Exhibit 4.9.10


 


THIS
CONTRIBUTION AGREEMENT (this “Agreement”) is made as of this 21st day of
December, 2005, by and among THE HERTZ CORPORATION, a Delaware corporation (“Hertz”),
individually and as Lessee and Servicer, 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, Hertz
is engaged in the business of renting passenger automobiles and light-duty
trucks (“Vehicles”) to customers;


 


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


 


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


 


NOW,
THEREFORE, the parties agree as follows:


 


ARTICLE I


 


THE CONTRIBUTION AND LEASING ARRANGEMENTS


 


SECTION 1.01. Contribution
of Initial Hertz Vehicles. On the terms and subject to the conditions and
other provisions set forth in this Agreement, Hertz hereby contributes,
assigns, transfers, conveys and delivers to HVF as a contribution to HVF’s
capital all of its right, title and interest in and to each Initial Hertz
Vehicle, including any and all rights that Hertz has against the Manufacturer
of each such Initial Hertz Vehicle (the “Contribution”), and HVF hereby
accepts the Contribution.


 


SECTION 1.02. Acknowledgement
of Consideration. Each of Hertz and HVF hereby acknowledges that the
Contribution is made in consideration of an increase in Hertz’s ownership
interest in HVF, and each of Hertz and HVF hereby acknowledges the sufficiency
of such consideration.


 


SECTION 1.03. Title.
Title to the Initial Hertz 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 Initial Hertz Vehicles to the
Lessee. The Servicer may arrange to have the Initial Hertz Vehicles delivered
to a location selected by the Lessee at the Lessee’s expense. The Lessee agrees
that acceptance of the Contribution in accordance with this Agreement will
constitute confirmation by the Lessee that it has accepted the Initial Hertz
Vehicles, and that the conditions precedent to the lease of the Initial Hertz
Vehicles under the HVF Lease have been satisfied.


 


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


 


SECTION 1.06. Hertz
as Servicer. HVF hereby appoints Hertz as Servicer to be responsible for
all administrative details relating to the Initial Hertz 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 CONTRIBUTION


 


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


 


(a)  This Agreement has been duly authorized by
each of HVF 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 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 Hertz 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 necessary governmental
approvals, if any, with respect to the Hertz Nominee Agreement have been
obtained by each of the parties thereto.


 


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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).


 


(f)  The Contribution made pursuant to this
Agreement is intended to constitute a valid contribution of the Initial Hertz
Vehicles to HVF and immediately upon contribution hereunder HVF shall have good
title thereto, enforceable against creditors of, and purchasers from, Hertz.


 


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(g)  The Contribution is made in good faith and
without intent to hinder, delay or defraud creditors of Hertz 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
Contribution, 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).


 


(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.


 


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SECTION 3.02. Representations
of Hertz. As of the date hereof, Hertz 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 Hertz.


 


(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.


 


(g)  The Contribution made pursuant to this
Agreement is intended to constitute a valid contribution of the Initial Hertz
Vehicles to HVF and immediately upon contribution hereunder HVF shall have good
title thereto, enforceable against creditors of, 


 


5

















 


and purchasers from, Hertz. Hertz shall have no remaining property
interest in the Initial Hertz Vehicles sold to HVF.


 


(h)  The Contribution is made in good faith and
without intent to hinder, delay or defraud creditors of Hertz or HVF.


 


(i)  Immediately prior to the Contribution
contemplated hereby, it has good and valid title to each Initial Hertz 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
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 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 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
that may be reasonably necessary or desirable to perfect, protect, or more
fully evidence the Contribution 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 HVF and Hertz agree that HVF 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 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 


 


6

















 


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 Hertz’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 Hertz or any of Hertz’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 Hertz or any of Hertz’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 HVF, should HVF require an office to conduct its
business; (ii) maintain separate corporate records and books of account
from those of HVF; (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 HVF;
(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 HVF 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)  Initial Hertz Vehicle Schedules. Hertz,
as Servicer, shall deliver Initial Hertz Vehicle Schedules to HVF, the Hertz
Nominee, the Collateral Agent and the Trustee, and the information contained in
such Initial Hertz 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 Hertz Nominee Agreement, use
commercially reasonable efforts to retitle each Initial Hertz Vehicle in the
name of the Nominee Hertz Vehicles LLC as promptly as is reasonably practicable
and to cause each such Initial Hertz Vehicle to become subject to the Nominee
Agreement in accordance with its terms.


 


(g)  Maintenance of Separate Existence. Each
of Hertz 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. Hertz 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 and HVF.


 


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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, Hertz 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 Hertz (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.


 


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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 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 HVF and Hertz 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.


 


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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 VEHICLE FINANCING LLC

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Robert
  H. Rillings

  
	
   

  	
  Name:

  	
  Robert H.
  Rillings

  
	
   

  	
  Title:

  	
  Vice
  President & Treasurer