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EXHIBIT 4.1.2
EXECUTION VERSION
THIRD AMENDMENT
TO
CREDIT AGREEMENT
This THIRD AMENDMENT, dated as of May 23, 2007 (this "Amendment") is entered into among HERTZ EQUIPMENT RENTAL CORPORATION, a Delaware corporation (together with its successors and assigns, "HERC"), THE HERTZ CORPORATION, a Delaware corporation (together with its successors and assigns, the "Parent Borrower"), MATTHEWS EQUIPMENT LIMITED, an Ontario corporation ("Matthews"), WESTERN SHUT-DOWN (1995) LIMITED, an Ontario corporation ("Western" and, together with HERC, the Parent Borrower and Matthews, the "Borrowers"), DEUTSCHE BANK AG, NEW YORK BRANCH ("DBNY"), as administrative agent (the "Administrative Agent"), DEUTSCHE BANK AG, CANADA BRANCH ("DBCB"), as Canadian agent (the "Canadian Agent"), and the other parties signatory hereto.
WHEREAS, the Borrowers have entered into that certain CREDIT AGREEMENT, dated as of December 21, 2005 (as it may be amended, amended and restated, supplemented or otherwise modified (including as amended by that certain Amendment to Credit Agreement, dated as of June 30, 2006, and that certain Second Amendment to Credit Agreement, dated as of February 15, 2007), the "Credit Agreement") among the Borrowers, the Lenders from time to time party thereto, the Administrative Agent, DBNY, as collateral agent, the Canadian Agent, DBCB, as Canadian collateral agent, LEHMAN COMMERCIAL PAPER INC., as syndication agent, and MERRILL LYNCH & CO., MERRILL LYNCH, PIERCE, FENNER AND SMITH INCORPORATED, as documentation agent.
WHEREAS, the terms used herein, including in the preamble and recitals hereto, not otherwise defined herein or otherwise amended hereby shall have the meanings ascribed thereto in the Credit Agreement;
WHEREAS, the Borrowers have requested that the Credit Agreement be amended as more fully set forth herein;
NOW, THEREFORE, in consideration of the premises and the agreements, provisions and covenants herein contained, the Borrowers, the Lenders, the Administrative Agent and the Canadian Agent agree as follows:
As of the Amendment Effective Date (as defined in Article Two hereof), the Credit Agreement shall be amended as set forth in this Article One.
1. Section 8.4 of the Credit Agreement (Limitation on Guarantee Obligations) is hereby amended by deleting the word "and" at the end of clause (n) thereof, replacing "." at the end of clause (o) thereof with "; and" and adding the following clause (p) after clause (o) thereof:
(p) Guarantee Obligations in respect of the deferred purchase price of Vehicles and all other obligations arising under certain vehicle supply agreements entered into by Fleetco (Espana), S.L.;provided that the aggregate principal amount of such Guarantee Obligations at any time outstanding, when combined with the aggregate principal amount of Indebtedness then outstanding constituting Foreign Fleet Financing, shall not exceed the maximum amount of Foreign Fleet Financing permitted under Section 8.2(v).
ARTICLE TWO: CONDITIONS PRECEDENT TO EFFECTIVENESS
The provision set forth in Article One hereof shall be effective as of the date (with respect to each such provision, the "Amendment Effective Date") on which each of the following conditions with respect to each provision shall have been satisfied:
1. The Borrowers, the Administrative Agent, the Canadian Agent and the requisite Lenders shall have indicated their consent by the execution and delivery of the signature pages to the Administrative Agent.
2. The Guarantors shall have indicated their consent to the Amendment by the execution and delivery of a Consent (each a "Consent") attached hereto asAnnex I, in the case of Guarantors party to the U.S. Guarantee and Collateral Agreement (as defined in the Credit Agreement), or attached hereto asAnnex II, in the case of Guarantors party to the Canadian Guarantee and Collateral Agreement (as defined in the Credit Agreement), in each case dated the date hereof, by and among the applicable Guarantors.
ARTICLE THREE: REPRESENTATIONS AND WARRANTIES
In order to induce the Agents and Lenders to enter into this Amendment, each of the Borrowers represents and warrants to each Agent and each Lender, that:
1. Representations and Warranties. As of the Amendment Effective Date, each of the representations and warranties made by any Loan Party pursuant to this Amendment, the Credit Agreement or any other Loan Document (or in any amendment, modification or supplement thereto) to which it is a party, and each of the representations and warranties contained in any certificate furnished at any time by or on behalf of any Loan Party pursuant to this Amendment, the Credit Agreement or any other Loan Document shall, except to the extent that they expressly relate to an earlier date, be true and correct in all material respects on and as of such date as if made on and as of such date.
2. Corporate Power and Authority. As of the Amendment Effective Date, each of the Borrowers has the corporate power and authority, and the legal right, to enter into and perform this Amendment. The execution, delivery and performance of this Amendment has been duly authorized by all necessary corporate action on the part of each Borrower.
3. No Conflict; Governmental Consents. The execution and delivery by each of the Borrowers of this Amendment, and performance by each of the Borrowers of the Credit Agreement as amended hereby, will not (a) violate any Requirement of Law or Contractual Obligation of such Loan Party in any respect that would reasonably be expected to have a Material Adverse Effect, or (b) result in, or require, the creation or imposition of any Lien (other than any Lien permitted by subsection 8.3 of the Credit Agreement) on any of its properties or revenues pursuant to any such Requirement of Law or Contractual Obligation.
4. Binding Obligation. (a) This Amendment constitutes a legal, valid and binding obligation of each of the Borrowers, enforceable against each such Borrower in accordance with its terms, except as enforceability may be limited by applicable domestic or foreign bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors' rights generally and by general equitable principles (whether enforcement is sought by proceedings in equity or at law).
(b) Each Consent, when executed and delivered by each applicable Guarantor, will constitute a legal, valid and binding obligation of such Guarantor, enforceable against such Guarantor in accordance with its terms, except as enforceability may be limited by applicable domestic or foreign bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of
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creditors' rights generally and by general equitable principles (whether enforcement is sought by proceedings in equity or at law).
5. No Default. As of the Amendment Effective Date, no Default or Event of Default has occurred and is continuing.
1. The provisions of this Amendment shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. Other than in accordance with Section 8.5 of the Credit Agreement, none of the Borrowers may assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of each Lender. No Lender may assign or otherwise transfer its rights or obligations hereunder except in accordance with Section 11.6 of the Credit Agreement.
2. Except as expressly amended hereby, the Credit Agreement and all other documents, agreements and instruments relating thereto are and shall remain unmodified and in full force and effect and are hereby ratified and confirmed. On and after the Amendment Effective Date, each reference in the Credit Agreement to "this Agreement", "hereunder", "hereof", "herein" or words of like import, and each reference in the Notes to the Credit Agreement, shall mean and be a reference to the Credit Agreement as amended hereby, and this Amendment and the Credit Agreement shall be read together and construed as a single instrument.
3. Any provision of this Amendment which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
4. The execution, delivery and performance of this Amendment shall not, except as expressly provided herein, constitute a waiver of any provision of, or operate as a waiver of any right, power or remedy of any Agent or Lender under, the Credit Agreement or any of the other Loan Documents.
5. Section headings herein are included herein for convenience of reference only and shall not constitute a part hereof for any other purpose or be given any substantive effect.
6. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
7. This Amendment may be executed by one or more of the parties to this Amendment on any number of separate counterparts (including by telecopy), and all of such counterparts taken together shall be deemed to constitute one and the same instrument.
8. The parties hereto agree that this Amendment does not represent or create a novation of the Credit Agreement and the other Loan Documents or any of the Obligations and liabilities existing thereunder.
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| HERTZ EQUIPMENT RENTAL CORPORATION | |||
By: | /s/ ELYSE DOUGLAS Name: Elyse Douglas Title: Treasurer | ||
THE HERTZ CORPORATION | |||
By: | /s/ ELYSE DOUGLAS Name: Elyse Douglas Title: Treasurer | ||
MATHEWS EQUIPMENT LIMITED | |||
By: | /s/ ELYSE DOUGLAS Name: Elyse Douglas Title: Treasurer | ||
WESTERN SHUT-DOWN (1995) LIMITED | |||
By: | /s/ DAVID D'ANGELO Name: David D'Angelo Title: Controller | ||
Third Amendment—ABL Credit Agreement
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| DEUTSCHE BANK AG, NEW YORK BRANCH as Administrative Agent, | |||
By: | /s/ MARGUERITE SUTTON Name: Marguerite Sutton Title: Director | ||
By: | /s/ EVELYN THIERRY Name: Evelyn Thierry Title: Vice President | ||
DEUTSCHE BANK AG, CANADA BRANCH as Canadian Agent, | |||
By: | /s/ ROBERT A. JOHNSTON Name: Robert A. Johnston Title: Vice President | ||
By: | /s/ MARCELLUS LEUNG Name: Marcellus Leung Title: Assistant Vice President | ||
Third Amendment—ABL Credit Agreement
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LENDERS:
| By signing below, you have indicated your consent to the Third Amendment to Credit Agreement | |||
Name of Institution: | |||
By: | Name: Title: | ||
[This Amendment was executed by authorized signatories of 34 Lender Institutions] | |||
Third Amendment—ABL Credit Agreement
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Each of the undersigned is a Guarantor of the Borrower Obligations of each Borrower pursuant to the U.S. Guarantee and Collateral Agreement (as defined in the Credit Agreement) and hereby (a) consents to the foregoing Amendment, (b) acknowledges that, notwithstanding the execution and delivery of the foregoing Amendment, the Guarantor Obligations of such Guarantor are not impaired or affected and all guaranties made by such Guarantor pursuant to the U.S. Guarantee and Collateral Agreement and all Liens granted by such Guarantor as security for the Guarantor Obligations of such Guarantor pursuant to the U.S. Guarantee and Collateral Agreement continue in full force and effect, and (c) confirms and ratifies its obligations under each of the Loan Documents executed by it. Capitalized terms used herein without definition shall have the meanings given to such terms in the Amendment to which this Consent is attached or in the Credit Agreement referred to therein or in the U.S. Guarantee and Collateral Agreement, as applicable.
IN WITNESS WHEREOF, each of the undersigned has executed and delivered this Consent of Guarantors as of the 23rd day of May 2007.
(Signature pages follow)
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| HERTZ INVESTORS, INC. | ||||||
By: | /s/ HAROLD E. ROLFE | |||||
| Name: | Harold E. Rolfe | |||||
| Title: | Vice President | |||||
BRAE HOLDING CORP. | ||||||
By: | /s/ ELYSE DOUGLAS | |||||
| Name: | Elyse Douglas | |||||
| Title: | Treasurer | |||||
Third Amendment—ABL Credit Agreement
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| HERTZ CLAIM MANAGEMENT CORPORATION | ||||||
By: | /s/ ELYSE DOUGLAS | |||||
| Name: | Elyse Douglas | |||||
| Title: | Treasurer | |||||
HCM MARKETING CORPORATION | ||||||
By: | /s/ ELYSE DOUGLAS | |||||
| Name: | Elyse Douglas | |||||
| Title: | Treasurer | |||||
HERTZ LOCAL EDITION CORP. | ||||||
By: | /s/ ELYSE DOUGLAS | |||||
| Name: | Elyse Douglas | |||||
| Title: | Treasurer | |||||
HERTZ LOCAL EDITION TRANSPORTING, INC. | ||||||
By: | /s/ ELYSE DOUGLAS | |||||
| Name: | Elyse Douglas | |||||
| Title: | Treasurer | |||||
HERTZ GLOBAL SERVICES CORPORATION | ||||||
By: | /s/ ELYSE DOUGLAS | |||||
| Name: | Elyse Douglas | |||||
| Title: | Treasurer | |||||
Third Amendment—ABL Credit Agreement
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| HERTZ SYSTEM, INC. | ||||||
By: | /s/ ELYSE DOUGLAS | |||||
| Name: | Elyse Douglas | |||||
| Title: | Treasurer | |||||
HERTZ TECHNOLOGIES, INC. | ||||||
By: | /s/ ELYSE DOUGLAS | |||||
| Name: | Elyse Douglas | |||||
| Title: | Treasurer | |||||
HERTZ TRANSPORTING, INC. | ||||||
By: | /s/ ELYSE DOUGLAS | |||||
| Name: | Elyse Douglas | |||||
| Title: | Treasurer | |||||
SMARTZ VEHICLE RENTAL CORPORATION | ||||||
By: | /s/ ELYSE DOUGLAS | |||||
| Name: | Elyse Douglas | |||||
| Title: | Treasurer | |||||
Third Amendment—ABL Credit Agreement
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Each of the undersigned is a Guarantor of the Borrower Obligations of each Canadian Borrower pursuant to the Canadian Guarantee and Collateral Agreement (as defined in the Credit Agreement) and hereby (a) consents to the foregoing Amendment, (b) acknowledges that, notwithstanding the execution and delivery of the foregoing Amendment, the Guarantor Obligations of such Guarantor are not impaired or affected and all guaranties made by such Guarantor pursuant to the Canadian Guarantee and Collateral Agreement and all Liens granted by such Guarantor as security for the Guarantor Obligations of such Guarantor pursuant to the Canadian Guarantee and Collateral Agreement continue in full force and effect, and (c) confirms and ratifies its obligations under each of the Loan Documents executed by it. Capitalized terms used herein without definition shall have the meanings given to such terms in the Amendment to which this Consent is attached or in the Credit Agreement referred to therein or in the Canadian Guarantee and Collateral Agreement, as applicable.
IN WITNESS WHEREOF, each of the undersigned has executed and delivered this Consent of Guarantors as of the 23rd day of May 2007.
(Signature pages follow)
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MATTHEWS EQUIPMENT LIMITED | |||
By: | /s/ ELYSE DOUGLAS Name: Elyse Douglas Title: Treasurer | ||
WESTERN SHUT-DOWN (1995) LIMITED | |||
By: | /s/ DAVID D'ANGELO Name: David D'Angelo Title: Controller | ||
Third Amendment—ABL Credit Agreement
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THIRD AMENDMENT TO CREDIT AGREEMENT
ARTICLE ONE: AMENDMENTS
ARTICLE TWO: CONDITIONS PRECEDENT TO EFFECTIVENESS
ARTICLE THREE: REPRESENTATIONS AND WARRANTIES
ARTICLE FOUR: MISCELLANEOUS
CONSENT OF GUARANTORS
CONSENT OF GUARANTORS