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

Contract prohibiting, restricting or conditioning any. assignment thereof or any desta arising from any change of control of the Debtor or its business); (b) asserting that any conditions to assumption and assignment must be satisfied under such Assigned Contract before it can be assumed and assigned or that any tequired corisent, authotization Or approval for assignment has not been given; or (¢) asserling that Avis and Hertz, respectively, as the Puichasers, have not provided adequate assurance of future perforniance’ as contemplated by section 365 of the Bankruptey Code. | . . G, Pursuant to section 365(k) of the Bankruptey Code, the assignment by the Debtor to anentity of a contract or a lease under section 365 of the Bankinptcy Code relieves the Debtor and the bankruptey ‘estate from any liability for any breach ‘of such contract or lease occurring after such assignment. H, As contemplated by ihe Salé Motion arid the Order Shortening Time, and as téflected in the Notice of Debior's Intent to Conduct Auetion of Cer tain. Now-T ransferred Locations [Docket No. 478), Avis and Hertz each submitted an March 14,2014, a wiitten offer aay phe ARP ok ee ae er : + ee ig gong gay for certain specified Noi-Transferred Locations. Both the Avis Bid and the Hettz Bid were deemed to be Qualified Bids by the Debtor and its professionals. a Where the oritext $0. tequires, all references in 1 this Ordet to “Non-Transferred Locations” shall be deemed (i) to be references only to:siich Nont-Transferred Locations that are subject to the Avis Term Sheet or the Herlz Term Sheet, as applicable, and (li) to include all of the Assigned Contracts and other assets of the Debtor. listed in the applicable Avis Tern Sheet or Hertz Tern Sheet related to any such Non-1 ‘ransferred Location. eRe Case 13-03332-ee Doc 498 Filed 03/31/14 Entered 03/31/14 14:15:16 Desc Main Document Page 9 of 76 Il, ‘The Debtor, therefore, gave nolice that it intended to conduct an Auction for the specitied Non-Transferred Locations on Monday, March 17, 2014, beginning at 10:00 a.m. (prevailing Central Time), at the offices of Butler Snow LLP, 1020 Highland Colony Parkway, Suite 1400, Ridgeland, MS 39157. I. Prior to the Auction, the Debtor’s imatagenient and professionals contacted tlimerous potential acquirers to determine their interest in submitting 3 bid for one or more Non-Transferred Locations being offered for sale pursuant to the Sale Motion. Among those . patties contacted were the following: Eniterprise Rent-A-Car’ Sixt Rent A Cary Fox Rent A Cats . E-Z, Rent A Car; Avis; and Hertz, Although several of these parties axpresied initial interest, . only “Avis and H ertz, seubinitted bids, K, The Auction was conducted on March 17, 2014 ‘in- accordance with Order Shortening Time, and to the extent the Debtor modified any Bidding Procedures, such mod ifications were. within the permissible limits of the Order Shor {ening Time, were within the reasonable business judgmont of the Debtor, and were agreed to by the parties. 1, Of the Non-Transferred Locations listed on Bxhibit “A” to the Sale Motion, The Avis Bid. was for 17 Non-Transfetred Locations, while. the Hertz Bid was for 1] Non-Transferred Locations, There was an overlap of only five (5) Non-Tr anglerred Locations on which both Her izand Avis submitted a bid, After discussions among the parties, at the outset of the Auction, the Debtor annouriced that Avis would be awarded the twelve (12) Non-Transferred Locations on which it aloné bid, while Hertz would be awarded the six (6) Non-Transferred Case 13-03332-ee Doc 498 Filed 03/31/14 Entered 03/31/14 14:15:16 Desc Main Document Page 10 of 76 Locations for which it alone bid, each al the price set forth in the Avis Bid and the Hertz Bid, respectively.’ ‘M. The five ©) remaining Non-Transfened Locations [Burlington (BTY); Hilo (TO); Jacksonville (IAX); Providence (PVD); and Sarasota-Bradenton (SRO) were then dtictioned off, with ihe minimum bid price and the minimum overbid amount for each Non-Transferred Location (as set by the Debtor, in consultation with its professionals) first being. announced by the Debtot to the parties. Each Non-‘Transferred Location was offered separately until each Non-Transferred Location was sold, and Avis and Hertz alternated being the first party to bid. At the conclusion of the Auction, Avis had sabmitted the bigher and betier bid for Sarasota-Bradeiiton (SRQ), while Hertz had submitted the higher and better bid for Burlington | (BTV): Hilo (ITO); Jacksonville (JAX); and Providence (PVD). N, Consequently, each of the Non-Transferred Locations listed on Exhibit “Ay hereto were sold to the. Successfil Bidders listed thereon (i.0., either ray Avis or di) Hertz ‘for éachy NonTransferred Location) for ihe price shown as having submitied the higher and betier offer for each of the Non-Transferred Iocations at the Auction." | 0. ~ Following the Auction, the ‘parties (the Debtor, Catalyst, Avis and Hertz) determined that the Richmond location tisk had been awarded to aM at the Auction was in ” The “Richmond Non-Travisferved Location (RIC) was.one of the 12 Non-Transferved Locations initially awarded to Avis at the outset ofthe Auction. Pollowing the Auction, ‘however, the Debtor removed the Richmond ‘Noii- Transfer red Location from the Avis Bid, as deseribed Rirther in paragraph O of this Order. , Sometimes, Avis and Ilertz aré referred to collectively herein as “Purchasers”: although Avis and Hertz are eaeli purchasing different and séparate Nonh-Transferréd Locations as reflected in Exhibit.A hereto. -10- Case 13-03332-ee Doc 498 Filed 03/31/14 Entered 03/31/14 14:15:16 Desc Main Document Page 11 of 76 could not be sold by the Debtor at this time-as a part of this sales process. ° Accordingly, the parties agreed to withdraw the Richmond location from this sales process, and the Avis Bid ‘was modified to éliminate the Richmond location from the list of Assigned Contracts for Avis and to reduce the Avis Purchase Price by the $401,617 bid by Avis for the Richmond location. P.The Binding. Term Sheet setting forth the final qerms of the Snecessfitl Bid by Avis is attached hereto ‘as Exhibit “B* (the “Avis: Term Sheet") and. the Binding ‘Term Sheet setting forth the terms of the Successful Bid by Hertz is attached hereto as Lxhibit «Oo (the “Hertz Term Sheet’). The Avis Term Sheet and. the Hertz ‘Term Sheet may be collectively ~ referred to as the “Binding Term Sheets” Q. The Avis Term Sheet constitutes the Successful Bid (as defined in ‘the Sale Motion) for the Non-Transferred Locations identified therein, The Hertz Term Sheet constitutes. the Successful Bid (as defined in the Sale Motion) for the-N on-Transfetred Locations identified | therein: R The binding offers of Avis and Hertz as reflected by the Avis ‘Term Sheet and the Hertz Term Sheet ate valid, duly authorized and proper under the. Bidding Procedures, prior - Oiders of the Court in this case, sections 363 arid 365 of the Bankruptcy Code, and applicable law, S. The Debtor has conducted a fair and open sale process in a manner reasonably . calculated to produce the highest or otherwise best offer for the Non-Transferred Locations in. With respect ty a Hertz Subconcession Agreement, the Hertz Setilement (as defined in paragraph 28 of ihis Order) provides in part: Debtor inay not, directly or indirectly, sell, or market for sale, any such Excluded Concession Agreement prior'to thé Closing, In addition, any Hertz Subcoricession Agreement that is not sold by the Debtor within 120 days after the Closing Date shall be rejected by the Debtor no later than the first business day after the expiration of such 120-day petiods wis -|1- Case 13-03332-ee Doc 498 Filed 03/31/14 Entered 03/31/14 14:15:16 Desc Main Document Page 12 of 76 conipliance with the Sale Motion and Order Shortening ‘Time. The Bidding Procedures were substantively and procedurally fair to all parties, ‘The sale process, Bidding Procedures and Auction ‘were non-collusive, duly noticed, proper in all respects, and afforded a full, fair and reasonable opportunity for any party to make a higher or otherwise better offer to purchase all or any of the Non-Transfetted Locations. The bidding and related procedures established by the Sale Motion and Order Shortening ‘Time have been complied with in all material respects. T, The Non-Transfetred Locations were adequately marketed by the Debtor and its advisors, and the consideration provided by Avis and Hertz under the terms of their respective Binding Term Sheets constitutes the highest or otherwise best offer and provides’ fair and: reasonable consideration to the Debtor for the Non-Tranisfeired Locations. The Avis Term Sheet and thie Hertz, Term Sheet present the best opportunity to maximize and realize the value of the Non-Transfetred Locations for the Debtor’s estate. The Debtor's determination that the: consideration provided by Avis and Hertz tinder the terms of their respective Binding. Term Sheets conistitutes the highest or otherwise ‘best offer for the Non-Transferred Locations and coristitutes.a valid and sound exercise of the Debtot’s business judgment. | U. ‘Approval of the Sale Motion, the Avis Term Sheet, and the Hertz Term Sheet and the consummation of the transactions contemplated thereby are in the ‘best interests of the Debtor, its creditors, its estate and other parties in interest. The Debtor has demonstrated good, sufficient and sound busitiess teasons arid justifications for entering into the transactions and the. performatice of its obligations under the Avis Term Sheet and the H arte Tertit Sheet: V. Bantry of this Order approving (i) the Avis Term Sheet and the Hertz Term Sheet, (ii) all the provisions thereof, and (iii) the consummiation..of: (he transactions ‘contemplated thereby isa condition precedent to the consummation of the transactions by Avis and by Hertz. -12- Case 13-03332-ee Doc 498 Filed 03/31/14 Entered 03/31/14 14:15:16 Desc Main Document Page 13 of 76 W. The Avis Term Sheet and the Hertz Term Sheet were not entered into, and neither ‘the Debtor nor Avis and Hertz, respectively, as. the fhurchasers, propose to consummate the transactions for the purpose of hindering, delaying or defrauding the Debtor’s present or future ‘creditors, Neither the Debtor nor Avis and Herlz, respectively, as the Purchasers, are entering into the Avis t erm Sheet and the Hertz Term Sheet, or proposing to consummate the transactions for aty improper, illegal oF fraudulent purpose, whether based on statutory or eommon law, or whether tinder the Bankruptcy Code or undet the laws of the United States, any state, teitory, “possession thereof or the District of Columbia or any other applicable jurisdiction with laws substantially similar to the foregoing, including any laws related to any fraudulent conveyance or fraudulent transfer claims. | X. The terms and conditions of the Auction, and the result of the Auction, including the form and total consideration to be realized by the Debtor pursuatit to the Avis Term Sheet and the [Hertz Term Sheet; (i) is in the best interests of. thé Debtor’s creditors and estate and (i) constitutes fair value, full and adequate consideration, reasonably equivalent value, and reasonable market value for the Non-Transferred Lovations. Y. The apiéement of Avis to assume certain liabilities to the extent set forth in the Avis Term Sheét-and the agreement of Hertz 16 assume certain liabilities to the extent set forth in the Hertz Term Sheet (for each respective party and term sheet, “Seller Assumed Liabilities”) is essential to provide for the payment of Seller Assumed Liabilities comprising certain limited post-petition administrative expenses incurred by the Debtor, a Ayis and Hertz, respectively, as the Purchasers, are the Successful Bidders: for their respective Non-Transferred Locations in accordance with the