Okaloosa County BOCC — June 17, 2014 — Assignment of Advantage Lease to DTG — reading text

t/Lease Number _ raeking Number: Biewment o¢ Lesée yreviewed and includes any altachments or exhibits, co Nome: DTG Cremations, Ewe. Grant funded: Yes__NOX 1, [C) GREATER THAN $50,000 © 2. [1 GREATER THAN'§25,000. 3. C] $26.0000R LESS "” Purehasing Review: quiteriven § ore inet: i feclofordedanes — S Risk Management Review. - eager ran meee: SS County Affomey Review one Following Okcloose County approval: " Gonhact & Grant ASSIGNMENT AND ASSUMPTION AGREEMENT THIS ASSIGNMENT AND ASSUMPTION AGREEMENT (this ''Assignment"') is made as of this day of June ___, 2014 (the "Effective Date"), by and among Okaloosa County, Florida ("County"), Simply Wheelz LLC d/b/a Advantage Rent A Car ("Assignor") and DTG Operations, Inc. d/b/a Dollar Rent A Car and Thrifty Car Rental ('Assignee"). WHEREAS, Authority and Assignor are parties to the agreements listed on Exhibit A hereto (the "Original Agreements") pursuant to which, among other things, Assignor is entitled to use certain premises at the Northwest Florida Regional Airport (the "Airport"), as specified in the Original Agreements, for purposes of operating a rental car concession; WHEREAS, on November 5, 2013, Assignor filed for relief under chapter 11 of title 11 of the United States Code and the case is currently pending before the United States Bankruptcy Court for the Southern District of Mississippi (Case No. 13-03332-ee) (the "Bankruptcy Court"): WHEREAS, on March 17, 2014, Assignor conducted an auction under the auspices of the Bankruptcy Court for the sale of certain of its assets, including the Original Agreements; and on March 31, 2014, the Bankruptcy Court entered an order (the "Sale Order"), a copy of which (excluding exhibits and attachments) is attached hereto as Exhibit B, approving The Hertz Corporation ("Hertz") as the winning bidder in such auction with respect to the acquisition of the Original Agreements, and approving, among other things, the assignment of the Original Agreements to Hertz or one of its affiliates; WHEREAS, Assignor and Assignee are parties to that certain Term Sheet for Acquisition of Certain Locations of Debtor, dated March 27, 2014 (the "Term Sheet"), a copy of which is attached hereto as Exhibit C, pursuant to which, among other things, Assignor has agreed to assign to Assignee, effective as of the closing of the acquisition by Assignee of Assignor's operations at the Airport (the "Closing"), all of Assignor's right, title and interest in and to the Original Agreements; WHEREAS, the parties hereto have agreed that the Effective Date of this Assignment shall be the same day as the Closing; WHEREAS, the occurrence of the Closing is conditioned upon, among other things, receipt of (i) the approval of the United States Federal Trade Commission of the transactions relating to the Airport contemplated by the Term Sheet and (ii) the consent of the County to the assignment and assumption of the Original Agreements; and WHEREAS, County is willing to consent to the proposed assignment and assumption (such consent, the "County’s Consent") on the conditions set forth in this Assignment. NOW, THEREFORE, in consideration of the mutual covenants set forth herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows: Section 1. Integration of Amendment and Original Agreement. This Assignment and each Original Agreement shall be deemed to be, for all purposes, one instrument. In the event of any conflict between the terms and provisions of this Assignment and the terms and provisions of any of the Original Agreements, the terms and provisions of this Assignment shall, in all instances, control and prevail. The Original Agreements as modified by this Assignment are hereinafter referred to as the "Agreements". Section 2, Assignment and Assumption of Agreement. 21 Assignment. Subject to the terms and conditions of the Term Sheet and the Sale — Order, effective as of the Effective Date (which for the avoidance of doubt is the date on which the Closing takes place), without any further action by any party hereto, Assignor hereby assigns, sells, transfers and conveys to Assignee all of Assignor's right, title and interest in and to each of the Original Agreements. 22 Assumption. Subject to the terms and conditions of the Term Sheet and the Sale Order, effective as of the Effective Date, without any further action by any party hereto, Assignee hereby (a) assumes all liabilities arising under the Original Agreements from and after the Closing and (b) agrees to perform, and be bound by, all of Assignor's obligations that accrue from and after the Closing under each of the Original Agreements. Section 3. Consent of County. County hereby consents to the assignment and assumption set forth in clauses 2.1 and 2.2 above. Section 4. Change of Notice Address. As of the Effective Date, Assignee's address for all notices permitted or required under the terms of the Agreement shall be: DTG Operations, Inc. d/b/a Dollar Rent A Car and Thrifty Car Rental c/o The Hertz Corporation 225 Brae Boulevard Park Ridge, NJ 07656 Attention: Vice President, Properties and Concessions Section 5. General Provisions. 51 Effectiveness. This Assignment shall become effective only upon the Effective Date. 52 Binding Effect. This Assignment shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and assigns. 53 Counterparts. This Assignment may be executed in one or more counterparts, and all such executed counterparts shall constitute one agreement, binding on all the parties hereto, notwithstanding that all the parties are not signatories to the original or same counterpart. Any signature to this Assignment transmitted by email or facsimile shall be deemed an original signature hereto. 54 Term Sheet and Sale Order. Notwithstanding anything to the contrary set forth in this Assignment, all of the terms and provisions of this Assignment shall be subject to the terms and conditions set forth in the Term Sheet and the Sale Order, and in the event of any conflict or inconsistency between the terms and provisions of this Assignment and those of the Term Sheet or the Sale Order, the terms and provisions of the Term Sheet or the Sale Order shall govern and control. [SIGNATURES ON FOLLOWING PAGES] IN WITNESS WHEREOPF, the undersigned have duly executed and delivered this Agreement, effective as of the Effective Date (as defined above). County OKALOOSA COUNTY, FLORIDA By: Name: Charles K. Windes. Jr Title: Chairman, Board of County Commissioners ASSIGNOR’S SIGNATURE PAGE TO ASSIGNMENT AND ASSUMPTION AGREEMENT ASSIGNOR: SIMPLY WHEELZ LLC D/B/A ADVANTAGE RENT A CAR By: _ low WEN) nl Name: “Tam. Me Donnece Title: CEO ASSIGNEE’S SIGNATURE PAGE TO ASSIGNMENT AND ASSUMPTION AGREEMENT ASSIGNEE: DTG OPERATIONS, INC. D/B/A DOLLAR RENT A CAR AND THRIFTY CAR RENTAL pp MALS H i Name: sehee | Title: ye Rese tbe crenn & CarcessionS EXHIBIT A ORIGINAL AGREEMENTS 1, Non-Exclusive Rental Car Concession Agreement and Lease, dated as of September 1, 2011, by and between Okaloosa County, Florida and Simply Wheelz LLC. 2, Rental Car Service Facilities Lease, dated as of September 1, 2011, by and between Okaloosa County, Florida and Simply Wheelz LLC. 3, Amendment No. 1, dated as of September 1, 2011, to Non-Exclusive Rental Cat Concession Agreeniént arid Léase atid Rental Car Service Facilities Lease, See attached. EXHIBIT B SALE ORDER (WITHOUT EXHIBITS OR ATTACHMENTS) Case 13-03332-ee Doc498 Filed 03/31/14 Entered 03/31/14 14:15:16 Desc Main Document Page 1 of 76 SO ORDERED, Atheal Fliingle Judge Edward Ellington United States Bankruptcy Judge Date Signed: March 31, 2014 The Order of the Court is set forth below. The docket reflects the date entered. IN THE UNITED STAT ES BANKRUP TCY COURT FOR THE SOUTHERN DISTRICT OF MISSISSIPPI Inreé: CASE NO, 13-03332-ce Chapter 11 SIMPLY WHEELZ, LLC, D/B/A ADVANTAGE RENT-A-CAR Debior ORDER GRANTING MOTION OF DEBTOR FOR ENTRY OF AN ORDER - APPROVING THE SALE AND ASSUMPTION AND ASSIGNMENT, PURSUANT TO oS BANKRUPTCY CODE SECTIONS 105(A), 363, AND 365 AND BANKRUPTCY RULES. | 2002, 6004; 6006, 9007 AND 9014, OF CERTAIN E EXECUTORY CONTRACTS AND ~ UNEXPIRED LEASES FREE AND CLEAR OF ALL LIENS, CLAIMS, EN CUMBRANCES. AND OTHER INTERESTS, AND. GRANTING RELATED RELIEF [Docket Nos. 466; 468; 472; 473; 474; 477; 478). : This matter came before the Court onthe Motion-of Débtor’ for Entty of an Order Approving the Sale and Asstmption and Assignment, Ptrsiant to Bankruptcy Code. Sections 105(a), 363, and 365 and Bankeuptey Rules 2002, 6004, 6006, 9007 and 9014, of Certain. Execulory Contracts and Unexpired Leases Free and Clear of All Liens, Claims, Enetmbrances, : and Other Iaterests, and Graaling Related Relief [Docket No. 466] (the “Sale Motion”) filed by Simply Wheelz LLC, as debtor and debtor-in-possession (the “Debror”) aud the Motion of " Capitalized terms used ‘but wot otherwise defined herein shall have the meanings Set forth In the Bale Motion or the Catalyst Sale Or der (as herein defined), tinless otherwise indicated herein. Case 13-03332-ee Doc498 Filed 03/31/14 Entered 03/31/14 14:15:16 Desc Main Document Page 2 of 76 Debtor jor. Order Shortening Notice Period and Setting Preliminary and Final Hearing. on Motion to Approve the Salé and the Assumption and Assignment of Certain Exeeutory Contracts and Unexpired Leases for Remaining Locations (the “Motion to Shorten Time”). Tn the Sale Motion and in the Motion to Shorten Time, the Debtor sought the entry of an order, seeking auithotity and approval for the following: | (i). . -To- approve the sale and. transfer of the Non-Transferred ovations’ by the Debtor to the Successful Bidder(s), according. to sale terms obtained at the Auction, and which sale of Non-Transferred Locations shall ‘be, pursuant to Bankruptcy Code sections 105(a), 363, and 365 and Bankruptcy. Rules 2002, 6004, 6006, 9007 and 9014, free and clear of all tiens, claims, encumbrances, and other interests; di) To app ove. the assumption and: assignment of contracts sét forth i in the Binding Term Sheets (as defined below) (the “Assigned Contracts”) to the Successful Bidder(s), according to terms obtained at the Auction, and which assumption and assignment of Assigned Contracts shall ‘be, pursuant to Bankruptcy. Code. sections 105(a), 363, and 365 and Bankruptcy Rules 2002, 6004, 6006, 9007 and 9014, free and clear ofall liens, claims, encumbrances, and other interests; os (iii) To permit the Debtor to file and serve on the parties specified herein on or before Monday, March 10,2014, its Bidding ‘Procedur es which will goverti the slibmission of competing bids at an Auction: and the Bid Term Sheet Form for the: Non-Transferred Locations; (tv). To authorize the ‘Debtor. to ¢stablish a bid. deadline for .Non-Transferr ‘ed - Locations pursuant to the Sale Motion: of Friday, March 14,2014, at 5:00 p.m. (prevailing Central I: ime) under the Bidding Procedures for the Non-Transferred - Locations; (vy) In the event that the Debtor determines there i is more than one Qualified. Bidder that has submitted a bid for. some or all of the Non-Transferted Locations, to authotize the Debtor to conduct an Auction for the Non-Transfetred Locations on Monday, March 17, 2014, beginning at 10: 00° a.m. (prevailing. Central Time), 2 As described i in the Sale Motion. 3 As used heréin, the-term “Assigned Contracts” shall mean, with respect to Avis, ihe agreements jdéntified on Schedule A of the Avis ‘Terni Sheet (as defined: below), and, with respect 0 Hertz, the agreeinents identified on Exhibit-A to the Hertz Term Sheet: (as defined below). 4 The Bidding Procedures wore filed on March 10, 2014 at Docket No.472. ae Case 13-03332-ee Doc 498 Filed 03/31/14 Entered 03/31/14 14:15:16 Desc Main Document