
This Note will accrue interest at a rate and in the manner set forth in Section 2.05 of the Indenture. Stated Interest
on this Note will begin to accrue from, and including, [date].
2. Maturity.
This Note will mature on July 1, 2030, unless earlier repurchased, redeemed or Exchanged.
3. Guarantee.
The Company’s obligations under the Indenture and the Notes are fully and unconditionally guaranteed by the Parent Guarantor, Holdings
and each other Guarantor as provided in Article 9 of the Indenture.
4. Security.
The Notes are secured by a security interest in the Collateral, subject to the terms of the Notes Collateral Documents, the Intercreditor
Agreements and any other applicable intercreditor agreement, subject to release or termination as provided in the Indenture and the Notes
Collateral Documents.
5. Method
of Payment. Cash amounts due on this Note will be paid in the manner set forth in Section 2.04 of the Indenture.
6. Persons
Deemed Owners. The Holder of this Note will be treated as the owner of this Note for all purposes.
7. Denominations;
Transfers and Exchanges. All Notes will be in registered form, without coupons, in Capitalized Principal Amounts equal to any Authorized
Denominations. Subject to the terms of the Indenture, the Holder of this Note may transfer or exchange this Note by presenting it to the
Registrar and delivering any required documentation or other materials.
A-4
8. Right
of Holders to Require the Company to Repurchase Notes Upon a Fundamental Change. If a Fundamental Change (other than an Exempted Fundamental
Change) occurs, then each Holder will have the right to require the Company to repurchase such Holder’s Notes (or any portion thereof
in an Authorized Denomination) for cash in the manner, and subject to the terms, set forth in Section 4.02 of the Indenture.
9. Right
of the Company to Redeem the Notes. The Company will have the right to redeem the Notes for cash in the manner, and subject to the
terms, set forth in Section 4.03 of the Indenture.
10. Exchange.
The Holder of this Note may Exchange this Note into Exchange Consideration in the manner, and subject to the terms, set forth in Article 5
of the Indenture.
11. Mergers
and Consolidations. Article 6 of the Indenture places limited restrictions on (i) the Company’s ability
to be a party to a Company Business Combination Event and (ii) the Parent Guarantor’s ability to be a party to a Parent Guarantor
Business Combination Event.
12. Defaults
and Remedies. If an Event of Default occurs, then the Capitalized Principal Amount (and, in certain circumstances, the Bankruptcy
Acceleration Amount) of, plus accrued and unpaid Cash Interest, if any, thereon, all of the Notes then outstanding may (and, in certain
circumstances, will automatically) become due and payable in the manner, and subject to the terms, set forth in Article 7
of the Indenture.
13. Amendments,
Supplements and Waivers. The Company, the Guarantors and the Trustee may amend or supplement the Indenture, the Notes or the Guarantees
or waive compliance with any provision of the Indenture, the Notes or the Guarantees in the manner, and subject to the terms, set forth
in Section 7.05 and Article 8 of the Indenture.
14. No
Personal Liability of Directors, Officers, Employees and Stockholders. No past, present or future director, officer, employee, incorporator
or stockholder of the Company or any Guarantor, as such, will have any liability for any obligations of the Company or any Guarantor under
the Indenture, the Notes or the Guarantees or for any claim based on, in respect of, or by reason of, such obligations or their creation.
By accepting any Note, each Holder waives and releases all such liability. Such waiver and release are part of the consideration for the
issuance of the Notes.
15. Authentication.
No Note will be valid until it is authenticated by the Trustee. A Note will be deemed to be duly authenticated only when an authorized
signatory of the Trustee (or a duly appointed authenticating agent) manually signs the certificate of authentication of such Note.
16. Abbreviations.
Customary abbreviations may be used in the name of a Holder or its assignee, such as TEN COM (tenants in common), TEN ENT (tenants by
the entireties), JT TEN (joint tenants with right of survivorship and not as tenants in common), CUST (custodian), and U/G/M/A (Uniform
Gift to Minors Act).
A-5
17. Governing
Law. THIS NOTE, AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS NOTE, WILL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
* * *
To request a copy of the Indenture,
which the Company will provide to any Holder at no charge, please send a written request to the following address:
The Hertz Corporation
8501 Williams Road
Estero, Florida 33928
Attention: Adrian Nasr
A-6
SCHEDULE OF INCREASES AND DECREASES IN THE GLOBAL
NOTE*
INITIAL PRINCIPAL AMOUNT OF THIS GLOBAL NOTE: $[
]
The following increases and decreases in the principal
amount of this Global Note have been made:
Date
Amount of Increase
(Decrease) in
Principal Amount of
this Global Note
Principal Amount of
this Global Note
After Such Increase
(Decrease)
Signature of
Authorized
Signatory of Trustee
* Insert for Global Notes only.
A-7
EXCHANGE NOTICE
THE HERTZ
CORPORATION
6.75% Exchangeable Senior First-Lien Secured PIK
Notes due 2030
Subject to the terms of the Indenture, by executing
and delivering this Exchange Notice to the address below, the undersigned Holder of the Note identified below directs the Company to Exchange
(check one):
¨ the entire Capitalized Principal Amount of
¨ $ *
aggregate Capitalized Principal Amount of
the Note identified by CUSIP No.
and Certificate No. .
Computershare Trust Company, N.A.
1505 Energy Park Drive
Saint Paul, Minnesota 55108
Attn: CCT Administrator Jacob Sheets for The Hertz
Corporation
Phone: 1 (800) 344-5128
Email: #nacctcpuconversions@computershare.com
Date:
(Legal Name of Holder)
By:
Name:
Title:
Signature Guaranteed:
Participant in a Recognized Signature
Guarantee Medallion Program
By:
Authorized Signatory
* Must be an Authorized Denomination.
A-8
FUNDAMENTAL CHANGE REPURCHASE NOTICE
THE HERTZ
CORPORATION
6.75% Exchangeable Senior First-Lien Secured PIK
Notes due 2030
Subject to the terms of the Indenture, by executing
and delivering this Fundamental Change Repurchase Notice, the undersigned Holder of the Note identified below is exercising its Fundamental
Change Repurchase Right with respect to (check one):
¨ the entire Capitalized Principal Amount of
¨ $ *
aggregate Capitalized Principal Amount of
the Note identified by CUSIP No.
and Certificate No. .
The undersigned acknowledges that this Note, duly
endorsed for transfer, must be delivered to the Paying Agent before the Fundamental Change Repurchase Price will be paid.
Date:
(Legal Name of Holder)
By:
Name:
Title:
Signature Guaranteed:
Participant in a Recognized Signature
Guarantee Medallion Program
By:
Authorized Signatory
* Must be an Authorized Denomination.
A-9
ASSIGNMENT FORM
THE HERTZ
CORPORATION
6.75% Exchangeable Senior First-Lien Secured PIK
Notes due 2030
Subject to the terms of the Indenture, the undersigned
Holder of the Note identified below assigns (check one):
¨ the entire Capitalized Principal Amount of
¨ $ *
aggregate Capitalized Principal Amount of
the Note identified by CUSIP No.
and Certificate No. ,
and all rights thereunder, to:
Name:
Address:
Social security or tax id. #:
and irrevocably appoints:
as agent to transfer the within Note on the books
of the Company. The agent may substitute another to act for him/her.
Date:
(Legal Name of Holder)
By:
Name:
Title:
Signature Guaranteed:
Participant in a Recognized Signature
Guarantee Medallion Program
By:
Authorized Signatory
* Must be an Authorized Denomination.
A-10
TRANSFEROR ACKNOWLEDGMENT
If the within Note bears a Restricted Note Legend,
the undersigned further certifies that (check one):
1. ¨
Such
Transfer is being made to the Company or a Subsidiary of the Company.
2. ¨
Such
Transfer is being made pursuant to, and in accordance with, a registration statement that
is effective under the Securities Act at the time of the Transfer.
3. ¨
Such
Transfer is being made pursuant to, and in accordance with, Rule 144A under the Securities
Act, and, accordingly, the undersigned further certifies that the within Note is being transferred
to a Person that the undersigned reasonably believes is purchasing the within Note for its
own account, or for one or more accounts with respect to which such Person exercises sole
investment discretion, and such Person and each such account is a “qualified institutional
buyer” within the meaning of Rule 144A under the Securities Act in a transaction
meeting the requirements of Rule 144A.
4. ¨
Such
Transfer is being made pursuant to, and in accordance with, any other available exemption
from the registration requirements of the Securities Act (including, if available, the exemption
provided by Rule 144 under the Securities Act).
5. ¨
Either
(i) the undersigned is not subject to Title I of the Employee Retirement Income Security
Act of 1974, as amended (“ERISA”), Section 4975 of the Internal Revenue
Code of 1986, as amended (the “Code”), or any other law or regulation similar
to such provisions of ERISA or the Code (“Similar Law”) or (ii) such Transfer
and the holding of the within Note and any shares of common stock of Holdings received upon
exchange of the within Note will not constitute or result in a non-exempt prohibited transaction
under ERISA or Section 4975 of the Code or violate any Similar Law.
Dated:
(Legal Name of Holder)
By:
Name:
Title:
Signature Guaranteed:
(Participant in a Recognized Signature
Guarantee Medallion Program)
By:
Authorized Signatory
A-11
EXHIBIT B-1
FORM OF RESTRICTED NOTE LEGEND
THE OFFER AND SALE OF THIS NOTE AND THE SHARES
OF COMMON STOCK, IF ANY, DELIVERABLE UPON EXCHANGE OF THIS NOTE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE “SECURITIES ACT”), AND THIS NOTE MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT IN ACCORDANCE
WITH THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE ACQUIRER:
(1) REPRESENTS THAT IT AND ANY ACCOUNT FOR WHICH IT IS ACTING IS A “QUALIFIED INSTITUTIONAL BUYER”
(WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT) AND THAT IT EXERCISES SOLE INVESTMENT DISCRETION WITH RESPECT TO EACH SUCH
ACCOUNT; AND
(2) AGREES FOR THE BENEFIT OF THE HERTZ CORPORATION (THE “COMPANY”) THAT IT WILL NOT OFFER, SELL,
PLEDGE OR OTHERWISE TRANSFER THIS NOTE OR ANY BENEFICIAL INTEREST HEREIN, EXCEPT ONLY:
(A) TO HERTZ GLOBAL HOLDINGS, INC., THE HERTZ CORPORATION OR ANY SUBSIDIARY THEREOF;
(B) PURSUANT TO A REGISTRATION STATEMENT THAT IS EFFECTIVE UNDER THE SECURITIES ACT;
(C) TO A PERSON REASONABLY BELIEVED TO BE A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER
THE SECURITIES ACT;
(D) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT; OR
(E) PURSUANT TO ANY OTHER EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT.
BEFORE THE REGISTRATION
OF ANY SALE OR TRANSFER IN ACCORDANCE WITH (2) (D) OR (E) ABOVE, THE COMPANY, HERTZ GLOBAL HOLDINGS, INC.,
THE TRUSTEE AND THE REGISTRAR RESERVE THE RIGHT TO REQUIRE THE DELIVERY OF SUCH CERTIFICATES OR OTHER DOCUMENTATION OR EVIDENCE AS THEY
MAY REASONABLY REQUIRE IN ORDER TO DETERMINE THAT THE PROPOSED SALE OR TRANSFER IS BEING MADE IN COMPLIANCE WITH THE SECURITIES ACT
AND APPLICABLE STATE SECURITIES LAWS. NO REPRESENTATION IS MADE AS TO THE AVAILABILITY OF ANY EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT.*
* This paragraph and the immediately preceding paragraph will
be deemed to be removed from the face of this Note at such time when the Company delivers written notice to the Trustee of such deemed
removal pursuant to Section 2.12 of the within-mentioned Indenture.
B1-1
EXHIBIT B-2
FORM OF GLOBAL NOTE LEGEND
THIS IS A GLOBAL NOTE WITHIN THE MEANING OF THE
INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITARY OR A NOMINEE OF THE DEPOSITARY, WHICH MAY BE TREATED
BY THE COMPANY, THE TRUSTEE AND ANY AGENT THEREOF AS THE OWNER AND HOLDER OF THIS NOTE FOR ALL PURPOSES.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (“DTC”) TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE
OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL NOTE WILL BE LIMITED
TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC, OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE, AND TRANSFERS
OF PORTIONS OF THIS GLOBAL NOTE WILL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN ARTICLE 2
OF THE INDENTURE HEREINAFTER REFERRED TO.
B2-1
EXHIBIT B-3
FORM OF NON-AFFILIATE LEGEND
NO AFFILIATE (AS DEFINED IN RULE 144 UNDER THE
SECURITIES ACT) OR PERSON THAT HAS BEEN AN AFFILIATE (AS DEFINED IN RULE 144 UNDER THE SECURITIES ACT) OF THE COMPANY DURING THE THREE
IMMEDIATELY PRECEDING MONTHS MAY PURCHASE, OTHERWISE ACQUIRE OR OWN THIS SECURITY OR A BENEFICIAL INTEREST HEREIN.
B3-1
EXHIBIT B-4
FORM OF ORIGINAL ISSUE DISCOUNT LEGEND
THIS NOTE HAS BEEN ISSUED WITH “ORIGINAL
ISSUE DISCOUNT” FOR PURPOSES OF SECTIONS 1271-1275 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED. A HOLDER OR BENEFICIAL OWNER
MAY OBTAIN THE ISSUE PRICE, AMOUNT OF ORIGINAL ISSUE DISCOUNT, ISSUE DATE AND YIELD TO MATURITY FOR THIS NOTE BY SUBMITTING
A WRITTEN REQUEST FOR SUCH INFORMATION TO THE COMPANY AT THE FOLLOWING ADDRESS: THE HERTZ CORPORATION, 8501 WILLIAMS ROAD, ESTERO, FL
33928; ATTENTION: TREASURER.
B4-1
EXHIBIT C
Form of Supplemental Indenture in Respect
of Subsidiary Guarantee
SUPPLEMENTAL INDENTURE, dated as of [_________]
(this “Supplemental Indenture”), among [name of Guarantor(s)] (the “Subsidiary Guarantor(s)”), The
Hertz Corporation, a corporation duly organized and existing under the laws of the State of Delaware (together with its respective successors
and assigns, the “Company”), and each other then existing Guarantor under the Indenture referred to below (the “Existing
Guarantors”), and Computershare Trust Company, N.A., as trustee (the “Trustee”) and collateral agent (the
“Notes Collateral Agent”) under the Indenture referred to below.
W I T N E S S E T H:
WHEREAS, the Company, any Existing Guarantors,
the Trustee and the Notes Collateral Agent have heretofore become parties to an Indenture, dated as of June 29, 2026 (as amended,
supplemented, waived or otherwise modified, the “Indenture”), providing for the issuance of 6.75% Exchangeable Senior
First-Lien Secured PIK Notes due 2030;
WHEREAS, Section 9.08 of the Indenture
provides that the Company is required to cause the Subsidiary Guarantors to execute and deliver to the Trustee a supplemental indenture
pursuant to which the Subsidiary Guarantors shall guarantee the Company’s Guaranteed Obligations under the Notes pursuant to a Notes
Guarantee on the terms and conditions set forth herein and in Article 9 of the Indenture;
WHEREAS, each Subsidiary Guarantor desires to enter
into such supplemental indenture for good and valuable consideration, including substantial economic benefit in that the financial performance
and condition of such Subsidiary Guarantor is dependent on the financial performance and condition of the Company, the obligations hereunder
of which such Subsidiary Guarantor has guaranteed, and on such Subsidiary Guarantor’s access to working capital through the Company’s
access to revolving credit borrowings under the First Lien Credit Agreement; and
WHEREAS, pursuant to Section 8.01 of
the Indenture, the parties hereto are authorized to execute and deliver this Supplemental Indenture to amend the Indenture, without the
consent of any Holder;
NOW, THEREFORE, in consideration of the foregoing
and for other good and valuable consideration, the receipt of which is hereby acknowledged, the Subsidiary Guarantors, the Company, the
Existing Guarantors, the Trustee and the Notes Collateral Agent mutually covenant and agree for the benefit of the Holders of the Notes
as follows:
Defined Terms.
As used in this Supplemental Indenture, terms defined in the Indenture or in the preamble or recital hereto are used herein as therein
defined. The words “herein,” “hereto,” “hereof” and “hereby” and other words of similar
import used in this Supplemental Indenture refer to this Supplemental Indenture as a whole and not to any particular Section hereof.
Agreement to Guarantee.
[The] [Each] Subsidiary Guarantor hereby agrees, jointly and severally with [all] [any] other Subsidiary Guarantors and fully and unconditionally,
to guarantee the Guaranteed Obligations under the Indenture and the Notes on the terms and subject to the conditions set forth in Article 9
of the Indenture and to be bound by (and shall be entitled to the benefits of) all other applicable provisions of the Indenture as a Subsidiary
Guarantor.
C-1
Termination, Release
and Discharge. [The] [Each] Subsidiary Guarantor’s Notes Guarantee shall terminate and be of no further force or effect,
and [the] [each] Subsidiary Guarantor shall be released and discharged from all obligations in respect of such Notes Guarantee, as and
when provided in Section 9.03 of the Indenture.
Parties.
Nothing in this Supplemental Indenture is intended or shall be construed to give any Person, other than the Holders, the Trustee and the
Notes Collateral Agent, any legal or equitable right, remedy or claim under or in respect of [the] [each] Subsidiary Guarantor’s
Notes Guarantee or any provision contained herein or in Article 9 of the Indenture.
Governing Law.
THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. THE TRUSTEE, THE
NOTES COLLATERAL AGENT, THE COMPANY, ANY OTHER OBLIGOR IN RESPECT OF THE NOTES AND (BY THEIR ACCEPTANCE OF THE NOTES) THE HOLDERS AGREE
TO SUBMIT TO THE JURISDICTION OF ANY UNITED STATES FEDERAL OR STATE COURT LOCATED IN THE BOROUGH OF MANHATTAN, IN THE CITY OF NEW
YORK IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS SUPPLEMENTAL INDENTURE.
Ratification of
Indenture; Supplemental Indentures Part of Indenture. Except as expressly amended hereby, the Indenture is in all respects
ratified and confirmed and all the terms, conditions and provisions thereof shall remain in full force and effect. This Supplemental Indenture
shall form a part of the Indenture for all purposes, and every Holder of Notes heretofore or hereafter authenticated and delivered shall
be bound hereby. The Trustee makes no representation or warranty as to the validity or sufficiency of this Supplemental Indenture or as
to the accuracy of the recitals to this Supplemental Indenture.
Counterparts.
The parties hereto may sign one or more copies of this Supplemental Indenture in counterparts, all of which together shall constitute
one and the same agreement. The exchange of copies of this Supplemental Indenture and of signature pages by facsimile, PDF or other
electronic transmission shall constitute effective execution and delivery of this Supplemental Indenture as to the parties hereto and
may be used in lieu of the original Supplemental Indenture for all purposes. Signatures of the parties hereto transmitted by facsimile,
PDF or other electronic means shall be deemed to be their original signatures for all purposes. The words “signed”, “signature”
and words of like import in or relating to this Supplemental Indenture or any document to be signed in connection with this Supplemental
Indenture shall be deemed to include electronic signatures.
This Supplemental Indenture
(or to any document delivered in connection with this Supplemental Indenture) shall be valid, binding, and enforceable against a party
only when executed and delivered by an authorized individual on behalf of the party by means of (i) any electronic signature permitted
by the federal Electronic Signatures in Global and National Commerce Act, state enactments of the Uniform Electronic Transactions Act,
and/or any other relevant electronic signatures law, including relevant provisions of the Uniform Commercial Code (collectively, “Signature
Law”); (ii) an original manual signature; or (iii) a faxed, scanned or photocopied manual signature. Each electronic signature
or faxed, scanned or photocopied manual signature shall for all purposes have the same validity, legal effect and admissibility in evidence
as an original manual signature. Each party hereto shall be entitled to conclusively rely upon, and shall have no liability with respect
to, any faxed, scanned or photocopied manual signature, or other electronic signature, of any party and shall have no duty to investigate,
confirm or otherwise verify the validity or authenticity thereof.
Headings.
The Section headings herein are for convenience of reference only and shall not be deemed to alter or affect the meaning or interpretation
of any provisions hereof.
C-2
IN WITNESS WHEREOF, the parties hereto have caused
this Supplemental Indenture to be duly executed as of the date first above written.
[NAME
OF SUBSIDIARY GUARANTOR(S)],
as
Subsidiary Guarantor
By:
Name:
Title:
THE
HERTZ CORPORATION
By:
Name:
Title:
COMPUTERSHARE
TRUST COMPANY, N.A., as Trustee and Notes Collateral Agent
By:
Name:
Title:
C-3
EXHIBIT D
Form of Canadian Representation Letter
The Hertz Corporation and
Hertz Global Holdings, Inc.
Canadian Representation Letter
TO BE COMPLETED BY REGISTERED HOLDERS OF NOTES
THAT ARE LOCATED IN CANADA OR ARE CANADIAN RESIDENTS AND BY REGISTERED HOLDERS HOLDING NOTES ON BEHALF OF BENEFICIAL OWNERS THAT ARE LOCATED
IN CANADA OR ARE CANADIAN RESIDENTS
One copy of this representation letter must be completed for each
beneficial owner that is located in Canada or is a Canadian resident.
Reference is made to the 6.75% Exchangeable Senior First-Lien Secured
PIK Notes due 2030 (the “Notes”) of The Hertz Corporation (the “Issuer”), an indirect, wholly owned subsidiary
of Hertz Global Holdings, Inc. (“Parent Guarantor”). The Notes are exchangeable into shares of common stock of Parent
Guarantor (“Common Stock”), cash or a combination thereof in accordance with and subject to the terms and conditions of the
Notes and the indenture governing the Notes. Computershare Trust Company, N.A. (the “Exchange Agent”) is the trustee, paying
agent and exchange agent for the Notes.
***
In order to facilitate compliance with Canadian securities legislation,
a registered holder or beneficial owner of Notes who is located or resident in Canada and who seeks to exchange any of its Notes for shares
of Common Stock must be:
(a) an
“accredited investor” as defined in section 73.3(1) of the Securities Act (Ontario), in the case of a person
located or resident in Ontario, or in National Instrument 45-106 - Prospectus Exemptions, in the case of a person located or resident
in any other jurisdiction in Canada, that either would acquire Common Stock on exchange of the Notes for its own account or would be deemed
to be acquiring Common Stock on exchange of the Notes as principal pursuant to applicable law; and
(b) a
“permitted client” as defined in National Instrument 31-103 - Registration Requirements, Exemptions and Ongoing
Registrant Obligations.
The definitions of “accredited investor”
and “permitted client” are reproduced in Schedule A.
The undersigned has completed the following and acknowledges that the
Issuer and Parent Guarantor are relying on such information in respect of the undersigned as the registered holder of Notes or as the
registered holder of Notes on behalf of the beneficial owners for whom the undersigned is acting.
For greater certainty, if the undersigned is a depository, custodian,
nominee or other intermediary completing this Canadian Representation Letter on behalf of beneficial owners for whom the undersigned is
acting, the information provided below must relate to such beneficial owners, not the undersigned.
Notwithstanding the foregoing, in the case of a beneficial owner
who is a portfolio manager or dealer exchanging Notes on behalf of one or more fully managed accounts, a single form should be completed
for all such accounts, with the portfolio manager or dealer named as the beneficial owner.
If a person outside Canada has full discretion to trade securities
for the account of a client in Canada without requiring the client’s express consent to a transaction, this Canadian Representation
Letter is not required to be completed.
Please submit this form below or return it to Computershare Trust Company,
N.A., as the Exchange Agent, at the address set forth below:
To: The Hertz Corporation and Hertz Global Holdings, Inc.
c/o Computershare Trust Company, N.A.
[Address]
Attention: [●]
You may direct any questions to Computershare Trust Company, N.A..
at telephone number: [insert contact details].
D-1
Information About the Canadian Beneficial
Owner:
Full Legal Name of Beneficial Owner:
Street Address of Beneficial Owner Including City and Postal Code:
Telephone Number of Beneficial Owner:
E-Mail Address of Beneficial Owner:
Principal Amount of Notes Being Exchanged:
Circle the applicable letter in the definition of “accredited
investor” in section 1.1 of Nl 45-106 that applies to the beneficial owner (select only one category from the list in Schedule
A)
Circle the applicable letter in the definition of “permitted
client” in section 1.1 of Nl 31-101 that applies to the beneficial owner (select only one category from the list in Schedule
A)
Signature of Registered Holder or Authorized Representative Thereof:
Name and Title:
Street Address of Registered Holder Including City and Postal Code:
Telephone Number of Registered Holder
E-Mail Address of Registered Holder:
Schedule A
Definitions
Derived from section 1.1 of National Instrument 45-106 –
Prospectus Exemptions (“Nl 45-106”).
Circle ONE of the following categories:
“accredited investor" means:
(a) a Canadian financial institution, or a Schedule III bank,
(b) the Business Development Bank of Canada incorporated under
the Business Development Bank of Canada Act (Canada),
(c) a subsidiary of any person referred to in paragraphs (a) or
(b), if the person owns all of the voting securities of the subsidiary, except the voting securities required by law to be owned by directors
of that subsidiary,
(d) a person registered under the securities legislation of a
jurisdiction of Canada as an adviser or dealer,
(e) an individual registered under the securities legislation
of a jurisdiction of Canada as a representative of a person referred to in paragraph (d).
(e.1) an individual formerly registered under the securities legislation
of a jurisdiction of Canada, other than an individual formerly registered solely as a representative of a limited market dealer under
one or both of the Securities Act (Ontario) or the Securities Act (Newfoundland and Labrador),
(f) the Government of Canada or a jurisdiction of Canada, or any
crown corporation, agency or wholly owned entity of the Government of Canada or a jurisdiction of Canada,
(g) a municipality, public board or commission in Canada and a
metropolitan community, school board, the Comite de gestion de la taxe scolaire de I’ile de Montreal or an intermunicipal
management board in Quebec,
(h) any national, federal, state, provincial, territorial or municipal
government of or in any foreign jurisdiction, or any agency of that government,
D-2
(i) a pension fund that is regulated by the Office of the Superintendent
of Financial Institutions (Canada), a pension commission or similar regulatory authority of a jurisdiction of Canada,
(j) an individual who, either alone or with a spouse, beneficially
owns financial assets having an aggregate realizable value that, before taxes, but net of any related liabilities, exceeds C$1,000,000,
(j.1) an individual who beneficially owns financial assets having an
aggregate realizable value that, before taxes but net of any related liabilities, exceeds C$5,000,000,
(k) an individual whose net income before taxes exceeded C$200,000
in each of the 2 most recent calendar years or whose net income before taxes combined with that of a spouse exceeded C$300,000 in each
of the 2 most recent calendar years and who, in either case, reasonably expects to exceed that net income level in the current calendar
year,
(I) an individual who, either alone or with
a spouse, has net assets of at least C$5,000,000,
(m) a person, other than an individual or
investment fund, that has net assets of at least C$5,000,000 as shown on its most recently prepared financial statements,
(n) an investment fund that distributes or has distributed its
securities only to
(i) a person that is
or was an accredited investor at the time of the distribution,
(ii) a person that acquires
or acquired securities in the circumstances referred to in sections 2.10 (Minimum amount investment), or
2.19 (Additional investment in investment funds) of Nl 45-106, or
(iii) a person described
in paragraph (I) or (ii) that acquires or acquired securities under section 2.18 (Investment fund reinvestment) of Nl
45-106,
(o) an investment fund that distributes or
has distributed securities under a prospectus in a jurisdiction of Canada for which the regulator or, in Quebec, the securities regulatory
authority, has issued a receipt,
(p) a trust company or trust corporation
registered or authorized to carry on business under the Trust and Loan Companies Act (Canada) or under comparable legislation in
a jurisdiction of Canada or a foreign jurisdiction, acting on behalf of a fully managed account managed by the trust company or trust
corporation, as the case may be,
(q) a person acting on behalf of a fully
managed account managed by that person, if that person is registered or authorized to carry on business as an adviser or the equivalent
under the securities legislation of a jurisdiction of Canada or a foreign jurisdiction,
(r) a registered charity under the Income
Tax Act (Canada) that, in regard to the trade, has obtained advice from an eligibility adviser or an adviser registered under the
securities legislation of the jurisdiction of the registered charity to give advice on the securities being traded,
(s) an entity organized in a foreign jurisdiction
that is analogous to any of the entities referred to in paragraphs (a) to (d) or paragraph (i) in form and function,
(t) a person in respect of which all of the
owners of interests, direct, indirect or beneficial, except the voting securities required by law to be owned by directors, are persons
that are accredited investors,
(u) an investment fund that is advised by
a person registered as an adviser or a person that is exempt from registration as an adviser,
(v) a person that is recognized or designated
by the securities regulatory authority or, except in Ontario and Quebec, the regulator as an accredited investor, or
(w) a trust established by an accredited
investor for the benefit of the accredited investor’s family members of which a majority of the trustees are accredited investors
and all of the beneficiaries are the accredited investor’s spouse, a former spouse of the accredited investor or a parent, grandparent,
brother, sister, child or grandchild of that accredited investor, of that accredited investor’s spouse or of that accredited investor’s
former spouse.
Derived from section 1.1 of National Instrument 31-103 –
Registration Requirements, Exemptions And Ongoing Registrant Obligations (“Nl 31-103").
Circle ONE of the following categories:
“permitted client" means:
(a) a Canadian financial institution, or a Schedule III bank,
(b) the Business Development Bank of Canada
incorporated under the Business Development Bank of Canada Act (Canada),
(c) a subsidiary of any person referred to in paragraphs (a) or
(b), if the person owns all of the voting securities of the subsidiary, except the voting securities required by law to be owned by directors
of that subsidiary,
(d) a person or company registered under the securities legislation
of a jurisdiction of Canada as an adviser, investment dealer, mutual fund dealer or exempt market dealer;
(e) a pension fund that is regulated by either the federal Office
of the Superintendent of Financial Institutions or a pension commission or similar regulatory authority of a jurisdiction of Canada or
a wholly-owned subsidiary of such a pension fund;
(f) an entity organized in a foreign jurisdiction that is analogous
to any of the entities referred to in paragraphs (a) to (e);
(g) the Government of Canada or a jurisdiction of Canada, or any
Crown corporation, agency or wholly-owned entity of the Government of Canada or a jurisdiction of Canada;
D-3
(h) any national, federal, state, provincial, territorial or municipal
government of or in any foreign jurisdiction, or any agency of that government;
(i) a municipality, public board or commission in Canada and a
metropolitan community, school board, the Comite de gestion de la taxe scolaire de l’ile de Montreal or an intermunicipal
management board in Quebec;
(j) a trust company or trust corporation registered or authorized
to carry on business under the Trust and Loan Companies Act (Canada) or under comparable legislation in a jurisdiction of Canada
or a foreign jurisdiction, acting on behalf of a managed account managed by the trust company or trust corporation, as the case may be;
(k) a person or company acting on behalf of a managed account
managed by the person or company, if the person or company is registered or authorized to carry on business as an adviser or the equivalent
under the securities legislation of a jurisdiction of Canada or a foreign jurisdiction;
(I) an investment fund if one or both of the following apply:
(i) the fund is managed by a person or company registered as an
investment fund manager under the securities legislation of a jurisdiction of Canada;
(ii) the fund is advised by a person or company authorized to
act as an adviser under the securities legislation of a jurisdiction of Canada;
(m) in respect of a dealer, a registered charity under the Income
Tax Act (Canada) that obtains advice on the securities to be traded from an eligibility adviser, as defined in section 1.1 of Nl 45-106,
or an adviser registered under the securities legislation of the jurisdiction of the registered charity;
(n) in respect of an adviser, a registered
charity under the Income Tax Act (Canada) that is advised by an eligibility adviser, as defined in section 1.1 of Nl 45-106, or
an adviser registered under the securities legislation of the jurisdiction of the registered charity;
(o) an individual who beneficially owns financial
assets, as defined in section 1.1 of Nl 45-106, having an aggregate realizable value that, before taxes but net of any related liabilities,
exceeds C$5 million;
(p) a person or company that is entirely
owned by an individual or individuals referred to in paragraph (o), who holds the beneficial ownership interest in the person or company
directly or through a trust, the trustee of which is a trust company or trust corporation registered or authorized to carry on business
under the Trust and Loan Companies Act (Canada) or under comparable legislation in a jurisdiction of Canada or a foreign jurisdiction;
(q) a person or company, other than an individual
or an investment fund, that has net assets of at least C$25 million as shown on its most recently prepared financial statements; or
(r) a person or company that distributes securities of its own
issue in Canada only to persons or companies referred to in paragraphs (a) to (q).
D-4
EX-5.1 — EXHIBIT 5.1
EX-5.1
Filename: tm2619276d1_ex5-1.htm · Sequence: 4
Exhibit 5.1
Davis Polk & Wardwell llp
450 Lexington Avenue
New York, NY 10017
davispolk.com
June 29, 2026
Hertz Global Holdings, Inc.
8501 Williams Road
Estero, Florida 33928
Ladies and Gentlemen:
Hertz Global Holdings, Inc., a Delaware corporation (the “Company”),
has filed with the Securities and Exchange Commission a Registration Statement on Form S-3 (File No. 333-296989)(the “Registration
Statement”) for the purpose of registering under the Securities Act of 1933, as amended (the “Securities Act”),
37,037,037 shares of its common stock, par value $0.01 per share (the “Securities”) to be sold pursuant to the Underwriting
Agreement dated June 24, 2026 (the “Underwriting Agreement”) among the Company and the several underwriters named
therein (the “Underwriters”).
We, as your counsel, have examined originals or copies of such documents,
corporate records, certificates of public officials and other instruments as we have deemed necessary or advisable for the purpose of
rendering this opinion.
In rendering the opinion expressed herein, we have, without independent
inquiry or investigation, assumed that (i) all documents submitted to us as originals are authentic and complete, (ii) all documents
submitted to us as copies conform to authentic, complete originals, (iii) all signatures on all documents that we reviewed are genuine,
(iv) all natural persons executing documents had and have the legal capacity to do so, (v) all statements in certificates of
public officials and officers of the Company that we reviewed were and are accurate and (vi) all representations made by the Company
as to matters of fact in the documents that we reviewed were and are accurate.
Based upon the foregoing, we advise you that, in our opinion, when
the Securities have been issued and delivered against payment therefor, the Securities will be validly issued, fully paid and non-assessable.
We are members of the Bar of the State of New York and the foregoing
opinion is limited to the laws of the State of New York and the General Corporation Law of the State of Delaware.
We hereby consent to the filing of this opinion as an exhibit to a
current report on Form 8-K to be filed by the Company on the date hereof and its incorporation by reference into the Registration
Statement and further consent to the reference to our name under the caption “Legal Matters” in the prospectus supplement,
which is a part of the Registration Statement. In giving this consent, we do not admit that we are in the category of persons whose consent
is required under Section 7 of the Securities Act.
Very truly yours,
/s/ Davis Polk & Wardwell LLP
EX-10.1 — EXHIBIT 10.1
EX-10.1
Filename: tm2619276d1_ex10-1.htm · Sequence: 5
Exhibit 10.1
SHARE LENDING AGREEMENT
Dated as of June 24, 2026
Among
HERTZ GLOBAL HOLDINGS, INC. (“Lender”),
And
J.P. MORGAN SECURITIES LLC (“Borrower”)
This AGREEMENT sets forth the terms and conditions
under which Borrower may borrow from Lender shares of Common Stock (as defined below).
The parties hereto agree as follows:
Section 1. Certain Definitions. The
following capitalized terms shall have the following meanings:
“Business Day” means a day on
which regular trading occurs in the principal trading market for the Common Stock and on which banking institutions in New York City are
generally open for business.
“Cash” means any coin or currency
of the United States as at the time shall be legal tender for payment of public and private debts.
“Clearing Organization” means
The Depository Trust Company, or, if agreed to by Borrower and Lender, such other securities intermediary at which Borrower and Lender
maintain accounts.
“Closing Price” means, on any
day and with respect to the Common Stock, (i) if the Common Stock is listed on a national or regional U.S. securities exchange or
is included in the OTC Bulletin Board Service (operated by the Financial Industry Regulatory Authority, Inc.) or any successor thereto,
the last reported sale price, regular way, in the principal trading session on such day on such market or service on which the Common
Stock is then listed or is included, as the case may be (or, if the day of determination is not a Business Day, the immediately preceding
Business Day), and (ii) if the Common Stock is not so listed or included or if the last reported sale price is not obtainable (even
if the Common Stock is listed on such market or included in such service), the average of the bid prices for the Common Stock obtained
from as many dealers in the Common Stock (which may include Borrower or its affiliates), but not exceeding three, as shall furnish bid
prices available to Lender.
“Collateral” means Eligible
Collateral held in the Collateral Account.
“Collateral Account” means,
collectively, the accounts through which the Collateral Agent holds posted Collateral as contemplated by the JPM Lending Agreements (as
defined below).
“Collateral Agent” has the meaning
set forth in Section 21.
“Common Stock” means the shares
of common stock, par value $0.01 per share, of Lender; provided that, if the Common Stock shall be exchanged for or converted into
any other security, assets and/or other consideration (including cash) as the result of any merger, consolidation, other business combination,
reorganization, reclassification, recapitalization or other corporate action (including, without limitation, a reorganization in bankruptcy),
then, effective upon such exchange or conversion, the amount of such other security, assets and/or other consideration received in exchange
for one share of Common Stock shall be deemed to become one share of Common Stock. For purposes of the foregoing, where a share of Common
Stock may be converted into or exchanged for more than a single type of consideration based upon any form of shareholder election, such
consideration will be deemed to be the weighted average of the types and amounts of consideration actually received by the holders of
the Common Stock.
“Cutoff Time” means 10:00 a.m. in
the jurisdiction of the Clearing Organization, or such other time on a Business Day by which a transfer of Loaned Shares must be made
by Borrower or Lender to the other, as shall be determined in accordance with market practice, in which case such other time will be the
“Cutoff Time.”
“Eligible Collateral” means
any Cash and Eligible Non-Cash Collateral. Each of the parties to this Agreement hereby agrees that Cash and each item within the definition
of Eligible Non-Cash Collateral shall be treated as a “financial asset” as defined by Section 8-102(a)(9) of the
UCC.
“Eligible Non-Cash Collateral”
means U.S. Treasury bills and notes, any irrevocable letter of credit issued by a bank as defined in Section 3(a)(6)(A)-(C) of
the Exchange Act and any other property permitted to serve as collateral securing a loan of securities under Rule 15c3-3 under the
Exchange Act pursuant to exemptive, interpretive or no-action relief or otherwise.
“Exchangeable Notes” means the
$350,000,000 aggregate principal amount of 6.75% Exchangeable Senior First-Lien Secured PIK Notes due 2030 issued by the Notes Issuer
(plus up to an additional $50,000,000 aggregate principal amount of Exchangeable Notes subject to the initial purchasers option
to purchase additional Exchangeable Notes).
“Exchange Act” means the Securities
Exchange Act of 1934, as amended.
“Facility Termination Date”
means the earliest to occur of (i) October 1, 2030; (ii) the date that is three months after the first date following the
Closing Date when none of the Exchangeable Notes remains outstanding and (iii) the date, if any, on which this Agreement is terminated
pursuant to Section 15.
“Indenture” means the indenture
to be dated as of June 29, 2026 between Notes Issuer and Computershare Trust Company, N.A., as trustee (the “Trustee”),
to provide for the form, terms and other provisions of the Exchangeable Notes.
2
“Loaned Shares” means shares
of Common Stock transferred in a Loan hereunder until such Common Stock (or identical Common Stock) is transferred back to Lender hereunder;
provided that, to the extent Borrower subsequently transfers to another transferee shares of Common Stock initially transferred
to Borrower hereunder, “Loaned Shares” means an equivalent number of identical shares of Common Stock. If, as the result
of a stock dividend, stock split or reverse stock split, the number of outstanding shares of Common Stock is increased or decreased, then
the number of outstanding Loaned Shares shall, effective as of the payment or delivery date of any such event, be proportionately increased
or decreased, as the case may be. If the outstanding shares of Common Stock shall be exchanged for or converted into any new or different
security or securities, assets and/or other consideration, as described in the definition of “Common Stock,” such new or different
security or securities, assets and/or other consideration shall, effective upon such exchange or conversion, as the case may be, be deemed
to become a Loaned Share in substitution for the former Loaned Share for which such exchange is made and in the same proportions as described
in the definition of “Common Stock.” For purposes of return of Loaned Shares by Borrower or purchase or sale of securities
pursuant to Section 5 or 11, Borrower may return securities of the same issuer, class and quantity as the Loaned Shares as adjusted
pursuant to the two preceding sentences.
“Lending Agent” has the meaning
set forth in Section 21.
“Market Value” means, on any
day, (i) with respect to Common Stock, the most recent Closing Price of the Common Stock prior to such day and (ii) with respect
to any Collateral that is (a) Cash, the face amount thereof, (b) a letter of credit, the undrawn amount thereof and (c) any
other security or property, the market value thereof, as determined by the Collateral Agent in accordance with market practice for such
securities or property, based on the price for such security or property as of the most recent close of trading obtained from a generally
recognized source or the closing bid quotation at the most recent close of trading obtained from such source, plus accrued interest to
the extent not included therein, unless market practice with respect to the valuation of such securities or property in connection is
to the contrary.
“Notes Issuer” means The Hertz
Corporation, a Delaware corporation.
“Securities Act” means the Securities
Act of 1933, as amended.
“UCC” means the Uniform Commercial
Code as in effect in the State of New York on the date hereof and as it may be amended from time to time.
Section 2. Loan of Shares; Transfer of
Loaned Shares.
(a) Subject to the terms and conditions of
this Agreement, in consideration of Borrower’s agreements hereunder and other good and valuable consideration (the receipt of which
is hereby acknowledged), Lender hereby agrees to lend to Borrower, on the closing date of the initial issuance of the Exchangeable Notes
(the “Closing Date”), 37,037,037 shares of Common Stock through the issuance by Lender of such Loaned Shares upon the
terms, and subject to the conditions, set forth in this Agreement (such issuance and loan, the “Loan”); provided
that Lender shall have no obligation to make the Loan unless the closing of the initial issuance of the Exchangeable Notes shall have
occurred or shall occur substantially contemporaneously therewith. The Loan shall be confirmed through the book-entry settlement system
of the Clearing Organization. The records maintained by the Lending Agent (as defined below) shall constitute conclusive evidence with
respect to the Loan, including the number of shares of Common Stock that are the subject of the Loan.
3
(b) Notwithstanding anything to the contrary
in this Agreement, Borrower shall not be permitted to borrow or have any right to take delivery of, or otherwise receive or be deemed
to have received, any shares of Common Stock hereunder to the extent (but only to the extent) that after receipt of such shares (i) the
Section 16 Percentage would exceed 7.5%, (ii) Borrower, or any “affiliate” or “associate” of Borrower,
would be an “interested stockholder” of Lender, as all such terms are defined in Section 203 of the Delaware General
Corporation Law or (iii) the Share Amount would exceed the Applicable Share Limit. The “Section 16 Percentage”
as of any day is the fraction, expressed as a percentage, (A) the numerator of which is the number of shares of Common Stock that
Borrower and any of its affiliates or any other person subject to aggregation with Borrower for purposes of the “beneficial ownership”
test under Section 13 of the Exchange Act, or any “group” (within the meaning of Section 13 of the Exchange Act)
of which Borrower is or may be deemed to be a part (“Borrower Group”) beneficially owns (within the meaning of Section 13
of the Exchange Act), without duplication, on such day (or, to the extent that for any reason the equivalent calculation under Section 16
of the Exchange Act and the rules and regulations thereunder results in a higher number, such higher number) and (B) the denominator
of which is the number of shares of Common Stock outstanding on such day. The “Share Amount” as of any day is the number
of shares of Common Stock that Borrower and any person whose ownership position would be aggregated with that of Borrower (Borrower or
any such person, a “Borrower Person”) under any law, rule, regulation, regulatory order or organizational documents
or contracts of Lender that are, in each case, applicable to ownership of shares of Common Stock (“Applicable Restrictions”),
owns, beneficially owns, constructively owns, controls, holds the power to vote or otherwise meets a relevant definition of ownership
under any Applicable Restriction, as determined by Borrower in its reasonable discretion. The “Applicable Share Limit”
means a number of shares of Common Stock equal to (A) the minimum number of shares of Common Stock that could give rise to reporting
or registration obligations or other requirements (including obtaining prior approval from any person or entity) of a Borrower Person,
or could result in an adverse effect on a Borrower Person, under any Applicable Restriction, as determined by Borrower in its reasonable
discretion, minus (B) 1% of the number of shares of Common Stock outstanding. If any delivery owed to Borrower hereunder is
not made, in whole or in part, as a result of a limitation set forth in this paragraph, Lender’s obligation to make such delivery
shall not be extinguished and Lender shall make such delivery as promptly as practicable after, but in no event later than one Business
Day after, Borrower gives notice to Lender that such delivery would not result in any such limitation being breached. If, notwithstanding
the foregoing, any delivery of Common Stock is erroneously made to Borrower or Borrower otherwise receives or is deemed to have received
Common Stock in excess of the foregoing limitation contrary to the first sentence of this paragraph, such Common Stock shall remain the
property of Lender and Borrower shall be deemed to hold the same as bailee of Lender and shall have no voting, dispositive control or
pecuniary interest with respect thereto.
4
(c) Borrower agrees to pay Lender a single
loan processing fee (the “Loan Processing Fee”) equal to $0.01 per Loaned Share. The Loan Processing Fee shall be paid
by or on behalf of Borrower on or before the time of transfer of the Loaned Shares. Lender shall apply the Loan Processing Fee to fully
pay for the Loaned Shares.
(d) Lender shall transfer Loaned Shares to
Borrower on or before the Cutoff Time on the Closing Date. Delivery of the Loaned Shares to Borrower shall be made in the manner set forth
under Section 13 below.
Section 3. Collateral.
(a) Borrower shall, no later than the close
of business on the Closing Date, transfer to Collateral Agent, for deposit to the Collateral Account, Eligible Collateral with a Market
Value at least equal to the Market Value of the Loaned Shares as of the Closing Date to be managed in accordance with the JPM Lending
Agreements.
(b) Any Eligible Collateral deposited into
the Collateral Account shall be security for Borrower’s obligations in respect of the Loaned Shares and for any other obligations
of Borrower to Lender hereunder. Borrower hereby pledges, collaterally assigns and grants to Lender and to the Collateral Agent for the
benefit of Lender a continuing first priority security interest in, and a lien upon, the Collateral, which shall attach upon transfer
of the Loaned Shares by Lender to Borrower and which shall cease upon the transfer of any such Collateral to Borrower in accordance with
the terms of this Agreement. In addition to the rights and remedies given to Lender hereunder, Lender shall have all the rights and remedies
of a secured party under the UCC. Notwithstanding anything to the contrary herein, Lender may not use or invest the Collateral and shall
give no instruction to the Collateral Agent or Lending Agent regarding the use or investment of Collateral, except as set forth in Section 11.
(c) Following the transfer to Lender of Loaned
Shares pursuant to Section 5, Lender will, if required by the Collateral Agent, direct the Collateral Agent to release to Borrower
Collateral with a Market Value equal to the Market Value of the Loaned Shares so transferred but only to the extent that immediately following
such transfer of Collateral, no Collateral Deficit would exist; provided that in the case of (x) a transfer to Lender of all
outstanding Loaned Shares, (y) payment in full of Replacement Cash to Lender pursuant to Section 11(b) or (z) satisfaction
of all Borrower’s obligations hereunder as a result of the purchase of Replacement Shares pursuant to Section 11(d), Lender
will, if required by the Collateral Agent, direct the Collateral Agent to release all of the Collateral to Borrower. Such transfer of
Collateral shall be made no later than the Cutoff Time on the day the Loaned Shares are transferred, or if such day is not a day on which
a transfer of such Collateral may be effected under Section 13, or if the transfer of Loaned Shares by Lender to Borrower occurs
after the Cutoff Time on such day, then in each case the next day on which such a transfer may be effected.
(d) If Borrower transfers Collateral to Collateral
Agent, as provided in this Section 3, and Lender does not transfer the Loaned Shares to Borrower, Borrower shall have the absolute
right to the return of the Collateral and Lender shall direct the Collateral Agent accordingly; and if Lender transfers Loaned Shares
to Borrower and Borrower does not transfer Collateral to Collateral Agent as provided in this Section 3, Lender shall have the
absolute right to the return of the Loaned Shares and may direct the Collateral Agent or Lending Agent accordingly.
5
(e) Borrower may, upon notice to Lender and
Collateral Agent, substitute Eligible Collateral for Collateral securing the Loan; provided that such substituted Eligible Collateral
shall have a Market Value such that the aggregate Market Value of such substituted Eligible Collateral, together with all other Collateral,
shall equal or exceed the Market Value of the Loaned Shares as of the date of such substitution.
(f) The parties acknowledge that Lender has
appointed Collateral Agent to act as its agent for purposes of holding Collateral under the SSLA. The parties agree that, without limiting
the generality of the foregoing, Collateral Agent shall not be subject to any fiduciary or other implied duties, other than as set forth
in and subject to the provisions of “Standard of Care; Liabilities and Indemnity” of or otherwise under the SSLA. Borrower
and Lender each agrees that the Collateral Agent shall have no liability for any action taken or omitted to be taken in accordance with
the terms of this Agreement.
Section 4. Mark to Market.
(a) Borrower shall daily mark to market the
Loan hereunder, and if at the close of trading on any Business Day the aggregate Market Value of all Collateral shall be less than the
Market Value of all the outstanding Loaned Shares (a “Collateral Deficit”), Borrower shall transfer to Collateral Agent,
for deposit to the Collateral Account, no later than the following Business Day, additional Collateral so that the Market Value of such
additional Collateral, when added to the Market Value of all other Collateral, shall equal or exceed the Market Value of the Loaned Shares
on such Business Day of determination.
(b) If at the close of trading on any Business
Day the aggregate Market Value of all Collateral shall be greater than the Market Value of all the outstanding Loaned Shares (a “Collateral
Excess”), Borrower may, by notice to Collateral Agent, demand that Collateral Agent transfer to Borrower such amount of the
Collateral selected by Borrower so that the Market Value of the Collateral, after deduction of such amounts, shall thereupon be at least
equal to the Market Value of the Loaned Shares on such Business Day of determination; provided that no Collateral Excess shall
be returned to Borrower if at the time of transfer a Borrower Default has occurred and is continuing.
Section 5. Loan Terminations.
(a) Borrower may terminate all or any portion
of the Loan on any Business Day by giving written notice thereof to Lender and transferring the corresponding number of Loaned Shares
to Lender no later than the fifth Business Day following the date of such notice, without any consideration being payable in respect thereof
by Lender to Borrower; provided that such termination shall not relieve Borrower from the obligation to make such other payments
and/or deliveries required to be made by it to Lender hereunder, including any such payments and/or deliveries pursuant to Section 6
hereof. Any such Loan termination shall be effective immediately upon delivery of the applicable Loaned Shares in accordance with the
terms hereof.
6
(b) Subject to Section 11 below,
the Loan shall terminate on the Facility Termination Date, and all Loaned Shares, if any, then outstanding shall be delivered by Borrower
to Lender, without any consideration being payable in respect thereof by Lender to Borrower, no later than the fifth Business Day following
the Facility Termination Date; provided that such termination shall not relieve Borrower from the obligation to make such other
payments and/or deliveries required to be made by it to Lender hereunder, including any such payments and/or deliveries pursuant to Section 6
hereof.
(c) Subject to Section 11 below,
if the Loan is terminated upon the occurrence of a Default as set forth in Section 10, the Loaned Shares shall be delivered
by Borrower to Lender, without any consideration being payable in respect thereof by Lender to Borrower, no later than the fifth Business
Day following the termination date of the Loan as provided in Section 10; provided that such termination shall not relieve
Borrower from the obligation to make such other payments and/or deliveries required to be made by it to Lender hereunder, including any
such payments and/or deliveries pursuant to Section 6 hereof.
Section 6. Distributions.
(a) If, at any time when there are Loaned
Shares outstanding under this Agreement, Lender pays a cash dividend or makes a cash distribution in respect of all its outstanding shares
of Common Stock, Borrower shall pay to Lender (whether or not Borrower is a holder of any or all of the outstanding Loaned Shares), within
five Business Days after the payment of such dividend or distribution, an amount in cash equal to the product of (i) the amount per
share of Common Stock of such dividend or distribution, as the case may be, and (ii) the number of Loaned Shares outstanding at such
time; provided that if Borrower returns any Loaned Shares to Lender following a record date for such a dividend or distribution
on such Loaned Shares but prior to the payment of such dividend or distribution on such Loaned Shares, Borrower shall nonetheless pay
to Lender the amount of such dividend or distribution, as the case may be, within five Business Days after the payment of such dividend
or distribution.
(b) If, at any time when there are Loaned
Shares outstanding under this Agreement, Lender makes a distribution in respect of its outstanding Common Stock (other than a distribution
upon liquidation or a reorganization in bankruptcy) in property or securities, other than a distribution of Common Stock, including any
options, warrants, rights or privileges in respect of securities (including any options, warrants, rights or privileges exercisable for,
convertible into or exchangeable for Common Stock) to the then holder or holders of such Loaned Shares (a “Non-Cash Distribution”),
then, without prejudice to Borrower’s rights under Section 5(a) above, Borrower shall, at its option, either (i) deliver
to Lender (whether or not Borrower is a holder of any or all of the outstanding Loaned Shares) in kind, within five Business Days after
the date of such Non-Cash Distribution, the property or securities distributed in an amount equal to the product of (x) the amount
per share of Common Stock of such Non-Cash Distribution and (y) the number of Loaned Shares on the record date for such Non-Cash
Distribution or (ii) elect that the number of Loaned Shares then outstanding under this Agreement shall be deemed adjusted in the
same manner as the conversion rate of the Exchangeable Notes is required to be adjusted in respect of such Non-Cash Distribution; provided
that if Borrower returns any Loaned Shares to Lender following a record date for such a distribution on such Loaned Shares but prior to
the payment of such distribution on such Loaned Shares, Borrower shall nonetheless comply with the provisions of this subsection (b) as
if such Loaned Shares were outstanding on the date of such distribution. If clause (i) above applies, the provisions of Section 11(b) shall
apply, mutatis mutandis, to any such property or securities to be delivered by Borrower as if such securities or property were
Loaned Shares and the Agreement had been terminated.
7
(c) Any interest or other cash payment made
on or in respect of any Collateral hereunder shall, subject to subsection (e) below, be delivered by the Collateral Agent to
Borrower on the date such interest or other cash payment is received by the Collateral Agent and Lender shall deliver any required instruction
to Collateral Agent accordingly.
(d) Any non-cash distribution made on or
in respect of any Collateral hereunder shall, subject to subsection (e) below, be delivered by the Collateral Agent to Borrower
on the date such non-cash distribution is received by the Collateral Agent and Lender shall deliver any required instruction to Collateral
Agent accordingly.
(e) If the cash or other property received
by the Collateral Agent under the provisions of subsection (c) or (d) of this Section 6 qualifies as Collateral,
to the extent that a transfer of such cash or other property to Borrower by the Collateral Agent would give rise to a Collateral Deficit,
the Collateral Agent shall (only to the extent of any such Collateral Deficit) not make such transfer of cash or other property in accordance
with this Section 6, but shall in lieu of such transfer immediately credit the amounts that would have been transferable under
this Section 6 to the Collateral Account, and the parties shall deliver any required instruction to the Collateral Agent accordingly
.
Section 7. Rights in Respect of Loaned
Shares.
Subject to the terms of this Agreement, including
Borrower’s obligation to return the Loaned Shares in accordance with the terms of this Agreement, and except as otherwise agreed
by Borrower and Lender or Borrower and any subsequent transferee of Loaned Shares, insofar as such person is the owner of any such Loaned
Shares, such person shall have all of the incidents of ownership in respect of any such Loaned Shares, including the right to transfer
the Loaned Shares to others.
Section 8. Representations and Warranties.
(a) Each of Borrower and Lender represent
and warrant to the other that:
(i) it has full power to execute and deliver
this Agreement, to enter into the Loan contemplated hereby and to perform its obligations hereunder;
(ii) it has taken all necessary action to authorize
such execution, delivery, entry and performance;
(iii) this Agreement constitutes its legal,
valid and binding obligation, enforceable against it in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally, and subject, as to enforceability,
to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether
enforcement is sought in a proceeding at law or in equity) and except that rights to indemnification and contribution hereunder may be
limited by federal or state securities laws or public policy relating thereto; and
8
(iv) the execution, delivery and performance
of this Agreement does not and will not violate, contravene, or constitute a default under, (A) its certificate or articles of incorporation,
bylaws or other governing documents, (B) any laws, rules or regulations of any governmental authority to which it is subject,
(C) any material contracts, agreements or instrument to which it is a party or (D) any judgment, injunction, order or decree
by which it is bound.
(b) Lender represents and warrants to Borrower,
as of the date hereof, and as of the date the Loaned Shares are transferred to Borrower in respect of the Loan hereunder, that the Loaned
Shares and all other outstanding shares of Common Stock of Lender have been duly authorized and, upon the issuance and delivery of such
Loaned Shares to Borrower in accordance with the terms and conditions hereof, will be duly authorized, validly issued, fully paid non-assessable
shares of Common Stock, and the shareholders of Lender have no preemptive rights with respect to such Loaned Shares.
(c) Lender represents and warrants to Borrower
as of the date the Loaned Shares are transferred to Borrower in respect of the Loan hereunder, that all of the Loaned Shares have been
approved for listing on Nasdaq Global Select Market, subject to official notice of issuance.
(d) Borrower represents to Lender that it
has, or at the time of transfer to the Collateral Agent shall have, the right to grant to Lender, and Lender shall acquire a continuing
first priority security interest in the Collateral.
(e) Lender acknowledges that Borrower is
not making any representations or warranties or taking any position or expressing any view with respect to the treatment of this Agreement
or the Loan under any accounting standards.
(f)Lender acknowledges that it has received the
disclosures attached hereto as Annex A.
(g)
Lender represents and warrants that no state or local (including non-U.S. jurisdictions) law, rule, regulation or regulatory order applicable
to the Common Stock due to the nature of Lender’s or any of its subsidiaries’ business (excluding banking laws, rules, regulations
or regulatory orders and any other law, rule, regulation or regulatory order that is applicable to Borrower due to the nature of Borrower’s
business) in any jurisdiction in which Lender or any subsidiary thereof is organized, conducts business, operates or is licensed on the
date hereof would give rise to any reporting, consent, registration or other requirement (including without limitation a requirement to
obtain prior approval from any person or entity) solely as a result of Borrower or its affiliates owning or holding (however defined)
shares of Common Stock due to the nature of Lender’s or any of its subsidiaries’ business.
9
(h) Lender represents and warrants that it
is not in possession of any material non-public information regarding Lender or the Common Stock, and is entering into this Agreement
in good faith and not as part of a plan or scheme to evade compliance with federal securities laws including, without limitation, Rule 10b-5
under the Exchange Act or any other antifraud or anti-manipulation provisions of the federal or applicable state securities laws.
(i) Lender
represents and warrants to Borrower, as of the date the Loaned Shares are transferred to Borrower in respect of the Loan hereunder, that
Lender is not “insolvent” (as such term is defined under Section 101(32) of Title 11 of the United States Code (the “Bankruptcy
Code”) and Lender would be able to purchase the number of shares of Common Stock
lent hereunder in compliance with the corporate law of Lender’s jurisdiction of incorporation.
(j) Lender represents and warrants to Borrower
that, as of the date hereof, and as of the date the Loaned Shares are transferred to Borrower in respect of the Loan hereunder, Lender
is not, and will not be required to register as, an “investment company” as such term is defined in the Investment Company
Act of 1940, as amended.
(k) Lender represents and warrants to Borrower
that Lender (A) is capable of evaluating investment risks independently, both in general and with regard to all transactions and
investment strategies involving a security or securities; (B) will exercise independent judgment in evaluating the recommendations
of any broker-dealer or its associated persons, unless it has otherwise notified the broker-dealer in writing; and (C) has total
assets of at least $50 million as of the date hereof.
(l) Lender represents and warrants that it
(and any successor entity) is, and at any time during which a Loan made pursuant to this Agreement is outstanding will be, a United States
person within the meaning of Section 7701(a)(30) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”).
(m) Borrower represents and warrants that
it (and any successor entity) is, and at any time during which a Loan made pursuant to this Agreement is outstanding will be, a United
States person within the meaning of Section 7701(a)(30) of the Code.
(n) Borrower represents and warrants to Lender
that any shares of Common Stock that Borrower transfers to Lender in respect of any Loan termination, and any property or securities comprising
any Non-Cash Distribution that Borrower transfers to Lender, in each case, shall be made free from any lien, charge, claim or other encumbrance
or restrictions (other than (x) a lien, charge, claim or other encumbrance or restriction routinely imposed on all securities by
the relevant Clearance System and (y) any lien, charge, claim or other encumbrance or restriction (i) in the case of any shares
of Common Stock, that exists in respect to all outstanding shares of Common Stock and (ii) in the case of any property or securities
comprising any Non-Cash Distribution, that exists in respect of all such property or securities so distributed).
(o) The representations and warranties of
Borrower and Lender under this Section 8 shall remain in full force and effect at all times during the term of this Agreement
and shall survive the termination for any reason of this Agreement.
10
Section 9. Covenants.
(a) The parties hereto acknowledge that Borrower
has informed Lender that Borrower is a “financial participant” within the meaning of Section 101(22A) of the Bankruptcy
Code. The parties hereto further acknowledge and agree that (i) the Loan hereunder is intended to be a “securities contract,”
as such term is defined in Section 741(7) of the Bankruptcy Code; (ii) each and every transfer of funds, securities and
other property under this Agreement is intended to be a “transfer” and a “settlement payment” or a “margin
payment,” as such terms are used in Section 546(e) of the Bankruptcy Code; and (iii) Borrower is intended to be entitled
to the protections afforded by, among other sections, Sections 362(b)(6), 546(e), 555 and 561 of the Bankruptcy Code.
(b) Lender shall, no later than five Business
Days prior to any repurchase of Common Stock, give Borrower a written notice of such repurchase (a “Repurchase Notice”)
if, following such repurchase, the Outstanding Borrow Percentage as determined on such day after giving effect to such repurchase would
be greater than 10.9061% or, after the first such Repurchase Notice, greater by 0.5% than the Outstanding Borrow Percentage included in
the immediately preceding Repurchase Notice. The “Outstanding Borrow Percentage” as of any day is the fraction (A) the
numerator of which is the aggregate number of Loaned Shares outstanding on such day and (B) the denominator of which is the number
of shares of Common Stock outstanding on such day, including such Loaned Shares.
(c) Lender covenants and agrees that, unless
otherwise agreed to by Borrower in writing, Lender shall not, and shall not permit any of its direct or indirect subsidiaries, or any
entity or person controlled by Lender, to, directly or indirectly, purchase shares of Common Stock if, after giving effect to such purchase,
the Outstanding Borrow Percentage shall be greater than 10.9061%.
(d) Upon the request of Borrower, Lender
shall promptly provide Borrower with a written confirmation of the number of its outstanding shares of Common Stock as of the date of
such request, including Common Stock represented by all outstanding Loaned Shares.
(e) Borrower covenants and agrees with Lender
that, insofar as Borrower or any of its affiliates is the record owner of any Loaned Shares, Borrower shall use good faith efforts to
use such Loaned Shares solely for the purpose of directly or indirectly facilitating the sale of the Exchangeable Notes and hedging activities
(including short sales of such Loaned Shares) relating to the Exchangeable Notes by the holders thereof.
(f) Lender covenants and agrees that upon
the occurrence of any event described in the definition of “Common Stock” that results in the right of holders of Common Stock
to receive more than one type of consideration based upon any form of shareholder election, Lender shall notify Borrower promptly (but
in any case prior to the effective date of such event) of the weighted average of the types and amounts of consideration actually received
by the holders of the Common Stock.
11
(g) Borrower and Lender (and each of their
respective successors or permitted assigns) agree to deliver the following documents, as applicable:
Party required to
deliver document
Form/Document/
Certificate
Date by which to be
delivered
Borrower
A complete and accurate U.S. Internal Revenue Service Form W-9 (or successor thereto).
(A) Prior to becoming a party to this Agreement and (B) promptly upon learning that any form or other document previously provided to Collateral Agent or Lender has become obsolete or incorrect.
Lender
A complete and accurate U.S. Internal Revenue Service Form W-9 (or successor thereto).
(A) Prior to becoming a party to this Agreement and (B) promptly upon learning that any form or other document previously provided to Borrower has become obsolete or incorrect.
Section 10. Events of Default. The
Loan may, at the option of Lender (in the case of a Default by Borrower) or Borrower (in the case of a Default by Lender) by a written
notice to the other parties (which option shall be deemed exercised, even if no notice is given, immediately on the occurrence of an event
specified in Section 10(e) or 10(f) below), be terminated (1) immediately on the occurrence of any of the
events set forth in Section 10(e) or 10(f) below or (2) two Business Days following such notice on the occurrence
of any of the other events set forth below (each, a “Default”):
(a) Subject to Section 11 below, Borrower
fails to deliver Loaned Shares to Lender as required by Section 5;
(b) Borrower (subject to the last sentence
of Section 6(b)) or Lender fails to deliver or pay to Lender or Borrower, respectively, when due any cash, securities or other property
as required by Section 6 or otherwise;
12
(c) Borrower or Lender fails to transfer
or return Collateral when due as required by Section 3 and Section 4 or otherwise;
(d) Borrower or Lender fails to pay Lender
or Borrower, respectively, any amount when due as required by Section 11;
(e) the filing by or on behalf of Lender
or Borrower of a voluntary petition or an answer seeking reorganization, arrangement, readjustment of its debts or for any other relief
under any bankruptcy, reorganization, compromise, arrangement, insolvency, readjustment of debt, dissolution, moratorium, delinquency,
winding-up or liquidation or similar act or law, of any state, federal or other applicable foreign jurisdictions, now or hereafter existing
(“Bankruptcy Law”), or any action by such party for, or consent or acquiescence to, the appointment of a receiver,
trustee, conservatory, custodian or similar official of such party, or of all or a substantial part of its property; or the making by
such party of a general assignment for the benefit of creditors; or the admission by such party in writing of its inability to pay its
debts as they become due;
(f) the filing of any involuntary petition
against Lender or Borrower in bankruptcy or seeking reorganization, arrangement, readjustment of its debts or for any other relief under
any Bankruptcy Law and an order for relief by a court having jurisdiction in the premises shall have been issued or entered therein; or
any other similar relief shall be granted under any applicable federal or state law or law of any other applicable foreign jurisdictions;
or a decree or order of a court having jurisdiction in the premises for the appointment of a receiver, liquidator, sequestrator, trustee
or other officer having similar powers over such party or over all or a part of its property shall have been entered; or the involuntary
appointment of an interim receiver, trustee or other custodian of such party or of all or a substantial part of its property or the issuance
of a warrant of attachment, execution or similar process against any substantial part of the property of such party; and continuance of
any such event for 15 consecutive calendar days unless dismissed, bonded to the satisfaction of the court having jurisdiction in the premises
or discharged;
(g) Lender fails to provide any indemnity
as required by Section 14; provided that Borrower may waive such Default by Lender in its sole discretion;
(h) Borrower or Lender notifies Lender or
Borrower, respectively, of its inability to or intention not to perform its obligations hereunder or otherwise disaffirms, fails to perform,
rejects or repudiates any of its obligations hereunder; or
(i) any representation made by Borrower or
Lender under this Agreement shall be incorrect or untrue in any material respect when made or Borrower or Lender fails to comply in any
material respect with any of its covenants under this Agreement.
13
Section 11. Right to Extend; Lender’s
Remedies.
(a) Except to the extent the Loan is terminated
pursuant to Section 5(c) as a result of a Default by Borrower, Borrower may, following the termination of all or any portion
of the Loan pursuant to Section 5, delay the date on which the related Loaned Shares are due to Lender for up to an additional
75 Business Days (the “Settlement Due Date”, as so delayed to the extent applicable), with respect to some or all (as
the case may be) of such Loaned Shares, if Borrower reasonably determines in good faith based on the advice of counsel that such extension
with respect to some or all (as the case may be) of such Loaned Shares is reasonably necessary to enable Borrower (or any of its affiliates)
to effect purchases of Common Stock related to the delivery of Loaned Shares due to Lender in connection with this Agreement in a manner
that (x) would be in compliance with (i) legal and regulatory requirements or related policies and procedures applicable to
Borrower or such affiliates in purchasing such shares of Common Stock or (ii) legal and regulatory requirements that would be applicable
if Borrower were deemed to be Lender or an affiliated purchaser of Lender in purchasing such shares of Common Stock and (y) shall
not be commercially impracticable, as a result of illiquidity in the relevant market or otherwise, in the reasonable judgment of Borrower,
in the time period required by Section 5.
(b) Upon the termination of the Loan by Lender
or Borrower under Section 10, Borrower may, with the prior written consent of Lender (solely in the case of a termination of
the Loan by Lender), in lieu of the delivery of Loaned Shares to Lender in accordance with Section 5(c), pay to Lender, no later
than five Business Days following notice of such Default, an amount in immediately available funds (the “Replacement Cash”)
equal to the Market Value of the Loaned Shares otherwise required to be delivered as of the date of such notice of Default; provided
that Borrower may (and at the instruction of Borrower, Lender shall) direct the Collateral Agent to deliver to Lender any Collateral held
by the Collateral Agent in respect of the Loan so terminated and, to the extent the Market Value of any such Collateral delivered to Lender
is less than the required amount of Replacement Cash, pay to Lender such difference in immediately available funds. Any Collateral in
respect of the Loan so terminated that is not so delivered to Lender pursuant to this subsection shall, upon payment in full of the Replacement
Cash to Lender, be immediately delivered by Collateral Agent to Borrower and Lender shall deliver any required instruction to Collateral
Agent accordingly.
(c)If, upon the termination of the Loan as a result
of a Default by Borrower under Section 5(c), the purchase of Common Stock in an amount equal to all or any portion of the Loaned
Shares to be delivered to Lender by Borrower in accordance with Section 5(c) of this Agreement (i) shall be prohibited
by any law, rules or regulation of any governmental authority to which it is or would be subject or any related policies and procedures,
(ii) shall violate, or would upon such purchase reasonably likely violate, any order or prohibition of any court, tribunal or other
governmental authority, (iii) shall require the prior consent of any court, tribunal or governmental authority prior to any such
repurchase, (iv) would subject Borrower, based on the advice of counsel to the Borrower, to any liability or potential liability
under any applicable federal securities laws (including, without limitation, Section 16 of the Exchange Act) or (v) shall be
commercially impracticable in the time period required by Section 5(c), in the commercially reasonable judgment of Borrower
as a result of a demonstrable legal or regulatory impediment (including regulations of self-regulatory organizations) to such purchases
(each of (i), (ii), (iii), (iv) and (v), a “Legal Obstacle”), then, in each case, Borrower shall immediately notify
Lender of the Legal Obstacle and the basis therefor, whereupon Borrower’s obligations under Section 5(c) shall be
suspended until such time as no Legal Obstacle with respect to such obligations shall exist (a “Repayment Suspension”).
Following the occurrence of and during the continuation of any Repayment Suspension, Borrower shall use commercially reasonable efforts,
subject to applicable law and regulation and its and its affiliates’ policies and procedures, to remove or cure the Legal Obstacle
as promptly as reasonably practicable; provided that (except in circumstances where the Legal Obstacle resulted from the failure
by Borrower to comply with applicable securities laws or regulations) Lender shall promptly reimburse all reasonable actual out-of-pocket
costs and expenses (including of legal counsel to Borrower) incurred or, at Borrower’s election, provide reasonably adequate surety
or guarantee for any such costs and expenses that may be incurred by Borrower, in each case, in removing or curing such Legal Obstacle;
and provided further that, if Borrower cannot remove or cure the Legal Obstacle within ten Business Days, then Lender shall have
the right, exercisable in its sole discretion, to (x) notify Borrower of its election that Borrower pay to Lender, in lieu of the
Loaned Shares otherwise due in accordance with Section 5(c), Replacement Cash in an amount equal to the Market Value as of the
date of such notice of the Loaned Shares otherwise due and (y) direct the Collateral Agent to, and the Collateral Agent upon receipt
of the written request of Lender (with a copy to Borrower but without any further consent of Borrower) shall, release to Lender an amount
of Collateral with a market value as of the date of such notice to Borrower equal to the amount of such Replacement Cash, whereupon the
Borrower’s obligation to return the specified number of Loaned Shares to the Lender or to pay such Replacement Cash shall be automatically
extinguished.
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(d) If Borrower shall fail to deliver Loaned
Shares to Lender pursuant to Section 5(c) when due or shall fail to pay the Replacement Cash to Lender when due in accordance
with Section 11(b) or (c) above, then, in either case, in addition to any other remedies available to Lender under this
Agreement or under applicable law, Lender shall have the right (upon prior written notice to Borrower) to purchase a like amount of Loaned
Shares (“Replacement Shares”) in the principal market for such securities in a commercially reasonable manner. To the
extent Lender shall exercise such right, (i) Borrower’s obligation to return a like amount of Loaned Shares or to pay the Replacement
Cash, as applicable, shall terminate and Borrower shall be liable to Lender for the purchase price of Replacement Shares, (ii) Lender
shall have the right to direct the Collateral Agent to sell any Collateral in the principal market for such Collateral in a commercially
reasonable manner and (iii) Lender shall have the right to apply and set off the Collateral and any proceeds thereof (including any
amounts drawn under a letter of credit supporting the Loan) against the payment of the purchase price for such Replacement Shares (plus
all other amounts, if any, due to Lender hereunder). In the event that (x) the purchase price of Replacement Shares (plus
all other amounts, if any, due to Lender hereunder) exceeds (y) the Market Value of the Collateral, Borrower shall be liable to Lender
for the amount of such excess. The purchase price of Replacement Shares purchased under this Section 11 shall include, and the
proceeds of any sale of Collateral shall be determined after deduction of, brokers’ fees and commissions and all other reasonable
costs, fees and expenses related to such purchase and sale. In the event Lender exercises its rights under this Section 11,
Lender may elect in its sole discretion, in lieu of purchasing all or a portion of the Replacement Shares or selling all or a portion
of the Collateral, to be deemed to have made, respectively, such purchase of Replacement Shares or sale of Collateral for an amount equal
to the Closing Price of the Common Stock on the date Lender elects to exercise this remedy. Upon the satisfaction of all Borrower’s
obligations hereunder, any remaining Collateral shall be returned to Borrower and Lender shall deliver any required instruction to Collateral
Agent accordingly.
15
(e) If upon Lender’s instruction the
Collateral Agent fails to transfer Collateral, if any, to Borrower when due as required by Section 3 and Section 4,
or if a Default shall occur with respect to Lender, then Borrower shall have the right (without further notice to Lender) to (i) purchase
a like amount of Collateral (which amount may be all of the Collateral in the case of a Default with respect to Lender) (“Replacement
Collateral”) in the principal market for such Collateral in a commercially reasonable manner, (ii) sell a like amount of
Loaned Shares in the principal market for such Loaned Shares in a commercially reasonable manner and (iii) apply and set off Borrower’s
obligation to return such Loaned Shares and any proceeds thereof against the payment of the purchase price for such Replacement Collateral,
Lender’s obligation to return any cash or other Collateral to Borrower and any amounts due to Borrower under this Agreement. To
the extent Borrower shall exercise such right, Lender’s obligation to return a like amount of Collateral shall terminate. In the
event that (i) the purchase price of Replacement Collateral (plus all other amounts, if any, due to Lender hereunder) exceeds (ii) the
sale price of the Loaned Shares, Lender shall be liable to Borrower for the amount of such excess. The purchase price of Replacement Collateral
purchased under this Section 11 shall include, and the proceeds of any sale of Loaned Shares shall be determined after deduction
of, broker’s fees and commissions and all other reasonable costs, fees and expenses related to such purchase and sale. In the event
Borrower exercises its rights under this Section 11, Borrower may elect in its sole discretion, in lieu of selling all or a
portion of the Loaned Shares or purchasing all or a portion of the Replacement Collateral, to be deemed to have made, respectively, such
sale of Loaned Shares or such purchase of the Replacement Collateral for an amount equal to the Closing Price of the Loaned Shares or
the Market Value of the Collateral, respectively, on the date Borrower elects to exercise this remedy. Upon the satisfaction of all Lender’s
obligations hereunder, any remaining Loaned Shares shall be returned to Lender and Lender may direct the Lending Agent accordingly.
(f) Notwithstanding anything to the contrary,
the parties hereto agree that no special, indirect or consequential damages shall be due in connection with, arising out of, or in relation
to this Agreement.
Section 12. Taxes.
(a) All transfer taxes with respect to the
transfer of the Loaned Shares by Lender to Borrower and by Borrower to Lender upon termination of the Loan and with respect to the transfer
of Collateral by Borrower to Collateral Agent and by Collateral Agent to Borrower upon termination of the Loan or pursuant to Section 3(e) or
Section 4 shall be paid by Lender.
(b) Any and all payments by or on account
of any obligation of any party in respect of this Agreement shall be made free and clear of, and without deduction or withholding for
or on account of, any and all present or future taxes or withholdings, unless required under applicable law. To the extent that amounts
are so withheld and paid to the proper taxing authority pursuant to any applicable law, such withheld amounts shall be treated for all
purposes of this Agreement as having been paid to such person in respect of which such deduction and withholding was made.
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Section 13. Transfers.
(a) All transfers of Loaned Shares to Borrower
hereunder shall be made by the crediting by a Clearing Organization of such Loaned Shares to Borrower’s “securities account”
(within the meaning of Section 8-501 of the UCC) designated by Borrower and maintained with such Clearing Organization. All transfers
of Loaned Shares to Lender hereunder shall be made by the crediting by a Clearing Organization of such Loaned Shares to Lender’s
“securities account” (within the meaning of Section 8-501 of the UCC) designated by Lender and maintained with such Clearing
Organization; provided that, if Lender does not provide all relevant details with respect to such “securities account”
to Borrower promptly upon request, Borrower shall be deemed to have satisfied its obligation to transfer Loaned Shares to Lender under
Section 5 upon its notice to Lender that such Loaned Shares are available for transfer, and thereafter Borrower shall be deemed
to hold the same as bailee of Lender. In every transfer of Loaned Shares hereunder, the transferor shall take all steps necessary (a) to
effect a delivery to the transferee under Section 8-301 of the UCC, or to cause the creation of a security entitlement in favor of
the transferee under Section 8-501 of the UCC, (b) to enable the transferee to obtain “control” (within the meaning
of Section 8-106 of the UCC), and (c) to provide the transferee with comparable rights under any applicable foreign law or regulation
that is applicable to such transfer. Notwithstanding anything to the contrary in the forgoing, if required by the Lending Agent (as defined
below), the Loaned Shares shall, subject to the terms of this Agreement (including Section 2(b) hereunder) be delivered to Borrower
by Lender by crediting such Loaned Shares to the “Lending Account” (as defined in the SSLA), and Borrower borrowing such Loaned
Shares from the Lending Account pursuant to the JPM Lending Agreements and the procedures of the Lending Agent.
(b) All transfers of cash hereunder to Borrower
or Lender shall be by wire transfer in immediately available, freely transferable funds.
(c) A transfer of securities or cash may
be effected under this Section 13 on any day except (i) a day on which the transferee is closed for business at its address
set forth in Section 17 or (ii) a day on which a Clearing Organization or wire transfer system is closed, if the facilities
of such Clearing Organization or wire transfer system are required to effect such transfer, in which case under clause (i) or (ii),
such transfer shall be made on the immediately following day on which such exceptions are not in effect.
(d) To the
extent permitted by law, neither this Agreement nor any interest or obligation in or under this Agreement may be transferred (whether
by way of security or otherwise) by any party without the prior written consent of the other parties; provided that, subject to
Section 9(g), Borrower may, without the consent of Lender, transfer or assign all or any part of its rights or obligations under
this Agreement to any of Borrower’s affiliates (i) if Borrower determines that such transfer is required or advisable in light
of legal and regulatory requirements or related policies and procedures applicable to Borrower or its affiliates or (ii) if, absent
such transfer, Borrower or any of its affiliates would incur a materially increased cost or other increased expense (compared to such
cost of expenses as of the date hereof) or would experience any other material adverse effect so long as such transfer or assignment would
not reasonably be expected to result in materially adverse tax consequences for Lender and (x) such affiliate has a long-term
issuer rating that is equal to or better than Borrower’s credit rating at the time of such transfer or assignment, (y) such
affiliate’s obligations hereunder will be guaranteed, pursuant to the terms of a customary guarantee in a form used by Borrower
generally for similar transactions, by Borrower or JPMorgan Chase & Co. or (z) such affiliate has a long-term issuer rating
equal to or better than A- by Standard and Poor’s Rating Group, Inc. or its successor (“S&P”) or A3
by Moody’s Investor Service, Inc. or its successor (“Moody’s”) or, if either S&P or Moody’s
ceases to rate such debt, at least an equivalent rating or better by a substitute rating agency mutually agreed by Borrower and Lender.
Subject to the foregoing, this Agreement shall be binding upon and shall inure to the benefit of Borrower, Lender and their respective
successors and permitted assigns; provided further, that such affiliate shall be a United States persons within the meaning of
Section 7701(a)(30) of the Code and the Lender will not, as a result of any withholding or deduction made by the transferee or assignee
as a result of any tax, receive from the transferee or assignee an amount or a number of Loaned Shares, as applicable, lower than the
amount or the number of Loaned Shares, as applicable, that Lender would have been entitled to receive in the absence of such transfer.
Any purported transfer that is not in compliance with this Section 13(d) shall be null and void.
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Section 14. Indemnification.
(a) Lender hereby agrees to indemnify and
hold harmless Borrower and its affiliates and its former, present and future directors, officers and employees from and against any and
all liabilities, judgments, claims, settlements, losses, damages and other expenses (including, without limitation, direct losses relating
to Borrower’s market activities as a consequence of becoming subject to Section 16(b) under the Exchange Act, and including,
without limitation, any forbearance from market activities or cessation of market activities and any losses in connection therewith or
with respect to this Agreement) (collectively, “Losses”) incurred or suffered by any such person or entity directly
arising from (i) any material breach by Lender of any of its representations or warranties contained in Section 8 or (ii) any
material breach by Lender of any of its covenants or agreements in this Agreement; provided, however, that Lender shall
not be liable for any Losses arising from (A) any material breach by Borrower of any of its representations or warranties contained
in Section 8 or (B) any material breach by Borrower of any of its covenants or agreements in this Agreement.
(b) In case any claim or litigation which
might give rise to any obligation of Lender under this Section 14 (each an “Indemnifying Party”) shall come
to the attention of the party seeking indemnification hereunder (the “Indemnified Party”), the Indemnified Party shall
within five Business Days notify the Indemnifying Party in writing of the existence and amount thereof; provided that the failure
of the Indemnified Party to give such notice shall not adversely affect the right of the Indemnified Party to indemnification under this
Agreement, except to the extent the Indemnifying Party is materially prejudiced thereby. The Indemnifying Party shall promptly notify
the Indemnified Party in writing if it accepts such claim or litigation as being within its indemnification obligations under this Section 14.
Such response shall be delivered no later than 45 days after the initial notification from the Indemnified Party; provided that,
if the Indemnifying Party reasonably cannot respond to such notice within 45 days, the Indemnifying Party shall respond to the Indemnified
Party as soon thereafter as reasonably possible.
18
(c) An Indemnifying Party shall be entitled
to participate in and, if (i) in the good faith judgment of the Indemnified Party such claim can properly be resolved by money damages
alone and the Indemnifying Party has the financial resources to pay such damages and (ii) the Indemnifying Party admits that this
indemnity fully covers the claim or litigation, the Indemnifying Party shall be entitled to direct the defense of any claim at its expense,
but such defense shall be conducted by legal counsel reasonably satisfactory to the Indemnified Party. An Indemnified Party shall not
make any settlement of any claim or litigation under this Section 14 without the written consent of the Indemnifying Party (such
consent not to be unreasonably withheld or delayed). Nothing in this subsection (c) shall be deemed to limit, or be a waiver
of either party in respect of, this Section 14.
Section 15. Termination of Agreement.
(a) This Agreement may be terminated (i) at
any time by the written agreement of Lender and Borrower, (ii) by Lender (upon the occurrence of a Default with respect to Borrower)
or Borrower (upon the occurrence of a Default with respect to Lender), or (iii) otherwise as specified in Section 5.
(b) Unless otherwise agreed by Borrower and
Lender, the provisions of this Agreement shall survive the termination of this Agreement.
Section 16. Amendments. No amendment
or modification in respect of this Agreement shall be effective unless it shall be in writing and signed by the parties hereto.
Section 17. Notices.
(a) All notices and other communications
hereunder shall be in writing and shall be deemed to have been duly given when received.
(b) All such notices and other communications
shall be directed to the following address:
(i) If to Borrower to:
J.P. Morgan Securities LLC
EDG Marketing Support
Email: edg_notices@jpmorgan.com
edg.us.flow.corporates.mo@jpmorgan.com
Facsimile No: 1-866-886-4506
With a copy to:
Attention: Santosh Sreenivasan
Title: Managing Director
Telephone No: (212) 622-5604
Email: santosh.sreenivasan@jpmorgan.com
19
(ii) If to Lender to:
The Hertz Corporation
8501 Williams Road,
Estero, FL 33928
Fax: +1.866.444.2755
Attention: Christopher M. Murphy; Adrian Nasr,
Email: christopher.murphy2@hertz.com; adrian.nasr@hertz.com
or, in the case of any party, at such other address as may be designated
by written notice to the other parties.
Section 18. Governing Law; Submission To
Jurisdiction; Severability.
(a) This Agreement shall be governed by and
construed in accordance with the laws of the State of New York, but excluding any choice of law provisions that would require the application
of the laws of a jurisdiction other than New York.
(b) EACH PARTY HERETO IRREVOCABLY AND UNCONDITIONALLY
(A) SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF ANY UNITED STATES FEDERAL OR NEW YORK STATE COURT SITTING IN NEW YORK CITY, AND
ANY APPELLATE COURT FROM ANY SUCH COURT, SOLELY FOR THE PURPOSE OF ANY SUIT, ACTION OR PROCEEDING BROUGHT TO ENFORCE ITS OBLIGATIONS HEREUNDER
OR RELATING IN ANY WAY TO THIS AGREEMENT OR THE LOAN HEREUNDER AND (B) WAIVES, TO THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO,
ANY DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT AND ANY RIGHT OF JURISDICTION ON
ACCOUNT OF ITS PLACE OF RESIDENCE OR DOMICILE.
(c) EACH PARTY HERETO HEREBY IRREVOCABLY
WAIVES ANY RIGHT THAT IT MAY HAVE TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT
OR THE TRANSACTIONS CONTEMPLATED HEREBY.
(d) To the extent permitted by law, the unenforceability
or invalidity of any provision or provisions of this Agreement shall not render any other provision or provisions herein contained unenforceable
or invalid.
(e) For purposes of the UCC, New York is
the jurisdiction of the Collateral Agent in its capacity as securities intermediary with respect to the Collateral and the Collateral
Account.
20
Section 19. Counterparts. This Agreement
may be executed in any number of counterparts, and all such counterparts taken together shall be deemed to constitute one and the same
agreement.
Section 20. [Reserved].
Section 21.Borrower and Lender each acknowledge
that (i) Lender has entered into a Special Securities Lending Agreement (together with the “DCA” and the other documents
and agreements referenced therein, the “SSLA”) on or about the date of this Agreement with JPMorgan Chase Bank, National
Association (when acting in capacity as lending agent under the SSLA, the “Lending Agent”, and when acting in connection
with the holding and receipt of collateral or exercise of remedies under the SSLA, the “Collateral Agent”) in order
to facilitate the payments, deliveries and collateral and custodial arrangements contemplated by this Agreement, and (ii) Borrower
and JPMorgan Chase Bank, National Association (or their predecessor entities) have entered into a Master Securities Lending Agreement
dated as of July 1, 1983 (as amended, supplemented, or otherwise modified from time to time, the “MSLA”), which
MSLA constitutes the “Borrower Agreement” under the SSLA (the SSLA and the MSLA together, the “JPM Lending Agreements”).
Lender agrees that, as contemplated by the MSLA, Borrower and JPMorgan Chase Bank, National Association, as managing agent or trustee
under the MSLA, are expected shortly following the execution of this Agreement to enter into documentation (the “MSLA Confirmation”)
to confirm the final terms of the “Loan” under the MSLA entered into in order to effect the Loan and other transactions contemplated
by this Agreement, and that such MSLA Confirmation may include modifications to the terms of the MSLA applicable to such “Loan”
under the MSLA. Lender hereby agrees that to the extent that the terms of the MSLA Confirmation conflict with or are inconsistent with
the terms of this Agreement, then the terms of the MSLA Confirmation shall prevail over the terms of this Agreement and the terms of this
Agreement shall be deemed amended and modified by the terms of the MSLA to eliminate such conflict or inconsistency, and Lender agrees
that such amended and modified terms shall be binding on Lender without any action by or on behalf of Lender. Lender furthermore agrees
to enter into any written amendments reasonably required by the Borrower to evidence such amendments and modifications; provided that
the amendments and modifications in the immediately preceding sentence shall be effective irrespective of whether or not any such
written amendments are entered into. Each of the parties hereto furthermore agrees that the SSLA is an agency agreement and that the parties
shall give, or omit to give, such instructions to the Lending Agent as are necessary so that actions taken under the SSLA are consistent
with this Agreement, as this Agreement may be amended and modified as contemplated above. Without limiting the generality of the foregoing,
(i) Lender shall not take any of the actions specified under “Sale of Securities on Loan” of the SSLA or exercise any
right under “Termination of Agreement” under the SSLA unless and until this Agreement has been terminated and all obligations
of the parties satisfied in full, (ii) any cash or non-cash distributions payable or deliverable to Lender shall be paid or delivered
at such times and in such amounts as specified herein and (iii) Lender will not take any of the actions set forth in “Borrower
Default” under the SSLA except in connection with an exercise of remedies under this Agreement.
21
Section 22.U.S.
Resolution Stay Protocol. The parties acknowledge and agree that (i) to the extent that prior to the date hereof
both parties have adhered to the 2018 ISDA U.S. Resolution Stay Protocol (the “Protocol”), the terms of the Protocol
are incorporated into and form a part of this Agreement, and for such purposes the Agreement shall be deemed a Protocol Covered Agreement,
the Borrower shall be deemed a Regulated Entity and Lender shall be deemed an Adhering Party; (ii) to the extent that prior to the
date hereof the parties have executed a separate agreement the effect of which is to amend the qualified financial contracts between
them to conform with the requirements of the QFC Stay Rules (the “Bilateral Agreement”), the terms of the Bilateral
Agreement are incorporated into and form a part of the Agreement, and for such purposes this Agreement shall be deemed a Covered Agreement,
JPMorgan shall be deemed a Covered Entity and Counterparty shall be deemed a Counterparty Entity; or (iii) if clause (i) and
clause (ii) do not apply, the terms of Section 1 and Section 2 and the related defined terms (together, the “Bilateral
Terms”) of the form of bilateral template entitled “Full-Length Omnibus (for use between U.S. G-SIBs and Corporate Groups)”
published by ISDA on November 2, 2018 (currently available on the 2018 ISDA U.S. Resolution Stay Protocol page at www.isda.org
and, a copy of which is available upon request), the effect of which is to amend the qualified financial contracts between the parties
thereto to conform with the requirements of the QFC Stay Rules, are hereby incorporated into and form a part of this Agreement, and for
such purposes this Agreement shall be deemed a “Covered Agreement,” Borrower shall be deemed a “Covered Entity”
and Lender shall be deemed a “Counterparty Entity.” In the event that, after the date of the Agreement, both parties hereto
become adhering parties to the Protocol, the terms of the Protocol will replace the terms of this paragraph. In the event of any inconsistencies
between this Agreement and the terms of the Protocol, the Bilateral Agreement or the Bilateral Terms (each, the “QFC Stay Terms”),
as applicable, the QFC Stay Terms will govern. Terms used in this paragraph without definition shall have the meanings assigned to them
under the QFC Stay Rules. For purposes of this paragraph, references to “this Agreement” include any related credit enhancements
entered into between the parties or provided by one to the other. In addition, the parties agree that the terms of this paragraph shall
be incorporated into any related covered affiliate credit enhancements, with all references to JPMorgan replaced by references to the
covered affiliate support provider.
“QFC Stay Rules” means
the regulations codified at 12 C.F.R. 252.2, 252.81–8, 12 C.F.R. 382.1-7 and 12 C.F.R. 47.1-8, which, subject to limited
exceptions, require an express recognition of the stay-and-transfer powers of the FDIC under the Federal Deposit Insurance Act and the
Orderly Liquidation Authority under Title II of the Dodd Frank Wall Street Reform and Consumer Protection Act and the override of default
rights related directly or indirectly to the entry of an affiliate into certain insolvency proceedings and any restrictions on the transfer
of any covered affiliate credit enhancements.
22
IN WITNESS WHEREOF, the parties hereto have executed
this Share Lending Agreement as of the date and year first above written.
HERTZ GLOBAL HOLDINGS, INC.
as Lender
By:
/s/ Scott Haralson
Name: Scott Haralson
Title: Chief Financial Officer
[Signature Page to Share Lending Agreement]
23
J.P. MORGAN SECURITIES LLC,
as Borrower
By:
/s/ Suraj Vasishtha
Name: Suraj Vasishtha
Title: Executive Director
[Signature Page to Share Lending Agreement]
24
ANNEX A
IMPORTANT RISK DISCLOSURES
WITH RESPECT TO FULLY
PAID OR
EXCESS MARGIN SECURITIES
LENDING TRANSACTIONS1
Please read these important disclosures carefully
before agreeing to lend any of your fully paid securities or excess margin securities (the “Loaned Securities”) to J.P. Morgan
Securities LLC (“we” or “JPMS”) pursuant to the Share Lending Agreement (the “Agreement”) to which
this Annex A is attached. These disclosures are intended to be read in conjunction with the Agreement between you and JPMS, which must
be executed prior to entering into, and which governs, any loans of Loaned Securities to JPMS. These disclosures describe important characteristics
of, and risks associated with engaging in, securities lending transactions:
1. THE PROVISIONS OF THE SECURITIES INVESTOR PROTECTION ACT OF 1970 (“SIPA”) MAY NOT
PROTECT YOU WITH RESPECT TO LOANED SECURITIES AND, THEREFORE, THE COLLATERAL DELIVERED TO YOU MAY CONSTITUTE THE ONLY SOURCE OF SATISFACTION
OF JPMS’S OBLIGATIONS IN THE EVENT JPMS FAILS TO RETURN THE LOANED SECURITIES.
2. Loss of Rights with Respect to Loaned Securities. While a securities loan is outstanding, and until Loaned Securities are credited
back to your account upon termination of a loan, you will cease to own the Loaned Securities and will not have the right to sell the Loaned
Securities. However, you retain a contractual right to the return of the Loaned Securities and, accordingly, continue to have market exposure
with respect to the Loaned Securities.
3. JPMS Compensation with Respect to Loaned Securities. JPMS and its associated persons will receive compensation in connection
with the use of your Loaned Securities, including in connection with facilitating settlement of short sales by JPMS, its affiliates and/or
its customers.
The key factor in determining the
amount of such compensation JPMS and its associated persons will receive from using your Loaned Securities is the availability of the
securities for lending in the marketplace relative to the demand to borrow such securities. JPMS has an opportunity to earn more compensation
when the securities become limited in supply relative to demand (i.e., become “hard to borrow” securities)
1 These disclosures are designed to satisfy the requirements
of FINRA Rule 4330(b)(2)(B).
25
4. Your Compensation with Respect to Loaned Securities. JPMS will not pay you any fee for the borrowing of the Loaned Securities,
other than the nominal Loan Processing Fee. You have agreed to loan the Loaned Securities to JPMS in consideration of the benefits you
will receive in connection with the offer and sale of exchangeable notes for which JPMS is acting as an underwriter.
5. Collateral for Loaned Securities. Pursuant to the Agreement, in exchange for the Loaned Securities, JPMS will provide you (or,
in the alternative, pledge to you in an account maintained by a custodian) with either cash collateral or a form of non-cash collateral
permissible under Rule 15c3-3(b)(3)(iii)(B) of the Securities Exchange Act of 1934 and related SEC guidance.
Pursuant to the Agreement and applicable
regulations, JPMS will mark the Loaned Securities to market at the close of trading on each business day and, if necessary, will transfer
additional collateral no later than the close of business on the next business day so that the market value of the collateral is equal
to the market value of the Loaned Securities. If JPMS defaults and the market value of the Loaned Securities increases in value on the
day JPMS defaults, the cash collateral provided by JPMS may be insufficient to fully collateralize the Loaned Securities. If JPMS collateralizes
the Loaned Securities with securities collateral, the securities collateral will be subject to market risk, and therefore may not be sufficient
to replace the full value of Loaned Securities should JPMS default.
SHOULD JPMS POST SECURITIES COLLATERAL
AS PERMITTED BY APPLICABLE LAW, SOME SECURITIES PROVIDED BY JPMS AS COLLATERAL UNDER THE SLA MAY NOT BE GUARANTEED BY THE UNITED
STATES.
6. Permitted Purpose to Borrow Loaned Securities. JPMS may borrow the Loaned Securities for any purpose permitted under Regulation
T, including to make and facilitate short sales. Use of the Loaned Securities to make or facilitate short sales could put downward pressure
on the price of the Loaned Securities.
7. “Hard to Borrow” Determination. Loaned Securities may be, or may become, “hard to borrow” because of
short selling or scarcity of available lending supply or corporate events that may impact liquidity in a security.
8. Loaned Securities / Short Sales. You are under no obligation to enter into a securities loan with JPMS and may elect not to
allow your Loaned Securities to be used in connection with short sales or any other permitted purpose by not agreeing to enter into the
Agreement.
9. Potential Tax Implication with Respect to Loaned Securities. During the term of any securities loan, you are entitled to receive
the amount of all dividends and distributions made on or in respect of the Loaned Securities. However, you will receive manufactured payments
(e.g., cash substitute payments) in lieu of receiving dividends or distributions directly from the issuer (or in some cases involving
non-cash distributions, we may adjust the number of Loaned Shares to account for the value of the relevant distribution). Certain unique
distributions may not be capable of being exactly replicated as a manufactured payment by JPMS.
26
(a) Cash payments, and the fair
value of non-cash payments, in lieu of dividends may be taxable to you, and you may not be entitled to any exemption or preference with
respect to these amounts. Adjustments to the number of Loaned Shares in lieu of non-cash dividends could also be taxable to you.
(b) You should consult a tax advisor
regarding the tax implications of entering into a securities loan with JPMS, including, but not limited to: treatment of cash-in-lieu
payments and adjustments to the number of Loaned Shares under U.S. state tax laws and the Internal Revenue Code, as well as any foreign
tax regulations and the treatment of interest received on cash collateral.
10. JPMS Right to Terminate. JPMS shall have the right to terminate all or any portion of the securities loan at any time. In addition,
JPMS shall have the right to liquidate the securities loan if a default, as defined in the Agreement, occurs with respect to you. A default
includes, but is not limited to, if you:
(a) are subject to certain voluntary
or involuntary bankruptcy- or insolvency-related events; or
(b) fail to comply with your obligation
under the Agreement to return collateral to JPMS when due;
(c) fail to provide any indemnity
as required by the Agreement;
(d) notify JPMS of your inability
or intention not to perform your obligations under the SLA; or
(e) breach your representations
and warranties or covenants in the Agreement.
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Cover
Jun. 24, 2026
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Entity File Number
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Entity Registrant Name
HERTZ
GLOBAL HOLDINGS, INC
Entity Central Index Key
0001657853
Entity Tax Identification Number
61-1770902
Entity Incorporation, State or Country Code
DE
Entity Address, Address Line One
8501
Williams Road
Entity Address, City or Town
Estero
Entity Address, State or Province
FL
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The Hertz Corpration [Member]
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