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

Sale Motion and Order Shortening Time, Avis and Hertz, respectively, as the Purchasers, have complied in all respects -13- Case 13-03332-ee Doc 498 Filed 03/31/14 Entered 03/31/14 14:15:16 Desc Main Document Page 14 of 76 with the Sale Motion and Order Shortening Time and any other applicable order of this Court in negotiating and entering into the Avis Term Sheet and the Hertz Term Sheet, and the transactions contemplated thereby likewise comply with the Sale Motion and Order Shortening Time and any other applicable rier of this Court. AA. The Catalyst Capital Group, Inc. (on behalf of funds rhanaged by it and its affiliates, inits capacity as purchaser of the Debtor's assets pursuant to the Sale Order entered wi January 2, 2014 [Docket No. 326], and/or as déblor-in-possession lender, “Caralyst”), consents to thé transfer of the Non-Transfetred Locations, as approved herein, in accordance with the Sale Motion, the Order Shortening Time, and the Avis Term Sheet and the Hertz Term Sheet. Gi od Faith of Debtor and. Purchaser ‘ BB. The ‘sale process conducted by the Debtor, including, without limitation, the Bidding Procedures set forth in the Sale Motion and Order Shortening ‘Time, was a arm's length, non-collusive, in good faith, and: substantively and, provediucally fair to all entities, The Avis the Avis Term Sheet and the Hertz Term Sheet were roped negotiated and: ‘entered into by and. between the Debtor and Avis and Hert, respectively, as the Purchasers, without collusion, i in: good faith and at arms” length. Ce. The Debtor, Purchaser's and. their respective pfofessionals ‘and didvisors have complied in good faith with the Bidding Procedares, Salo Motion, and Order Shortening Time in all respects, ‘Through siibstantial matketing efforts by the Debtor and its professionals, a competitive salé process and a Court-ordered Auction that was conducted in accordance with the Bidding Procedures, Salé Motion, and Order Shortening ‘lime, the Debtor (a) afforded all «[4- Case 13-03332-ee Doc 498 Filed 03/31/14 Entered 03/31/14 14:15:16 Desc Main Document Page 15 of 76 creditors and-other parties in intetest and all potential purchasers a full, fair and reasonable opportunity to qualify as bidders and submit their highest or otherwise best offer to purchase the Non-Transferred Locations, (b) provided potential purchasers, upon. -tequest, sufficient information to enable them to make an informed judgment on. whether to bid on the Non-Transferred Locations, and (¢) considered any bids submitted on or before the Bid Deadline. (as defined in the Bidding Procedures). DD... Neither Avis and Hertz, respectively, as the Purchasers, nor any of their affiliates, present or contenplated stieiubers, officers, directors, shareholders or any .of their respective successors and assigns iy an “insider” of the Debtor, as the term “insider” is defined in section 101(31) of the Bankruptey Code. Avis and Hertz, respectively, as the Purchasers, ave entering into. the transactions in wood faith and are “good faith Purchasers” within the meaning of section 363(m) of the Bankruptey Code, and are therefore entitled to thé full protection of that. provision, and otherwise have proceeded in good faith in all respects in connection with this proceeding. Neither the Debtor nor Avis and Hertz, respectively, as. the Purchasers, have engaged in any action or inaction that would cause or permit the Avis Term Sheet and the Hertz Term Sheet ot the transactions: to be avoided or impose any vosts of damages under section 363(n) of the Bankruptcy Code, . Section 363 is Satisfied ‘EE, The Debtor has demonstrated a suflicient basis and compelling circunistances requiting it to (i) enter into the Avis Term Sheet and the Herlz Term Sheet (and any related documentation necessary to ‘effectuate the transactions contemplated thereby), (ii) sell the . Non-Transferred Locations, and (iii) assume and assign the Assigned Contracts related to such Non-Transferred Locations, These actions are appropriate exercises of the Debtor's business «]5= Case 13-03332-ee Doc 498 Filed 03/31/14 Entered 03/31/14 14:15:16 Desc Main Document Page 16 of 76 judgment and are in the best interests of the Debtor, its estate and ils creditors. Such business reasons include, without limitation, the fact that: (i) the Avis Term Sheet and the Hertz, Term Sheet constitute the highest or otherwise best offer for the Non-Transferred Locations; (ii) the Avis Term Sheet and the Hertz Term Sheet present the best opportunity to maximize and realize the value of the Non-Transferred Locations; and (iii) unless the sale is concluded expeditiously, the recoveries of the Debtor's estate and constituencies are likely to be adversely affected and. there is a significant risk that numerous obligations constituting administrative expenses in the Debtor's chapier 11 case (including the liabilities that will be assumed by Avis and Hertz to the extent set forth in their respective Binding Term Sheets) will not be satistied. | FF.. Each of the Avis Term Sheet and the Hertz Term Sheet isa valid and binding contteact between the Debtor and Avis and Hertz, respectively, as the Purchasers, and-shall be enfor ceable put suant to their respective terms. GG. For purposes of section 363(b)(1) of the Bankruptey Code, there is no weet sonally — identifiable information” (as defined in section 101(41A) of the Bankriiptoy Code) about individuals to persons that are not affiliated with the Debtor that ais being conveyed pursuant to either the Avis Term Sheet.or the Hertz Term, Sheet, and the transactions will not violate any such privacy policy, or violate any applicable laws relating to the use, dissemination or transfer of the Non-Transferred Locations; HH, The Non-Transferred Locations constitute property of the Debtor's estate within - the meaning of section 541(a) of the Bankruptey Code and title thereto is presently vested in the _ Debtor's estate, il, The sale ofall Non-Transferred Locations to the respective Purchasers under the terms of the Avis Term Sheet and the Hertz Term Sheet meets the applicable provisions of - 16 Case 13-03332-ee Doc 498 Filed 03/31/14 Entered 03/31/14 14:15:16 Desc Main Document Page 17 of 76 section 363(f) of the Bankruptey Code, and except as expressly provided in the Avis Term Sheet and the Hertz Term Sheet with respect to the Seller Assumed Liabilities, (2) the transfer of the Non-Transferred Locations to Avis and Hertz, respectively, as the Purchasers, and (ii) the assumption and/or assignment to Avis and Hertz, respectively, as the Purchasers, of the Assigned Contracts arid other assets of the Debtor solely relating 06 the NoneTransferted Locations, ineach case, will be free and clear of all Liens and Claims (each as defined in Paragtaph 9 below) other than the Seller Assumed Liabilities. In addition, the sale of all. . Non-Transferted Locations to the tespective Purchasers under the terms of the Avis Term Sheet “and the Hertz Term Sheet and the assumption and/or assignment to Avis and Hertz, respectively, as Purchasers of the Assigned Contract and other: assets of the Debtor solely. relating to the Non-Transferred Locations, in each case, will not subject Avis and Hertz, respectively, as the Purchasers, or any of the assets Avis and Hertz to any liability for any Liens or Claims whatsoever (incl uding, without limitation, under any theory of equitable laws antitrust; setolf (except with respect to setoffs. that were effected prior-to the: Petition Date), or Successor or ‘fransferee Liability (as defined in Paragraph 18)) other than the Seller Assumed Liabilities.” All holders of Liens or Claims-and all counterparties ta Assigned Contracts who did not object, of withdrew their: objections, are deemed to have consented to the transactions pursuant to section 303(£)(2) of ‘the Bankruptcy Code, AAR Avis and Hertz, respectively, as the Purchasers, would not have entered into the Avis Term Sheet and the Hertz Term Sheet and would not consummate the transactions, thus adversely affecting the Debtor, its estate, creditors, employees and other parties in interest, ifthe sale of the or Tianeliated Lepations was not free and clear of all Liens and Claims or if Avis ° Whenever the teriis “free. and clear of all Liens and Claims” or Sfiee and clear of all Liens or Claims” is used in this Order, it Shall mean “other than the Seller Assumed Liabilities.” ~17- Case 13-03332-ee Doc 498 Filed 03/31/14 Entered 03/31/14 14:15:16 Desc Main Document Page 18 of 76 and Hertz, respectively, as the Purchasers, would, or in the future could, be lable for any Liens or Claims, including, wwithoiit limitation and a8 applicable, any liabilities that are not expressly assumed by Avis and Hertz, respectively, as the Purchasers, as set forth in the Avis Term Sheet and the Hertz Term Sheet. Avis and Hertz, respectively, as the Purchasers, assert that they will not consummate the transactions unless this Court specifically orders that neither Avis nor Hertz, respectively, as a Purchaser, and none of the assets of Avis or Hertz (including, without limitation, the Non-Transferred Locations) will have any liability whatsoever with respect to, or ‘be required to satisfy in any manner, whether at law or in equity, whether by payment, seioff or otherwise, directly or indirectly, any Lien or Claim, or any Successor or Transferee Liability for the Debtor, in each case, other than.the Purchase Price, including the Sellet Assumed Liabilities. KK. ‘The transfer of the Non-Transferred Locations to ‘Avis and Hertz under the terms of their respective Binding Term Sheets is a legal, valid and effective transfer of all of the legal, equitable and beneficial right, title and interest in and to the Non-Transferred Locations free and lene of all Liens and Claims. The Debtor may sell its interests in the Non-Transferred Locations free and clear of all Liens and Claims because, in each vase, one or more of ‘the standards set forth in section 363(f) of the Bankr uploy Code has been ‘satisfied, The transfer of the ‘Non: Transferred Locations to Avis and Hertz, respectively, as the Purchasers, will vest Avis and Hertz, respectively, as the Purchasers, with good and marketable titl e to the Non-Transferred Locations free and clear of all Liens anid Claims. | LL. Neither Avis nor Hertz, respectively, as a Purchaser: (i) is a successor to the Debtor or its estate by reason of : any theory of law or equity; an) except to the extent set forth in ihe respective Binding ‘Term Sheets, shall assume or in any way be responsible ‘for any liability ot obligation of the Debtor or its estate by reason thereof: (iii) is a continuation or substantial ~ 18+ Case 13-03332-ee Doc 498 Filed 03/31/14 Entered 03/31/14 14:15:16 Desc Main Document Page 19 of 76 continuation of the Debtor ot ifs estate, and there is no continuity between Avis and Hertz, respectively, as a Purchaser, and the Debtor; (iv). has a common identity of incorporators, directors or equity holders with the Debtor; and (v) is holding itself out to the. public as a continuation of the Debtor or its estate, and the transactions do not amount to a consolidation, merger or de Jaco merger of eithet Avis nor Hertz, respectively, as a Purchaser, and the Debtor. MM. | There is no Jegal or equitable reason to delay the iransactions. The transactions must be approved and consummated promptly to preserve the value of the Debtor's assets. NN. ‘The Debtor has demotistrated both .(@) good, sufficient and sound business ~~ purposes and justifications and (ii) compelling circumstances for the bransactions pursuant to -séclion 363(b) of the Bankruptey Code ptior to, and outside of, a plan of reorganization in thal, among other things, absent the immediate consummation of the transactions, the value of the Debtor's assets will be harmed. To maximize the value of the Non-Transferred