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

Avis and Hertz, respectively, as the Purchasers. Case 13-03332-ee Doc 498 Filed 03/31/14 Entered 03/31/14 14:15:16 Desc Main Document Page 31 of 76 16. To the extent sét forth in section 525 of the Bankrupicy Code, no governmental unit (including any aitport authority) may revoke or suspend any permit or license relating to the operation of the Non-Transferred Locations sold, transferred, assigned or conveyed to Avis and Hertz; respectively, as the Purchasers, on account of the filing or pendency of this chapter 11 case of the consummation of the transactions, V7: Avis and Hertz, respeatively, as the Purchase 3, shal not be deemed, as a teult of any action taken in. contiection with the Avis Term Sheet and the Hertz Term Sheet, the consummation of the tr ansactions contemplated by the Avis Tetmi Sheet and the: Hertz Term Sheet, or the transferor operation of the Non-Transterred Locations, including: ihe Assigned Contracts, to: (a) bea legal successor, or otherwise be deemed a successor to the Debtor or its affiliates (other than, for Avis and Heitz, respectively, as the Purchasers, with respect to any obligations as.an assignee under the Assigned Contracts arising after the Closing); (b) have, de Jjucto or otherwise, merged with or into the Debtor or its affiliates; (c) be an alter ego ora mere Gontinuation or substantial ‘continuation of: the Debtor’ or its affiliates, in each case including, without imitation, within ihe ¢ micaning of any pension law, the nneleyee Retirement Income Act (29 U.S.C, 58 2101 et tseq) CwARN” the Fair Labor Standard Act, Title Vil of the Civil . Rights Act of 1964 (as amended), the Age Discrimination and Employment Act of 1967 (as amended), the Feder il Rehabifitation Act of 1973 (as mine the: National Labor Relations — Act, 29 USC. § 151, er seg (the “NERA, 18. Other than as expressly set ‘forth in the Avis Term) Sheet and the Heriz Term Sheet or this Order solely with respect to Seller Assumed. Liabilities, Avis and. Hertz, «31> Case 13-03332-ee Doc 498 Filed 03/31/14 Entered 03/31/14 14:15:16 Desc Main Document Page 32 of 76 respectively, as the Purchasers, shall not have any responsibility. for any liability or other obligation of the Debtor or any of its affiliates, whether known or unknown as of the Closing, now existing or hereafter arising, asserted or unasserted, fixed or contingent, Jiquidated or utiliquidated, including under any law or theory of successor or vicarious liability, antitrust law, -envitonmental law, foreign, federal, state or local reveriue law, or products liability law. Without limiting the generality of the foregoing, Avis and Mertz, respectively, as. the Purchasets, shall not be liable for any (a) liabilities, debts or obligations on account of any taxes arising, accruing or payable under, out of, in connection with, of in any way reélating to the : ownership or operation : of - the Non-Transferred Locations prior to the Closing; (b) environmental liabilities ‘or bligations atising from conditions first existing on or prior to Closing (including, without limitation, the presence of hazardous, toxic, polluting, or contaminating substances or wastes), which may be asserted on any basis, including, wittiont limitation, under the Comprehensive Hnvitoninental Response Compensation and Liability Act (“CERCLA”); (ce) liabilities, debts or obligations arising from. conditions firstexisting of actions occurring prior to the Closing with respect to-any labor, employinent, or similar’ law, rule or regulation, including the laws specifi ed int the preceding Paragraph (including filing requirements wider «any such laws, rules or regulations) or (A) Yiabilities under any other foreign, federal, slate of local law by virtue of Avis and Hertz, respectively, as the Purchasers, purchasing any of the Non-Transferved Locations or assuming any of the Seller Assumed Liabilities (all Jiabilities described “in Patagtaphs 17 and 18 of this Ordet, “Successor or Transferee Liability’). 19. ‘Except as otherwise expressly provided in the Avis Term Sheet and ihe Hertz Tern Sheet, nothing shall require Avis and Hertz, respectively, as the Purchasers, 10: (a) -32- Case 13-03332-ee Doc498 Filed 03/31/14 Entered 03/31/14 14:15:16 Desc Main Document Page 33 of 76 continue or maintain in effect, of assume any liability in respect of any employee, collective bargaining agreement, pension, welfare, fringe benefit or any other benetit plan, trust arrangement or other agreements to which the Debtor is a party or have any responsibility therefor including, without limitation, medical, welfare and pension benefits payable after | retirement or other termination of employment; or (b) assume any responsibility as a fiduciary, ‘lan sponsor’ or otherwise, for making any contribution fo, or in respect of the funding, investment. or administration of any employee benefit. plan, arrangement or. agreement (including but ‘not limited to pension plans) or the termination of any stich plan, arrangement or agreément.. 20. Effective upon the Closing, except with respect to Seller Assumed Liabilities, all persons and entities are forever prohibited and enjoined from commencing or continuing in any matter any action or other proceeding, whether in law or equity, in any judicial; administrative; arbitral or other. proceeding against Avis and Hertz, respectively as the Purchasers, or their: 1 espeative assets (including the Non-T: ransferredd Locations), wath respect 1 to-any (a) Lien ‘or: Claim, ot (b). Badasseor or Transferee Liability, including; -without limitation, the following actions with respect to clauses (a) and (b): @) eommencing or continuing “any action or other proceeding pending or threatened; Gi) enforcing, attaching, collecting or recovering in any manner any judgment, award, decree or order; (i) creating, perfecting or enfor cing any Lien or Claim; ‘(Giy) asserting any. setoff, Tight of subrogation. or recoupment of any ‘eine; (v) commencing or continuing any action, in any manner or place, that does not comply with, or is inconsistent with, the provisions of this Order or other orders of this Court, or the apreements or actions contemplated or taken in respect hereof or (vi) revoking, terminating, failing or Case 13-03332-ee Doc 498 Filed 03/31/14 Entered 03/31/14 14:15:16 Desc Main Document Page 34 of 76 refusing to renéw any license, permit or authorization to operate any of the Non-Transferred Locations or conduct any of the businesses operated with such assels. Good Faith of Purchasers 21. The transactions contemplated by the Avis Term Sheet and the Hertz ‘Term Sheet ate undertaken by Avis and Hertz, respectively, as the Purchasers, without collusion and in good faith, as that tern) is described in section 363(m) of the Bankruptey Code and, accordingly, Avis and Hertz: are deemed for all purposes to be good. faith purchasers in the tiansactions contemplated “by the Avis ‘Term Sheet and the Hertz Term Sheet and the reversal or modification ‘on appeal of the: authorization provided herein to consummate the sale shall not. - affect the validily of the transactions (including the assumption and. assignment of the Assigned Coritracts), unless such authorization and consummation of the sale are duly and properly s tayed pending such appeal. 22, -Neithor the Debtor nor Avis and Hertz, respectively, as the Purchasers, has’ engaged | in any collusion with other bidders ‘or has taken any othei action or inaction that would cause or permit the transactions : {0 ‘be avoided oF: costs or damages to bé. ienpased: under section 363(n) of the Bankruptey Cade or otherwise. nd Assi nment of Assigned Contracts Agsum jtion a 23. The Debtor is author ized and directed to assume and assign each of the Assigned Contracts upon. the: Closing of the tr ‘ansactions (or thereafter, i in accordanee with fg: Avis Tern Sheet and the Hertz. Term Sheet), free: and clear of all Liens and: Claims. The piyment of the applicable Cure Amounts by Avis: and Her 12, respectively, as. the Purchasers, or the Debtor, AS applicable, shall, in accordance with section 365(b) of the Bankrupiey Code, (a) cure all defaults under the Assigned Contracts as contemplated by section 365 of the Bankruptcy Code as of the 44 2 Case 13-03332-ee Doc 498 Filed 03/31/14 Entered 03/31/14 14:15:16 Desc Main Document Page 35 of 76 Closing Date, (b) compensate for any actual pecuniary loss to such non-Debtor counterparty resulting from such default, and (c) together with the assumption of the Assigned Contracts by the Debtor and the assignment of the Assigned Contracts to Avis and Hertz, ‘respectively, as the Purchasers, constitute adequate assurance of future performance thereof. 24... Any provisions in any Assigned Contract that prohibit or condition the assignment of such Assigned Contract or allow the counterparty to suich Assigned Contract to terminate, recapture, impose ary penalty or fee, accelerate, jncrease. any rate, condition on renewal or: extension, or modify any term or condition, directly or indirectly, upon the assianmend of such Assigned Agreement, constitute unenforceable anti-assigninient provisions ihat are void and of no force and effect, All other requirements and conditions under sections 363 and 365 of the Batikiuptey Code for the assumption by the Debtor and assignment to Avis and Hertz, respectively, as the Purchasers, oran Affiliate of Avis and Hertz, respectively, as the Purchasers, of the Assigned Contracts have been satisfied, Upon the Closing, in accordance : with séctions 363 and 365 of the Bankrupley Code, Avis and Hertz, respectively, as thé” Purchasers, shall be fully and irrevocably vested with all fight, title and interest of the Debtor “under the Assigned Contracts, and such Assigned Contracts shall feimain in full force and effect for the benefit of Avis and: Hertz, respectively, as the Purchasers, Each nor-Debtor counterparty to the Assigned Contracts shall be forever baived, estopped, and permanently enjoined from (a) asseviing apaitist the Debtor or Avis and Hertz, respectively, as the Purchasers, of theit respective assets st property any assignment fee, accéleration, default, breach or elaim or pecuniary loss, or condition to assighment existing, arising or accruing as of the Closing Date or arising by reason of the Closing, i neluding any breach related to or atisinig out of change-in-control in such Assigned Contracts, or any ‘purported written or oral -35- Case 13-03332-ee Doc 498 Filed 03/31/14 Entered 03/31/14 14:15:16 Desc Main Document Page 36 of 76 modification to the Assigned Contracts find (b) asserting apainst Avis and Hertz, respectively, as the Purchasers, (or its assets or property, including the Non-Transferred Locations) any Lien or Claim, counterclaim, breach, condition, setoff, asserted or capable of being asserted against the Debtor existing as of the Closing Date or atising by reason of the Closing except for the Seller Assumed Liabilities (subject only to the limitations set forth in Paragraph 41 herein with tespect to Hertz and the Allegheny Authotity). 25. Upon the Closing and ihe payment. of the relevant Cure Amounts, Avis and: Hertz, respectively, as the Purchasers, shall be deemed to be substituted for the Debtor as a party to the applicable Assigned Contracts arid the Debtor shall be released, pursuant to section 365(k) of the Banktuptey Code, from any liability vindet the Assigned Contracts, There shall be no assignment fees, increases orany other fees charged to Avis and Hertz, respectively, as the Purchasers, or fhe Debtor asa result of the asdumnpilon and assignmentof the Assigned Contracts ‘The failure of the Debtor or Avis and Hetty, respectively, as the Purchasers s, to ents at any ‘time one or more terns of conditions of any Assigned. Contract shall not bea waiver of such. terms ‘or conditions or of the right of the Debtor or Avis and Hertz,