Exhibit 4.9.9


 


THIS PURCHASE
AND SALE AGREEMENT (this “Agreement”) is made as of this 21st day of
December, 2005, by and among THE HERTZ CORPORATION, a Delaware corporation (“Hertz”),
as Lessee and Servicer, HERTZ FUNDING CORP., a Delaware corporation (“HFC”),
and HERTZ VEHICLE FINANCING LLC, a Delaware limited liability company (“HVF”).
Except as otherwise specified, capitalized terms used but not defined herein
have the respective meanings set forth in Schedule I to the Amended and
Restated Base Indenture (the “Indenture”), dated as of December 21,
2005, between HVF and BNY Midwest Trust Company, as trustee (the “Trustee”).


 


WHEREAS, HFC
is engaged in the business of acquiring, holding and maintaining passenger
vehicles and light-duty trucks (“Vehicles”) for use by the employees of
Hertz and Hertz Equipment Rental Corporation;


 


WHEREAS HFC
wishes to sell certain Vehicles owned by it and titled in its name and
identified on Annex A hereto (the “Service Vehicles” and
each, a “Service Vehicle”) to HVF and HVF desires to lease the Service
Vehicles to Hertz pursuant to an amended and restated lease agreement (the “HVF
Lease”);


 


WHEREAS, for
reasons of administrative convenience, the Service Vehicles will initially be
titled in the name of HFC, as nominee titleholder for HVF, pursuant to the HFC
Nominee Agreement;


 


NOW,
THEREFORE, the parties agree as follows:


 


ARTICLE I


 


PURCHASE, SALE AND LEASING ARRANGEMENTS


 


SECTION 1.01. Purchase
and Sale of Service Vehicles. On the terms and subject to the conditions
and other provisions set forth in this Agreement, HFC hereby sells, assigns,
transfers, conveys and delivers to HVF all of its right, title and interest in
and to each Service Vehicle, including any and all rights that HFC has against
the Manufacturer of each such Service Vehicle (the “Sold Property”), and
HVF hereby purchases and receives the Sold Property, all in exchange for the
Purchase Price as provided in Section 1.02.


 


SECTION 1.02. Purchase
Price. The aggregate purchase price (the “Purchase Price”) for the Sold
Property is equal to the aggregate of the net book values for each Service
Vehicle as of the date hereof, as recorded on the books and records of HFC
(with appropriate adjustments for depreciation) and as set forth opposite such
Service Vehicle on Annex A hereto (with respect to each Service Vehicle,
the “SV Transfer Price” for such Service Vehicle). The entire
amount of the Purchase Price shall be delivered by 


 

















 


HVF to an account designated by HFC by wire transfer of immediately
available funds on the date hereof. Each of HFC and HVF hereby acknowledges
that the Purchase Price is delivered as consideration for the Sold Property,
and each of HFC and HVF hereby acknowledges the sufficiency of such
consideration.


 


SECTION 1.03. Title.
Title to the Service Vehicles shall pass to HVF on the date of this Agreement.


 


SECTION 1.04. Lease.
HVF agrees that, subject to the satisfaction of the conditions set forth in
Section 2.8 of the HVF Lease, it will lease the Service Vehicles to the Lessee.
The Servicer may arrange to have the Service Vehicles delivered to a location
selected by the Lessee at the Lessee’s expense. The Lessee agrees that
acceptance of the Sold Property in accordance with this Agreement will
constitute confirmation by the Lessee that it has accepted the Service
Vehicles, and that the conditions precedent to the lease of the Service
Vehicles under the HVF Lease have been satisfied.


 


SECTION 1.05. Assignment.
HFC hereby assigns to HVF, with respect to the Service Vehicles, all rights
that HFC has against the Manufacturer of the Service Vehicles. This Section
1.05 shall apply to any Service Vehicle whether or not it has been
delivered to the Lessee at the time of its sale to HVF.


 


SECTION 1.06. Hertz
as Servicer. HVF hereby appoints Hertz as Servicer to be responsible for
all administrative details relating to the Service Vehicles, including the
provision of information under this Agreement. HVF will cooperate, at the
Servicer’s expense, with the Servicer’s performance in accordance with the
terms of this Section 1.06.


 


ARTICLE II


 


CONDITIONS OF THE PURCHASE AND SALE


 


SECTION 2.01. Conditions
Precedent to the Obligations of HVF, HFC and Hertz. The obligations of HVF
and HFC hereunder are subject to the satisfaction of each of the following
conditions:


 


(a)  This Agreement has been duly authorized by
each of HVF, HFC and Hertz, and all necessary corporate or limited liability
company action has been taken and all necessary governmental approvals, if any,
have been obtained with respect to this Agreement by each of HVF, HFC and
Hertz;


 


(b)  the HVF Lease has been duly authorized by
each of the parties thereto, and all necessary corporate or limited liability
company action has been taken and all necessary governmental approvals, if any,
have been obtained with respect to the HVF Lease by each of the parties
thereto; and


 


(c)  the HFC Nominee Agreement has been duly
authorized by each of the parties thereto, and all necessary corporate or
limited liability action has been taken and all 


 


2

















 


necessary governmental approvals, if any, with respect to the HFC
Nominee Agreement have been obtained by each of the parties thereto.


 


ARTICLE III


 


REPRESENTATIONS AND WARRANTIES


 


SECTION 3.01. Representations
of HVF. As of the date hereof, HVF represents and warrants as follows:


 


(a)  It (i) is a limited liability company
duly formed, validly existing and in good standing under the laws of Delaware,
(ii) is duly qualified to do business as a foreign limited liability company
and is in good standing under the laws of each jurisdiction where the character
of its property, the nature of its business or the performance of its
obligations under the Related Documents make such qualification necessary,
except to the extent that the failure to so qualify is not reasonably likely to
result in a Material Adverse Effect, and (iii) has all power and authority
and all governmental licenses, authorizations, consents and approvals required
to carry on its business as now conducted and as presently proposed to be
conducted and for the purposes of the transactions contemplated by this
Agreement and the other Related Documents.


 


(b)  It has all requisite power and authority to
execute, deliver and perform this Agreement and to carry out the provisions
hereof. Its execution, delivery and performance of this Agreement have been
duly authorized by all necessary action on its part and requires no action by
or in respect of, or filing with, any Governmental Authority which has not been
obtained.


 


(c)  This Agreement has been duly executed and
delivered by it and constitutes its legal, valid and binding obligation,
enforceable against it in accordance with the Agreement’s terms, except as the
same may be limited by (i) applicable bankruptcy, insolvency,
reorganization or similar laws affecting the enforcement of creditors rights
and (ii) general principles of equity.


 


(d)  There is no action, suit, investigation or
proceeding pending or, to its knowledge, threatened against it before any court
or arbitrator or Governmental Authority that would materially adversely effect
its financial condition, business, assets or operations or which in any manner
draws into question the validity or enforceability of this Agreement or any
other Related Document or its ability to perform its obligations under the
Related Documents.


 


(e)  The execution, delivery and performance by it
of this Agreement does not contravene, or constitute a default under, any
Requirement of Law with respect to it or any Contractual Obligation with
respect to it or result in the creation or imposition of any Lien on any
property of it (except for Permitted Liens).


 


3

















 


(f)  The purchase and sale of Sold Property
pursuant to this Agreement is intended to constitute a valid sale by HFC of the
Service Vehicles to HVF, and a valid purchase by HVF thereof, and immediately
upon purchase and sale hereunder HVF shall have good title thereto, enforceable
against creditors of, and purchasers from, HFC.


 


(g)  The purchase and sale of the Sold Property is
made in good faith and without intent to hinder, delay or defraud creditors of
HFC or HVF.


 


(h)  It has not established and does not maintain
or contribute to any Pension Plan that is covered by Title IV of ERISA.


 


(i)  It has filed all federal, state and local tax
returns and all other tax returns which, to its knowledge, are required to be
filed (whether informational returns or not), and has paid all taxes due, if
any, pursuant to said returns or pursuant to any assessment received by it,
except such taxes, if any, as are being contested in good faith and for which
adequate reserves have been set aside on its books. It has paid all fees and
expenses required to be paid by it in connection with the conduct of its
business, the maintenance of its existence and its qualification as a foreign
limited liability company authorized to do business in each state in which it
is required to so qualify, except to the extent that the failure to pay such
fees and expenses is not reasonably likely to result in a Material Adverse
Effect.


 


(j)  It is not, and is not controlled by an
“investment company” within the meaning of, and is not required to register as
an “investment company” under, the Investment Company Act.


 


(k)  Both before and after giving effect to the
purchase and sale of the Sold Property, it is solvent within the meaning of the
Bankruptcy Code and is not the subject of any voluntary or involuntary case or
proceeding seeking liquidation, reorganization or other relief with respect to
itself or its debts under any bankruptcy or insolvency law and no Event of
Bankruptcy has occurred with respect to it.


 


(l)  All of its issued and outstanding limited
liability company interests are owned by Hertz, all of which limited liability
company interests have been validly issued, are fully paid and non-assessable
and are owned of record by Hertz. It has no subsidiaries and owns no capital
stock of, or other equity interest in, any other Person, other than Hertz
Vehicles LLC.


 


(m)  Other than the HVF Credit Facility, the
Related Documents or any agreement entered into in connection with the issuance
of any Series of Notes pursuant to the Base Indenture, it is not a party to any
contract or agreement of any kind or nature and it is not subject to any
obligations or liabilities of any kind or nature in favor of any third party,
including, without limitation, Contingent Obligations. It has not engaged in
any activities since its formation (other than those incidental to its formation,
the execution of the Related Documents to which it is a party and the
performance of the activities referred to in or contemplated by such
agreements).


 


4

















 


(n)  It is not (i) in violation of the HVF
LLC Agreement, (ii) in violation of any Requirement of Law or
(iii) in violation of any Contractual Obligation.


 


SECTION 3.02. Representations
of HFC. As of the date hereof, HFC represents and warrants as follows:


 


(a)  It has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of
Delaware, with corporate power under the laws of such state to execute and
deliver this Agreement and the other Related Documents to which it is a party
and to perform its obligations hereunder and thereunder, and is duly qualified
and in good standing to do business as a foreign corporation in each
jurisdiction where the character of its properties or the nature of its
business makes such qualification necessary and where the failure to do so
would have a Material Adverse Effect.


 


(b)  This Agreement has been duly authorized,
executed and delivered on its behalf and, assuming due authorization, execution
and delivery by the other parties thereto, this Agreement is a valid and legally
binding agreement of HFC.


 


(c)  There are is no consent, approval,
authorization, order, registration or qualification of or with any Governmental
Authority having jurisdiction over it which is required for the execution,
delivery and performance of this Agreement (except to the extent that the
failure to obtain such consent, approval, authorization, order, registration or
qualification is not reasonably likely to result in a Material Adverse Effect).


 


(d)  There are no actions, suits, investigations or
proceedings pending or, to its knowledge after reasonable inquiry, threatened
against it before any Governmental Authority which question the validity or
enforceability of this Agreement or any action taken or to be taken pursuant
hereto, or which, if adversely determined, are reasonably likely to materially
impair its ability to perform its obligations under this Agreement.


 


(e)  Neither it nor any of its properties or
assets are subject to any contract or agreement, any provision of its
certificate of incorporation or by-laws or other restriction, any law, rule,
ruling, regulation or judgment of any country, state, territory or political
subdivision thereof or Governmental Authority which would have a material
adverse effect on its ability to perform its obligations under this Agreement.


 


(f)  Its execution, delivery and performance of
this Agreement will not conflict with or result in a breach 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 of its property or
assets pursuant to the terms of any indenture, mortgage, deed of trust, loan
agreement, guarantee, lease financing agreement or other similar agreement or
instrument under which it is a debtor or guarantor (except to the extent that
such conflict, breach, creation or imposition is not reasonably likely to
result in a Material Adverse Effect) nor will such action result in a violation
of any provision of applicable law or regulation (except to the extent that
such violation is not reasonably likely to result in a Material Adverse Effect)
or of the provisions of its certificate of incorporation or by-laws.


 


5

















 


(g)  The purchase and sale of the Sold Property
made pursuant to this Agreement is intended to constitute a valid sale by HFC
of the Service Vehicles to HVF, and a valid purchase by HVF thereof, and
immediately upon purchase and sale hereunder HVF shall have good title thereto,
enforceable against creditors of, and purchasers from, HFC. HFC shall have no
remaining property interest in the Service Vehicles sold to HVF.


 


(h)  The purchase and sale of the Sold Property is
made in good faith and without intent to hinder, delay or defraud creditors of
HFC or HVF.


 


(i)  Immediately prior to the purchase and sale of
the Sold Property contemplated hereby, it has good and valid title to each
Service Vehicle, free and clear of all Liens and rights of others, except
Permitted Liens.


 


ARTICLE IV


 


COVENANTS


 


SECTION 4.01. Covenants
of the Parties.


 


(a)  Compliance with Laws, etc.. Each of
HVF, HFC and Hertz will comply in all material respects with all Requirements
of Law and all applicable laws, rules, regulations and requirements of
Governmental Authorities except where the necessity of compliance therewith is
contested in good faith by appropriate proceedings and where such noncompliance
would not materially and adversely affect its business, financial condition,
operations or properties or its ability to perform its obligations under the
Related Documents to which it is a party.


 


(b)  Notice of Proceedings. Promptly upon
becoming aware thereof, each of HVF, HFC and Hertz agrees to give the other
parties to this Agreement, the Trustee and the Collateral Agent written notice
of the commencement or existence of any proceeding by or before any
Governmental Authority against or affecting it which is reasonably likely to
have a material adverse effect on its financial condition, business, assets or
operations or its ability to perform its obligations under the Related
Documents to which it is a party.


 


(c)  Further Assurances. Each of HVF, HFC
and Hertz agrees from time to time, at its expense, promptly to execute and
deliver all further instruments and documents, and to take all further
reasonable actions (other than re-titling Service Vehicles to reflect a
titleholder other than the HFC Nominee) that may be reasonably necessary or
desirable to perfect, protect, or more fully evidence the purchase and sale of
the Sold Property under this Agreement, or to enable a party to this Agreement
or its assignee to exercise and enforce its respective rights and remedies
under this Agreement.


 


(d)  Separate Conduct of Business.


 


(i) 
Each of Hertz and HFC agree that HFC will:  (i) at all times maintain at least one
Independent Director; (ii) to the extent that it will require an office to
conduct its business, conduct its 


 


6

















 


business from an office separate from that of Hertz or any of Hertz’s
other Affiliates; (iii) maintain separate corporate records and books of
account from those of Hertz or any of Hertz’s other Affiliates;
(iv) ensure that all substantive communications, including without
limitation, letters, invoices, purchase orders, contracts, statements and
applications, will be made solely in its own name; (v) not hold itself out
as having agreed to pay, or as being liable for, the obligations of Hertz or
any of HFC’s other Affiliates; (vi) continuously maintain as official records
the resolutions, agreements and other instruments underlying the transactions
contemplated by this Agreement; (vii) not engage in any transaction with
HFC or any of HFC’s other Affiliates except as contemplated by this Agreement
or the other Related Documents or as permitted by this Agreement or the other
Related Documents; and (viii) prepare its annual financial statements in a
manner that is wholly consistent with the conclusion that the assets of HFC or
any of HFC’s other Affiliates are not available to pay its creditors.


 


(ii) 
Hertz agrees that it will (i) conduct its business from an office
separate from that of HFC, should HVF require an office to conduct its
business; (ii) maintain separate corporate records and books of account
from those of HFC; (iii) ensure that all substantive communications,
including without limitation, letters, invoices, purchase orders, contracts,
statements and applications, will be made solely in its own name, except as
contemplated in this Agreement or the Related Documents or as permitted by this
Agreement or the other Related Documents; (iv) not hold itself out as
having agreed to pay, or as being liable for, the obligations of HFC;
(v) continuously maintain as official records the resolutions, agreements
and other instruments underlying the transactions contemplated by this
Agreement; (vi) not engage in any transaction with HFC except as
contemplated by this Agreement or the other Related Documents or as permitted
by this Agreement or the other Related Documents; and (vii) prepare its
annual financial statements in accordance with GAAP.


 


(e)  Service Vehicle Schedules. Hertz, as
Servicer, shall deliver Service Vehicle Schedules to HVF, the HFC Nominee, the
Collateral Agent and the Trustee, and the information contained in such Service
Vehicle Schedules shall be correct in all material respects at the time of
their delivery.


 


(f)  Titling of Vehicles. Hertz, as
Servicer, shall, subject to the terms of the HFC Nominee Agreement, title each
Service Vehicle in the name of the HFC Nominee, unless and until it is directed
to do otherwise in accordance with the HFC Nominee Agreement.


 


(g)  Maintenance of Separate Existence. Each
of HFC and HVF acknowledges its receipt of a copy of that certain opinion
letter issued by Cravath, Swaine & Moore LLP dated December 21, 2005
addressing the issue of substantive consolidation as it may relate to each of
Hertz, HFC and HVF. HFC and HVF hereby agree to maintain in place all policies
and procedures in all material respects, and take and continue to take all
action, described in the factual assumptions set forth in such opinion letter
and relating to such Person, except as may be confirmed as not required in a
subsequent or supplemental opinion of Cravath, Swaine & Moore LLP addressing
the issue of substantive consolidation as it may relate to each of Hertz, HVF
and HFC.


 


7

















 


ARTICLE V


 


MISCELLANEOUS


 


SECTION 5.01. Hertz
Acting as Servicer. The parties to this Agreement acknowledge and agree that
Hertz has agreed to act on behalf of HVF as Servicer pursuant to the HVF Lease,
and, as Servicer, has agreed to perform certain duties of HVF under this
Agreement and the other Related Documents.


 


SECTION 5.02. Indemnification.
The parties agree that the arrangements set forth in this Agreement are covered
by the Indemnification Agreement. In addition, HFC hereby indemnifies and holds
harmless HVF, the Trustee and the Collateral Agent for any or all damages,
claims, demands, losses, liabilities and related costs or expenses (“Losses”)
arising out of or resulting from (including reasonable costs of investigation
and attorney’s fees and expenses) (i) any actions or failures to act in
connection with this Agreement or (ii) the failure of any representation or
warranty or statement made by HFC (or any of its officers) under or in
connection with this Agreement or in any certificate, report, schedule or
notice delivered pursuant hereto to be true and correct when made or deemed
made. The provisions of this indemnity shall run directly to, and be
enforceable by, an injured party and shall survive the termination of this
Agreement.


 


SECTION 5.03. No
Third Party Beneficiaries. This Agreement will not confer any rights or
remedies upon any Person other than the parties hereto, the Trustee, the
Collateral Agent and their respective successors and permitted assigns.


 


SECTION 5.04. Entire
Agreement. This Agreement and the other agreements specifically referenced
herein constitute the entire agreement among the parties hereto and supersede
any prior understandings, agreements, or representations by or among the
parties hereto, written or oral, to the extent they related in any way to the
subject matter hereof.


 


SECTION 5.05. Succession
and Assignment. This Agreement will be binding upon and inure to the
benefit of the parties hereto and their respective successors and permitted
assigns. Under the Indenture, HVF will assign its rights under this Agreement
to the Trustee (for the benefit of the holders of the Notes); the parties
hereto may not otherwise assign either this Agreement or any of their
respective rights, interest, or obligations hereunder without the prior written
approval of the other parties and the satisfaction of the Rating Agency
Condition with respect to each Series of Notes Outstanding.


 


SECTION 5.06. Counterparts.
This Agreement may be executed in separate counterparts, each of which will
be deemed an original but all of which together will constitute one and the
same instrument.


 


SECTION 5.07. Headings.
The section headings contained in this Agreement are inserted for
convenience only and will not affect in any way the meaning or interpretation
of this Agreement.


 


8

















 


SECTION 5.08. Notices.
All notices, requests, demands, claims and other communications hereunder
will be in writing. Any notice, request demand, claim, or other communication
hereunder will be deemed duly given if (and then two Business Days after) it is
sent by registered or certified mail, return receipt requested, postage
prepaid, and addressed to the intended recipient as set forth below:


 


If to Hertz,
HFC or HVF:

225 Brae Boulevard

Park Ridge, NJ 07656

Attention:  Treasury Department

Telephone no. (201) 307-2000

Facsimile no. (201) 307-2746


 


If to the
Trustee:


 


BNY Midwest
Trust Company

2 North LaSalle Street, Suite 1020

Chicago, IL  60602

Attention:  Corporate Trust
Administration — Structured Finance

Telephone no. (312) 827-8569

Facsimile no. (312) 827-8562


 


If to the
Collateral Agent:


 


BNY Midwest
Trust Company

2 North LaSalle Street, Suite 1020

Chicago, IL  60602

Attention:   Corporate Trust
Administration — Structured Finance

Telephone no. (312) 827-8569

Facsimile no. (312) 827-8562


 


Any party
hereto may give any notice, request, demand, claim, or other communication
hereunder using any other means (including personal delivery, expedited
courier, messenger service, telecopy, telex, ordinary mail, or electronic
mail), but no such notice, request, demand, claim, or other communication will
be deemed to have been duly given unless and until it actually is received by
the intended recipient. Any party hereto may change the address to which
notices, requests, demands, claims and other communications hereunder are to be
delivered by giving the other parties notice in the manner herein as set forth.


 


SECTION 5.09. Governing
Law. THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE DOMESTIC LAWS OF THE STATE OF NEW YORK.


 


SECTION 5.10. Amendments
and Waivers. No amendment of any provision of this Agreement will be valid
unless the same will be in writing and signed by each of the parties hereto and
the Rating Agency Condition with respect to each Series of Notes Outstanding
shall have been satisfied with respect thereto. No waiver by any party 


 


9

















 


hereto of any default, misrepresentation, or breach of warranty or
covenant hereunder, whether intentional or not, will be deemed to extend to any
prior or subsequent default, misrepresentation, or breach of warranty or
covenant hereunder or affect in any way any rights arising by virtue of any
prior or subsequent such occurrence.


 


SECTION 5.11. Severability.
Any term or provision of this Agreement that is invalid or unenforceable in
any situation in any jurisdiction will not affect the validity or
enforceability of the remaining terms and provisions hereof or the validity or
enforceability of the offending term or provision in any other situation or in
any other jurisdiction.


 


SECTION 5.12. Construction.
The language used in this Agreement will be deemed to be the language
chosen by the parties hereto to express their mutual intent, and no rule of
strict construction will be applied against any party.


 


SECTION 5.13. Nonpetition
Covenants. Each of Hertz and HFC hereby covenants and agrees that, prior to
the date which is one year and one day after the payment in full of all of the
Notes, it will not institute against, or join any other Person in instituting
against, HVF or the Intermediary any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings or other similar proceeding under the
laws of the United States or any state of the United States. The provisions of
this Section 5.13 shall survive the termination of this Agreement.


 


SECTION 5.14. Master
Exchange Agreement. The parties to this Agreement acknowledge and agree
that any action to be taken by HVF pursuant to this Agreement (including, but
not limited to, the payment or receipt of any amounts) may be taken by the
Intermediary to the extent provided for in the Master Exchange Agreement. Servicer
agrees, to the extent requested by HVF, to cooperate with HVF in effecting any
such actions pursuant to, and in accordance with, the terms of the Master
Exchange Agreement.


 


10

















 


IN WITNESS
WHEREOF, the parties hereto have duly executed this Agreement as of the date
first above written.


 


	
   

  	
  THE HERTZ CORPORATION

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Robert
  H. Rillings

  
	
   

  	
  Name:

  	
  Robert H.
  Rillings

  
	
   

  	
  Title:

  	
  Treasurer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  HERTZ FUNDING CORP.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Robert
  H. Rillings

  
	
   

  	
  Name:

  	
  Robert H.
  Rillings

  
	
   

  	
  Title:

  	
  Vice
  President & Treasurer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  HERTZ VEHICLE FINANCING LLC

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Robert
  H. Rillings

  
	
   

  	
  Name:

  	
  Robert H.
  Rillings

  
	
   

  	
  Title:

  	
  Vice
  President & Treasurer