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

Locations, it is essential that the thansactions oceut within the timeframe set forth in the Avis Term Sheet and the Henle Term Sheet. ‘Time is of the € essence. in consunimating the transactions. 00, The sale and assignment of the ‘Non-Transferted Locations outside of a plan of . reorganization pursuant to the Avis Term Sheet and the Hertz Term Sheet neither impermissibly festructures the rights “of the Debtor’s creditors nor inipermissibly dictates the terms of a liquidating plan for the Debtor, Neither the Avis ‘Ter Sheet and the Hertz Term Sheet nor the transactions contemplated thereby constitutes a sub rosa chapter 11 plan. of the Assigned Contracts - PP, The assumption and assignment of the Assigned Contracts (as such Assigned Assumption and Assis minent Contracts may be amended, supplemented or otherwise stiodified prior fo assumption and assignment without further order of the Court with the consent of the Debtor, Catalyst, the =19- Case 13-03332-ee Doc 498 Filed 03/31/14 Entered 03/31/14 14:15:16 Desc Main Document Page 20 of 76 applicable contract counterpatty and Avis and Hertz, respectively, as the Purchasers) that are designated for assumption and assignment pursuant to the terms of this Order and the Avis Term Sheet and the Hertz Term Sheet are: (i) properly assumable by the Debtor and assignable 16 Avis or Hertz, respectively, as the Purchasers; (ii) integral to the Avis Term Sheet and the Hertz ‘Term Sheet; (iit) are in the best interests of the Debtor and its estate, creditors and other parties: in interest, and (iv) represent the reasonable exercise of sound and prudent business judgment by the Debtor. Further, the assumption and assigiment of each of the Assigned Contracts is consistent with sections 363 anid 365 of the Bankruptcy Code, prior Orders of the Banktuptey Court and the Hertz Settlement. | QQ. . No section of any Assigned Contract that purports to prohibit, restrict, impose any penalty or fee, or condition the use, consi deration or assignment of any stich Assigned Contract in connection with the itvtieactions shall have any force or effect, RR. ‘The Debior has met all requirements of section 365(b) of the Bankruptcy Code for .each of the Assigned Contracts, ‘The Debtor has (i) cured and/or provided adequate assurance of cure of any defaull existing prior to the closing of the transactions contemplated by the respective Binding Term Sheets (each, a “Closing”) under all of the Assigned Contracts, within: ‘the meaning of section 365(b)(1)(A) of the Bankruptcy Code; and (ii) provided compensation or adequate assurance of compensation to any counterparty to ab Assigned ‘Contract for ‘actual pecuniary loss to such entity resulting from a default prior to the Closing ander any of the Assigned Contracts, within the meaning of section 365(b)(1)(B) of the Bankruptey Code. Each -of the Assigned Contracts is free and clear of all Liens and Claims, excepl as expressly permitted in the Avis Term Sheet and the Hertz Terni Sheet. = 20 - Case 13-03332-ee Doc 498 Filed 03/31/14 Entered 03/31/14 14:15:16 Desc Main Document Page 21 of 76 SS. Each of Avis and Hertz, respectively, as a Purchaser, has demonstrated adequate assurance of future petformanies under the relevant Assigned Contracts within the meaning of sections 365(b)(1)(C) and 365(f)(2)(B) of the Bankruptcy Code. Pursuantto section 365(f) of the Bankruptcy Code, the Assigned Contracts to be assumed and assigned under the Avis Term Sheet and the Hertz Term Sheet shall be assigned and transferred to, and remain in full force and effet for the benefit of, the respective Purchaser notwithstanding any provision in ihe Assigned Contracts or other restrictions prohibiting their assignment or transfer, TT. No defaults exist in the Debtot’s performance under the Assigned Contracts as of the date of this Order other than the failure to pay amounts equal to the Cure Amounts or defaults that are not tequired to be cured as contemplated in section 365(b)(1)(A) of the Bankruptcy Code, : Objections Resolved UU, | Prior to the applicable deadline, three Objections were filed to the Sale Motion: A Preliminary Objection of The Hertz Corporation to the Debtor's Sale Motion and Bidding Procedures [Docket No, 474]; Qe Limited Objection of Louisville Regional Airport Authority to Motion of : Debtor for Entry of an Order Approving the Sale and Assumption and Assignment of Cer tain Executory Contracts and Unexpii ed Leases [Docket No. 479); and 3. The Allegheny County Airport Authority's L imited Objection to Debtor 7 Motion to Approve Sale, Assumption and Assignment of Now-Ty ‘ansferred ‘Locations [Docket No. A483]. VV.. The Louisville Regional Airport Authority (the “Lonisville Authority”) ‘has reserved its tights and defenses to the Sale Motion through the Limited Objection of Louisville Regional Airport Authority: fo Motion of Debtor For Entry of an Order Approving the Sale and Assuimption.and Assignment of Certain Executor 'y Contract and naar ed Leases [Docket No. 479| (“Louisville Objection”), The Concession Agreement for Rental Car Concession at -21% Case 13-03332-ee Doc 498 Filed 03/31/14 Entered 03/31/14 14:15:16 Desc Main Document Page 22 of 76 Louisville International Airport dated April 12, 2012 by and between the Louisville Regional Airport Authotity and Simply Wheelz LLC d/b/a’ Advantage Rent-A-Car (the “Louisville Concession Agreement”), which was identified in the Louisville Objection, is subject to potential assumption and assignment, The Louisville Authority contends that the Louisville Conéession Agreement may not be assumed or assigned absent the consent of the Louisville. Authority and resolution of the Louisville Objection but has agreed to tesolve the Louisville Objection on the terms set forth in sega 42 below. . es ww. Each of the Objections of Herlz and The Allegheny County Airport Authority (the “Allegheny Authority”) has been fésolved on the ternis set forth herein. THEREFORE, IT IS HEREBY ORDERED THAT: ‘Gener: ‘al Provisions 1. The Sale Motion is granted and approved.as set forth herein. 2. All objections to the Sale Motion ‘or ‘the velief requested. therein have been withdrawn, waived or séitled as. announeed to ‘the Court or by stipulation previously filed with ‘the Court, or as resolved in this Order, and all reservations of rights included in any such - . objection, ate hereby overruled on the merits. 3: All persons and entities given notice of ihe Sale Motion that tailed +) timely Object thereto are deemed io consent to the relief sought heieit including, ‘without limitation, all non-Debtet parties to the Assigned Contracts. | | | 4. . The findings and conclusions set forth herein constitute the Court's findings of fact and conclusions of Jaw pursuant to Bankruptoy Rule 7052, made applicable to this proceeding pursuant to Bankruptcy Rule 9014, To the extent any of the findings of fact 092s Case 13-03332-ee Doc498 Filed 03/31/14 Entered 03/31/14 14:15:16 Desc Main Document Page 23 of 76 constitute conclusions of law, they are adopted as such, and to the extent any of the following conclusions of law constitute findings of fact, they are adopted as such. 5. The Avis Term Sheet and ihe Hertz Term Sheet, all of the terms and conditions thereof,:and all of the transactions.contemplated ther ein are appr oved in all especie. Th failure slicei inh this Order shill not aims or — the effectiveness of such provision, it rit intent of the Court that the Avis Term Sheet and the Hertz Term Sheet -be authorized and ‘approved iti their eritirety. The transfer of the N on-Teansforred Locations by the Debtor ‘6 Avis and Hertz, respectively, as The Purchasers, according to the terms of the Avis Term Sheet and the Tertz Term Sheet ‘shall be a legal, valid ‘and effective transfer of the Non-Transterred Locations. “The consummation of the transactions is hereby approved and authorized under section 363(b) of ihe Bankruptcy Code. 6. ‘The Debtor is authorized: (a) to take any and all actions necessat y oF appropriate to perform, consummate, implement. and close the transactions, including the sale to Avis and Hertz, respectively, asthe Purchasers, ofall Non-Transferred Locations, in accordance with the terms and voriliions set forth inthe Avis Teena Sheet and the Hertz Term Sheet and this Order, including, without limitation, executing, acknowledging and delivering ‘such deeds, assignments, conveyances and other assurance, doctiments and instraments ‘of transfer and . taking any action for purposes of assigning, wansfeiring, granting, conveying, and confirming fo Avis and Hertz, respectively, as the Puichasers, or teducing to possession, any or all of the Non-Transfétred Lovations, and entering into ‘ay transition services or operations support agreements with Avis aind Hertz, respectively, as the Purchasers, and any other agreements 22+ Case 13-03332-ee Doc498 Filed 03/31/14 Entered 03/31/14 14:15:16 Desc Main Document Page 24 of 76 related to implementing the transactions; (b) lo assume and assign any and all Assigned Contracts; and (c) to perform its obligations under the Avis Term Sheet and the Hertz Term Sheet. . 7. All persons and entities are prohibited and enjoined Itom taking any action to adversely affect or interfere with, or which would be inconsistent with, the ability of the Deblor to transfer the Non-Tiansferred Locations to Avis and Hertz, respectively, as the Purchasers, dn accordance with the Avis Term Sheet and the Hertz Term Sheet andl this Order. 8, In the event Avis and/ot Hertz, respectively, as the Purchasers, or the Debtor, as the Seller, fail to consummate the sale in accordance with the Avis Term Sheet and the Hertz _ Term Sheet because ofa broach or failtré to pertofin on the part of Avis of Herta or Seller, as applicable, then the non-breachitig party qmay seek to.enforce ils rights for such breach. 9, — -Excepbas otherwise exptessly provided in the Avis ‘Term Sheet and the Hertz ‘Yetny Sheet with respect re Seller Assumed Liabilities, the Non-Transferred Locations shall be sold free and clear of all claims, liabilities, interests, rights and encumbrances, including, without limitation, all mortgages, restiictions (inolnding, without limitation, any testriction on the use, voting rights, transfer tights, claims for receipt of income or other exetcise of any attributes of ownership), hypothecations, charges, indentures, loan. agreements, instruments, options, deeds of trust, secuitity interests, equity interests, conditional sale tights or other title felention agreements, pledges, ‘dante, demands, tights of first refusal, consent rights, offsets, contract rights, tights of setoff rights of recovery, reimbursement rights, conttibution claims, indemnity tights, exoneration sights, product liability claims, alter-ego claims, environmental rights and claims (including, without limitation, toxic tort claims), labor sighis and claims, employment rights and clainis, pension rights and claims, tax claims, regulatory -24< Case 13-03332-ee Doc 498 Filed 03/31/14 Entered 03/31/14 14:15:16 Desc Main Document Page 25 of 76 violations, decrees of any colt or foreign or domestic governmental entity, charges of any ‘kind or nature, debts arising in any way in connection with any agreements, acts, or failures to act, reclamation claims, obligation claims, domarids, guaranties, contractual or other commitment rights and claims, rights of licensees or sublicensees under section 365(n) of the Bankruptcy Code-or any similar statute, and all other matters of any kind and nature, whether known or -woknown, choate-or inchoate, filed or unfiled, scheduled or unscheduled, noticed or unnoticed, | _ recorded or unrecorded, perfected of unperfected, AMlawed or disallowed, contingent or non-contingent, liquidated or wiliquidated, matured or unmatured, material or non-matetial, disptited or undisputed, whether aiising priot to or