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  8501 Williams Road
  Estero
  Florida 33928
  239 301-7000
   

 

 

UNITED STATES 

SECURITIES AND EXCHANGE COMMISSION 

Washington, D.C. 20549

 

FORM 8-K

 

CURRENT REPORT

Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934

 

Date of Report (Date of earliest event reported) April 7, 2021 (April 3, 2021)

 

HERTZ GLOBAL HOLDINGS, INC.

THE HERTZ CORPORATION

(Exact name of registrant as specified in its charter)

 

Delaware   001-37665   61-1770902
Delaware   001-07541   13-1938568
(State or other jurisdiction of incorporation)   (Commission File Number)   (I.R.S. Employer Identification No.)

 

8501 Williams Road

Estero, Florida 33928

239 301-7000

(Address, including Zip Code, and
telephone number, including area code,
of registrant's principal executive offices)

 

Not Applicable

Not Applicable

(Former name, former address and
former fiscal year, if changed since last report.)

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

 

¨    Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

¨    Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

¨    Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

¨    Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

Securities registered pursuant to Section 12(b) of the Act:

 

    Title of Each Class   Trading
Symbol(s)
  Name of Each Exchange on which Registered
Hertz Global Holdings, Inc.   Common Stock par value $0.01 per share   HTZGQ   *
The Hertz Corporation   None   None   None

 

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).

 

Emerging growth company ¨

 

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ¨

 

* Hertz Global Holdings, Inc.’s common stock began trading exclusively on the over-the-counter market on October 30, 2020 under the symbol HTZGQ.

 

 

 

 

 

 

Item 1.01     Entry into a Material Definitive Agreement.

 

On May 22, 2020 (the “Petition Date”), Hertz Global Holdings, Inc. (the “Company”, “HGH” or “we”), The Hertz Corporation (“THC”) and certain of their direct and indirect subsidiaries in the United States and Canada (collectively, the “Debtors”) filed voluntary petitions for relief under chapter 11 of title 11 (“Chapter 11”) of the United States Code in the United States Bankruptcy Court for the District of Delaware (the “Bankruptcy Court”), thereby commencing Chapter 11 cases (the “Chapter 11 Cases”) for the Debtors. The Debtors filed with the Bankruptcy Court a proposed Joint Chapter 11 Plan of Reorganization of the Debtors, dated as of March 1, 2021, and a related proposed Disclosure Statement. The Debtors subsequently filed with the Bankruptcy Court a proposed First Amended Joint Chapter 11 Plan of Reorganization of the Debtors and a related proposed Disclosure Statement, in each case dated as of March 29, 2021. On April 3, 2021, the Debtors filed with the Bankruptcy Court a proposed Second Amended Joint Chapter 11 Plan of Reorganization of the Debtors (the “Proposed Plan”) and a related proposed form of Disclosure Statement (the “Proposed Disclosure Statement”). On April 3, 2021, the Company issued a press release announcing the filing of the Proposed Plan and Proposed Disclosure Statement. A copy of the press release is furnished as Exhibit 99.1 to this current report and is hereby incorporated by reference into this Item 1.01.   The information contained in this Item 1.01 and Exhibit 99.1 hereto shall not be deemed to be “filed” for purposes of Section 18 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and shall not be incorporated by reference into any filings under the Securities Act of 1933, as amended, or the Exchange Act, except as may be expressly set forth by specific reference in such filing.  

 

In connection with the Proposed Plan the Debtors entered into a Plan Support Agreement, dated as of April 3, 2021 (the “Plan Support Agreement”), with one or more funds associated with Warburg Pincus LLC (“WP”), Centerbridge Partners L.P. (“Centerbridge”) and Dundon Capital Partners LLC (“Dundon” and together with WP and Centerbridge, the “PE Sponsors”) and certain other parties in their capacity as owners, beneficial owners or managers or advisors of funds or accounts that are beneficial owners, of claims in respect of the following obligations of the Company (the “Initial Consenting Noteholders” and, together with the PE Sponsors, the “Plan Sponsors”): (a) the 6.25% Senior Notes due 2022 issued pursuant to that certain indenture (as the same may have been amended, modified, or supplemented from time to time), dated as of October 16, 2012, by and among THC, as the issuer, the subsidiary guarantors party thereto, and Wells Fargo Bank, N.A., in its capacity as trustee; (b) the 5.50% Senior Notes due 2024 issued pursuant to that certain indenture (as the same may have been amended, modified, or supplemented from time to time), dated as of September 22, 2016, by and among THC, as the issuer, the subsidiary guarantors party thereto, and Wells Fargo Bank, N.A., in its capacity as trustee; (c) the 7.125% Senior Notes due 2026 issued pursuant to that certain indenture (as the same may have been amended, modified, or supplemented from time to time), dated as of August 1, 2019, by and among THC, as the issuer, the subsidiary guarantors party thereto, and Wells Fargo Bank, N.A., in its capacity as trustee; (d) the 6.00% Senior Notes due 2028 issued pursuant to that certain indenture (as the same may have been amended, modified, or supplemented from time to time), dated as of November 25, 2019, by and among THC, as the issuer, the subsidiary guarantors party thereto, and Wells Fargo Bank, N.A., in its capacity as trustee; and (e) the obligations under that certain Credit Agreement, dated as of December 13, 2019, by and among THC, the lenders party thereto, and Goldman Sachs Mortgage Company, as administrative agent and issuing lender, as amended, supplemented, or otherwise modified from time to time (the claims under clauses (a) through (e) above, collectively, the “Senior Notes/ALOC Claims” and, the holders thereof, the “Unsecured Noteholders”).

 

Pursuant to the Plan Support Agreement, the parties thereto have agreed to take certain actions to support the prosecution and consummation of the Proposed Plan on the terms and conditions set forth in the Plan Support Agreement. The Plan Support Agreement also includes a “fiduciary out” provision that makes clear, to the extent set forth in the Plan Support Agreement, that the Debtors are not required to take any action or to refrain from taking any action with respect to the Plan Support Agreement to the extent taking or failing to take such action would be inconsistent with applicable law or the fiduciary obligations of the Debtors’ boards of directors (or similar governing body) under applicable law. The Plan Support Agreement contemplates that additional parties, including the official committee of unsecured creditors appointed in the Chapter 11 Cases and certain holders of claims against or interests in any of the Debtors, may join the Plan Support Agreement by executing one or more joinders thereto. Among other things, the Plan Support Agreement establishes certain milestones for the prosecution and consummation of the Proposed Plan, including fixing (i) May 1, 2021 as the outside date for obtaining approval of the Proposed Disclosure Statement, (ii) June 30, 2021 as the outside date for obtaining confirmation of the Proposed Plan, and (iii) July 31, 2021 as the outside date for consummating the Proposed Plan (in each case subject to the right of the Plan Sponsors to extend in their discretion).

 

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The Debtors also entered into an Equity Purchase and Commitment Agreement, dated as of April 3, 2021 (the “Equity Purchase and Commitment Agreement”). Pursuant to the Equity Purchase and Commitment Agreement, each PE Sponsor identified as the Direct Equity Investors on Schedule 1 of the Equity Purchase and Commitment Agreement agreed to purchase directly 15,400,000 shares of Series A Convertible Preferred Stock of reorganized HGH for $385 million and 116,575,894 shares of common stock of reorganized HGH for $565 million. Pursuant to the Equity Purchase and Commitment Agreement, the Parties identified on Schedule 1 to of the Equity Purchase and Commitment Agreement that have a percentage set forth across from such party on such Schedule 1 in the column labeled “Additional Investor Equity Commitment” (subject to certain transfer provisions) agreed to backstop the purchase of $1.623 billion in shares of common stock of reorganized HGH pursuant to the offering of rights pursuant to which eligible holders of the Senior Notes/ALOC Claims are entitled to receive rights to subscribe for shares of common stock of reorganized HGH

 

The foregoing summary of the Plan Support Agreement and the Equity Purchase and Commitment Agreement has been included to provide investors and security holders with information regarding the terms of such agreements and is qualified in its entirety by the terms and conditions of the Plan Support Agreement and the Equity Purchase and Commitment Agreement, copies of which are attached hereto as Exhibits 10.1 and 10.2, which are incorporated herein by reference. The representations, warranties and covenants contained in the Plan Support Agreement and the Equity Purchase and Commitment Agreement have been made solely for the purpose of such agreement and as of specific dates, for the benefit of the parties thereto. In addition, such representations, warranties and covenants (i) may have been qualified by confidential disclosures exchanged between the parties, (ii) are subject to materiality qualifications contained in the agreements which may differ from what may be viewed as material by investors, and (iii) have been included in the agreements for the purpose of allocating risk between the contracting parties rather than establishing matters of fact. Investors should not rely on the representations, warranties and covenants or any descriptions thereof as characterizations of actual facts or circumstances, and the subject matter of representations and warranties may change after the date as of which such representations or warranties were made. Moreover, information concerning the subject matter of the representations, warranties and covenants may change after the date of the agreements, which subsequent information may or may not be fully reflected in the Company’s public disclosures. The Proposed Plan, Plan Support Agreement and the Equity Purchase and Commitment Agreement are subject to approval by the Bankruptcy Court.

 

Item 8.01     Other Events.

 

As previously disclosed, on the “Petition Date”, the Debtors filed voluntary petitions for relief under Chapter 11 of the United States Code in the Bankruptcy Court, thereby commencing the Chapter 11 Cases for the Debtors. The cases are being jointly administered under the caption In re The Hertz Corporation, et al., Case No. 20-11218 MFW.

 

On April 3, 2021, the Debtors filed the Proposed Plan and the related Proposed Disclosure Statement describing, among other things, the Proposed Plan; the Debtors contemplated financial restructuring (the “Restructuring”); the events leading to the Chapter 11 Cases; certain events that have occurred or are anticipated to occur during the Chapter 11 Cases, including the anticipated solicitation of votes to approve the Proposed Plan from certain of the Debtors’ creditors and certain other aspects of the Restructuring. The Proposed Plan and Proposed Disclosure Statement, as well as other court filings and information about the Chapter 11 Cases, can be accessed free of charge at a website maintained by the Company’s claims, noticing, and solicitation agent, Prime Clerk LLC, at https://restructuring.primeclerk.com/hertz, or call (877) 428-4661 (toll-free in the U.S.) or (929) 955-3421 (from outside the U.S.).

 

Neither the Debtors’ filing of the Proposed Plan and Proposed Disclosure Statement, nor this Current Report, is a solicitation of votes to accept or reject the Proposed Plan. Votes on the Proposed Plan may not be solicited until a disclosure statement has been approved by the Bankruptcy Court. Any such solicitation will be made pursuant to and in accordance with applicable law, including orders of the Bankruptcy Court. The Proposed Disclosure Statement is being submitted to the Bankruptcy Court for approval but has not been approved by the Bankruptcy Court to date.

 

Information contained in the Proposed Plan and the Proposed Disclosure Statement is subject to change, whether as a result of amendments or supplements to the Proposed Plan or Proposed Disclosure Statement, third-party actions, or otherwise, and should not be relied upon by any party. The documents and other information available via website or elsewhere are not part of this Current Report and shall not be deemed incorporated herein.

 

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Cautionary Statement Concerning Forward-Looking Statements

 

This Current Report contains “forward-looking statements” within the meaning of federal securities laws. Words such as “expect” and “intend” and similar expressions identify forward-looking statements, which include but are not limited to statements related to our liquidity and potential financing sources; the bankruptcy process; our ability to obtain approval from the Bankruptcy Court with respect to motions or other requests made to the Bankruptcy Court throughout the course of the Chapter 11 Cases; the effects of Chapter 11 on the interests of various constituents; and the ability to confirm and consummate a plan of reorganization. We caution you that these statements are not guarantees of future performance and are subject to numerous evolving risks and uncertainties that we may not be able to accurately predict or assess, including those in our risk factors that we identify in our most recent annual report on Form 10-K for the year ended December 31, 2020, as filed with the Securities and Exchange Commission on February 26, 2021, and any updates thereto in the Company’s quarterly reports on Form 10-Q and current reports on Form 8-K. We caution you not to place undue reliance on our forward-looking statements, which speak only as of their date, and we undertake no obligation to update this information. 

 

Item 9.01      Exhibits.

 

(d) Exhibits

 

Exhibit
Number

 

Title

10.1    Plan Support Agreement, dated as of April 3, 2021
     
10.2   Equity Purchase and Commitment Agreement, dated as of April 3, 2021
     
99.1   Press Release of Hertz Global Holdings, Inc. and The Hertz Corporation, dated April 3, 2021
     
101.1   Pursuant to Rule 406 of Regulation S-T, the cover page to this Current Report on Form 8-K is formatted in Inline XBRL
   
104.1   Cover Page Interactive Data File (Embedded within the Inline XBRL document and included in Exhibit 101.1)

 

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SIGNATURES

 

Pursuant to the requirements of the Securities Exchange Act of 1934, each registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

 

  HERTZ GLOBAL HOLDINGS, INC.
THE HERTZ CORPORATION
  (each, a Registrant)
     
  By: /s/ M. David Galainena
  Name:  M. David Galainena
  Title: Executive Vice President, General Counsel and Secretary

 

Date: April 7, 2021

 

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Exhibit 10.1

 

EXECUTION VERSION

 

THIS PLAN SUPPORT AGREEMENT DOES NOT CONSTITUTE, AND SHALL NOT BE DEEMED, AN OFFER WITH RESPECT TO ANY SECURITIES OR A SOLICITATION OF ACCEPTANCES OR REJECTIONS AS TO ANY CHAPTER 11 PLAN WITHIN THE MEANING OF SECTIONS 1125 OR 1126 OF THE BANKRUPTCY CODE. ANY SUCH OFFER OR SOLICITATION WILL COMPLY WITH ALL APPLICABLE SECURITIES LAWS AND/OR PROVISIONS OF THE BANKRUPTCY CODE. NOTHING CONTAINED IN THIS PLAN SUPPORT AGREEMENT SHALL BE AN ADMISSION OF FACT OR LIABILITY OR, UNTIL THE OCCURRENCE OF THE AGREEMENT EFFECTIVE DATE ON THE TERMS DESCRIBED HEREIN, DEEMED BINDING ON THE PARTIES HERETO. THIS PLAN SUPPORT AGREEMENT IS CONFIDENTIAL AND SUBJECT TO CONFIDENTIALITY AGREEMENTS AND HAS BEEN PRODUCED FOR DISCUSSION AND SETTLEMENT PURPOSES ONLY AND IS SUBJECT TO THE PROVISIONS OF RULE 408 ITS STATE AND FEDERAL EQUIVALENTS.

 

PLAN SUPPORT AGREEMENT

 

This PLAN SUPPORT AGREEMENT, dated as of April 3, 2021 (as amended, supplemented, or otherwise modified from time to time in accordance with the terms hereof, together with all exhibits attached hereto and incorporated herein, this “Agreement”) is entered into by and among: (i) The Hertz Corporation (“Hertz”), a corporation incorporated in the State of Delaware, and its affiliated debtors and debtors-in-possession (collectively with Hertz, the “Company” or the “Debtors”) in the Chapter 11 Cases (as defined below) pending in the United States Bankruptcy Court for the District of Delaware (the “Bankruptcy Court”); (ii)(a) one or more funds associated with Centerbridge Partners, L.P. (“Centerbridge”), (b) one or more funds associated with Warburg Pincus LLC (“WP”), and (c) Dundon Capital Partners LLC (“Dundon” and, together with Centerbridge and WP, the “PE Sponsors”); (iii) the undersigned in their capacity as owners and/or beneficial owners1 (or managers or advisors of funds or accounts that are beneficial owners) of Claims against the Debtors, including Claims in respect of the following obligations of Hertz (the “Initial Consenting Noteholders” and, together with the PE Sponsors, the “Plan Sponsors”): (a) the 6.25% Senior Notes due 2022; (b) the 5.50% Senior Notes due 2024; (c) the 7.125% Senior Notes due 2026; (d) the 6.00% Senior Notes due 2028; and (e) the obligations under that certain Credit Agreement, dated as of December 13, 2019, as amended, supplemented or otherwise modified from time to time (the Claims under clauses (a) through (e) above, collectively, the “Senior Notes/ALOC Claims” and, the holders thereof, the “Unsecured Noteholders”); (iv) the official committee of unsecured creditors appointed in the Chapter 11 Cases (the “Committee”) upon executing the joinder attached as Exhibit A hereto (the “Committee Joinder”); and (v) any additional Unsecured Noteholders (the “Additional Consenting Noteholders” and, together with the Initial Consenting Noteholders, the “Consenting Noteholders”) and any owners or beneficial owners of any other Claims against or Interests in any of the Debtors (collectively, the “Consenting Claimholders”), in each case, that execute the joinder attached as Exhibit B hereto (the “Consenting Claimholder Joinder”).

 

 

1      As used herein, the term “beneficial ownership” means the direct or indirect economic ownership of, and/or the power, whether by contract or otherwise, to direct the exercise of the voting rights and the disposition of, the Claims against or Interests in any of the Debtors or the rights to acquire such Claims or Interests.

 

 

 

 

The Company and the Plan Sponsors and any subsequent person or entity that becomes a party hereto in accordance with the terms hereof are referred to herein as the “Parties” and individually as a “Party.” As used herein, (i) “Requisite Consenting Noteholders” means, at any relevant time, the Consenting Noteholders holding at least 67% in principal amount of the Senior Notes/ALOC Claims held by all Consenting Noteholders and (ii) “Requisite Commitment Parties” means, at any relevant time, the Requisite Consenting Noteholders and each of the PE Sponsors. Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to such terms in the Plan (as defined below).

 

RECITALS

 

WHEREAS, on May 22, 2020, the Debtors commenced voluntary cases under chapter 11 of title 11 of the United States Code, 11 U.S.C. §§ 101 et seq. (the “Bankruptcy Code”), which are being jointly administered under the caption In re The Hertz Corporation, et al., Case No. 20-11218 (MFW) (the “Chapter 11 Cases”) in the Bankruptcy Court;

 

WHEREAS, in connection with the Chapter 11 Cases, the Parties have engaged in good faith, arm’s length negotiations regarding the terms of the proposed restructuring of the Debtors’ indebtedness and other obligations (such restructuring and any related transactions, the “Restructuring”) pursuant to an amended version of the Debtors’ proposed chapter 11 plan of reorganization attached as Exhibit C hereto (as may be further amended, supplemented, or otherwise modified in accordance with its terms, the “Plan”);

 

WHEREAS, to effectuate the Restructuring, in accordance with, and pursuant to, this Agreement and the Commitment Documents, (i) the Reorganized Debtors will issue new common stock (“Reorganized Equity”), of which 48.2% will be issued to Unsecured Noteholders under the Plan as set forth in the Term Sheet and 51.8% (the “Offered Stock”) will be issued at a purchase price, based on a common equity valuation of $4,223 million (the “Offering Purchase Price”); (ii) each of the PE Sponsors will commit, severally and not jointly, to purchase its shares of Offered Stock at the Offering Purchase Price, in the aggregate amount of $565 million; (iii) the Initial Consenting Creditors shall commit, severally and not jointly, to (a) exercise subscription rights to purchase shares of Offered Stock at the Offering Purchase Price in the aggregate amount of $1,390,674,614 representing the Ad Hoc Group of Hertz Bondholders’ (the “Ad Hoc Group”) aggregate pro rata share of the Creditor Allocation (as defined in the Term Sheet) as of March 29, 2021; and (iv) the Unsecured Noteholders holding Unsecured Notes that were not held by members of the Ad Hoc Group as of March 29, 2021 will be offered subscription rights to purchase the remaining shares of Offered Stock, representing a purchase price of up to $232,325,386 in the aggregate in cash (the “Rights Offering Amount”), which offering will be backstopped by the Initial Consenting Noteholders; (v) the Reorganized Debtors will issue, and each of Centerbridge and WP will each commit to purchase, severally and not jointly, its shares of Convertible Preferred Stock, in each case, on terms and conditions that are consistent with this Agreement and otherwise acceptable to the Requisite Commitment Parties; and (v) certain of the Plan Sponsors will provide financing to Hertz International Ltd. (the “New HIL Facility”) in accordance with the terms set out in the Commitment Letter attached hereto as Exhibit D (the “HIL Facility Commitment Letter”);

 

WHEREAS, the Parties desire to express to each other their mutual support and commitment in respect of the matters discussed in this Agreement and the Plan.

 

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AGREEMENT

 

NOW, THEREFORE, in consideration of the covenants and agreements contained herein, and for other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, each Party, intending to be legally bound hereby, agrees as follows:

 

Section 1.               Conditions to Effectiveness.

 

This Agreement shall become effective as to, and binding upon, each of the undersigned Parties on the date and at the time upon which all of the following conditions have been satisfied in accordance with this Agreement (such date, the “Agreement Effective Date”):

 

(a)               counsel to the Company shall have received executed counterparts to this Agreement by each of (i) the PE Sponsors and (ii) Initial Consenting Noteholders holding at least 80% in principal amount of the Senior Notes/ALOC Claims;

 

(b)               counsel to the Initial Consenting Noteholders shall have received executed counterparts to this Agreement by each of (i) the Debtors and (ii) the PE Sponsors; and

 

(c)               counsel to the PE Sponsors shall have received executed counterparts to this Agreement by each of (i) the Debtors and (ii) Initial Consenting Noteholders holding at least 80% in principal amount of the Senior Notes/ALOC Claims.

 

Notwithstanding the occurrence of the Agreement Effective Date, this Agreement contemplates that (i) the Committee may become a Party upon execution and delivery of the Committee Joinder to counsel to each of the other Parties and at such time (the “Committee Effective Date”) the Committee shall become obligated under this Agreement, and (ii) one or more Additional Consenting Noteholders or Consenting Claimholders may become Parties upon execution and delivery of counterpart signature pages of this Agreement or the Consenting Claimholder Joinder to counsel to each other Party and at such time (a “Consenting Claimholder Effective Date”) any such Additional Consenting Noteholder or Consenting Claimholder shall become obligated under this Agreement. If (a) the Committee does not become a Party or there is a subsequent Termination Date (as defined in Section 8 hereof) with respect to the Committee, (1) any and all provisions of this Agreement referencing the “Committee” are, and shall continue to be, in full force and effect with respect to the Parties as if such provisions were written without reference to such term and (2) this Agreement shall be in full force and effect with respect to each Party other than the Committee, (b) no Additional Consenting Noteholders become a Party, any and all provisions of this Agreement referencing “Additional Consenting Noteholders” are, and shall continue to be, in full force and effect with respect to the Parties as if such provisions were written without reference to such term, or (c) no Consenting Claimholders become a Party or there is a subsequent Termination Date (defined in Section 8) with respect to each Consenting Claimholder, (1) any and all provisions of this Agreement referencing “Consenting Claimholder” are, and shall continue to be, in full force and effect with respect to the Parties as if such provisions were written without reference to such term and (2) this Agreement shall be in full force and effect with respect to each Party other than the Consenting Claimholders.

 

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Section 2.               Exhibits Incorporated by Reference. Each of the exhibits attached hereto is expressly incorporated herein and made a part of this Agreement, and all references to this Agreement shall include the exhibits hereto. In the event of any inconsistency between this Agreement and the exhibits attached hereto, this Agreement (without reference to such exhibits) shall govern.

 

Section 3.               Definitive Documents. The definitive documents governing the Restructuring shall consist of the following and any other material document contemplated by the Parties needed or utilized to implement, govern, or consummate the Restructuring (collectively, the “Definitive Documents”):

 

(a)               the disclosure statement (and all exhibits and other documents and instruments related thereto) with respect to the Plan (the “Disclosure Statement”);

 

(b)               the Equity Purchase and Commitment Agreement attached as Exhibit E hereto (as may be further amended, supplemented, or otherwise modified in accordance with its terms, the “EPCA”) and all schedules, annexes and exhibits thereto, together with the Rights Offering Procedures (collectively, the “Commitment Documents”);

 

(c)               the order approving the Disclosure Statement, including the form of ballots and other solicitation materials in respect of the Plan (the “Disclosure Statement Order” and, such solicitation materials, the “Solicitation Materials”);

 

(d)               the Plan, Plan Supplement, and all documents, annexes, schedules, exhibits, amendments, modifications, or supplements thereto, or other documents contained therein, including any schedules of assumed or rejected contracts;

 

(e)                the order confirming the Plan (the “Confirmation Order”), and any pleadings filed by the Debtors in support of the Bankruptcy Court’s entry of the Confirmation Order;

 

(f)                the definitive documents governing the Exit Term Loan Credit Facility, the Exit Revolving Credit Facility, the HVF III Facility, and any amendments to any existing European vehicle financing agreements deemed necessary by the Company (in consultation with the Requisite Commitment Parties) to achieve its proposed business plan in accordance with the Restructuring (the “Exit Facility Documents”);

 

(g)               the documents or agreements relating to the issuance of the Convertible Preferred Stock and the Reorganized Equity (including the Offered Stock);

 

(h)               the new organizational or other governance documents of the Reorganized Debtors, including the ultimate parent corporation of the Reorganized Debtors;

 

(i)                 any employment agreements relating to any executive officer of the ultimate parent corporation of the Reorganized Debtors;

 

(j)                 the motions filed by the Debtors seeking approval of each of the above (if applicable); and

 

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(k)               any order approving any of the above not otherwise noted.

 

The Definitive Documents not executed or not in a form attached to this Agreement as of the Agreement Effective Date remain subject to negotiation and, upon completion, all Definitive Documents shall (a) reflect and contain the terms, conditions, representations, warranties, and covenants set forth in this Agreement (including the exhibits and annexes hereto), as they may be modified, amended, or supplemented in accordance with Section 9 hereof, and (b) otherwise be in form and substance acceptable to the Debtors and the Requisite Commitment Parties.

 

Section 4.               Milestones. The following milestones (the “Milestones”) shall apply to this Agreement, which in each case can be extended in writing by the Requisite Commitment Parties (electronic mail among counsel is sufficient):

 

(a)                by no later than the date that is ten (10) days from the Agreement Effective Date, the Debtors shall file, in form and substance in accordance with Section 3 hereof, (i) the Plan and (ii) one or more motions seeking approval of (A) the Disclosure Statement, (B) solicitation and voting procedures for the Plan, and (C) the Commitment Documents (including payment of related premiums, fees and expenses, and related forms);

 

(b)               by no later than May 1, 2021, the Bankruptcy Court shall have entered, in form and substance in accordance with Section 3 hereof, (i) the Disclosure Statement Order and (ii) an order approving (A) the Commitment Documents, and (B) payment by the Debtors of related premiums, fees and expenses as required under the Commitment Documents;

 

(c)                 by no later than June 30, 2021, the Bankruptcy Court shall have entered the Confirmation Order; and

 

(d)                by no later than July 31, 2021, the Effective Date of the Plan shall have occurred (the “Effective Date Deadline”).

 

Section 5.               Commitments of the Parties.

 

(a)               Plan Sponsors’, Committee’s, Consenting Claimholders’, and Additional Consenting Noteholders’ Commitments. Each of the Plan Sponsors, the Committee, the Consenting Claimholders, and the Additional Consenting Noteholders agree, severally and not jointly, during the period beginning on the Agreement Effective Date and ending on the Termination Date (defined in Section 8) applicable to such Party (such period, the “Effective Period”), to:

 

(1)               cooperate and coordinate activities (to the extent practicable and subject to the terms hereof) with the other Parties and use commercially reasonable and good faith efforts to pursue, support, obtain additional support for, solicit, implement, confirm, and consummate the Restructuring, the Commitment Documents, and the Plan, and to execute and take all actions contemplated thereby and as reasonably necessary, or as may be required by order of the Bankruptcy Court, to support and achieve consummation of the Restructuring;

 

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(2)               not, directly or indirectly, (i) object to, delay, impede, or take any other action to interfere with the acceptance, implementation, or consummation of the Restructuring (including the payment in full of all administrative, priority, and secured claims) or (ii) solicit, propose, file, support, consent to, encourage, take any action in furtherance of or vote for any Alternative Transaction2 (but without limiting the consent, approval, or termination rights provided in this Agreement); provided, however, that nothing herein shall prohibit the Consenting Noteholders, the Committee, and the Consenting Claimholders from discussing with the Debtors any unsolicited Alternative Transaction Proposal in accordance with Section 5(f)(24) hereof, so long as any communications in connection therewith are not inconsistent with this Agreement and are not for the purpose of delaying, interfering, or impeding the Restructuring contemplated by the Plan;

 

(3)               not, directly or indirectly, file any pleading with the Bankruptcy Court or otherwise support, encourage, seek, solicit, pursue, initiate, assist, join or participate in any challenge to the validity, enforceability, perfection or priority of, or any action seeking avoidance, claw-back, recharacterization or subordination of, any portion of the First Lien Claims or Second Lien Claims or any liens or collateral securing such First Lien Claims or Second Lien Claims;

 

(4)               to the extent any legal or structural impediment arises that would prevent, hinder, or delay the consummation of the transactions contemplated in the Plan or in this Agreement, negotiate in good faith appropriate additional or alternative provisions to address any such impediment;

 

(5)               except to the extent expressly contemplated under the Plan or this Agreement, not exercise, or direct any other person to exercise, any right or remedy for the enforcement, collection, or recovery of any Claims against or Interests in any of the Debtors that it owns or has beneficial ownership of, and any other claims against any direct or indirect subsidiaries of the Debtors that are not Debtors;

 

(6)               negotiate in good faith upon reasonable request of the Debtors, the PE Sponsors, or the Requisite Consenting Noteholders in connection with any modifications to the Restructuring that improve the tax efficiency of the Restructuring for the Debtors, the PE Sponsors and/or the Consenting Noteholders;

 

 

2     “Alternative Transaction” means any transaction with respect to a plan of reorganization or liquidation, dissolution, winding up, liquidation, reorganization, workout, merger, consolidation, business combination, joint venture, partnership, sale of material assets or equity interests of the Company and its Subsidiaries taken as a whole, or restructuring involving the Debtors, without the prior written consent of the Requisite Commitment Parties that competes with or renders the Restructuring or the Plan unable to be consummated on the terms set forth in the Plan and this Agreement, or would reasonably be expected to materially frustrate the purposes of the Restructuring, the Plan or this Agreement, in each case, excluding any transaction contemplated by (i) that certain Stock and Asset Purchase Agreement, dated November 25, 2020, by and among Hertz Global Holdings, Inc., Donlen Corporation, each of the subsidiaries of Donlen Corporation listed on Schedule I thereto, and Freedom Acquirer LLC (as such agreement is in effect as of the date hereof), or (ii) the Commitment Documents.

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(7)               promptly (but in any event within three (3) business days) notify the Debtors in writing of the occurrence, or failure to occur, of any event of which such Party has actual knowledge and with respect to which such occurrence or failure would likely cause (i) any representation of such Party contained in this Agreement to be untrue or inaccurate in any material respect, (ii) any covenant of such Party contained in this Agreement to not be satisfied in any material respect, or (iii) any condition precedent contained in the Plan or this Agreement related to the obligations of such Party to not occur or become impossible to satisfy; provided that no Party shall be obligated to report the breach or potential breach of any other Party in order to comply with this Section 5(a)(7); and

 

(8)               execute and deliver such other instruments and perform such acts, in addition to the matters specified herein, as may be reasonably appropriate or necessary, or as may be required by order of the Bankruptcy Court in connection with the Plan, from time to time, to effect the Restructuring, as applicable.

 

Notwithstanding the foregoing, nothing in this Section 5(a) shall require the Plan Sponsors to incur any expenses (other than Fees (as defined below)), liabilities or other obligations, or agree to any commitments, undertakings, concessions, indemnities or other arrangements, that could result in expenses (other than Fees), liabilities or other obligations to any such Party, other than as specifically stated in the Commitment Documents; provided that, for the avoidance of doubt, the Debtors shall be required to reimburse Fees as set forth in Section 10 of this Agreement.

 

(b)               The foregoing Section 5(a) will not limit any of the Plan Sponsors’ rights:

 

(1)               under any applicable bankruptcy, insolvency, foreclosure or similar proceeding, including appearing as a party in interest in any matter to be adjudicated in order to be heard concerning any matter arising in the Chapter 11 Cases, in each case provided that such appearance and the positions advocated in connection therewith are not inconsistent with this Agreement, the Plan, or the Commitment Documents and do not hinder, delay or prevent consummation of the Restructuring;

 

(2)               to consult with the Debtors or any other party in interest in the Chapter 11 Cases; provided that such action is not inconsistent with this Agreement, the Plan, or the Commitment Documents and does not hinder, delay or prevent consummation of the Restructuring; or

 

(3)               to enforce any right, remedy, condition, consent or approval requirement under this Agreement or any of the Definitive Documents.

 

(c)               Plan Sponsors’ Additional Commitments. In addition to the commitments set forth in Section 5(a) hereof, the Plan Sponsors further agree, severally and not jointly:

 

(1)               with respect to the PE Sponsors only, pursuant to and in accordance with the EPCA, to commit, severally and not jointly, to purchase (x) shares of Offered Stock at the Offering Purchase Price in the aggregate amount of $565 million and (y) shares of Convertible Preferred Stock at a purchase price of $385 million in the aggregate in cash, in each case, on terms and conditions that are consistent with the Term Sheet and otherwise acceptable to the Debtors and the Requisite Commitment Parties;

 

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(2)               with respect to the Plan Sponsors party to the HIL Facility Commitment Letter to provide financing to HIL in the form of the HIL Facility in accordance with the HIL Facility Commitment Letter;

 

(3)               with respect to the Initial Consenting Noteholders only, pursuant to and in accordance with the EPCA, to commit, severally and not jointly, to exercise the subscription rights distributed pursuant to the Plan to purchase shares of Offered Stock at the Offering Purchase Price in the aggregate amount of $1,390,674,614 representing the Ad Hoc Group‘s aggregate pro rata share of the Creditor Allocation as of March 29, 2021 and backstop the purchase of any unsubscribed portion of the Rights Offering Amount on terms and conditions to be set forth in the Commitment Documents;

 

(4)               to submit drafts to the Debtors of any public press release that discloses the existence or terms of this Agreement, the EPCA, the Plan, or any other Definitive Document (or any amendment to any of the foregoing) and afford the Debtors a reasonable opportunity to comment on such documents and disclosures; and

 

(5)               to the extent a Plan Sponsor is or becomes an owner or beneficial owner of any Claims against or Interests in any of the Debtors, (i) following the commencement of solicitation of the Plan and receipt of the Solicitation Materials and the Ballot(s) and so long as its vote has been solicited in a manner sufficient to comply with the requirements of sections 1125 and 1126 of the Bankruptcy Code, including its receipt of the Disclosure Statement following approval of such by the Bankruptcy Court under section 1125 of the Bankruptcy Code, (A) timely vote or cause to vote any and all Claims against or Interests in any of the Debtors that it owns or has beneficial ownership of to accept the Plan by delivering its duly executed and completed Ballot(s) accepting the Plan on a timely basis and (B) to the extent it is permitted to elect whether to opt out (or to opt in, as applicable), of the releases set forth in the Plan, elect not to opt out (or to opt in, as applicable) of the releases set forth in the Plan by timely delivering its duly executed and completed Ballots indicating such election (which opt out shall only be in the Plan Sponsors’ capacity as a Claim holder against the Debtors), and (ii) thereafter, not change or withdraw (or cause to be changed or withdrawn) any such vote or election; provided that, notwithstanding anything to the contrary in any Solicitation Materials, such vote may be revoked (and, upon such revocation, deemed void ab initio) by such Party at any time if this Agreement is terminated with respect to such Party (it being understood by the Parties that any modification of the Plan that results in a termination of this Agreement by any Party pursuant to Section 8 hereof shall entitle such Party an opportunity to change its vote in accordance with section 1127(d) of the Bankruptcy Code).

 

(d)               Consenting Claimholders’ and Additional Consenting Noteholders’ Additional Commitments. In addition to the commitments set forth in Section 5(a) hereof, the Consenting Claimholders and Additional Consenting Noteholders further agree to: (i) following the commencement of solicitation of the Plan and receipt of the Solicitation Materials and the Ballot(s) and so long as its vote has been solicited in a manner sufficient to comply with the requirements of sections 1125 and 1126 of the Bankruptcy Code, including its receipt of the Disclosure Statement following approval of such by the Bankruptcy Court under section 1125 of the Bankruptcy Code, (A) timely vote or cause to vote any and all Claims against or Interests in any of the Debtors that it owns or has beneficial ownership of to accept the Plan by delivering its duly executed and completed Ballot(s) accepting the Plan on a timely basis and (B) to the extent it is permitted to elect whether to opt out (or to opt in, as applicable), of the releases set forth in the Plan, elect not to opt out (or to opt in, as applicable), of the releases set forth in the Plan by timely delivering its duly executed and completed Ballots indicating such election, and (ii) thereafter, not change or withdraw (or cause to be changed or withdrawn) any such vote or election; provided that, notwithstanding anything to the contrary in any Solicitation Materials, such vote may be revoked (and, upon such revocation, deemed void ab initio) by such Party at any time if this Agreement is terminated with respect to such Party (it being understood by the Parties that any modification of the Plan that results in a termination of this Agreement by any Party pursuant to Section 8 hereof shall entitle such Party an opportunity to change its vote in accordance with section 1127(d) of the Bankruptcy Code).

 

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(e)               Committee’s Additional Commitments. In addition to the commitments set forth in Section 5(a) hereof, the Committee further agrees to:

 

(1)               use commercially reasonable efforts to encourage each Holder of Unsecured Claims against the Debtors, including each Committee member, to (i) following the commencement of solicitation of the Plan and receipt of the Solicitation Materials (including the Ballot(s)) and so long as its vote has been solicited in a manner sufficient to comply with the requirements of sections 1125 and 1126 of the Bankruptcy Code, including its receipt of the Disclosure Statement following approval of such by the Bankruptcy Court under section 1125 of the Bankruptcy Code, (A) timely vote or cause to be voted any Claims against or Interests in any of the Debtors that it owns or has beneficial ownership of to accept the Plan by delivering its duly executed and completed Ballot(s) accepting the Plan on a timely basis and (B) to the extent any such Committee member is permitted to elect whether to opt out (or to opt in, as applicable), of the releases set forth in the Plan, elect not to opt out (or to opt in, applicable) of the releases set forth in the Plan by timely delivering its duly executed and completed Ballot(s) indicating such election; and (ii) thereafter, not change or withdraw (or cause to be changed or withdrawn) any such vote or election so long as this Agreement has not been terminated with respect to the Committee;

 

(2)               file in the Chapter 11 Cases, and deliver to counsel to the Debtors to include in the Solicitation Materials, a letter of the Committee’s unanimous support for the Plan and the Committee’s recommendation that holders of unsecured Claims against the Debtors vote to accept the Plan and to not opt out (or to opt in, as applicable), of the Plan releases, to the extent applicable; and

 

(3)               stay all litigation (including The Official Committee of Unsecured Creditors v. Barclays Bank PLC, et al., Adv. Pro. No. 20-50842 (Bankr. D. Del. 2020) (MFW), which shall be dismissed with prejudice as of the Effective Date of the Plan), any contested motions, and discovery or the pursuit of any actual or potential claims and causes of action pending against, or subject to tolling agreements with, the Debtors, any holders of First Lien Claims, or any holders of Second Lien Claims or the pursuit to obtain standing to pursue such litigation or any such claims and causes of action.

 

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(f)                Debtors’ Commitments. Each Debtor agrees to, severally and not jointly:

 

(1)               within one business day of the Agreement Effective Date, (a) file the Plan in the form of an amended version of the proposed plan of reorganization filed at [Docket No. 3500] in the Chapter 11 Cases and (b) file a copy of this Agreement as an exhibit to the Disclosure Statement;

 

(2)               to the extent reasonably practicable and subject to the terms hereof and subject to the impact and requirements of the Chapter 11 Cases, cooperate and coordinate activities with the other Parties and use commercially reasonable and good faith efforts to pursue, support, solicit, implement, confirm, and consummate the Restructuring, the Commitment Documents, and the Plan, and to execute and take all actions contemplated hereby and thereby and as reasonably necessary, or as may be required by order of the Bankruptcy Court, to support and achieve confirmation of the Plan and consummation of the Restructuring in accordance with, and within the time frames contemplated by, this Agreement;

 

(3)               pay and reimburse all Fees in accordance with this Agreement;

 

(4)               commence solicitation of votes to accept or reject the Plan as soon as reasonably practicable following the approval of the Disclosure Statement and Solicitation Materials by the Bankruptcy Court;

 

(5)               use commercially reasonable efforts to obtain any and all regulatory and/or third party approvals necessary to consummate the Plan;

 

(6)               execute and deliver each Definitive Document once agreed by all parties thereto and finalized;

 

(7)               provide advance initial draft copies of each Definitive Document and any pleading relating to the Plan, the Disclosure Statement, plan exclusivity, assumption or rejection of material executory contracts and unexpired leases, or key employee incentive or retention plan to counsel for the Plan Sponsors no later than three (3) calendar days prior to the date when the Company intends to file such pleading or Definitive Document with the Bankruptcy Court and consult in good faith with such counsel regarding the form and substance of any such filing, in each case to the extent reasonably practicable or otherwise as soon as reasonably practicable prior to such filing;

 

(8)               timely object to any motion filed with the Bankruptcy Court by a party seeking the entry of an order (i) directing the appointment of a trustee or examiner with expanded powers beyond those set forth in sections 1106(a)(3) and (4) of the Bankruptcy Code, (ii) converting any of the Chapter 11 Cases to a case under Chapter 7 of the Bankruptcy Code, (iii) dismissing any of the Chapter 11 Cases, or (iv) modifying or terminating the Debtors’ exclusive right to file and/or solicit acceptances of the Plan;

 

(9)               timely oppose any motion, application, or request filed with the Bankruptcy Court seeking approval of any Alternative Transaction;

 

(10)           timely oppose any objections filed with the Bankruptcy Court with respect to (A) approval of the Disclosure Statement or (B) confirmation of the Plan;

 

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(11)           comply in all material respects with applicable laws (including making or using commercially reasonable efforts to obtain all required material consents and/or appropriate filings or registrations with, notifications to, or authorizations, consents, or approvals of any regulatory or governmental authority) and paying all income and other material taxes as they become due and payable (except to the extent nonpayment thereof is permitted by the Bankruptcy Code; provided that, to the extent any taxes have not been paid because of the relief afforded by the Bankruptcy Code and are not being contested with adequate reserves having been established in accordance with GAAP, the anticipated payment of such taxes pursuant to the Plan is reflected in the financial information provided to the Plan Sponsors);

 

(12)           negotiate in good faith upon reasonable request of the PE Sponsors or the Requisite Consenting Noteholders in connection with any modifications to the Restructuring that improve the tax efficiency of the Restructuring for the Debtors, the PE Sponsors and/or the Consenting Noteholders;

 

(13)           to the extent that any legal or structural impediment arises that would prevent, hinder, or delay the consummation of the Restructuring contemplated in this Agreement or the Plan, negotiate in good faith appropriate additional or alternative provisions to address any such impediment, in consultation with the Requisite Commitment Parties;

 

(14)           provide prompt written notice to counsel to each of the Plan Sponsors (electronic mail among counsel being sufficient) of (i) the occurrence, or failure to occur, of any event of which the Debtors have actual knowledge and which such occurrence or failure would likely cause (A) any representation of the Debtors contained in this Agreement to be untrue or inaccurate in any material respect, (B) any covenant of the Debtors contained in this Agreement not to be satisfied in any material respect or (C) any condition precedent contained in the Plan or this Agreement not to occur or become impossible to satisfy, (ii) receipt of any written notice from any third party alleging that the consent of such party is or may be required in connection with the Restructuring, (iii) receipt of any written notice from any governmental body in connection with this Agreement or the Restructuring, and (iv) receipt of any written notice of any proceeding commenced, or, to the actual knowledge of the Debtors, threatened against the Debtors, relating to or involving or otherwise affecting in any material respect the Restructuring, including governmental or third-party complaints, litigations, investigations, or hearings (or communications indicating that the same may be contemplated or threatened); provided that no Debtor shall be obligated to report the breach or potential breach by any other Party in order to comply with this Section 5(f)(14);

 

(15)           seek to cause the Confirmation Order to become effective and enforceable immediately upon its entry and to seek to have the period in which an appeal thereto must be filed commence immediately upon its entry;

 

(16)           comply in all material respects with the terms and conditions of the DIP Facility (as defined in the DIP Order) and the final orders and amendments related thereto such that the DIP Lenders (as defined in the DIP Order) do not accelerate the DIP Loans (as defined in the DIP Order);

 

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(17)           provide counsel to each of the Plan Sponsors with any reporting received by the Committee, or the DIP Lenders pursuant to the Order (I) Authorizing the Debtors to Obtain Debtor-in-Possession Financing and Granting Liens and Superpriority Administrative Claims and (II) Granting Related Relief [Docket No. 1661] (the “DIP Order”) or any of the DIP Loan Documents (as defined in the DIP Order) on the same schedule as the Committee or the DIP Lenders, as applicable, receive such reporting, confer with each of the Plan Sponsors and their respective Representatives3, as reasonably requested, on operational matters and the general status of ongoing operations, and provide each of the Plan Sponsors with any information reasonably requested regarding the Debtors (subject to any applicable confidentiality obligations) and reasonable access to management and advisors of the Debtors during normal business hours for the purposes of evaluating the Debtors’ assets, liabilities, operations, businesses, finances, strategies, prospects and affairs; provided that the Debtors shall not be required to provide any information or access that the Debtors reasonably believe would violate applicable law, including antitrust laws and data protection laws, or the terms of any applicable contract (including confidentiality obligations) or cause forfeiture of any attorney-client privilege or an expectation of client confidence or any other rights to any evidentiary privilege;

 

(18)           not object to, impede or take any other action (including filing any pleading) that is materially inconsistent with, or is intended or is likely to materially interfere with, acceptance or implementation of the Restructuring;

 

(19)           not (i) enter into, adopt or materially amend any employment agreements or any compensation or incentive plans (including equity arrangements) with respect to employees with the title of Senior Vice President or higher or (ii) increase in any manner the compensation or benefits (including severance) of any employees with the title of Senior Vice President or higher, in each case without the prior written consent of the Requisite Commitment Parties;

 

(20)           not seek to amend or modify, or file a pleading seeking authority to amend or modify, the Definitive Documents in a manner that is materially inconsistent with this Agreement or the Plan without the prior written consent of the Requisite Commitment Parties;

 

(21)           promptly adjourn sine die the Debtors’ Motion for Entry of an Order (I) Authorizing and Approving the Debtors’ Entry Into and Performance Under, European Settlement and Restructuring Embodied in Noteholder Lockup Agreement [Docket. No. 2280, which motion shall be deemed withdrawn with prejudice as of the Effective Date;

 

(22)           promptly following the Agreement Effective Date, cause each of its officers, directors, employees and Subsidiaries to, and use their reasonable best efforts to cause their other respective Representatives to, immediately cease and terminate any ongoing solicitations, discussions, and negotiations with respect to any Alternative Transaction;

 

 

3     “Representatives” means, with respect to any Person, such Person’s directors, officers, members, partners, managers, employees, agents, investment bankers, attorneys, accountants, advisors and other representatives acting on behalf of such Person.

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(23)           not pursue, solicit, encourage, enter into, or otherwise seek to implement any restructuring of the HHN Notes that does not treat the HHN Notes held by a Party hereto the same as the HHN Notes held by any other Person; and

 

(24)           not to, and shall instruct and direct its respective Representatives not to, other than to inform any Person of the provisions of this Section 5(f)(24), directly or indirectly, initiate, solicit, engage in or participate in any discussions, inquiries or negotiations in connection with any proposal, expression of interest or offer relating to an Alternative Transaction, afford access to the business, properties, assets, books or records of or provide any non-public information relating to the Debtors or any of their Subsidiaries to, otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by any Person that is seeking to make, or has made, an Alternative Transaction Proposal (as defined below); provided that, if, notwithstanding the foregoing, following the Agreement Effective Date, the Debtors or any of their Subsidiaries receive a bona fide proposal, expression of interest or offer (whether written or unwritten) for an Alternative Transaction (an “Alternative Transaction Proposal”) from any Person not solicited in violation of this Section 5(f)(24), the Board of Directors of the Company (the “Company Board”) (or a committee thereof) may, directly or indirectly through the Company’s Representatives (i) contact any Person that has made an unsolicited Alternative Transaction Proposal (and its advisors) for the purpose of clarifying the proposal and any terms thereof and the likelihood of consummation, so as to determine whether such proposal constitutes, or could reasonably be expected to lead to, a Superior Proposal (as defined below) or (ii) if the Company Board shall have determined in good faith and, after considering the advice of its outside counsel and independent financial advisor, that such Alternative Transaction Proposal, constitutes, or could reasonably be expected to result in, a transaction that: (x) would be in the best interests of the Company and its creditors and equity holders as a whole, and (y) would reasonably be expected to be superior to the Company and its creditors and equity holders in comparison to the transactions contemplated under this Agreement, the Commitment Documents, and the Plan (a “Superior Transaction”) and, in either case, that failure of the Company Board to pursue such Alternative Transaction Proposal would reasonably be expected to result in a breach of the Company Board’s fiduciary duties under applicable Laws (a “Superior Proposal”), the Company may, in response to such Superior Proposal: (x) furnish non-public information in response to a request therefor by such Person if such Person has executed and delivered to the Company a confidentiality agreement (a copy of which shall be provided to each of the Plan Sponsors within 24 hours of execution thereof) on terms no less favorable than any confidentiality agreements entered into with any Plan Sponsor and if the Company also promptly (and in any event within 24 hours after the time such information is provided to such Person) makes such information available to the Plan Sponsors, to the extent not previously provided to the Plan Sponsors; and (y) engage or participate in discussions and negotiations with such Person regarding such Superior Proposal; provided further, that, subject to applicable confidentiality restrictions and the conditions upon which the proposal was submitted, (i) the Company shall provide (A) notice of all Alternative Transaction Proposals (whether oral or written) to each of the Plan Sponsors and their respective counsel within 24 hours after the time of receipt of such Alternative Transaction Proposal and (B) a copy of each written Alternative Transaction Proposal or summary of each such oral Alternative Transaction Proposal and (ii) the Company shall also notify each of the Plan Sponsors promptly if the Company Board determines that an Alternative Transaction Proposal is a Superior Proposal (and the rationale therefor) no later than 24 hours following such determination. To the extent the Company is prohibited from giving notice of any Alternative Transaction Proposal to any Plan Sponsor due to a confidentiality restriction or condition upon which such proposal was submitted, the Company shall use its commercially reasonable efforts to obtain relief from such restriction or condition as promptly as practicable in order to comply with its obligations under this Section 5(f)(24). Additionally, if the Company Board determines that an Alternative Transaction Proposal is a Superior Proposal, the Company shall inform the Plan Sponsors promptly upon the Company’s receipt of definitive documents to implement such Superior Proposal.

 

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(g)           Each Consenting Unsecured Noteholder, Consenting Claimholder and, to the extent it owns or beneficially owns Claims against or Interests in any of the Debtors, each Plan Sponsor, has entered into this Agreement on account of all Claims against or Interests in any of the Debtors that it owns or beneficially owns (directly or through discretionary accounts that it manages or advises) and, except where otherwise specified in this Agreement, shall take or refrain from taking all actions that it is obligated to take or refrain from taking under this Agreement with respect to all such Claims against and Interests in any of the Debtors that it owns or beneficially owns.

 

Section 6.               Transfers of Claims.

 

(a)          Restrictions on Transfers. Each Plan Sponsor, Consenting Claimholder, and Consenting Noteholder agrees that such Plan Sponsor, Consenting Claimholder, or Consenting Noteholder shall not sell, transfer, loan, issue, pledge, hypothecate, assign or otherwise dispose of, directly or indirectly, in whole or in part (each, a “Transfer”), any Claims against any of the Debtors that it owns or has beneficial ownership of, or any option thereon or any right or interest therein (including granting any proxies, depositing any of its Claims into a voting trust or entering into a voting agreement with respect to any of its Claims), unless, subject in all cases to the terms and conditions set forth in the EPCA, the transferee thereof either (i) is a Plan Sponsor, Consenting Claimholder, or Consenting Noteholder (provided that written notice of such transfer shall be provided to counsel to the Debtors and the Plan Sponsors (or in the case of a Transfer by a Party other than any PE Sponsor of Senior Notes/ALOC Claims, counsel to the Initial Consenting Noteholders) within two (2) business days after the consummation of such transfer) or (ii) prior to, or contemporaneous with, such Transfer, agrees in writing for the benefit of the Parties to become a Consenting Claimholder or Consenting Noteholder and to be bound by all of the terms of this Agreement applicable to a Consenting Claimholder or Consenting Noteholder, as applicable (including with respect to any and all Claims against or Interests in any of the Debtors), by executing a Consenting Claimholder Joinder and delivering an executed copy thereof within two (2) business days after such execution, to counsel to the Debtors (and in the case of a Transfer by a Party other than any PE Sponsor of Senior Notes/ALOC Claims, counsel to the Initial Consenting Noteholders), in which event the transferee (a “Permitted Transferee”) shall be deemed to be a Consenting Claimholder or Consenting Noteholder, as applicable, hereunder to the extent of such transferred rights and obligations. Any transfer made while this Agreement remains in effect in violation of this provision shall be void ab initio. Notwithstanding anything to the contrary in this Section 6, any Consenting Noteholder may transfer any Claims other than Senior Notes/ALOC Claims against the Debtors without the requirement that the transferee be or become subject to this Agreement provided that such Consenting Noteholder entered into a trade with such transferee with respect to such Claims prior to the effectiveness of this Agreement and such trade remains unsettled as of the effectiveness of this Agreement.

 

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(b)          Qualified Marketmaker Exclusion.   Notwithstanding anything the contrary herein, (i) a Party may transfer any Claims against the Debtors to an entity that is acting in its capacity as a Qualified Marketmaker (as defined below) without the requirement that the Qualified Marketmaker be or become a Party only if such Qualified Marketmaker has purchased such Claims against the Debtors with a view to immediate resale of such Claims (by purchase, sale, assignment, transfer, participation or otherwise) as soon as reasonably practicable, and in no event later than three (3) business days after its acquisition and, in any event, prior to the Distribution Record Date, of such Claims, to a Permitted Transferee; and (ii) to the extent that a Party is acting in its capacity as a Qualified Marketmaker, it may transfer or participate any right, title, or interest in any Claims against the Debtors that the Qualified Marketmaker acquires from a holder of Claims who is not a Party without the requirement that the transferee be a Permitted Transferee. For the avoidance of doubt, any entity that acquires Claims against the Debtors in its capacity as a Qualified Marketmaker and does not resell such Claims within three (3) business days after its acquisition thereof and, in any event, prior to the Distribution Record Date, must become a Party to this Agreement by executing a Consenting Claimholder Joinder and delivering an executed copy thereof within two (2) business days after the expiration of such period, to counsel to the Debtors (and in the case of a Transfer by a Party other than any PE Sponsor of Senior Notes/ALOC Claims, counsel to the Initial Consenting Noteholders). For these purposes, a “Qualified Marketmaker” means an entity that: (a) holds itself out to the market as standing ready in the ordinary course of its business to purchase from customers and sell to customers Claims against the Company and its affiliates (including debt securities or other debt) or enter into with customers long and short positions in Claims against the Company and its affiliates (including debt securities or other debt), in its capacity as a dealer or market maker in such Claims against the Company and its affiliates; and (b) is in fact regularly in the business of making a market in Claims against issuers or borrowers (including debt securities or other debt).

 

(c)          Additional Claims. This Agreement shall in no way be construed to preclude the Plan Sponsors or any Consenting Claimholder or Consenting Noteholder from acquiring additional Claims against any of the Debtors; provided that, upon any such acquisition of Claims, (i) such Plan Sponsor, Consenting Noteholder (other than a Consenting Noteholder that acquires Senior Notes/ALOC Claims) or Consenting Claimholder shall promptly notify (in no event later than two (2) business days thereafter) counsel to each other Party and (ii) each Plan Sponsor, Consenting Claimholder or Consenting Noteholder agrees (x) that any additional acquired Claims shall be subject to this Agreement and (y) to vote such Claims or Interests in a manner consistent with Section 5 hereof, as applicable.

 

(d)           Reporting. Counsel to the Initial Consenting Noteholders shall report the aggregate and individual holdings of Senior Notes/ALOC Claims of all Consenting Noteholders on the Friday of each week and upon reasonable request of any Debtor or any of the Plan Sponsors (electronic mail among counsel being sufficient).

 

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Section 7.               Representations and Warranties.

 

(a)          Mutual Representations and Warranties. Each Party, severally and not jointly, represents and warrants to the other Parties that the following statements are true, correct and complete as of the Agreement Effective Date (or as of the date such Party executes a Committee Joinder or Consenting Claimholder Joinder, as applicable), subject in the case of the Debtors to any required approval by the Bankruptcy Court:

 

(1)             Power and Authority.  Such Party is validly existing and in good standing under the laws of its jurisdiction of incorporation or organization, and has all requisite corporate, partnership, limited liability company or similar authority to enter into this Agreement and carry out the transactions contemplated hereby and perform its obligations contemplated hereunder, and the execution and delivery of this Agreement and the performance of such Party’s obligations hereunder have been duly authorized by all necessary corporate, limited liability company, partnership or other similar action on its part;

 

(2)             No Conflict. The execution, delivery and performance by such Party of this Agreement does not and will not (i) violate any provision of law, rule or regulation applicable to it or any of its subsidiaries or its charter or bylaws (or other similar governing documents) or those of any of its subsidiaries, or (ii) conflict with, result in a breach of or constitute (with due notice or lapse of time or both) a default under any material contractual obligation to which it or any of its subsidiaries is a party;

 

(3)              No Consent or Approval. The execution, delivery and performance by such Party of this Agreement does not and will not require any registration or filing with, consent or approval of, or notice to, or other action, with or by, any federal, state or governmental authority or regulatory body, except such filings (i) as may be necessary and/or required by the U.S. Securities and Exchange Commission or (ii) with respect to the Plan Sponsors, that are set forth in clauses (a) or (b) of Section 5.5 of the EPCA; and

 

(4)              Enforceability. This Agreement is the legally valid and binding obligation of such Party, enforceable against it in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or limiting creditors’ rights generally or by equitable principles relating to enforceability or a ruling of the Bankruptcy Court.

 

(b)        Additional Representations of Consenting Claimholders and Consenting Noteholders.  Each Consenting Claimholder and each Consenting Noteholder, severally and not jointly, represents and warrants to the other Parties that, as of its respective Consenting Claimholder Effective Date or the Agreement Effective Date, as applicable, such Consenting Claimholder or Consenting Noteholder: (1) (A) is the owner or beneficial owner (or manager or advisor of funds or accounts that are beneficial owner) of the aggregate principal amount of Claims against any of the Debtors, as applicable, set forth below its name on the signature page hereto or to its Joinder, as applicable and does not own or beneficially own any other Claims against any of the Debtors, and/or (B) has, with respect to the beneficial owner(s) of such Claims, as applicable, (i) sole investment or voting discretion with respect to such Claims, (ii) full power and authority to vote on and consent to matters concerning such Claims, or to exchange, assign, and Transfer such Claims, and (iii) full power and authority to bind or act on the behalf of, such beneficial owner(s); and (2) with respect to each Consenting Noteholder, although none of the Parties intends that this Agreement should constitute (and they each believe it does not constitute) an offering of securities, such Consenting Noteholder is either (A) a qualified institutional buyer, as defined in Rule 144A of the Securities Act of 1933, as amended (the “Securities Act”) or (B) a non-U.S. Person in offshore transaction complying with Rule 903 or Rule 904 of Regulation S under the Securities Act and who also is an “institutional account” within the meaning of FINRA Rule 4512(c). To the extent a Party is both a Consenting Claimholder and a Consenting Noteholder, it makes the foregoing representations and warranties in each such capacity.

 

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Section 8.               Termination Events.

 

(a)           PE Sponsor and Consenting Noteholder Termination Events. This Agreement may be terminated (i) with respect to any PE Sponsor, by such PE Sponsor and (ii) with respect to the Consenting Noteholders, by the Requisite Consenting Noteholders, in each case, by delivering to the other Parties one (1) business day’s written notice in accordance with Section 11(l) hereof, upon the occurrence of any of the following events, in each case after the Agreement Effective Date; provided, however, that neither any PE Sponsor nor the Requisite Consenting Noteholders may seek to terminate this Agreement based upon a breach of this Agreement by any Debtor arising primarily out of any such PE Sponsor’s or any Consenting Noteholder’s own actions, respectively:

 

(1)              the breach by any Debtor of any obligation, commitment, agreement, representation, warranty, covenant, or other provision contained in this Agreement in any material respect, which breach (i) would materially and adversely impede or interfere with the overall acceptance, implementation, or consummation of the Restructuring on the terms and conditions set forth in this Agreement and the Plan and (ii) remains uncured for a period of five (5) business days after the receipt by the other Parties of written notice of such breach from the terminating PE Sponsors or Requisite Consenting Noteholders, as applicable, other than with respect to any breach that is incurable, for which no cure period shall be required or apply; provided that a breach by any individual Initial Consenting Noteholder, solely with respect to Sections 5(c)(1), 5(c)(2), and 5(c)(3) hereof, may be cured by any combination of non-breaching Initial Consenting Noteholders agreeing to increase the amount of their commitments by the amount of the breaching Initial Consenting Noteholder’s commitment within ten (10) business days after receipt by the Initial Consenting Noteholders of written notice of such breach;

 

(2)             the termination of this Agreement in accordance with this Section 8(a) by any PE Sponsor or the Requisite Consenting Noteholders or in accordance with Section 8(d) by the Debtors;

 

(3)               the Bankruptcy Court approves or authorizes an Alternative Transaction or any of the Debtors (i) enters into any Contract (as defined in the EPCA) providing for the consummation of any Alternative Transaction, (ii) files any motion or application seeking authority to propose, join in or participate in the formation of any actual or proposed Alternative Transaction, or (iii) publicly announces its intention to take any such action listed in this Section 8(a)(3) or to materially breach its obligations under Section 5(f)(24) hereof;

 

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(4)               the failure by the Debtors to meet any of the Milestones as a result of the failure by any Debtor to use commercially reasonable efforts to reach such Milestone, unless such Milestone is extended in accordance with Section 4 hereof;

 

(5)               the issuance by any governmental authority (including any regulatory authority or any court of competent jurisdiction) of any injunction, judgment, decree, charge, ruling or order that, in each case, would have an adverse effect on a material provision of this Agreement or a material portion of the Restructuring or the Plan or a material adverse effect on the Debtors’ businesses, unless the Debtors have sought a stay of such injunction, judgment, decree, charge, ruling, or order within fifteen (15) business days after the date of such issuance, and such injunction, judgment, decree, charge, ruling, or order is reversed or vacated within twenty (20) business days after the date of such issuance;

 

(6)               an examiner (other than an independent fee examiner) with expanded powers beyond those set forth in sections 1106(a)(3) and (4) of the Bankruptcy Code, a trustee, or a receiver shall have been appointed in the Chapter 11 Cases;

 

(7)              the Debtors withdraw the Plan or the Bankruptcy Court enters an order denying confirmation of the Plan, the effect of which would render the Plan incapable of consummation on the terms set forth herein; provided that, for the avoidance of doubt, no Party shall have the right to terminate this Agreement pursuant to this Section 8(a)(7) if the Bankruptcy Court denies confirmation of the Plan subject only to the making of ministerial, administrative, or immaterial modifications to the Plan;

 

(8)               the (i) conversion of one or more of the Chapter 11 Cases of the Debtors to a case under chapter 7 of the Bankruptcy Code or (ii) dismissal of one or more of the Chapter 11 Cases of the Debtors, unless such conversion or dismissal, as applicable, is made with the prior written consent of the Requisite Commitment Parties;

 

(9)              (i) any of the Definitive Documents, after completion, contain terms, conditions, representations, warranties, or covenants that are materially inconsistent with the terms of this Agreement, (ii) any of the Definitive Documents shall have been materially amended or modified in a manner rendering such Definitive Document materially inconsistent with the terms of this Agreement, in each case, without the consent of the Requisite Commitment Parties in accordance with their approval rights under this Agreement and the Plan, or (iii) in the case of a Definitive Document that is also an order (including the Confirmation Order), such order shall have been reversed, vacated or modified in a manner materially inconsistent with this Agreement, without the prior written consent of the Requisite Commitment Parties, unless the Debtors have sought a stay of the order causing such reversal, vacatur or modification within five (5) business days after the date of such issuance, and such order is stayed, reversed or vacated within ten (10) business days after the date of such issuance;

 

(10)           any Debtor files a motion or application (or a series of motions or applications) seeking authority to sell in a single sale, or in a series of sales that in the aggregate would constitute, all or a material portion of its assets or equity interests without the prior written consent of the Requisite Commitment Parties;

 

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(11)         the Debtors file a motion seeking authority to enter into post-petition DIP financing without the prior written consent of the Requisite Commitment Parties;

 

(12)           the Bankruptcy Court enters an order granting relief from the automatic stay imposed by Bankruptcy Code section 362 authorizing any party to proceed with regard to any material asset of the Debtors and such relief has a material adverse effect on the Restructuring;

 

(13)           the Debtors materially breach their obligations under Section 5(f)(24) of this Agreement;

 

(14)         the Bankruptcy Court grants relief that (i) is inconsistent with this Agreement in any material respect or (ii) would, or would reasonably be expected to, materially frustrate the purposes of this Agreement, including by preventing the consummation of the Restructuring, unless the Debtors have sought a stay of such relief within seven (7) business days after the date of such issuance, and such order is stayed reversed or vacated within fourteen (14) business days after the date of such issuance; or

 

(15)           all conditions to effectiveness or closing in the EPCA are not satisfied or waived by the Effective Date Deadline, in accordance therewith, which date may be extended in writing by the Requisite Commitment Parties (electronic mail among counsel being sufficient); provided that the right to terminate this Agreement under this Section 8(a)(15) shall not be available to any Party if any Plan Sponsor is then in material breach of the EPCA and such breach proximately caused the failure of the Plan to go effective by the Effective Date Deadline.

 

(b)           Consenting Claimholder Termination Events. This Agreement may be terminated by any Consenting Claimholder, with respect to itself only, upon one (1) business day’s written notice thereof by such terminating Consenting Claimholder to the other Parties in accordance with Section 11(l) hereof, upon the occurrence of any of the following events, in each case after the applicable Consenting Claimholder Effective Date:

 

(1)               the treatment of such Consenting Claimholder’s Claims in the Plan is adversely and materially modified from that specified in the Plan filed by the Debtors as of the applicable Consenting Claimholder Effective Date; or

 

(2)            the Debtors file or explicitly support an Alternative Transaction that proposes treatment of such Consenting Claimholder’s Claims that adversely deviates, in any material manner, from the treatment specified in the Plan filed by the Debtors as of the applicable Consenting Claimholder Effective Date.

 

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(c)           Committee Termination Events. This Agreement may be terminated by the Committee, with respect to itself only, upon one (1) business day’s written notice thereof by the Committee to the other Parties in accordance with Section 11(l) hereof, upon the occurrence of any of the following events, in each case after the Committee Effective Date:

 

(1)               the treatment of the unsecured Claims in the Plan is adversely and materially modified from that specified in the Plan filed by the Debtors as of the Committee Effective Date;

 

(2)              any of the Debtors or the Plan Sponsors proposes or explicitly supports any Alternative Transaction that proposes treatment of unsecured Claims against the Debtors that adversely deviates, in any material manner, from the treatment specified in the Plan filed by the Debtors as of the Committee Effective Date; or

 

(3)               the Committee determines, based upon advice of outside counsel, in good faith, that, as a result of unforeseen circumstances, not directly or indirectly caused, solicited, or encouraged by the Committee, there exists a strong likelihood of obtaining a substantially superior recovery for holders of unsecured Claims against the Debtors than that which is proposed under the Plan and, as a result of such likelihood, the Committee would be breaching its fiduciary duty to creditors in continuing to support the Restructuring; provided that, for purposes of considering whether any potential recovery is substantially superior, the Committee shall consider the reasonably expected cost of obtaining such additional recoveries and the risk of foregoing the treatment of holders of unsecured Claims against the Debtors under the Plan, including the risk of implementing and closing the Alternative Transaction.

 

(d)          Debtor Termination Events. This agreement may be terminated with respect to all Parties upon one (1) business day’s written notice thereof by the Debtors to the other Parties in accordance with Section 11(l) hereof, upon the occurrence of any of the following events, in each case after the Agreement Effective Date; provided, however, that the Debtors may not seek to terminate this Agreement based upon a breach of this Agreement by any other Party arising primarily out of the Debtors’ own actions in material breach of this Agreement:

 

(1)              the breach by the Plan Sponsors of any obligation, commitment, agreement, representation, warranty, covenant, or other provision contained in this Agreement in any material respect, which breach (i) would materially and adversely impede or interfere with the overall acceptance, implementation, or consummation of the Restructuring on the terms and conditions set forth in this Agreement and the Plan and (ii) remains uncured for a period of five (5) business days after the receipt by the other Parties of written notice of such breach from the Debtors, other than with respect to any breach that is incurable, for which no cure period shall be required or apply; provided that a breach by any individual Initial Consenting Noteholder, solely with respect to Sections 5(c)(1), 5(c)(2), and 5(c)(3) hereof, may be cured by any combination of non-breaching Initial Consenting Noteholders agreeing to increase the amount of their commitments by the amount of the breaching Initial Consenting Noteholder’s commitment within ten (10) business days after receipt by the Initial Consenting Noteholders of written notice of such breach;

 

(2)               the termination of this Agreement in accordance with its terms by any of the Plan Sponsors;

 

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(3)              the issuance, promulgation, or enactment by any governmental entity, including any regulatory or licensing authority or court of competent jurisdiction (including the Bankruptcy Court), of any statute, regulation, ruling or order declaring this Agreement or any material portion hereof to be unenforceable or enjoining or otherwise restricting the consummation of a material portion of the Restructuring, which action remains uncured for a period of ten (10) business days after the receipt by the Parties of written notice of such event;

 

(4)             the Company Board determines in good faith, based upon advice of outside counsel, that proceeding with the Restructuring contemplated herein and in the Plan, and confirmation and consummation of the Plan, would be inconsistent with the exercise of its fiduciary duties under applicable law; provided that the Debtors shall give prompt written notice to counsel to the Plan Sponsors of any determination in accordance with this Section 8(d)(4) (electronic mail among counsel being sufficient);

 

(5)              the Bankruptcy Court enters an order denying confirmation of the Plan, the effect of which would render the Plan incapable of consummation on the terms set forth herein; provided that, for the avoidance of doubt, the Debtors shall not have the right to terminate this Agreement pursuant to this Section 8(d)(5) if the Bankruptcy Court denies confirmation of the Plan subject only to the making of ministerial, administrative or immaterial modifications to the Plan;

 

(6)              the Bankruptcy Court (or other court of competent jurisdiction) enters an order (i) directing the appointment of an examiner (other than an independent fee examiner) with expanded powers or a trustee in any of the Chapter 11 Cases, (ii) converting any of the Chapter 11 Cases to cases under chapter 7 of the Bankruptcy Code, (iii) dismissing any of the Chapter 11 Cases, or (iv) the effect of which would render the Plan incapable of consummation on the terms set forth in this Agreement;

 

(7)              the Plan Sponsors propose or explicitly support any Alternative Transaction without the prior written consent of the Debtors that has a material adverse effect on the consummation of the Restructuring;

 

(8)              the Effective Date of the Plan has not occurred by the Effective Date Deadline;

 

(9)              all conditions to effectiveness or closing in the EPCA are not satisfied or waived by the Effective Date Deadline, which date may be extended in writing by counsel to the Debtors (electronic mail among counsel being sufficient); provided that the right to terminate this Agreement under this Section 8(d)(9) shall not be available to the Debtors if any Debtor is then in material breach of the EPCA and such breach proximately caused the failure of the Plan to go effective by the Effective Date Deadline; or

 

(10)           the termination of the EPCA in accordance with its terms.

 

(e)           Mutual Termination; Automatic Termination. This Agreement and the obligations of all Parties hereunder may be terminated by mutual written agreement by and among (i) each of the Debtors and (ii) the Requisite Commitment Parties. Notwithstanding anything in this Agreement to the contrary, this Agreement shall terminate automatically without any further required action or notice upon the occurrence of the Effective Date of the Plan and either the expiration of the appeal period with respect to the Confirmation Order if no appeals are filed or, if any appeal of the Confirmation Order is filed, the conclusion of such appeal.

 

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(f)           Effect of Termination. The date on which termination of this Agreement is effective with respect to any Party in accordance with this Section 8 shall be referred to as a “Termination Date” with respect to such Party. Upon the occurrence of a Termination Date, the applicable Parties’ obligations under this Agreement shall be terminated effective immediately, and the Parties, subject to such termination in accordance with this Section 8, shall be released from all commitments, undertakings, and agreements hereunder; provided, however, that each of the following shall survive any such termination: (i) any claim for breach of this Agreement that occurs prior to such Termination Date, and all rights and remedies with respect to such claims, (ii) this Section 8, and (iii) Section 11 hereof. Notwithstanding anything in this Agreement to the contrary, if the Debtors terminate this Agreement pursuant to Section 8(d)(4) hereof and the Requisite Consenting Noteholders consent to be bound by this Agreement notwithstanding such termination, (i) the Debtors’ and the Consenting Noteholders’ obligations under this Agreement shall continue to be valid and binding on the Debtors and the Consenting Noteholders solely as to each other and (ii) all references to the Requisite Commitment Parties shall be deemed to refer to the Requisite Consenting Noteholders.

 

(g)          Automatic Stay. Unless and until there is an unstayed order of the Bankruptcy Court providing that the giving of notice under and termination of this Agreement in accordance with its terms is not prohibited by the automatic stay imposed by section 362 of the Bankruptcy Code, the occurrence of a Termination Event shall result in the automatic termination of this Agreement with respect to each Party for which this Agreement would terminate if the Parties having the right to terminate this Agreement (the “Requisite Notice Parties”) were permitted to provide notice of such occurrence in accordance with this Agreement, upon the date that is five (5) days following such occurrence, unless the Requisite Notice Parties waive such Termination Event in writing. The Debtors acknowledge and agree, and shall not dispute, that the giving of notice of the termination of this Agreement by any Party pursuant to this Agreement shall not be a violation of the automatic stay of section 362 of the Bankruptcy Code (and the Debtors hereby waive, to the fullest extent permitted by law, the applicability of the automatic stay to the giving of such notice and their right to assert a contrary position in the Chapter 11 Cases, if any, with respect to the foregoing); provided, however, that nothing herein shall prejudice any Party’s rights to argue that the delivery of a notice of default or termination was not otherwise proper under the terms of this Agreement.

 

Section 9.               Amendments and Waivers. The terms and conditions of this Agreement, including any exhibits, annexes or schedules to this Agreement, may not be waived, modified, amended, or supplemented without the prior written consent of (i) each of the Debtors, (ii) the Requisite Commitment Parties, (iii) subject to the occurrence of the Committee Effective Date and solely with respect to any rights or obligations of the Committee under Sections 5(a), 5(e), 8(c), and 9 hereof, the Committee, and (iv) subject to the occurrence of the Consenting Claimholder Effective Date and solely with respect to any rights or obligations of the Consenting Claimholders under Sections 5(a), 5(d), 8(b), and 9 hereof, the Consenting Claimholders holding a majority of the principal amount of the Claims against the Debtors that all Consenting Claimholders hold at the time of such waiver, modification, amendment, or supplement. Any proposed modification, amendment, waiver, or supplement that does not comply with this Section 9 shall be ineffective and void ab initio as to any non-consenting Party affected thereby. The waiver by any Party of a breach of any provision of this Agreement shall not operate or be construed as a further or continuing waiver of such breach or as a waiver of any other or subsequent breach. No failure on the part of any Party to exercise, and no delay in exercising, any right, power or remedy under this Agreement shall operate as a waiver of any such right, power or remedy or any provision of this Agreement, nor shall any single or partial exercise of such right, power or remedy by a Party preclude any other or further exercise of such right, power or remedy or the exercise of any other right, power or remedy by such Party. All remedies under this Agreement are cumulative and are not exclusive of any other remedies provided by Law. Any consent or waiver contemplated in this Agreement may be provided by electronic mail from counsel to the relevant Parties.

 

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Section 10.             Fees and Expenses. The Debtors shall promptly pay or reimburse, as and when required under either the EPCA or the Plan, all reasonable and documented out-of-pocket fees (including success fees, transaction fees or similar fees) of: (i) Milbank LLP, as counsel to the PE Sponsors, (ii) Perella Weinberg Partners LP, as financial advisor to the PE Sponsors, (iii) one local counsel to the PE Sponsors, (iv) Willkie Farr & Gallagher LLP and Young Conaway Stargatt & Taylor LLP, as legal counsel to the Ad Hoc Group, (v) Ducera Partners LLC, as financial advisors to the Ad Hoc Group, and (vi) any other accountants and other professionals, advisors and consultants retained by the PE Sponsors or the Ad Hoc Group with the prior written consent of the Company, in each case, to implement the Restructuring (regardless of when such fees are or were incurred) (the “Fees”). To the extent not paid or reimbursed under the EPCA or otherwise by the Debtors before the Effective Date, the Plan shall provide for the payment in full in cash on the Effective Date of any unpaid Fees. The Fees shall be payable by the Debtors without any requirement to (x) file retention or fee applications, (y) provide notice to any Person other than the Debtors, or (z) provide itemized time detail to the Debtors or any other Person; provided that the applicable advisors will provide additional detail as reasonably requested by the Debtors.

 

Section 11.             Miscellaneous.

 

(a)          Entire Agreement. This Agreement constitutes the entire agreement among the Parties with respect to the subject matter hereof and supersedes all prior agreements, oral, or written, among the Parties (or any subset thereof) with respect thereto.

 

(b)           Headings. The headings of the sections, paragraphs, and subsections of this Agreement are inserted for convenience only and shall not affect the interpretation hereof or, for any purpose, be deemed a part of this Agreement.

 

(c)           Governing Law; Submission to Jurisdiction; Forum Selection. This Agreement shall be construed and enforced in accordance with, and the rights of the Parties shall be governed by, the laws of the State of New York, without giving effect to the conflicts of law principles thereof. Each Party hereto agrees that it shall bring any action or proceeding in respect of any claim arising out of or related to this Agreement in the Bankruptcy Court and, to the extent the Bankruptcy Court is determined to not have jurisdiction, in the United States District Court for the Southern District of New York or any New York State court located in New York County (the “Chosen Courts”), and solely in connection with claims arising under this Agreement:

 

(a) irrevocably submits to the exclusive jurisdiction of the Chosen Courts; (b) waives any objection to laying venue in any such action or proceeding in the Chosen Courts; and (c) waives any objection that the Chosen Courts are an inconvenient forum or do not have jurisdiction over any Party hereto.

 

(d)           Trial by Jury Waiver. Each Party hereto irrevocably waives any and all right to trial by jury in any legal proceeding arising out of or related to this Agreement or the transactions contemplated hereby.

 

(e)           Execution of Agreement. This Agreement may be executed and delivered in any number of counterparts and by way of electronic signature and delivery, each such counterpart, when executed and delivered, shall be deemed an original, and all of which together shall constitute the same agreement. Each individual executing this Agreement on behalf of a Party has been authorized and empowered to execute and deliver this Agreement on behalf of said Party.

 

(f)         Interpretation and Rules of Construction. This Agreement is the product of negotiations among the Parties, and the enforcement or interpretation hereof, is to be interpreted in a neutral manner, and any presumption with regard to interpretation for or against any Party by reason of that Party having drafted or caused to be drafted this Agreement or any portion hereof, shall not be effective in regard to the interpretation hereof. Each Party was represented by counsel during the negotiations and drafting of this Agreement and continue to be represented by counsel and, therefore, waive the application of any law, regulation, holding or rule of construction (i) providing that ambiguities in an agreement or other document shall be construed against the party drafting such agreement or document or (ii) any Party with a defense to the enforcement of the terms of this Agreement against such Party based upon lack of legal counsel. Unless the context of this Agreement otherwise requires, (i) words using the singular or plural number also include the plural or singular number, respectively, (ii) the terms “hereof,” “herein,” “hereby,” and derivative or similar words refer to this entire Agreement, (iii) the words “include,” “includes,” and “including” when used herein shall be deemed in each case to be followed by the words “without limitation” and (iv) the word “or” shall not be exclusive and shall be read to mean “and/or.” “Writing,” “written,” and comparable terms refer to printing, typing and other means of reproducing words (including electronic media) in a visible form, and any requirement that any notice, consent or other information shall be provided “in writing” shall include e-mail. Any reference to “business day” means any day other than a Saturday, a Sunday, or any other day on which banks located in New York, New York are closed for business as a result of federal, state or local holiday and any other reference to a day means a calendar day. If any provision of this Agreement shall be held by a court of competent jurisdiction to be illegal, invalid, or unenforceable, in whole or in part, the remaining provisions shall remain in full force and effect. Upon any such determination of invalidity, the Parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in a reasonably acceptable manner in order that the transactions contemplated hereby are consummated as originally contemplated to the greatest extent possible.

 

(g)           Successors and Assigns. Except as otherwise provided in this Agreement, this Agreement is intended to bind and inure to the benefit of each of the Parties and each of their respective successors, permitted assigns, heirs, executors, administrators, and Representatives.

 

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(h)          No Third-Party Beneficiaries. Unless expressly stated herein, this Agreement shall be solely for the benefit of the Parties and no other person or entity shall be a third-party beneficiary of this Agreement.

 

(i)          Relationship Among Parties. Notwithstanding anything herein to the contrary, (i) the duties and obligations of the Parties under this Agreement shall be several, not joint, (ii) no Party shall have any responsibility by virtue of this Agreement for any trading by any other entity; (iii) no prior history, pattern, or practice of sharing confidences among or between the Parties shall in any way affect or negate this Agreement; and (iv) none of the Parties shall have any fiduciary duty, any duty of trust or confidence in any form, or other duties or responsibilities in any kind or form to each other, including as a result of this Agreement or the Restructuring contemplated herein (other than the fiduciary duties of the Committee to Holders of unsecured Claims against any of the Debtors).

 

(j)            Reservation of Rights. If the Restructuring is not consummated, or if this Agreement is terminated for any reason, the Parties fully reserve any and all of their rights. Pursuant to Federal Rule of Evidence 408 and any other applicable rules of evidence, this Agreement and all negotiations relating hereto shall not be admissible into evidence in any proceeding other than a proceeding to enforce its terms, pursue the consummation of the Restructuring, or determine the payment of damages to which a Party may be entitled under this Agreement.

 

(k)          Specific Performance; Remedies Cumulative. This Agreement is intended as a binding commitment enforceable in accordance with its terms. It is understood and agreed by the Parties that money damages would be an insufficient remedy for any breach of this Agreement by any Party and each non-breaching Party shall be entitled to specific performance and injunctive or other equitable relief (without the posting of any bond and without proof of actual damages) as a remedy for any such breach, including, without limitation, an order of the Bankruptcy Court or other court of competent jurisdiction requiring any Party to comply promptly with any of its obligations hereunder. All rights, powers, and remedies provided under this Agreement or otherwise available in respect hereof at law or in equity shall be cumulative and not alternative, and the exercise of any right, power, or remedy thereof by any Party shall not preclude the simultaneous or later exercise of any other such right, power, or remedy by such Party or any other Party.

 

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(l)           Notices. All notices hereunder shall be deemed given if in writing and delivered, if contemporaneously sent by electronic mail, facsimile, courier, or by registered or certified mail (return receipt requested) to the following addresses or electronic mail addresses:

 

(1)           If to the Company, to:

 

The Hertz Corporation
8501 Williams Road
Estero, Florida 33928
Attention: M. David Galainena
Email: dave.galainena@hertz.com

 

with a copy to:

 

White & Case LLP
200 South Biscayne Blvd., Suite 4900
Miami, FL 33131
Attention: Thomas E Lauria; Matthew Brown
Email: tlauria@whitecase.com; mbrown@whitecase.com

 

and

 

White & Case LLP

1221 Avenue of the Americas

New York, New York 10020

Attention: David Turetsky; Andrew Zatz

Email: david.turetsky@whitecase.com; azatz@whitecase.com

 

(2)           If to the PE Sponsors, to the electronic mail addresses set forth below such Party’s signature, with copies to:

 

Milbank LLP

55 Hudson Yards

New York, NY 10003

Attention: Gerard Uzzi; Nelly Almeida

Email: guzzi@milbank.com; nalmeida@milbank.com

 

(3)           If to the Initial Consenting Noteholders, to the electronic mail addresses set forth below such Party’s signature (or as directed by any Permitted Transferee thereof), as the case may be, with copies to:

 

Willkie Farr & Gallagher LLP

787 Seventh Avenue

New York, New York 10019

Attention: Rachel C. Strickland

Email: rstrickland@willkie.com

 

(4)           If to the Committee:

 

Kramer Levin Naftalis & Frankel LLP
1177 Sixth Avenue
New York, NY 10036
Attention:  Amy Caton
                     Thomas Moers Mayer
Email:  acaton@kramerlevin.com

tmayer@kramerlevin.com

 

Any notice given by delivery, mail, or courier shall be effective when received. Any notice given by facsimile or electronic mail shall be effective upon oral, machine, or electronic mail (as applicable) confirmation of transmission.

 

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(m)             Acknowledgment. Notwithstanding any other provision herein, this Agreement is not and shall not be deemed to be an offer with respect to any securities or solicitation of votes for the acceptance of a plan of reorganization for purposes of sections 1125 and 1126 of the Bankruptcy Code or otherwise. Any such offer or solicitation will be made only in compliance with all applicable securities laws and provisions of the Bankruptcy Code.

 

(n)              Independent Analysis. Each Party hereby confirms that its decision to execute this Agreement has been based upon its independent assessment of documents and information available to it, as it has deemed appropriate.

 

(o)             Debtors’ Fiduciary Obligations. Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement, the Plan, or anything included in any Definitive Document shall require any Debtor or any board of directors, board of managers, or similar governing body of any Debtor, after consulting with counsel, to take any action or to refrain from taking any action with respect to this Agreement, the Plan, or the Restructuring to the extent taking or failing to take such action would be inconsistent with applicable law or its fiduciary obligations under applicable law, and any such action or inaction pursuant to such exercise of fiduciary duties shall not be deemed to constitute a breach of this Agreement; provided that the Debtors shall give prompt written notice to counsel to the Plan Sponsors (electronic mail among counsel being sufficient) of any determination made under this Section 11(o).

 

[Remainder of Page Intentionally Left Blank]

 

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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their respective officers thereunto duly authorized, as of the date first written above.

 

  Hertz Global Holdings, Inc.

 

  By: /s/ M. David Galainena
  Name: M. David Galainena
  Title: Executive Vice President, General Counsel and Secretary

 

  The Hertz Corporation

 

  By: /s/ M. David Galainena
  Name: M. David Galainena
  Title: Executive Vice President, General Counsel and Secretary

 

  CMGC Canada Acquisition ULC (CCAA)

 

  By: /s/ M. David Galainena
  Name: M. David Galainena
  Title: Vice President, General Counsel and Secretary

 

  Dollar Rent A Car, Inc.

 

  By: /s/ M. David Galainena
  Name: M. David Galainena
  Title: Vice President, General Counsel and Secretary

 

[Signature Page to Plan Support Agreement]

 

 

 

 

Dollar Thrifty Automotive Group Canada, Inc.

 

  By: /s/ M. David Galainena
  Name: M. David Galainena
  Title: Vice President, General Counsel and Secretary

 

  Dollar Thrifty Automotive Group, Inc.

 

  By: /s/ M. David Galainena
  Name: M. David Galainena
  Title: Vice President, General Counsel and Secretary

 

  DTG Canada Corp.

 

  By: /s/ M. David Galainena
  Name: M. David Galainena
  Title: Vice President, General Counsel and Secretary

 

  DTG Operations, Inc.

 

  By: /s/ M. David Galainena
  Name: M. David Galainena
  Title: Vice President, General Counsel and Secretary

 

[Signature Page to Plan Support Agreement]

 

 

 

 

  DTG Supply, LLC

 

  By: DTG Operations, Inc.,
    Its sole member and manager

 

  By: /s/ M. David Galainena
  Name: M. David Galainena
  Title: Vice President, General Counsel and Secretary

 

  Firefly Rent A Car, LLC

 

  By: The Hertz Corporation,
    Its sole member and manager

 

  By: /s/ M. David Galainena
  Name: M. David Galainena
  Title: Executive Vice President, General Counsel and Secretary

 

  Hertz Aircraft, LLC

 

  By: The Hertz Corporation,
    Its sole member and manager

 

  By: /s/ M. David Galainena
  Name: M. David Galainena
  Title: Executive Vice President, General Counsel and Secretary

 

[Signature Page to Plan Support Agreement]

 

 

 

 

 

  Hertz Canada Limited
   
  By: /s/ M. David Galainena
  Name:  M. David Galainena
  Title:   Vice President, General Counsel and Secretary

 

  Hertz Car Sales, LLC
   
  By: The Hertz Corporation,
    Its sole member and manager
   
  By: /s/ M. David Galainena
  Name:  M. David Galainena
  Title:   Executive Vice President, General Counsel and Secretary

 

  Hertz Global Services Corporation
   
  By: /s/ M. David Galainena
  Name:  M. David Galainena
  Title:   Vice President, General Counsel and Secretary

 

  Hertz Local Edition Corp.
   
  By: /s/ M. David Galainena
  Name:  M. David Galainena
  Title:   Vice President, General Counsel and Secretary

 

[Signature Page to Plan Support Agreement]

 

 

 

  Hertz Local Edition Transporting, Inc.
   
  By: /s/ M. David Galainena
  Name:  M. David Galainena
  Title:   Vice President, General Counsel and Secretary

 

  Hertz System, Inc.
   
  By: /s/ M. David Galainena
  Name:  M. David Galainena
  Title:   Vice President, General Counsel and Secretary

 

  Hertz Technologies, Inc.
   
  By: /s/ M. David Galainena
  Name:  M. David Galainena
  Title:   Vice President, General Counsel and Secretary

 

  Hertz Transporting, Inc.
   
  By: /s/ M. David Galainena
  Name:  M. David Galainena
  Title:   Vice President, General Counsel and Secretary

 

[Signature Page to Plan Support Agreement]

 

 

 

  Rental Car Group Company, LLC
   
  By: The Hertz Corporation,
    Its sole member and manager
   
  By: /s/ M. David Galainena
  Name:  M. David Galainena
  Title:   Executive Vice President, General Counsel and Secretary

 

  Rental Car Intermediate Holdings, LLC
   
  By: Hertz Global Holdings, Inc.,
    Its sole member and manager
   
  By: /s/ M. David Galainena
  Name:  M. David Galainena
  Title:   Executive Vice President, General Counsel and Secretary

 

  Smartz Vehicle Rental Corporation
   
  By: /s/ M. David Galainena
  Name:  M. David Galainena
  Title:   Vice President, General Counsel and Secretary

 

  Thrifty Car Sales, Inc.
   
  By: /s/ M. David Galainena
  Name:  M. David Galainena
  Title:   Vice President, General Counsel and Secretary

 

[Signature Page to Plan Support Agreement]

 

 

 

 

  Thrifty Rent-A-Car System, LLC
     
  By: Thrifty, LLC,
    Its Sole member/manager
    By: Dollar Thrifty Automotive Group, Inc.,
Its Sole Member/Manager
     
  By: /s/ M. David Galainena
  Name: M. David Galainena
  Title: Vice President, General Counsel and Secretary
     
  Thrifty, LLC
     
  By: Dollar Thrifty Automotive Group, Inc.,
Its sole member and manager
     
  By: /s/ M. David Galainena
  Name: M. David Galainena
  Title: Vice President, General Counsel and Secretary
   
  TRAC Asia Pacific, Inc.
     
  By: /s/ M. David Galainena
  Name: M. David Galainena
  Title: Vice President, General Counsel and Secretary

 

[Signature Page to Plan Support Agreement]

 

 

 

 

  SellerCo Fleet Leasing, Ltd.
     
  By: /s/ M. David Galainena
  Name: M. David Galainena
  Title: President
     
  SellerCo Corporation
     
  By: /s/ M. David Galainena
  Name: M. David Galainena
  Title: President and Chief Executive Officer
     
  SellerCo FSHCO Company
     
  By: /s/ M. David Galainena
  Name: M. David Galainena
  Title: President and Chief Executive Officer
     
  SellerCo Mobility Solutions, Inc.
     
  By: /s/ M. David Galainena
  Name: M. David Galainena
  Title: Chairman of the Board and President

 

[Signature Page to Plan Support Agreement]

 

 

 

 

  CENTERBRIDGE CAPITAL PARTNERS IV, L.P.
     
  By: Centerbridge Associates IV, L.P., its General Partner
  By: CCP IV Cayman GP Ltd., its General Partner
     
  By: Bao Truong
  Name: Bao Truong
  Title: Authorized Signatory
     
  Notice Address:
     
  Centerbridge Partners, LP.
  375 Park Avenue
  New York, New York 10152
     
  Attention: The Office of the General Counsel
  Email: legalnotices@centerbridge.com

 

[Signature Page to Plan Support Agreement]

 

 

  WARBURG PINCUS (CALLISTO) GLOBAL GROWTH (CAYMAN), L.P.
   
  By: Warburg Pincus (Cayman) Global Growth GP, L.P., its general partner
  By: Warburg Pincus (Cayman) Global Growth GP LLC, its general partner
  By: Warburg Pincus Partners II (Cayman), L.P., its managing member
  By: Warburg Pincus (Bermuda) Private Equity GP Ltd., its general partner
     
  By: /s/ Steven Glenn
  Name: Steven Glenn
  Title: Authorised Signatory
     
  WARBURG PINCUS (EUROPA) GLOBAL GROWTH (CAYMAN), L.P.
   
  By: Warburg Pincus (Cayman) Global Growth GP, L.P., its general partner
  By: Warburg Pincus (Cayman) Global Growth GP LLC, its general partner
  By: Warburg Pincus Partners II (Cayman), L.P., its managing member
  By: Warburg Pincus (Bermuda) Private Equity GP Ltd., its general partner
     
  By: /s/ Steven Glenn
  Name: Steven Glenn
  Title: Authorised Signatory
     
  WARBURG PINCUS GLOBAL GROWTH-B (CAYMAN), L.P.
   
  By: Warburg Pincus (Cayman) Global Growth GP, L.P., its general partner
  By: Warburg Pincus (Cayman) Global Growth GP LLC, its general partner
  By: Warburg Pincus Partners II (Cayman), L.P., its managing member
  By: Warburg Pincus (Bermuda) Private Equity GP Ltd., its general partner
     
  By: /s/ Steven Glenn
  Name: Steven Glenn
  Title: Authorised Signatory

 

[Signature Pages to Plan Support Agreement]

 

 

 

 

  WARBURG PINCUS GLOBAL GROWTH-E (CAYMAN), L.P.
   
  By: Warburg Pincus (Cayman) Global Growth GP, L.P., its general partner
  By: Warburg Pincus (Cayman) Global Growth GP LLC, its general partner
  By: Warburg Pincus Partners II (Cayman), L.P., its managing member
  By: Warburg Pincus (Bermuda) Private Equity GP Ltd., its general partner
     
  By: /s/ Steven Glenn
  Name: Steven Glenn
  Title: Authorised Signatory
     
  WARBURG PINCUS GLOBAL GROWTH PARTNERS (CAYMAN), L.P.
   
  By: Warburg Pincus (Cayman) Global Growth GP, L.P., its general partner
  By: Warburg Pincus (Cayman) Global Growth GP LLC, its general partner
  By: Warburg Pincus Partners II (Cayman), L.P., its managing member
  By: Warburg Pincus (Bermuda) Private Equity GP Ltd., its general partner
     
  By: /s/ Steven Glenn
  Name: Steven Glenn
  Title: Authorised Signatory
     
  WP GLOBAL GROWTH PARTNERS (CAYMAN), L.P.
   
  By: Warburg Pincus (Cayman) Global Growth GP, L.P., its general partner
  By: Warburg Pincus (Cayman) Global Growth GP LLC, its general partner
  By: Warburg Pincus Partners II (Cayman), L.P., its managing member
  By: Warburg Pincus (Bermuda) Private Equity GP Ltd., its general partner
     
  By: /s/ Steven Glenn
  Name: Steven Glenn
  Title: Authorised Signatory
     
  Notice Address:
  450 Lexington Ave
  New York, NY 10017
   
  Attention: General Counsel
  Email: notices@warburgpincus.com

 

[Signature Pages to Plan Support Agreement]

 

 

 

 

  DUNDON CAPITAL PARTNERS, LLC
   
  By: /s/ Tom Dundon
  Name: Tom Dundon
  Title: Chairman and Managing Partner
     
  Notice Address:
   
  Dundon Capital Partners, LLC
  2100 Ross Ave Ste 550
  Dallas, TX, 75201-6765
   
  Attention: Tom Dundon
  Email: td@dundon.com

 

[Signature Pages to Plan Support Agreement]

 

 

 

 

 

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their representative officers thereunto duly authorized, as of the date first written above.

 

Agreed to and accepted:

 

  INITIAL CONSENTING NOTEHOLDER
   
  400 CAPITAL CREDIT OPPORTUNITIES MASTER FUND LTD
   
  By: 400 Capital Management LLC, as investment manager
   
  By: /s/ Christopher Hentemann
  Name:  Christopher Hentemann
  Title:  Managing Partner and Chief Investment officer
   
  BOSTON PATRIOT MILK ST LLC
   
  By: 400 Capital Management LLC, as investment manager
   
  By:  /s/ Christopher Hentemann
  Name:  Christopher Hentemann
  Title:  Managing Partner and Chief Investment officer
   
  400 CAPITAL TX COF I LP
     
  By: 400 Capital Management LLC, as investment manager
   
  By  /s/ Christopher Hentemann
  Name:   Christopher Hentemann
  Title:  Managing Partner and Chief Investment officer

 

[Signature Page to the Plan Support Agreement]

 

 

 

 

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their representative officers thereunto duly authorized, as of the date first written above.

 

Agreed to and accepted:    
  INITIAL CONSENTING NOTEHOLDER
  683 CAPITAL PARTNERS, LP
     
  By: /s/ Joseph Patt
    Name: Joseph Patt
    Title: Member of the General Partner
     

[Signature Page to the Plan Support Agreement]

 

 

 

 

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their representative officers thereunto duly authorized, as of the date first written above.

 

Agreed to and accepted:    
  AEGON USA INVESTMENT MANAGEMENT, LLC
     
  By: /s/ Derek Thoms
    Name: Derek Thoms
    Title: Vice President
     

[Signature Page to the Plan Support Agreement]

 

 

 

 

 

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their representative officers thereunto duly authorized, as of the date first written above.

 

Agreed to and accepted:

  INITIAL CONSENTING NOTEHOLDER
   
  Banc of America Credit Products, Inc. executes this Agreement and signature page solely on behalf of the US Distressed & Special Situations Group and its managed positions. This signature in no way binds any other line of business, activities or positions at Bank of America Credit Products, Inc. or any of its affiliates or subsidiaries. In the event the terms of this signature are not accepted, the signature shall be deemed null and void ab initio
   
  By: /s/ Austin Penland
    Name: Austin Penland
    Title: AVP

         

 

1 Such principal amount is calculated after giving effect to the closing of all of Banc of America Credit Products’ open and unsettled First Lien Facilities Claims trades as of the effective date hereof.

 

[Signature Page to the Plan Support Agreement]

 

 

 

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their representative officers thereunto duly authorized, as of the date first written above.

 

Agreed to and accepted:

  INITIAL CONSENTING NOTEHOLDER
   
  BofA Securities Inc. executes this Agreement and signature page solely on behalf of the US Distressed & Special Situations Group and its managed positions. This signature in no way binds any other line of business, activities or positions at BofA Securities Inc. or any of its affiliates or subsidiaries. In the event the terms of this signature are not accepted, the signature shall be deemed null and void ab initio
   
   
  By: /s/ Vincenzo Ruocco
    Name: Vincenzo Ruocco
    Title: Director
   

 

[Signature Page to the Plan Support Agreement]

 

 

 

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their representative officers thereunto duly authorized, as of the date first written above.

 

Agreed to and accepted:    
  INITIAL CONSENTING NOTEHOLDER
BREAN ASSET MANAGEMENT, LLC
     
     
  By: /s/ Patrick L. Marano
    Name: Patrick L. Marano, Jr.
    Title: General Counsel & CCO

 

[Signature Page to the Plan Support Agreement]

 

 

 

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their representative officers thereunto duly authorized, as of the date first written above.

 

Agreed to and accepted:    
  INITIAL CONSENTING NOTEHOLDER
     
  Canso Investment Counsel Ltd. acting in its capacity as portfolio manager for and on behalf of certain managed accounts
     
  By: /s/ Joe Morin
    Name: Joe Morin
    Title: Portfolio Manager

 

[Signature Page to the Plan Support Agreement]

 

 

 

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their representative officers thereunto duly authorized, as of the date first written above.

 

Agreed to and accepted:    
  INITIAL CONSENTING NOTEHOLDER
     
  Carronade Capital Master, LP
  By: Carronade Capital GP, LLC, its general partner
     
  By: /s/ Dan Gropper
    Name: Dan Gropper
    Title: Managing Member

 

[Signature Page to the Plan Support Agreement]

 

 

 

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their representative officers thereunto duly authorized, as of the date first written above.

 

Agreed to and accepted:    
  INITIAL CONSENTING NOTEHOLDER
     
  Carval Investors LP, on behalf of funds it manages
     
  By: /s/ Ryan Morrell
    Name: Ryan Morrell
    Title: Managing Director

 

[Signature Page to the Plan Support Agreement]

 

 

 

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their representative officers thereunto duly authorized, as of the date first written above.

 

Agreed to and accepted:    
  INITIAL CONSENTING NOTEHOLDER
  Cetus Capital VI, L.P.
     
  By: /s/ Richard Maybaum
    Name: Richard Maybaum
    Title: Managing Director

 

[Signature Page to the Plan Support Agreement]

 

 

 

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their representative officers thereunto duly authorized, as of the date first written above.

 

Agreed to and accepted:    
  INITIAL CONSENTING NOTEHOLDER
  Littlejohn Opportunities Master Fund LP
     
  By: /s/ Richard Maybaum
    Name: Richard Maybaum
    Title: Managing Director

 

[Signature Page to the Plan Support Agreement]

 

 

 

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their representative officers thereunto duly authorized, as of the date first written above.

 

Agreed to and accepted:    
  INITIAL CONSENTING NOTEHOLDER
OFM II, L.P.
     
  By: /s/ Richard Maybaum
    Name: Richard Maybaum
    Title: Managing Director

 

[Signature Page to the Plan Support Agreement]

 

 

 

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their representative officers thereunto duly authorized, as of the date first written above.

 

Agreed to and accepted:  
  INITIAL CONSENTING NOTEHOLDER
  CVC Global Credit Opportunities Master Fund LP
  acting by its general partner,
  CVC Global Credit Opportunities Fund GP, LLC
  acting by its sole member,
  CVC Credit Partners, LLC
   
  By: /s/ Scott Bynum
    Name: Scott Bynum
    Title: Authorised signatory

 

[Signature Page to the Plan Support Agreement]

 

 

 

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their representative officers thereunto duly authorized, as of the date first written above.

 

Agreed to and accepted:    
  INITIAL CONSENTING NOTEHOLDER
     
    D. E. Shaw Galvanic Portfolios, L.L.C.
     
  By: /s/ Shi Nisman
    Name: Shi Nisman
    Title: Authorized Signatory

 

[Signature Page to the Plan Support Agreement]

 

 

 

Deutsche Bank Securities Inc. (DB) is engaged in a wide range of financial services and businesses, and, in furtherance of the foregoing, the obligations set forth in this Agreement shall only apply to the trading desk(s) and/or business group(s) of DB as further set forth in this signature page, and shall not apply to any other affiliate, trading desk or business group of DB.

 

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their representative officers thereunto duly authorized, as of the date first written above.

 

Agreed to and accepted:    
  DEUTSCHE BANK SECURITIES INC.
  (solely with respect to the Distressed Products Group)
     
  By: /s/ Shawn Faurot
    Name: Shawn Faurot
    Title: Managing Drrector
     
  By: /s/ Joanne Adkins
    Name: Joanne Adkins
    Title: Managing Director

 

[Signature Page to the Plan Support Agreement]

 

 

 

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their representative officers thereunto duly authorized, as of the date first written above.

 

Agreed to and accepted:    
  INITIAL CONSENTING NOTEHOLDER
   
  Diameter Master Fund LP
  By: Diameter Capital Partners LP, its Investment Manager
     
  By: /s/ Shailini Rao
    Name: Shailini Rao
    Title: General Counsel and CCO

 

[Signature Page to the Plan Support Agreement]

 

 

 

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their representative officers thereunto duly authorized, as of the date first written above.

 

Agreed to and accepted:    
  INITIAL CONSENTING NOTEHOLDER
   
  Diameter Dislocation Master Fund LP
  By: Diameter Capital Partners LP, its Investment Manager
     
  By: /s/ Shailini Rao
    Name: Shailini Rao
    Title: General Counsel and CCO

 

[Signature Page to the Plan Support Agreement]

 

 

 

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their representative officers thereunto duly authorized, as of the date first written above.

 

Agreed to and accepted:    
  INITIAL CONSENTING NOTEHOLDER
   
  The Calvert Fund-Calvert High Yield Bond Fund
     
  By: /s/ Steve Concannon
    Name: Steve Concannon
    Title: Vice President

 

[Signature Page to the Plan Support Agreement]

 

 

 

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their representative officers thereunto duly authorized, as of the date first written above.

 

Agreed to and accepted:    
  INITIAL CONSENTING NOTEHOLDER
   
  EATON VANCE TRUST COMPANY COLLECTIVE INVESTMENT TRUST FOR EMPLOYEE BENEFIT PLANS - HIGH YIELD FUND
     
  By: /s/ Steve Concannon
    Name: Steve Concannon
    Title: Vice President

 

[Signature Page to the Plan Support Agreement]

 

 

 

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their representative officers thereunto duly authorized, as of the date first written above.

 

Agreed to and accepted:    
  INITIAL CONSENTING NOTEHOLDER
   
  EATON VANCE CORP
     
  By: /s/ Steve Concannon
    Name: Steve Concannon
    Title: Vice President

 

[Signature Page to the Plan Support Agreement]

 

 

 

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their representative officers thereunto duly authorized, as of the date first written above.

 

Agreed to and accepted:    
  INITIAL CONSENTING NOTEHOLDER
   
  Eaton Vance Global Income Builder Fund
     
  By: /s/ Steve Concannon
    Name: Steve Concannon
    Title: Vice President

 

[Signature Page to the Plan Support Agreement]

 

 

 

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their representative officers thereunto duly authorized, as of the date first written above.

 

Agreed to and accepted:    
  INITIAL CONSENTING NOTEHOLDER
   
  EATON VANCE TRUST COMPANY COMMON TRUST FUND - HIGH YIELD COMMON TRUST FUND
     
  By: /s/ Steve Concannon
    Name: Steve Concannon
    Title: Vice President

 

[Signature Page to the Plan Support Agreement]

 

 

 

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their representative officers thereunto duly authorized, as of the date first written above.

 

Agreed to and accepted:    
  INITIAL CONSENTING NOTEHOLDER
   
  High Income Opportunities Portfolio
     
  By: /s/ Steve Concannon
    Name: Steve Concannon
    Title: Vice President

 

[Signature Page to the Plan Support Agreement]

 

 

 

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their representative officers thereunto duly authorized, as of the date first written above.

 

Agreed to and accepted:    
  INITIAL CONSENTING NOTEHOLDER
   
  Eaton Vance Income Fund of Boston
     
  By: /s/ Steve Concannon
    Name: Steve Concannon
    Title: Vice President

 

[Signature Page to the Plan Support Agreement]

 

 

 

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their representative officers thereunto duly authorized, as of the date first written above.

 

Agreed to and accepted:    
  INITIAL CONSENTING NOTEHOLDER
   
  Eaton Vance Limited Duration Income Fund
     
  By: /s/ Steve Concannon
    Name: Steve Concannon
    Title: Vice President

 

[Signature Page to the Plan Support Agreement]

 

 

 

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their representative officers thereunto duly authorized, as of the date first written above.

 

Agreed to and accepted:    
  INITIAL CONSENTING NOTEHOLDER
   
  Eaton Vance Multi-Asset Credit Fund
     
  By: /s/ Steve Concannon
    Name: Steve Concannon
    Title: Vice President

 

[Signature Page to the Plan Support Agreement]

 

 

 

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their representative officers thereunto duly authorized, as of the date first written above.

 

Agreed to and accepted:    
  INITIAL CONSENTING NOTEHOLDER
     
  Eaton Vance Trust Company Multi-Asset Credit Fund II, a separate trust fund of Eaton Vance Trust Company Collective Investment Trust for Employee Benefit Plans III
     
  By: /s/ Steve Concannon
    Name: Steve Concannon
    Title: Vice President

 

[Signature Page to the Plan Support Agreement]

 

 

 

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their representative officers thereunto duly authorized, as of the date first written above.

 

Agreed to and accepted:    
  INITIAL CONSENTING NOTEHOLDER
   
  EATON VANCE MULTI-ASSET CREDIT FUND II, LLC
     
  By: /s/ Steve Concannon
    Name: Steve Concannon
    Title: Vice President

 

[Signature Page to the Plan Support Agreement]

 

 

 

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their representative officers thereunto duly authorized, as of the date first written above.

 

Agreed to and accepted:    
  INITIAL CONSENTING NOTEHOLDER
   
  Southeastern Pennsylvania Transportation Authority
     
  By: /s/ Steve Concannon
    Name: Steve Concannon
    Title: Vice President

 

[Signature Page to the Plan Support Agreement]

 

 

 

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their representative officers thereunto duly authorized, as of the date first written above.

 

Agreed to and accepted:    
  INITIAL CONSENTING NOTEHOLDER
   
  The Regents of the University of California
     
  By: /s/ Steve Concannon
    Name: Steve Concannon
    Title: Vice President

 

[Signature Page to the Plan Support Agreement]

 

 

 

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their representative officers thereunto duly authorized, as of the date first written above.

 

Agreed to and accepted:    
  INITIAL CONSENTING NOTEHOLDER
   
  NSP - Monticello Minnesota Retail Qualified Trust
     
  By: /s/ Steve Concannon
    Name: Steve Concannon
    Title: Vice President

 

[Signature Page to the Plan Support Agreement]

 

 

 

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their representative officers thereunto duly authorized, as of the date first written above.

 

Agreed to and accepted:    
  INITIAL CONSENTING NOTEHOLDER
   
  NSP - Minnesota Prairie I Retail Qualified Trust
     
  By: /s/ Steve Concannon
    Name: Steve Concannon
    Title: Vice President

 

[Signature Page to the Plan Support Agreement]

 

 

 

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their representative officers thereunto duly authorized, as of the date first written above.

 

Agreed to and accepted:    
  INITIAL CONSENTING NOTEHOLDER
   
  NSP - Minnesota Prairie II Retail Qualified Trust
     
  By: /s/ Steve Concannon
    Name: Steve Concannon
    Title: Vice President

 

[Signature Page to the Plan Support Agreement]

 

 

 

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their representative officers thereunto duly authorized, as of the date first written above.

 

Agreed to and accepted:    
  INITIAL CONSENTING NOTEHOLDER
   
  Farmstead Capital Management, LLC
  and its affiliates
   
  By: /s/ Michael Scott
  Name: Michael Scott
  Title: Managing Member

 

[Signature Page to the Plan Support Agreement]

 

 

 

 

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their representative officers thereunto duly authorized, as of the date first written above.

 

Agreed to and accepted:

 

  INITIAL CONSENTING NOTEHOLDER

 

  FIDELITY ADVISOR SERIES II: Fidelity Advisor Strategic Income Fund

 

  By: /s/ Chris Maher
    Name: Chris Maher
    Title: Authorized Signatory

 

[Signature Page to the Plan Support Agreement]

 

 

 

 

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their representative officers thereunto duly authorized, as of the date first written above.

 

Agreed to and accepted:

 

  INITIAL CONSENTING NOTEHOLDER

 

  Fidelity Securities Fund: Fidelity Blue Chip Growth Fund

 

  By: /s/ Chris Maher
    Name: Chris Maher
    Title: Authorized Signatory

 

[Signature Page to the Plan Support Agreement]

 

 

 

 

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their representative officers thereunto duly authorized, as of the date first written above.

 

Agreed to and accepted:

 

  INITIAL CONSENTING NOTEHOLDER

 

  Fidelity Management Trust Company: Fidelity Blue Chip Growth Commingled Pool

 

  By: /s/ Chris Maher
    Name: Chris Maher
    Title: Authorized Signatory

 

[Signature Page to the Plan Support Agreement]

 

 

 

 

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their representative officers thereunto duly authorized, as of the date first written above.

 

Agreed to and accepted:

 

  INITIAL CONSENTING NOTEHOLDER

 

  Fidelity Securities Fund: Fidelity Flex Large Cap Growth Fund

 

  By: /s/ Chris Maher
    Name: Chris Maher
    Title: Authorized Signatory

 

[Signature Page to the Plan Support Agreement]

 

 

 

 

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their representative officers thereunto duly authorized, as of the date first written above.

 

Agreed to and accepted:

 

  INITIAL CONSENTING NOTEHOLDER

 

  Fidelity Securities Fund: Fidelity Blue Chip Growth K6 Fund

 

  By: /s/ Chris Maher
    Name: Chris Maher
    Title: Authorized Signatory

 

[Signature Page to the Plan Support Agreement]

 

 

 

 

 

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their representative officers thereunto duly authorized, as of the date first written above.

 

Agreed to and accepted:

 

  INITIAL CONSENTING NOTEHOLDER
   
   FIDELITY SUMMER STREET TRUST: Fidelity Capital & Income Fund
   
  By: /s/ Chris Maher
    Name: Chris Maher
    Title: Authorized Signatory

 

[Signature Page to the Plan Support Agreement]

 

 

 

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their representative officers thereunto duly authorized, as of the date first written above.

 

Agreed to and accepted:

 

  INITIAL CONSENTING NOTEHOLDER
   
  Fidelity Investments Canada ULC: Fidelity Blue Chip Growth Institutional Trust
   
  By: /s/ Chris Maher
    Name: Chris Maher
    Title: Authorized Signatory

 

 

[Signature Page to the Plan Support Agreement]

 

 

 

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their representative officers thereunto duly authorized, as of the date first written above.

 

Agreed to and accepted:

 

  INITIAL CONSENTING NOTEHOLDER
   
  Fidelity Canadian Balanced Fund, by Fidelity Investments Canada ULC as Trustee
   
  By: /s/ Chris Maher
    Name: Chris Maher
    Title: Authorized Signatory

 

[Signature Page to the Plan Support Agreement]

 

 

 

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their representative officers thereunto duly authorized, as of the date first written above.

 

Agreed to and accepted:

 

  INITIAL CONSENTING NOTEHOLDER
   
  Fidelity American High Yield Fund, by Fidelity Investments Canada ULC as Trustee
   
  By: /s/ Chris Maher
    Name: Chris Maher
    Title: Authorized Signatory

 

[Signature Page to the Plan Support Agreement]

 

 

 

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their representative officers thereunto duly authorized, as of the date first written above.

 

Agreed to and accepted:

 

  INITIAL CONSENTING NOTEHOLDER
   
  Fidelity Distressed Opportunities Master Fund I, LP, by Fidelity Management & Research Company LLC as Investment Manager
   
  By: /s/ Chris Maher
    Name: Chris Maher
    Title: Authorized Signatory

 

[Signature Page to the Plan Support Agreement]

 

 

 

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their representative officers thereunto duly authorized, as of the date first written above.

 

Agreed to and accepted:

 

  INITIAL CONSENTING NOTEHOLDER
   
  Fidelity Funds SICAV / Fidelity Funds – US High Yield
   
  By: /s/ Chris Maher
    Name: Chris Maher
    Title: Authorized Signatory

 

[Signature Page to the Plan Support Agreement]

 

 

 

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their representative officers thereunto duly authorized, as of the date first written above.

 

Agreed to and accepted:

 

INITIAL CONSENTING NOTEHOLDER
     
  Fidelity Securities Fund: Fidelity Series Blue Chip Growth Fund
     
  By:  /s/ Chris Maher
    Name:  Chris Maher
    Title: Authorized Signatory

 

[Signature Page to the Plan Support Agreement]

 

 

 

 

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their representative officers thereunto duly authorized, as of the date first written above.

 

Agreed to and accepted:

 

INITIAL CONSENTING NOTEHOLDER
     
 

Japan Trustee Services Bank, LTD. Re: Fidelity Strategic Income Fund (Mother) By Fidelity Management & Research Company as Sub-Advisor

     
  By:  /s/ Chris Maher
    Name:  Chris Maher
    Title: Authorized Signatory

 

[Signature Page to the Plan Support Agreement]

 

 

 

 

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their representative officers thereunto duly authorized, as of the date first written above.

 

Agreed to and accepted:

 

INITIAL CONSENTING NOTEHOLDER
     
  FIDELITY SUMMER STREET TRUST: Fidelity Global High Income Fund
     
  By:  /s/ Chris Maher
    Name:  Chris Maher
    Title: Authorized Signatory

 

[Signature Page to the Plan Support Agreement]

 

 

 

 

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their representative officers thereunto duly authorized, as of the date first written above.

 

Agreed to and accepted:

 

INITIAL CONSENTING NOTEHOLDER
     
 

FMR Capital, Inc. High Income 1 Pilot Portfolio - Portfolio Number 5028

     
  By:  /s/ Chris Maher
    Name:  Chris Maher
    Title: Authorized Signatory

 

[Signature Page to the Plan Support Agreement]

 

 

 

 

 

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their representative officers thereunto duly authorized, as of the date first written above.

 

Agreed to and accepted:

 

  INITIAL CONSENTING NOTEHOLDER
     
   FMR Capital, Inc. High Income 2 Pilot Portfolio - Portfolio Number 5559
     
  By:  /s/ Chris Maher
    Name: Chris Maher
    Title: Authorized Signatory

 

[Signature Page to the Plan Support Agreement]

 

 

 

 

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their representative officers thereunto duly authorized, as of the date first written above.

 

Agreed to and accepted:

 

  INITIAL CONSENTING NOTEHOLDER
     
    FIDELITY CENTRAL INVESTMENT PORTFOLIOS LLC: Fidelity High Income Central Fund
   
  By:  /s/ Chris Maher
    Name: Chris Maher
    Title: Authorized Signatory

 

[Signature Page to the Plan Support Agreement] 

 

 

 

 

 

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their representative officers thereunto duly authorized, as of the date first written above.

 

Agreed to and accepted:

 

  INITIAL CONSENTING NOTEHOLDER
     
     Master Trust Bank Of Japan Ltd. Re: Fidelity US High Yield Mother Fund, by Fidelity Management & Research Company as Investment Manager
     
  By:  /s/ Chris Maher
    Name: Chris Maher
    Title: Authorized Signatory

 

[Signature Page to the Plan Support Agreement] 

 

 

 

 

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their representative officers thereunto duly authorized, as of the date first written above.

 

Agreed to and accepted:

 

  INITIAL CONSENTING NOTEHOLDER
     
  Japan Trustee Services Bank, Ltd. Re: Fidelity High Yield Bond Open Mother Fund, by Fidelity Management & Research Company as Investment Manager
     
  By:  /s/ Chris Maher
    Name: Chris Maher
    Title: Authorized Signatory

 

[Signature Page to the Plan Support Agreement]

 

 

 

 

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their representative officers thereunto duly authorized, as of the date first written above.

 

Agreed to and accepted:

 

  INITIAL CONSENTING NOTEHOLDER
     
  FIDELITY ADVISOR SERIES I: Fidelity
  Advisor High Income Advantage Fund
     
  By:  /s/ Chris Maher
    Name: Chris Maher
    Title: Authorized Signatory

 

[Signature Page to the Plan Support Agreement]

 

 

 

 

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their representative officers thereunto duly authorized, as of the date first written above.

 

Agreed to and accepted:

 

INITIAL CONSENTING NOTEHOLDER
     
 

Pension Reserves Investment Trust Fund, by Fidelity Institutional Asset Management Trust Company as Investment Manager

     
  By:  /s/ Chris Maher
    Name:  Chris Maher
    Title: Authorized Signatory

 

[Signature Page to the Plan Support Agreement]

 

 

 

 

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their representative officers thereunto duly authorized, as of the date first written above.

 

Agreed to and accepted:

 

INITIAL CONSENTING NOTEHOLDER
     
 

Fidelity Institutional Asset Management Trust

Company: FIAM Target Date Blue Chip

Growth Commingled Pool

     
  By:  /s/ Chris Maher
    Name:  Chris Maher
    Title: Authorized Signatory

 

[Signature Page to the Plan Support Agreement]

 

 

 

 

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their representative officers thereunto duly authorized, as of the date first written above.

 

Agreed to and accepted:

 

INITIAL CONSENTING NOTEHOLDER
     
 

VARIABLE INSURANCE PRODUCTS FUND V:
Strategic Income Portfolio

     
  By:  /s/ Chris Maher
    Name:  Chris Maher
    Title: Authorized Signatory

 

[Signature Page to the Plan Support Agreement]

 

 

 

 

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their representative officers thereunto duly authorized, as of the date first written above.

 

Agreed to and accepted:

 

INITIAL CONSENTING NOTEHOLDER
   
  J.P. MORGAN INVESTMENT MANAGEMENT INC. AND JPMORGAN CHASE BANK, N.A. (“Signatory”), solely as investment adviser and/or trustee on behalf of certain discretionary accounts and/or funds it manages.  
   
  By executing this agreement, Signatory, solely as investment advisor and/or trustee on behalf of certain discretionary funds and/or accounts it manages, binds only itself, and itself only in that capacity, and not any other affiliate of JPMorgan Chase & Co., or any of its or their respective business units, subsidiaries or affiliates (including any desk or business unit thereof), and no such affiliate shall be deemed to be bound by the terms of this agreement by virtue of Signatory’s execution of this agreement. Moreover, Signatory shall have no obligation to cause any of its affiliates to take or refrain from taking any action.
   
By:  /s/ Greg Seketa
    Name:  Greg Seketa
    Title: Executive Director 

 

[Signature Page to the Plan Support Agreement]

 

 

 

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their representative officers thereunto duly authorized, as of the date first written above.

 

Agreed to and accepted:

 

 

J.P. MORGAN SECURITIES LLC*, with respect
to only its North America Credit Trading Group

     
  By:  /s/ Brian M. Ercolani
    Name:  Brian M. Ercolani
    Title: Operations Manger

 

*This signature page to the Plan Support Agreement (the “Agreement”) applies only to the North America Credit Trading group of J.P. Morgan Securities LLC (“CTG”) and the Senior Notes Claims (“Notes”) held by such group. Accordingly, the terms “Initial Consenting Noteholders”, “Consenting Noteholders”, “Consenting Claimholder”, “Unsecured Noteholders”, “Requisite Consenting Noteholders”, “Plan Sponsors”, “Party”, and “Parties” for all purposes of the Agreement mean and refer only to CTG and such business unit’s holdings of the Notes. For the avoidance of doubt, the Agreement does not apply to (i) loans, claims, securities, notes, other obligations or any other interests in the Debtors that may be held, acquired or sold by, or any activities, services or businesses conducted or provided by, any other group or business unit within, or affiliate of, J.P. Morgan Securities LLC, (ii) any credit facilities to which JPMorgan Chase & Co. or any of its affiliates (“Morgan”) is a party in effect as of the date hereof, (iii) any new credit facility, amendment to an existing credit facility, or debt or equity securities offering involving Morgan, (iv) any direct or indirect principal activities undertaken by any Morgan entity engaged in the venture capital, private equity or mezzanine businesses, or portfolio companies in which they have investments, (v) any ordinary course sales and trading activity undertaken by employees who are not a member of CTG, (vi) any Morgan entity or business engaged in providing private banking or investment management services, or (vii) any loans, notes, or claims that may be beneficially owned by non-affiliated clients of J.P. Morgan Securities LLC or any of its affiliates or for which Morgan acts in a fiduciary capacity.

 

[Signature Page to the Plan Support Agreement]

 

 

 

 

 

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their representative officers thereunto duly authorized, as of the date first written above.

 

Agreed to and accepted:    
  INITIAL CONSENTING NOTEHOLDER
     
    King Street Capital Management, L.P.
     
  By: /s/ Howard Baum
    Name: Howard Baum
    Title: Authorized Signatory
       

 [Signature Page to the Plan Support Agreement]

 

 

 

 

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their representative officers thereunto duly authorized, as of the date first written above.

 

Agreed to and accepted:    
  INITIAL CONSENTING NOTEHOLDER
     
  Livello Capital Special Opportunities Master Fund LP
     
  By: /s/ Joseph Salegna
    Name: Joseph Salegna
    Title: Chief Financial Officer

 

[Signature Page to the Plan Support Agreement]

 

 

 

 

 

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their representative officers thereunto duly authorized, as of the date first written above.

 

Agreed to and accepted:

 

  INITIAL CONSENTING NOTEHOLDER
     
  Lord, Abbett & Co. LLC, as investment adviser on
  behalf of certain accounts it manages
     
     
  By:  /s/ Steven Rocco   
  Name: Steven Rocco
  Title: Member & Director of Taxable Fixed Income

 

[Signature Page to the Plan Support Agreement]

 

 

 

 

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their representative officers thereunto duly authorized, as of the date first written above.

 

Agreed to and accepted:  
  INITIAL CONSENTING NOTEHOLDER MILLENNIUM CMM, LTD.
  By: Millennium International Management LP, its Investment Manager
   
  By: /s/ Mark Meskin
    Name: Mark Meskin
    Title: Chief Trading Officer

 

[Signature Page to the Plan Support Agreement]

 

 

 

 

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their representative officers thereunto duly authorized, as of the date first written above.

 

Agreed to and accepted:    
  INITIAL CONSENTING NOTEHOLDER
   
  Moore Global Investments, LLC by Moore Capital Management. LP
  Its Investment Manager
     
  By: /s/ James Kaye
    Name: James Kaye
    Title: Vice President

 

[Signature Page to the Plan Support Agreement]

 

 

 

 

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their representative officers thereunto duly authorized, as of the date first written above.

 

Agreed to and accepted:    
  INITIAL CONSENTING NOTEHOLDER
   
  Morgan Stanley & Co., LLC, solely on behalf of its New York distressed trading desk, and not on behalf of any of its other trading desks, business units, divisions or affiliates
   
  By: /s/ Brian McGowan
    Name: Brian McGowan
    Title: Managing Director

 

[Signature Page to the Plan Support Agreement]

 

 

 

 

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their representative officers thereunto duly authorized, as of the date first written above.

 

Agreed to and accepted:
 
  INITIAL CONSENTING NOTEHOLDER
   
  Napier Park Global Capital (US) LP, on behalf of its managed funds and accounts
   
  By:  
    Name: Rutvij Shanghavi
    Title: Director

 

[Signature Page to the Plan Support Agreement]

 

 

 

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their representative officers thereunto duly authorized, as of the date first written above.

 

Agreed to and accepted:

 

  INITIAL CONSENTING NOTEHOLDER
   
  Nomura Corporate Research and Asset
  Management Inc. as investment adviser on behalf of certain funds and accounts
 
   
  By: /s/ Stephen Kotsen
    Name: Stephen Kotsen
    Title: Managing Director

 

[Signature Page to the Plan Support Agreement]

 

 

 

 

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their representative officers thereunto duly authorized, as of the date first written above.

 

Agreed to and accepted:    
  INITIAL CONSENTING NOTEHOLDER
  One Fin Capital Master Fund LP
  By: One Fin Capital Management LP
    Its Investment Advisor
     
  By: /s/ MayKao Manisone
    Name: MayKao Manisone
    Title: CFO

 

[Signature Page to the Plan Support Agreement]

 

 

 

 

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their representative officers thereunto duly authorized, as of the date first written above.

 

Agreed to and accepted:

 

P. SCHOENFELD ASSET MANAGEMENT LP, as investment advisor on behalf of certain funds and managed accounts

 

  By: /s/ Dhananjay Pai
    Name: Dhananjay Pai
    Title: President & Chief Operating Officer

 

[Signature Page to the Plan Support Agreement]

 

 

 

 

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their representative officers thereunto duly authorized, as of the date first written above.

 

Agreed to and accepted:      
  INITIAL CONSENTING NOTEHOLDER
       
  SUNRISE PARTNERS LIMITED PARTNERSHIP
   
  By: /s/ Douglas W. Ambrose
    Name: Douglas W. Ambrose
      Executive Vice President of
    Title: Paloma Partners Management Company,
      general partner of
      Sunsrise Partners Limited Partnership

 

[Signature Page to the Plan Support Agreement]

 

 

 

 

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their representative officers thereunto duly authorized, as of the date first written above.

 

Agreed to and accepted:    
  INITIAL CONSENTING NOTEHOLDER
   
  Pentwater Capital Management LP
     
  By: /s/ David M Zirin
    Name: David M Zirin
    Title: Chief Operating Officer

 

[Signature Page to the Plan Support Agreement]

 

 

 

 

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their representative officers thereunto duly authorized, as of the date first written above.

 

Agreed to and accepted:    
  INITIAL CONSENTING NOTEHOLDER
   
  Captial Ventures International
  By: Susquehanna Advisors Group, Inc., its authorized agent
   
  By: /s/ Kathy Harley
    Name: Kathy Harley
    Title: Assistant Vice President

 

[Signature Page to the Plan Support Agreement]

 

 

 

 

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their representative officers thereunto duly authorized, as of the date first written above.

 

Agreed to and accepted:    
  INITIAL CONSENTING NOTEHOLDER
  Warlander Partners, LP
     
  By: /s/ Matthew Tuminello
    Name: Matt Tuminello
    Title: CFO

 

[Signature Page to the Plan Support Agreement]

 

 

 

 

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their representative officers thereunto duly authorized, as of the date first written above.

 

Agreed to and accepted:    
  INITIAL CONSENTING NOTEHOLDER
   
  Wexford Spectrum Trading Limited, Wexford Catalyst Trading Limited,
  Debello Trading Limited, Wexford Focused Trading Limited
  By: Wexford Capital LP, the Manager of the funds
     
  By: /s/ Arthur Amron
    Name: Arthur Amron
    Title: Partner and General Counsel

 

[Signature Page to the Plan Support Agreement]

 

 

 

 

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their representative officers thereunto duly authorized, as of the date first written above.

 

Agreed to and accepted:    
  INITIAL CONSENTING NOTEHOLDER
  WHITEBOX RELATIVE VALUE PARTNERS, LP
     
  By: /s/ Luke Harris
    Name: Luke Hanis
    Title:  General Counsel
       Whitebox Advisors LLC

 

[Signature Page to the Plan Support Agreement]

 

 

 

 

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their representative officers thereunto duly authorized, as of the date first written above.

 

Agreed to and accepted:    
  INITIAL CONSENTING NOTEHOLDER
  WHITEBOX MULTI-STRATEGY PARTNERS, LP
     
  By: /s/ Luke Harris
    Name: Luke Harris
    Title: General Counsel
    Whitebox Advisors LLC

 

[Signature Page to the Plan Support Agreement]

 

 

 

 

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their representative officers thereunto duly authorized, as of the date first written above.

 

Agreed to and accepted:    
  INITIAL CONSENTING NOTEHOLDER
  WHITEBOX GT FUND, LP
     
  By: /s/ Luke Harris
    Name: Luke Hanis
    Title:  General Counsel
       Whitebox Advisors LLC

 

[Signature Page to the Plan Support Agreement]

 

 

 

 

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their representative officers thereunto duly authorized, as of the date first written above.

 

Agreed to and accepted:    
  INITIAL CONSENTING NOTEHOLDER
  PANDORA SELECT PARTNERS, LP
     
  By: /s/ Luke Harris
    Name: Luke Harris
    Title:   General Counsel
        Whitebox Advisors LLC

 

[Signature Page to the Plan Support Agreement]

 

 

 

 

Exhibit A

 

Form of Committee Joinder

 

Pursuant to this joinder agreement (the “Committee Joinder”), the undersigned official committee of unsecured creditors appointed in the Chapter 11 Cases (the “Committee”) acknowledges that it has read and understands the Plan Support Agreement (the “Agreement”), dated as of April 3, 2021, by and among (i) The Hertz Corporation (“Hertz”), a corporation incorporated in the State of Delaware, and its affiliated debtors and debtors-in-possession (collectively with Hertz, the “Company” or the “Debtors”) in the Chapter 11 Cases (as defined below) pending in the United States Bankruptcy Court for the District of Delaware (the “Bankruptcy Court”); (ii)(a) one or more funds associated with Centerbridge Partners, L.P., (“Centerbridge”), (b) one or more funds associated with Warburg Pincus LLC (“WP”), and (c) Dundon Capital Partners LLC (“Dundon” and, together with Centerbridge and WP, the “PE Sponsors”); (iii) the beneficial owners4 (or managers or advisors of funds or accounts that are beneficial owners) of Claims in respect of the following obligations of Hertz party thereto as of the Agreement Effective Date (the “Initial Consenting Noteholders” and, together with the PE Sponsors, the “Plan Sponsors”): (a) the 6.25% Senior Notes due 2022; (b) the 5.50% Senior Notes due 2024; (c) the 7.125% Senior Notes due 2026; (d) the 6.00% Senior Notes due 2028; and (e) the obligations under that certain Credit Agreement, dated as of December 13, 2019, as amended, supplemented or otherwise modified from time to time (the Claims under clauses (a) through (e) above, collectively, the “Senior Notes/ALOC Claims” and, the holders thereof, the “Unsecured Noteholders”); (iv) the Committee upon executing this Committee Joinder; and (v) any additional Unsecured Noteholders (the “Additional Consenting Noteholders” and, together with the Initial Consenting Noteholders, the “Consenting Noteholders”) and any owners or beneficial owners of any other Claims against any of the Debtors (collectively, the “Consenting Claimholders”), in each case, that execute the joinder attached as Exhibit B to the Agreement (the “Consenting Claimholder Joinder”). Capitalized terms used but not defined herein shall have the meanings set forth in the Agreement.

 

1.                  Agreement to be Bound. The Committee hereby agrees to be bound by all of the terms of the Agreement (as the same has been or may be hereafter amended, restated, or otherwise modified from time to time in accordance with the provisions thereof). The Committee shall hereafter be deemed to be a Party for all purposes under the Agreement.

 

2.                  Representations and Warranties. The Committee hereby represents and warrants to each other Party to the Agreement that, as of the date hereof, the Committee makes, as of the date hereof, the representations and warranties set forth in Section 7 of the Agreement to each other Party.

 

 

4      As used herein, the term “beneficial ownership” means the direct or indirect economic ownership of, and/or the power, whether by contract or otherwise, to direct the exercise of the voting rights and the disposition of, the Claims against or Interests in any of the Debtors or the rights to acquire such Claims or Interests.

A-2

 

 

3.                  Governing Law. This Committee Joinder shall be construed and enforced in accordance with, and the rights of the Parties shall be governed by, the laws of the State of New York, without giving effect to the conflicts of law principles thereof. Each Party hereto agrees that it shall bring any action or proceeding in respect of any claim arising out of or related to this Committee Joinder in the Bankruptcy Court and, to the extent the Bankruptcy Court is determined to not have jurisdiction, in the United States District Court for the Southern District of New York or any New York State court located in New York County (the “Chosen Courts”), and solely in connection with claims arising under this Committee Joinder: (a) irrevocably submits to the exclusive jurisdiction of the Chosen Courts; (b) waives any objection to laying venue in any such action or proceeding in the Chosen Courts; and (c) waives any objection that the Chosen Courts are an inconvenient forum or do not have jurisdiction over any Party hereto.

 

A-3

 

 

IN WITNESS WHEREOF, the Committee has caused this Committee Joinder to be executed as of the date first written above.

 

  OFFICIAL COMMITTEE OF UNSECURED CREDITORS IN IN RE THE HERTZ CORPORATION, ET AL., CASE NO. 20-11218 (MFW) (BANKR. D. DEL.)
     
By:
Name:
Title: Counsel to the Official Committee of Unsecured Creditors

 

 

 

Exhibit B

 

Form of Consenting Noteholder/Claimholder Joinder

 

Pursuant to this joinder agreement (the “Consenting Claimholder Joinder”), the undersigned holder of Claims against any of the Debtors (the “Joining Party”) acknowledges that it has read and understands the Plan Support Agreement (the “Agreement”), dated as of April 3, 2021, by and among (i) The Hertz Corporation (“Hertz”), a corporation incorporated in the State of Delaware, and its affiliated debtors and debtors-in-possession (collectively with Hertz, the “Company” or the “Debtors”) in the Chapter 11 Cases (as defined below) pending in the United States Bankruptcy Court for the District of Delaware (the “Bankruptcy Court”); (ii)(a) one or more funds associated with Centerbridge Partners, L.P. (“Centerbridge”), (b) one or more funds associated with Warburg Pincus LLC (“WP”), and (c) Dundon Capital Partners LLC (“Dundon” and, together with Centerbridge and WP, the “PE Sponsors”); (iii) the beneficial owners5 (or managers or advisors of funds or accounts that are beneficial owners) of claims in respect of the following obligations of Hertz party thereto as of the Agreement Effective Date (the “Initial Consenting Noteholders” and, together with the PE Sponsors, the “Plan Sponsors”): (a) the 6.25% Senior Notes due 2022; (b) the 5.50% Senior Notes due 2024; (c) the 7.125% Senior Notes due 2026; (d) the 6.00% Senior Notes due 2028; and (e) the obligations under that certain Credit Agreement, dated as of December 13, 2019, as amended, supplemented or otherwise modified from time to time (the Claims under clauses (a) through (e) above, collectively, the “Senior Notes/ALOC Claims and, the holders thereof, the “Unsecured Noteholders); (iv) the official committee of unsecured creditors appointed in the Chapter 11 Cases (the “Committee”) upon executing the joinder attached as Exhibit A to the Agreement (the “Committee Joinder”); and (v) any additional Unsecured Noteholders (the “Additional Consenting Noteholders” and, together with the Initial Consenting Noteholders, the “Consenting Noteholders”) and any owners or beneficial owners of any other Claims against any of the Debtors (collectively, the “Consenting Claimholders”), in each case, that execute this Consenting Noteholder/Claimholder Joinder. Capitalized terms used but not defined herein shall have the meanings set forth in the Agreement.

 

1.                  Agreement to be Bound. The undersigned Additional Consenting Noteholder or Consenting Claimholder (as applicable, the “Joining Party”) hereby agrees to be bound by all of the terms of the Agreement (as the same has been or may be hereafter amended, restated, or otherwise modified from time to time in accordance with the provisions thereof). The Joining Party shall hereafter be deemed to be a Party for all purposes under the Agreement.

 

2.                  Representations and Warranties. The Joining Party hereby represents and warrants to each other Party to the Agreement that, as of the date hereof, such Joining Party (a) is the legal or beneficial holder of, and has all necessary authority (including authority to bind any other legal or beneficial holder) with respect to, the Claims against any of the Debtors identified below its name on the signature page hereof, and (b) makes, as of the date hereof, the representations and warranties set forth in Section 7 of the Agreement to each other Party.

 

 

5      As used herein, the term “beneficial ownership” means the direct or indirect economic ownership of, and/or the power, whether by contract or otherwise, to direct the exercise of the voting rights and the disposition of, the Claims against or Interests in any of the Debtors or the rights to acquire such Claims or Interests.

 

B-1

 

 

3.                  Governing Law. This Consenting Noteholder/Claimholder Joinder shall be construed and enforced in accordance with, and the rights of the Parties shall be governed by, the laws of the State of New York, without giving effect to the conflicts of law principles thereof. Each Party hereto agrees that it shall bring any action or proceeding in respect of any claim arising out of or related to this Consenting Claimholder Joinder in the Bankruptcy Court and, to the extent the Bankruptcy Court is determined to not have jurisdiction, in the United States District Court for the Southern District of New York or any New York State court located in New York County (the “Chosen Courts”), and solely in connection with claims arising under this Consenting Claimholder Joinder: (a) irrevocably submits to the exclusive jurisdiction of the Chosen Courts; (b) waives any objection to laying venue in any such action or proceeding in the Chosen Courts; and (c) waives any objection that the Chosen Courts are an inconvenient forum or do not have jurisdiction over any Party hereto.

 

4.                  Notice. All notices and other communications given or made pursuant to the Agreement shall be sent to:

 

To the Joining Party at:

 

[JOINING PARTY]

[ADDRESS]

Attn:

Facsimile:

EMAIL:

 

B-2

 

 

IN WITNESS WHEREOF, the Joining Party has caused this Consenting Claimholder Joinder to be executed as of the date first written above.

 

 

  [Consenting Claimholder / Additional Noteholder]
     
By:
Name:
Title:
     
  Claims (principal amount):

 

 

 

Exhibit C

Plan

 

 

 

 

 

IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE

 

In re

 

The Hertz Corporation, et al.,1

 

Debtors.

 

Chapter 11

 

Case No. 20-11218 (MFW)

 

(Jointly Administered)

 

 

SECOND AMENDED JOINT CHAPTER 11 PLAN OF
REORGANIZATION OF THE HERTZ CORPORATION AND ITS DEBTOR AFFILIATES

 

WHITE & CASE LLP
Thomas E Lauria (admitted pro hac vice)
Matthew C. Brown (admitted pro hac vice)
200 South Biscayne Boulevard, Suite 4900
Miami, FL 33131
Telephone: (305) 371-2700

 

J. Christopher Shore (admitted pro hac vice)
David M. Turetsky (admitted pro hac vice)
Andrew T. Zatz (admitted pro hac vice)
Andrea Amulic (admitted pro hac vice)
1221 Avenue of the Americas
New York, NY 10020
Telephone: (212) 819-8200

Jason N. Zakia (admitted pro hac vice)
111 South Wacker Drive
Chicago, IL 60606
Telephone: (312) 881-5400

 

Roberto J. Kampfner (admitted pro hac vice)

Ronald K. Gorsich (admitted pro hac vice)
Aaron Colodny (admitted pro hac vice)
Andrew Mackintosh (admitted pro hac vice)
Doah Kim (admitted pro hac vice)
555 South Flower Street, Suite 2700
Los Angeles, CA 90071
Telephone: (213) 620-7700

 

Attorneys for the Debtors
and Debtors in Possession

 

RICHARDS, LAYTON & FINGER, P.A.
Mark D. Collins (No. 2981)
John H. Knight (No. 3848)

Brett M. Haywood (No. 6166)

Christopher M. De Lillo (No. 6355)

J. Zach Noble (No. 6689)

One Rodney Square

910 N. King Street

Wilmington, DE 19801
Telephone: (302) 651-7700


 

Dated: April 3, 2021

 

 

1             The last four digits of The Hertz Corporation’s tax identification number are 8568. The location of the debtors’ service address is 8501 Williams Road, Estero, FL 33928. Due to the large number of debtors in these chapter 11 cases, which are jointly administered for procedural purposes only, a complete list of the debtors and the last four digits of their federal tax identification numbers is not provided herein. A complete list of such information may be obtained on the website of the debtors’ claims and noticing agent at https://restructuring.primeclerk.com/hertz.

 

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TABLE OF CONTENTS

 

Page

Article I. DEFINED TERMS, RULES OF INTERPRETATION, COMPUTATION OF TIME, AND GOVERNING LAW 1
  A. Defined Terms 1
  B. Rules of Interpretation 33
  C. Computation of Time 33
  D. Governing Law 33
  E. Consultation, Information, Notice, and Consent Rights 34
  F. Reference to Monetary Figures 34
  G. Reference to the Debtors or the Reorganized Debtors 34
  H. Controlling Document 34
Article II. ADMINISTRATIVE CLAIMS AND PRIORITY CLAIMS 34
  A. Administrative Claims 35
  B. DIP Claims 35
  C. HVF Master Lease Administrative Claims 36
  D. Postpetition Fleet Financing Administrative Claims 36
  E. Professional Fee Claims 37
  F. Priority Tax Claims 38
Article III. CLASSIFICATION AND TREATMENT OF CLAIMS AND INTERESTS 38
  A. Summary of Classification 38
  B. Treatment of Claims and Interests 40
  C. Special Provision Governing Unimpaired Claims 45
  D. Confirmation Pursuant to Sections 1129(a)(10) and 1129(b) of the Bankruptcy Code 45
  E. Elimination of Vacant Classes 46
  F. Separate Classification of Other Secured Claims 46
  G. Voting Classes; Presumed Acceptance by Non-Voting Classes 46
  H. Controversy Concerning Impairment 46
Article IV. MEANS FOR IMPLEMENTATION OF THE PLAN 46
  A. No Substantive Consolidation 46
  B. Restructuring Transactions; Effectuating Documents 46
  C. Sources of Consideration for Plan Distributions 47
  D. New Money Investment 47
  E. Issuance and Distribution of Reorganized Hertz Parent Common Interests and Preferred Stock 48
  F. New Reorganized Corporate Debt 48
  G. Replacement of First Lien Letters of Credit 49
  H. HVF II and Interim Fleet Financing Settlement 49
  I. HVF III Fleet Financing 50
  J. General Unsecured Claim and General Unsecured Elective Claim Recoveries 51
  K. Intercompany Claim Settlement 51
  L. HHN Restructuring 52
  M. Registration Rights Agreement 52
  N. International Vehicle Financing Claims 52
  O. Corporate Existence 52
  P. Vesting of Assets in the Reorganized Debtors 53
  Q. Cancellation of Existing Securities 53
  R. Corporate Action 55
  S. New Organizational Documents 55
  T. Reorganized Hertz Parent and Reorganized Hertz Corp. Board 56

 

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  U. Exemption from Certain Taxes and Fees 56
  V. Preservation of Causes of Action 57
  W. GUC Oversight Administrator 57
  X. Insurance Policies and Surety Bonds 58
  Y. Management Equity Incentive Plan 59
  Z. Employee Obligations 59
  AA. Workers’ Compensation Programs 61
  BB. Collective Bargaining Agreements 61
  CC. Plan Support Agreement and Stock Purchase Agreement 61
Article V. TREATMENT OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES 61
  A. Assumption and Rejection of Executory Contracts and Unexpired Leases 61
  B. Claims Based on Rejection of Executory Contracts or Unexpired Leases 62
  C. Cure of Defaults for Assumed Executory Contracts and Unexpired Leases 63
  D. Assumption Dispute Resolution 64
  E. Indemnification Obligations 64
  F. Contracts and Leases Entered into After the Petition Date 65
  G. Modifications, Amendments, Supplements, Restatements, or Other Agreements 65
  H. Reservation of Rights 65
  I. Nonoccurrence of Effective Date; Bankruptcy Code Section 365(d)(4) 65
Article VI. PROVISIONS GOVERNING DISTRIBUTIONS 65
  A. Timing and Calculation of Amounts to Be Distributed 65
  B. Special Rules for Distributions to Holders of Disputed Claims and Interests 66
  C. Rights and Powers of Distribution Agent 66
  D. Delivery of Distributions and Undeliverable or Unclaimed Distributions 67
  E. Securities Registration Exemption 70
  F. Compliance with Tax Requirements 71
  G. Allocations 72
  H. No Postpetition or Default Interest on Claims 72
  I. Setoffs and Recoupment 72
  J. Claims Paid or Payable by Third Parties 72
Article VII. PROCEDURES FOR RESOLVING CONTINGENT, UNLIQUIDATED, AND DISPUTED CLAIMS 74
  A. Allowance of Claims 74
  B. Claims and Interests Administration Responsibilities 74
  C. ADR Procedures 75
  D. Estimation of Claims 75
  E. Adjustment to Claims Register Without Objection 75
  F. Time to File Objections to Claims 76
  G. Disallowance of Claims 76
  H. Amendments to Proofs of Claims 76
  I. Reimbursement or Contribution 76
  J. No Distributions Pending Allowance 77
  K. Distributions After Allowance 77
  L. Single Satisfaction of Claims 77
Article VIII. SETTLEMENT, RELEASE, INJUNCTION, AND RELATED PROVISIONS 77
  A. Compromise and Settlement of Claims, Interests, and Controversies 77
  B. Discharge of Claims and Termination of Interests 78
  C. Releases by the Debtors 78
  D. Releases by Holders of Claims and Interests 79
  E. Exculpation 79
  F. Injunction 80
  G. Subordination Rights 81
  H. Release of Liens 81

 

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Article IX. CONDITIONS PRECEDENT TO CONSUMMATION OF THE PLAN 81
  A. Conditions Precedent to the Effective Date 81
  B. Waiver of Conditions 83
  C. Substantial Consummation 83
  D. Committee Complaint 83
  E. Bifurcation Motion 83
  F. Effect of Non-Occurrence of Conditions to the Effective Date 83
Article X. MODIFICATION, REVOCATION, OR WITHDRAWAL OF THE PLAN 84
  A. Modification and Amendments 84
  B. Effect of Confirmation on Modifications 84
  C. Effect of Confirmation 84
  D. Revocation or Withdrawal of the Plan 84
Article XI. RETENTION OF JURISDICTION 85
   
Article XII. MISCELLANEOUS PROVISIONS 87
  A. Immediate Binding Effect 87
  B. Additional Documents 87
  C. Payment of Statutory Fees 87
  D. Reservation of Rights 87
  E. Transaction Expenses 88
  F. Successors and Assigns 88
  G. Service of Documents 88
  H. Term of Injunctions or Stays 89
  I. Entire Agreement 89
  J. Nonseverability of Plan Provisions 90
  K. Dissolution of Committee 90
  L. Expedited Tax Determination 90

 

iv

 

 

INTRODUCTION

 

The Hertz Corporation and its Debtor Affiliates hereby propose this Second Amended Joint Plan of Reorganization. Capitalized terms used but not otherwise defined herein shall have the respective meanings ascribed to such terms in the Bankruptcy Code. Holders of Claims and Interests may refer to the Disclosure Statement for a discussion of the Debtors’ history, businesses, assets, results of operations, historical financial information, and projections of future operations, as well as a summary and description of the Plan. The Debtors are the proponents of the Plan within the meaning of section 1129 of the Bankruptcy Code. Although proposed jointly for administrative purposes, the Plan shall apply as a separate Plan for each of the Debtors, and the classification of Claims and Interests set forth herein shall apply separately to each of the Debtors.

 

ALL HOLDERS OF CLAIMS and Interests ENTITLED TO VOTE ON THE PLAN ARE ENCOURAGED TO READ THE PLAN AND THE DISCLOSURE STATEMENT IN THEIR ENTIRETY BEFORE VOTING TO ACCEPT OR REJECT THE PLAN. SUBJECT TO CERTAIN RESTRICTIONS AND REQUIREMENTS SET FORTH IN SECTION 1127 OF THE BANKRUPTCY CODE, RULE 3019 OF THE BANKRUPTCY RULES, AND ARTICLE X OF THE PLAN, THE DEBTORS RESERVE THE RIGHT TO ALTER, AMEND, MODIFY, SUPPLEMENT, REVOKE, OR WITHDRAW THE PLAN PRIOR TO ITS CONSUMMATION.

 

Article I.
DEFINED TERMS, RULES OF INTERPRETATION,
COMPUTATION OF TIME, AND GOVERNING LAW

 

A. Defined Terms 

 

As used in this Plan, capitalized terms have the meanings set forth below.

 

1.                   2020 EIP Order” means the Order Authorizing and Approving the Debtors Employee Incentive Plan [Docket No. 1560].

 

2.                   2021 KEIP/EIP Order” means the Order Authorizing and Approving the Debtors’ (i) 2021 Key Employee Incentive Plan and (ii) 2021 Employee Incentive Plan [Docket No. 2793].

 

3.                   5.500% Unsecured Noteholders” means the Holders of the 5.500% Unsecured Notes from time to time, in their capacity as such.

 

4.                   5.500% Unsecured Notes” means the 5.500% senior notes due 2024 issued pursuant to the 5.500% Unsecured Notes Indenture.

 

5.                   5.500% Unsecured Notes Claims” means all Claims against any Debtor arising from or based upon the 5.500% Unsecured Notes or any other 5.500% Unsecured Notes Document, including all accrued but unpaid interest, costs, fees, and indemnities, which principal outstanding amount as of the Petition Date was in the aggregate amount equal to $800,000,000.00.

 

6.                   5.500% Unsecured Notes Documents” means, collectively, the 5.500% Unsecured Notes Indenture, the 5.500% Unsecured Notes, and all related agreements and documents executed by any of the Debtors in connection with the 5.500% Unsecured Notes.

 

7.                   5.500% Unsecured Notes Indenture” means that certain indenture (as the same may have been amended, modified, or supplemented from time to time), dated as of September 22, 2016, for the 5.500% Unsecured Notes by and among Hertz Corp., as the issuer, the Subsidiary Guarantors, as guarantors, and the 5.500% Unsecured Notes Trustee.


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8.                  5.500% Unsecured Notes Trustee” means Wells Fargo Bank, N.A., in its capacity as trustee under the 5.500% Unsecured Notes Indenture, including any successor thereto.

 

9.                   6.000% Unsecured Noteholders” means Holders of the 6.000% Unsecured Notes from time to time, in their capacity as such.

 

10.               6.000% Unsecured Notes” means the 6.000% senior notes due 2028 issued pursuant to the 6.000% Unsecured Notes Indenture.

 

11.               6.000% Unsecured Notes Claims” means all Claims against any Debtor arising from or based upon the 6.000% Unsecured Notes or any other 6.000% Unsecured Notes Document, including all accrued but unpaid interest, costs, fees, and indemnities, which principal outstanding amount as of the Petition Date was in the aggregate amount equal to $900,000,000.00.

 

12.               6.000% Unsecured Notes Documents” means, collectively, the 6.000% Unsecured Notes Indenture, the 6.000% Unsecured Notes, and all related agreements and documents executed by any of the Debtors in connection with the 6.000% Unsecured Notes.

 

13.               6.000% Unsecured Notes Indenture” means that certain indenture (as the same may have been amended, modified, or supplemented from time to time), dated as of November 25, 2019, for the 6.000% Unsecured Notes by and among Hertz Corp., as the issuer, the Subsidiary Guarantors, as guarantors, and the 6.000% Unsecured Notes Trustee.

 

14.               6.000% Unsecured Notes Trustee” means Wells Fargo Bank, N.A., in its capacity as trustee under the 6.000% Unsecured Notes Indenture, including any successor thereto.

 

15.               6.250% Unsecured Noteholders” means Holders of the 6.250% Unsecured Notes from time to time, in their capacity as such.

 

16.               6.250% Unsecured Notes” means the 6.250% senior notes due 2022 issued pursuant to the 6.250% Unsecured Notes Indenture.

 

17.               6.250% Unsecured Notes Claims” means all Claims against any Debtor arising from or based upon the 6.250% Unsecured Notes or any other 6.250% Unsecured Notes Document, including all accrued but unpaid interest, costs, fees, and indemnities, which principal outstanding amount as of the Petition Date was in the aggregate equal to $500,000,000.00.

 

18.               6.250% Unsecured Notes Documents” means, collectively, the 6.250% Unsecured Notes Indenture, the 6.250% Unsecured Notes, and all related agreements and documents executed by any of the Debtors in connection with the 6.250% Unsecured Notes.

 

19.               6.250% Unsecured Notes Indenture” means that certain indenture (as the same may have been amended, modified, or supplemented from time to time), dated as of October 16, 2012, for the 6.250% Unsecured Notes by and among Hertz Corp., as the issuer, the Subsidiary Guarantors, as guarantors, and the 6.250% Unsecured Notes Trustee.

 

20.               6.250% Unsecured Notes Trustee” means Wells Fargo Bank, N.A., in its capacity as trustee under the 6.250% Unsecured Notes Indenture, including any successor thereto.

 

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21.               7.000% Unsecured Promissory Noteholders” means Holders of the 7.000% Unsecured Promissory Notes from time to time, in their capacity as such.

 

22.               7.000% Unsecured Promissory Notes” means the 7.000% senior notes due 2028 issued pursuant to the 7.000% Unsecured Promissory Notes Indenture.

 

23.               7.000% Unsecured Promissory Notes Claims” means all Claims against any Debtor arising from or based upon the 7.000% Unsecured Promissory Notes or any other 7.000% Unsecured Promissory Notes Document, including all accrued but unpaid interest, costs, fees, and indemnities, which principal outstanding amount as of the Petition Date was in the aggregate amount equal to $27,000,000.00.

 

24.               7.000% Unsecured Promissory Notes Documents” means, collectively, the 7.000% Unsecured Promissory Notes Indenture, the 7.000% Unsecured Promissory Notes, and all related agreements and documents executed by any of the Debtors in connection with the 7.000% Unsecured Promissory Notes.

 

25.               7.000% Unsecured Promissory Notes Indenture” means that certain indenture (as the same may have been amended, modified, or supplemented from time to time), dated as of December 1, 1994, for the 7.000% Unsecured Promissory Notes by and among Hertz Corp., as the issuer, the Subsidiary Guarantors, as guarantors, and the 7.000% Unsecured Promissory Notes Trustee.

 

26.               7.000% Unsecured Promissory Notes Trustee” means U.S. Bank, N.A., in its capacity as trustee under the 7.000% Unsecured Notes Indenture, including any successor thereto.

 

27.               7.000% Unsecured Promissory Notes Trustee’s Fees” means, collectively, to the extent not previously paid in connection with the Chapter 11 Cases, the reasonable and documented fees, costs, and expenses incurred by the 7.000% Unsecured Promissory Notes Trustee that are required to be paid under the 7.000% Unsecured Promissory Notes Documents.

 

28.               7.125% Unsecured Noteholders” means Holders of the 7.125% Unsecured Notes from time to time, in their capacity as such.

 

29.               7.125% Unsecured Notes” means the 7.125% senior notes due 2026 issued pursuant to the 7.125% Unsecured Notes Indenture.

 

30.               7.125% Unsecured Notes Claims” means all Claims against any Debtor arising from or based upon the 7.125% Unsecured Notes or any other 7.125% Unsecured Notes Document, including all accrued but unpaid interest, costs, fees, and indemnities, which principal outstanding amount as of the Petition Date was in the aggregate amount equal to $500,000,000.00.

 

31.               7.125% Unsecured Notes Documents” means, collectively, the 7.125% Unsecured Notes Indenture, the 7.125% Unsecured Notes, and all related agreements and documents executed by any of the Debtors in connection with the 7.125% Unsecured Notes.

 

32.               7.125% Unsecured Notes Indenture” means that certain indenture (as the same may have been amended, modified, or supplemented from time to time), dated as of August 1, 2019, for the 7.125% Unsecured Notes by and among Hertz Corp., as the issuer, the Subsidiary Guarantors, as guarantors, and the 7.125% Unsecured Notes Trustee.

 

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33.           7.125% Unsecured Notes Trustee” means Wells Fargo Bank, N.A., in its capacity as trustee under the 7.125% Unsecured Notes Indenture, including any successor thereto.

 

34.           Ad Hoc Group of Unsecured Noteholders” means the ad hoc group of certain Holders of Unsecured Notes identified in the Second Amended Verified Statement of Willkie Farr & Gallagher LLP and Young Conaway Stargatt and Taylor LLP Pursuant to Bankruptcy Rule 2019 [Docket No. 3220] as may be supplemented and/or amended from time to time.

 

35.           Administrative Claim” means a Claim against any of the Debtors for costs and expenses of administration of the Debtors’ Estates pursuant to sections 503(b), 507(a)(2), 507(b), or 1114(e)(2) of the Bankruptcy Code, including (i) the actual and necessary costs and expenses incurred after the Petition Date and through the Effective Date of preserving the Estates and operating the businesses of the Debtors, including wages, salaries, or commissions for services rendered after the Petition Date; (ii) Professional Fee Claims; (iii) Substantial Contribution Claims; (iv) fees and charges payable to the U.S. Trustee pursuant to Section 1930 of the Judicial Code; (v) postpetition Intercompany Claims, (vi) DIP Claims, (vii) HVF Master Lease Administrative Claims; (viii) Canadian Fleet Financing Administrative Claims; and (ix) Interim Fleet Financing Administrative Claims.

 

36.           Administrative Claims Bar Date” means the first Business Day that is thirty (30) days following the Effective Date, except as specifically set forth in the Plan or a Final Order, including the Claims Bar Date Order.

 

37.           Administrative Claims Objection Deadline” means the first Business Day that is one-hundred and eighty (180) days after the Effective Date; provided that such date may be extended by the Bankruptcy Court at the Reorganized Debtors’ request.

 

38.           ADR Procedures” means the alternative dispute resolution procedures as amended, supplemented, or modified from time to time and filed in connection with the Plan Supplement. For the avoidance of doubt, such procedures shall not apply to any dispute involving the Plan Sponsors, if any, and shall be in form and substance reasonably acceptable to the Requisite Commitment Parties in good faith.

 

39.           Affiliate” means, with respect to any Entity, all Entities that would fall within the definition assigned to such term in section 101(2) of the Bankruptcy Code as if such Entity was a debtor in a case under the Bankruptcy Code.

 

40.           Allowed” means, with respect to any Claim or Interest, except as otherwise provided herein, such Claim or Interest (or any portion thereof) that is not Disallowed and (i) with respect to which no objection to the allowance thereof or request for estimation has been Filed or such Claim or Interest has not been designated for participation in the ADR Procedures on or before the Claims Objection Deadline, Administrative Claims Objection Deadline, or the expiration of such other applicable period fixed by the Bankruptcy Court, (ii) that has been expressly Allowed under the Plan, any stipulation approved by the Bankruptcy Court, or a Final Order of the Bankruptcy Court; (iii) is both not Disputed and either (a) evidenced by a Proof of Claim timely Filed in accordance with the Claims Bar Date Order (or for which Claim under the Plan, the Bankruptcy Code, or a Final Order of the Bankruptcy Court a Proof of Claim is not or shall not be required to be Filed) or (b) listed in the Schedules as not contingent, not unliquidated, and not disputed, and for which no Proof of Claim has been timely Filed; (iv) is allowed by a Final Order, or (v) is compromised, settled, or otherwise resolved to by (a) the Debtors and (b) the holder of such Claim or Interest; provided, that, except as otherwise expressly provided herein, the amount of any Allowed Claim or Allowed Interest shall be determined in accordance with the Bankruptcy Code, including sections 502(b), 503(b) and 506 of the Bankruptcy Code. Except as otherwise specified in the Plan or any Final Order, and except to the extent such interest is Allowed pursuant to section 506(b) of the Bankruptcy Code, the amount of an Allowed Claim shall not include interest on such Claim from and after the Petition Date. For purposes of determining the amount of an Allowed Claim, there shall be deducted therefrom an amount equal to the amount of any Claim that the Debtors may hold against the holder thereof, to the extent such Claim may be offset, recouped, or otherwise reduced under applicable law. Any Claim that has been or is hereafter listed in the Schedules as contingent, unliquidated, or disputed, and for which no Proof of Claim or Interest is or has been timely Filed, is not considered Allowed and shall be expunged without further action by the Debtors and without further notice to any party or action, approval, or order of the Bankruptcy Court. Notwithstanding anything to the contrary herein, no Claim of any Entity subject to section 502(d) of the Bankruptcy Code shall be deemed Allowed unless and until such Entity pays in full the amount that it owes. For the avoidance of doubt, a Proof of Claim Filed after the Claims Bar Date shall not be Allowed for any purposes whatsoever absent entry of a Final Order allowing such late-Filed Claim. “Allow,” “Allowance,” and “Allowing” shall have correlative meanings.

 

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41.           ALOC Credit Agreement” means that certain Credit Agreement (as the same may have been amended, modified, supplemented, or amended and restated from time to time), dated as of December 13, 2019, by and among Hertz Corp., the lenders party thereto, and Goldman Sachs Mortgage Company, as administrative agent and issuing lender, as may be amended, modified, or amended and restated from time to time.

 

42.           ALOC Facility” means the letter of credit facility provided pursuant to the ALOC Credit Agreement.

 

43.           ALOC Facility Agent” means Goldman Sachs Mortgage Company solely in its capacity as administrative agent for the ALOC Facility.

 

44.           ALOC Facility Claims” means all Claims against any Debtor arising from or based upon letters of credit issued pursuant to the ALOC Credit Agreement or any other ALOC Facility Documents, including accrued but unpaid interest, costs, fees, and indemnities.

 

45.           ALOC Facility Documents” means the ALOC Credit Agreement and all related agreements and documents executed by any of the Debtors in connection with the ALOC Facility.

 

46.           Assumed Executory Contracts and Unexpired Leases Schedule” means the schedule of Executory Contracts and/or Unexpired Leases filed as part of the Plan Supplement, which shall be in form and substance acceptable to the Requisite Commitment Parties in good faith, as may be amended, modified, or supplemented by the Debtors from time to time, that will be assumed by the Reorganized Debtors pursuant to the Plan; provided, that the Assumed Executory Contracts and Unexpired Leases Schedule does not need to include Executory Contracts and/or Unexpired Leases that have been assumed pursuant to an order of the Bankruptcy Court entered prior to the Effective Date.

 

47.           Australian ABS Restructuring Settlement” means the restructuring of the Australian Securitization Facility on terms and conditions reasonably acceptable to the Debtors, the Plan Sponsors, Hertz Australia, the Australian Financing Entity, and the requisite consenting lenders from time to time party to the Australian Securitization Facility Documents, which restructuring and settlement shall include the complete release and disallowance of the Australian Performance Guarantee and any claims related thereto, including the Australian Performance Guarantee Claim. 

 

48.           Australian Financing Entity” means HA Fleet Pty Ltd (ACN 126 115 204).

 

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49.           Australian Performance Guarantee” means the guarantee and indemnity granted by Hertz Corp. pursuant to that certain THC Guarantee and Indemnity, dated as of July 12, 2016.

 

50.           Australian Performance Guarantee Claim” means any Claim against Hertz Corp. pursuant to the Australian Performance Guarantee.

 

51.           Australian Securitization Facility” means the fleet financing facility, dated December 7, 2010, between, among others, the Australian Financing Entity and Citibank, N.A., as Administrative Agent, as amended, varied, amended and restated or extended from time to time, including pursuant the Master Amendment and Restatement Deed dated as of July 12, 2016, entered into between, among others, the Australian Financing Entity, Westpac Banking Corporation, and P.T. Limited, and as amended by the Amendment Deed dated as of September 23, 2019, entered into between, among others, the Australian Financing Entity, Westpac Banking Corporation and P.T. Limited.

 

52.           Australian Securitization Facility Documents” means all related agreements and documents executed by Hertz Corp., Hertz Australia, the Australian Financing Entity, or any of its non-Debtor Affiliates in connection with the Australian Securitization Facility.

 

53.           Avoidance Actions” means any and all actual or potential Claims and Causes of Action to avoid a transfer of property or an obligation incurred by the Debtors and any recovery, subordination, or other remedies that may be brought by or on behalf of the Debtors and their Estates under the Bankruptcy Code or applicable non-bankruptcy law, including under sections 502, 544, 545, 547, 548, 549, 550, 551, 553(b) and 724(a) of the Bankruptcy Code, chapter 5 of the Bankruptcy Code, or applicable non-bankruptcy law

 

54.           Backstop Investors” shall have the meaning set forth in the Stock Purchase Agreement.

 

55.           Ballot” means the form(s) distributed to holders of Claims entitled to vote on the Plan to indicate their acceptance or rejection of the Plan and to make an election with respect to the releases by Holders of Claims and Interests provided by Article VIII.D.

 

56.           Bankruptcy Code” means title 11 of the United States Code, 11 U.S.C. §§ 101–1532, as now in effect or as may be amended hereafter and applicable to the Chapter 11 Cases.

 

57.           Bankruptcy Court” means (i) the United States Bankruptcy Court for the District of Delaware having jurisdiction over the Chapter 11 Cases; (ii) to the extent any reference made under section 157 of title 28 of the United States Code is withdrawn or the Bankruptcy Court is determined not to have authority to enter a Final Order on an issue, the unit of such District Court having jurisdiction over the Chapter 11 Cases under section 151 of title 28 of the United States Code; or (iii) such other court as may have jurisdiction over the Chapter 11 Cases or any aspect thereof to the extent of such jurisdiction.

 

58.           Bankruptcy Rules” means the Federal Rules of Bankruptcy Procedure, as applicable to the Chapter 11 Cases, promulgated under section 2075 of the Judicial Code and the general, local, and chambers rules of the Bankruptcy Court, in each case, as amended from time to time and applicable to the Chapter 11 Cases.

 

59.           Bifurcation Motion” means the Debtors' Motion for Entry of an Order (I) Authorizing and Approving the Debtors' Entry Into, and Performance Under, European Settlement and Restructuring Embodied in Noteholder Lock-Up Agreement: (A) Settling Guarantee Claims, (B) Allowing Replacement U.S. Unsecured Claims, (C) Providing for the Issuance of Non-Contingent Debt Instrument, (D) Authorizing Sale of Replacement U.S. Unsecured Claims Pursuant to Sale Procedures, Including Authorizing Hertz Global Holdings, Inc. to Act as Agent to Market and Sell Such Claims and the Appointment of Moelis & Company LLC to Act as the Intermediary in Connection Therewith, (E) Authorizing Hertz System Inc. to Enter Into or Amend Certain Intellectual Property and License and Sublicense Agreements, and (F) Modifying Automatic Stay with Respect to European Noteholder Lock-Up Agreement and (II) Granting Related Relief [Docket No. 2280].

 

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60.           BNY Canada” means BNY Trust Company of Canada.

 

61.           Business Day” means any day, other than a Saturday, Sunday, or “legal holiday” (as defined in Bankruptcy Rule 9006(a)), or a day on which banking institutions in New York, New York are authorized by law or other governmental action to close.

 

62.           Canadian Fleet Financing Administrative Claims” means any and all Administrative Claims arising under or related to the Canadian Fleet Financing Debtor Documents.

 

63.           Canadian Fleet Financing Back-Up Agent Agreement” means that certain Back-Up Disposition Agent Agreement dated as of September 14, 2014, by and among Fiserv Automotive Solutions, Inc., Hertz Canada, DTAG Canada and the Canadian Trustee, as amended from time to time.

 

64.           Canadian Fleet Financing Base Indenture” means that certain Base Indenture dated as of September 14, 2015 by and among TCL Funding, as issuer, Hertz Canada and DTAG Canada, as co-servicers, HCVP, HC Limited, DTGC, as securitization entities, certain Committed Note Purchasers, Certain Conduit Investors, Certain Funding Agents for the Investor Groups (each as defined therein) and BNY Canada, as trustee.

 

65.           Canadian Fleet Financing Debtor Documents” means the Canadian Fleet Financing Indenture, the Canadian Fleet Financing Servicing Agreement, the Canadian Fleet Financing Back-Up Agent Agreement, the Canadian Fleet Financing Performance Guarantee, and any other agreements, instruments and documents executed by the Debtors in connection therewith.

 

66.           Canadian Fleet Financing Documents” means the Canadian Fleet Financing Debtor Documents, the Canadian Fleet Financing Notes and any other agreements, instruments and documents executed in connection therewith.

 

67.           Canadian Fleet Financing Facility” means the asset-backed securitization facility issued pursuant to the Canadian Fleet Financing Documents.

 

68.           Canadian Fleet Financing Indenture” means the Canadian Fleet Financing Base Indenture and the Canadian Fleet Financing Supplemental Indenture.

 

69.           Canadian Fleet Financing Notes” means the Series 2021-A Variable Funding Rental Car Asset Backed Notes issued under the Canadian Fleet Financing Indenture.

 

70.           Canadian Fleet Financing Performance Guarantee” means the Performance Guarantee dated as of September 14, 2014 issued by Hertz Corp. for the benefit of the Canadian Trustee in connection with the Canadian Fleet Financing Servicing Agreement and the Canadian Fleet Financing Back-Up Agent Agreement.

 

71.           Canadian Fleet Financing Servicing Agreement” means that certain Servicing Agreement dated as of September 14, 2015, by and among Hertz Canada, DTAG Canada, HC Limited, TCL Funding, DTAC, and the Canadian Trustee, as amended from time to time.

 

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72.           Canadian Fleet Financing Supplemental Indenture” means the Series 2021-A Supplement dated as of January 27, 2021 to the Canadian Fleet Financing Base Indenture.

 

73.           Canadian Trustee” means BNY Canada acting in its capacity as Trustee under the Canadian Fleet Financing Indenture.

 

74.           Cash” means the legal tender of the United States of America or equivalents thereof.

 

75.           “Casualty Superpriority Administrative Expense Claim” means the superpriority administrative expense claims of the HVF Trustee pursuant to the Interim HVF Master Lease Settlement Orders in an amount equal to all payments on account of a Casualty (as defined in the HVF Master Lease Agreement) accrued under the HVF Master Lease Agreement plus interest thereon from the date such amount would be payable under the HVF Master Lease Agreement at the one-month LIBOR Rate (as defined in the HVF Master Lease Agreement) plus 5.50%.

 

76.           Cause of Action” means any action, claim, proceeding, cause of action, controversy, demand, right, action, Lien, indemnity, interest, guarantee, suit, obligation, liability, damage, judgment, account, defense, offset, power, privilege, license, or franchise of any kind or character whatsoever, whether known, unknown, contingent or non-contingent, matured or unmatured, suspected or unsuspected, liquidated or unliquidated, disputed or undisputed, secured or unsecured, assertable directly or derivatively, whether arising before, on, or after the Petition Date, in contract or in tort, in law, or in equity or pursuant to any other theory of law. For the avoidance of doubt, “Cause of Action” includes (i) any right of setoff, counterclaim, or recoupment and any claim for breach of contract or for breach of duties imposed by law or in equity; (ii) any Claim based on or relating to, or in any manner arising from, in whole or in part, tort, breach of contract, breach of fiduciary duty, violation of state or federal law or breach of any duty imposed by law or in equity; (iii) the right to object to or to otherwise contest, recharacterize, reclassify, subordinate, or disallow any Claims or Interests; (iv) any Claim pursuant to section 362 of the Bankruptcy Code; (v) any claim or defense including fraud, mistake, duress, and usury; and any other defenses set forth in section 558 of the Bankruptcy Code; and (vi) any Avoidance Actions.

 

77.           Centerbridge” means Centerbridge Partners L.P., acting solely in its capacity as an investment manager or advisor on behalf of certain funds or accounts or wholly-owned entities of such funds or accounts.

 

78.           Chapter 11 Cases” means (i) when used with reference to a particular Debtor, the case pending for that Debtor under chapter 11 of the Bankruptcy Code in the Bankruptcy Court; and (ii) when used with reference to all of the Debtors, the procedurally consolidated and jointly administered chapter 11 cases pending for the Debtors in the Bankruptcy Court under Chapter 11 Case, Number 20-11218 (MFW).

 

79.           Claim” shall have the meaning set forth in section 101(5) of the Bankruptcy Code.

 

80.           Claims and Noticing Agent” means Prime Clerk LLC, the claims, noticing, and solicitation agent retained by the Debtors pursuant to the Order Authorizing the Appointment of Prime Clerk LLC as Claims and Noticing Agent Nunc Pro Tunc to the Petition Date [Docket No. 183].

 

81.           Claims Bar Date” means October 21, 2020 at 5:00 p.m. (prevailing Eastern Time) or other applicable date(s) designated by the Bankruptcy Court as the last date(s) for filing a Proof of Claim against the Debtors.

 

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82.           Claims Bar Date Order” means the Order Establishing Bar Dates and Related Procedures for Filing Proofs of Claim, Including Claims Arising Under Section 503(b)(9) of the Bankruptcy Code, and Approving the Form and Manner of Notice Thereof [Docket No. 1240], entered by the Bankruptcy Court on September 9, 2020, as amended, modified, or supplemented by order of the Bankruptcy Court from time to time.

 

83.           Claims Objection Deadline” means the deadline for objecting to a Claim, which shall be on the date that is the later of (i) one hundred and eighty (180) days after the Effective Date and (ii) such later date as may be fixed by the Bankruptcy Court upon a motion by the Reorganized Debtors Filed on or before the day that is one hundred and eighty (180) days after the Effective Date.

 

84.           Claims Register” means the official register of Claims maintained by the Claims and Noticing Agent in the Chapter 11 Cases.

 

85.           Class” means a category of Holders of Claims or Interests as set forth in Article III pursuant to section 1122(a) of the Bankruptcy Code.

 

86.           Class Action Claim” means any Claim scheduled or filed by a purported class representative or its counsel on behalf of one or more claimant.

 

87.           Clawback Defendants” means (i) Mark Frissora; (ii) John Jeffrey Zimmerman; and (iii) Scott Sider.

 

88.           Collective Bargaining Agreements” means the collective bargaining agreements identified on the Collective Bargaining Agreement Schedule.

 

89.           Collective Bargaining Agreement Schedule” means the schedule of collective bargaining agreements that will be assumed by the Reorganized Debtors pursuant to the Plan as set forth in the Plan Supplement, as may be amended by the Debtors from time to time; provided, that the Debtors shall consult with the Plan Sponsors with respect to such schedule and any amendments or modifications of such schedule resulting in the rejection of a Collective Bargaining Agreement.

 

90.           Committee” means the statutory committee of unsecured creditors, appointed in the Chapter 11 Cases pursuant to section 1102 of the Bankruptcy Code by the U.S. Trustee, pursuant to the Notice of Appointment of Official Committee of Unsecured Creditors [Docket No. 392] on June 11, 2020, as may be reconstituted from time to time.

 

91.           Committee Complaint” means the Complaint Filed by the Committee in the adversary proceeding styled The Official Committee of Unsecured Creditors v. Barclays Bank PLC and BOKF, N.A. (under Adversary Proceeding Number 20-50842 (MFW)).

 

92.           Committee Members” means, each in its capacity as a member of the Committee, (i) American Automobile Association, Inc.; (ii) Emma Bradley; (iii) Janice Dawson; (iv) International Brotherhood of Teamsters; (v) Pension Benefit Guaranty Corp.; (vi) Sirius XM Radio, Inc.; (vii) Southwest Airlines Co.; (viii) U.S. Bank, N.A.; and (ix) Wells Fargo Bank, N.A.

 

93.           Company” means, collectively, the (i) Debtors; and (ii) their direct and indirect non-Debtor subsidiaries.

 

94.           Confirmation” means the entry of the Confirmation Order on the docket of the Chapter 11 Cases.

 

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95.           Confirmation Date” means the date upon which the Bankruptcy Court enters the Confirmation Order on the docket of the Chapter 11 Cases within the meaning of Bankruptcy Rules 5003 and 9021.

 

96.           Confirmation Hearing” means the hearing held by the Bankruptcy Court to consider Confirmation of the Plan pursuant to section 1129 of the Bankruptcy Code.

 

97.           Confirmation Order” means the order of the Bankruptcy Court, confirming the Plan pursuant to section 1129 of the Bankruptcy Code that is consistent with this Plan, and which shall be in form and substance acceptable to the Requisite Commitment Parties in good faith.

 

98.           Consummation” means the occurrence of the Effective Date.

 

99.           Cure Claim” means a monetary Claim in an amount, including an amount of $0.00, required to cure any monetary defaults under any Executory Contract or Unexpired Lease (or such lesser amount as may be agreed upon by the parties to an Executory Contract or Unexpired Lease) at the time such contract or lease is assumed by the Debtors pursuant to sections 365 or 1123 of the Bankruptcy Code.

 

100.         D&O Liability Insurance Policies” means, collectively, all insurance policies (including any “tail policy”) issued at any time, whether expired or unexpired, to any of the Debtors for certain liabilities of the Debtors and/or their current or former directors, managers, and officers, and all agreements, documents or instruments related thereto, including the Tail D&O Policy.

 

101.         Debtors” means, collectively, (i) Hertz Corp.; (ii) Hertz Global Holdings, Inc.; (iii) Thrifty Rent-A-Car System, LLC; (iv) Thrifty, LLC; (v) Dollar Thrifty Automotive Group, Inc.; (vi) Firefly Rent A Car LLC; (vii) CMGC Canada Acquisition ULC; (viii) Hertz Aircraft, LLC; (ix) Dollar Rent A Car, Inc.; (x) Dollar Thrifty Automotive Group Canada Inc.; (xi) Donlen Corporation; (xii) Donlen FSHCO Company; (xiii) Hertz Canada Limited; (xiv) Donlen Mobility Solutions, Inc.; (xv) DTG Canada Corp.; (xvi) DTG Operations, Inc.; (xvii) Hertz Car Sales LLC; (xviii) DTG Supply, LLC; (xix) Hertz Global Services Corporation; (xx) Hertz Local Edition Corp.; (xxi) Hertz Local Edition Transporting, Inc.; (xxii) Donlen Fleet Leasing Ltd.; (xxiii) Hertz System, Inc.; (xxiv) Smartz Vehicle Rental Corporation; (xxv) Thrifty Car Sales, Inc.; (xxvi) Hertz Technologies, Inc.; (xxvii) TRAC Asia Pacific, Inc.; (xxviii) Hertz Transporting, Inc.; (xxix) Rental Car Group Company, LLC; and (xxx) Rental Car Intermediate Holdings, LLC.

 

102.         Defined Benefit Plan” means The Hertz Corporation Account Balance Defined Benefit Pension Plan.

 

103.         Definitive Documents” has the meaning set forth in the Plan Support Agreement.

 

104.         Designated Claim” means any disputed, unliquidated, or contingent Claim selected by the Debtors, the Reorganized Debtors, or the Distribution Agent, as applicable, for resolution through the ADR Procedures.

 

105.         DFLF Facility” means the asset-backed securitization facility entered into in connection with the Order (I) Authorizing Certain Debtors to Enter Into Securitization Documents, (II) Modifying the Automatic Stay, and (III) Granting Related Relief [Docket. No. 1489].

 

106.         DIP Agent” means Barclays Bank PLC, in its capacity as administrative agent and collateral agent under the DIP Credit Agreement, including any successor thereto.

 

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107.         DIP Claims” means any Claim in respect of any DIP Obligations (as defined in the DIP Order) held by, or otherwise owing to, any or all of the DIP Agent and the DIP Lenders.

 

108.         DIP Credit Agreement” means that certain Senior Secured Superpriority Debtor-in-Possession Credit Agreement (as the same may have been amended, modified, supplemented, or amended and restated from time to time), dated as of October 30, 2020, by and among Hertz Corp., as borrower, the DIP Lenders, the DIP Agent, and Barclays Bank PLC as Joint Bookrunner, as approved by the DIP Order, and as the same may be amended, modified, or amended and restated from time to time in accordance with its terms.

 

109.         DIP Documents” has the meaning set forth in the DIP Order.

 

110.         DIP Financing” means the postpetition financing facility issued pursuant to the DIP Credit Agreement and the DIP Order, consisting of a $1,650,000,000.00 senior secured multiple draw term loan credit facility.

 

111.         DIP Lenders” means, collectively, the Lenders (as defined in the DIP Credit Agreement), the Issuing Bank (as defined in the DIP Credit Agreement) and any other DIP Secured Party (as defined in the DIP Order).

 

112.         DIP Order” means the Order (I) Authorizing the Debtors to Obtain Debtor-in-Possession Financing and Granting Liens and Superpriority Administrative Claims and (II) Granting Related Relief [Docket No. 1661] as amended, supplemented, or modified from time to time.

 

113.         Disallowed” means any Claim, or any portion thereof, that (i) has been disallowed by Final Order or settlement; (ii) is listed on the Schedules at an amount of $0.00 or as contingent, disputed, or unliquidated and as to which a Claims Bar Date has been established but no Proof of Claim has been timely Filed, deemed timely Filed with the Bankruptcy Court pursuant to either the Bankruptcy Code or any Final Order of the Bankruptcy Court, including the Claims Bar Date Order, or otherwise deemed timely Filed under applicable law; or (iii) is not listed on the Schedules and as to which a Claims Bar Date has been established but no Proof of Claim has been timely Filed or deemed timely Filed with the Bankruptcy Court pursuant to the Bankruptcy Code or any Final Order of the Bankruptcy Court, including the Claims Bar Date Order, or otherwise deemed timely Filed under applicable law. “Disallow” and “Disallowance” shall have correlative meanings.

 

114.         Disclosure Statement” means the Disclosure Statement for the Second Amended Joint Chapter 11 Plan of Reorganization of The Hertz Corporation and Its Debtor Affiliates, dated as of [●], 2021 (as amended, modified or supplemented from time to time in accordance with its terms), Filed substantially contemporaneously herewith, including all exhibits and schedules thereto and references therein that relate to the Plan that are prepared and distributed in accordance with applicable law.

 

115.         Disclosure Statement Order” means that certain Order (I) Approving the Proposed Disclosure Statement and Form and Manner Notice of Disclosure Statement Hearing, (II) Establishing Solicitation and Voting Procedures, (III) Scheduling Confirmation Hearing, (IV) Establishing Notice and Objection Procedures for Confirmation of the Proposed Plan, and (V) Granting Related Relief entered by the Bankruptcy Court on [●], 2021 [Docket No. [●]], and which shall be in form and substance acceptable to the Requisite Commitment Parties in good faith.

 

116.         Disputed” means, with respect to a Claim or Interest, a Claim (or portion thereof) that is not yet Allowed or Disallowed.

 

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117.         Distribution Agent” means, as applicable, the Entity or Entities selected by the Debtors or the Reorganized Debtors, in consultation with the Plan Sponsors, to make or to facilitate distributions pursuant to the Plan.

 

118.         Distribution Record Date” means the date for determining which Holders of Allowed Claims are eligible to receive distributions under the Plan, which, unless otherwise specified, shall be 5:00 p.m. prevailing Eastern Time on the Voting Deadline; provided, that the Distribution Record Date with respect to the First Lien Claims, Second Lien Note Claims, Unsecured Funded Debt Claims (subject to the Rights Offering Procedures with respect to the distribution of Subscription Rights), and the HHN Notes Guarantee Claims shall be the Effective Date.

 

119.         Donlen Canada Securitization Facility” means the asset-backed securitization facility issued by non-Debtor Donlen Canada Fleet Funding LP.

 

120.         Donlen Debtors” means (i) Donlen Corporation; (ii) Donlen FSHCO Company; (iii) Donlen Mobility Solutions, Inc.; and (iv) Donlen Fleet Leasing Ltd.

 

121.         Donlen Documents” means the documents executed in connection with the Donlen Sale.

 

122.         Donlen Sale” means the sale of substantially all of the assets of the Donlen Debtors.

 

123.         DTAC” means DTC Car Rental Partnership Limited.

 

124.         DTAG Canada” means Debtor Dollar Thrifty Automotive Group Canada Inc.

 

125.         DTC” means The Depository Trust Company.

 

126.         Dundon” means Dundon Capital Partners, LLC, acting solely in its capacity as an investment manager or advisor on behalf of certain funds or accounts or wholly-owned entities of such funds or accounts.

 

127.         Effective Date” means, with respect to the Plan, the date that is a Business Day on which (i) no stay of the Confirmation Order is in effect; (ii) all conditions precedent specified in Article IX.A have been satisfied or waived (in accordance with Article IX.B); and (iii) the Plan is declared effective by the Debtors. Without limiting the foregoing, any action to be taken on the Effective Date may be taken on or as soon as reasonably practicable after the Effective Date.

 

128.         [“Eligible Unsecured Funded Debt Holder” means each Holder of an Allowed Unsecured Funded Debt Claim on the Record Date or ATOP Date (as such terms are defined in the Rights Offering Procedures) that is either (i) an “accredited investor” within the meaning of Rule 501 Regulation D under the Securities Act or (ii) a “qualified institutional buyer” within the meaning of Rule 144A under the Securities Act, as certified pursuant to the Rights Offering Procedures.]2

 

129.         Entity” shall have the meaning set forth in section 101(15) of the Bankruptcy Code.

 

130.         Employee Obligations” means any written contracts, agreements, policies, programs, and plans (as from time to time amended or restated) applicable to employees or directors for regular compensation (including wages, salary, commissions, and incentives), bonus programs approved by the Bankruptcy Court pursuant to the 2020 EIP Order and the 2021 KEIP/EIP Order, expense reimbursements, vacation and sick leave benefits, employee and retiree health care, vision, and dental benefits, employee and retiree life insurance benefits, disability insurance benefits, accidental death and dismemberment insurance benefits, qualified retirement programs, employee relocation programs, employee and director vehicle use policies, commuter benefits, adoption assistance benefits, employee, director, and retiree discount programs, and other employee welfare plan benefits in effect immediately prior to the Effective Date.  For the avoidance of doubt, the term “Employee Obligations” does not include any contracts, agreements, arrangements, letters, policies, programs, or plans (as from time to time amended or restated) for deferred compensation, non-qualified retirement benefits, severance, or other employment termination benefits.

 

 

 

2 [Note to Draft: Subject to further review and revision]

 

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131.         Employment Agreements” means the existing employment agreement by and between certain employees of the Debtor and the Debtors identified in the Plan Supplement, each of which shall be assumed on the Effective Date, subject to the consent of the Requisite Commitment Parties.

 

132.         Equity Commitment Party” shall have the meaning set forth in the Stock Purchase Agreement.

 

133.        ERISA” means the Employee Retirement Income Security Act of 1974, 29 U.S.C. §§ 1001-1461, as now in effect or hereinafter amended, and the rules and regulations promulgated thereunder.

 

134.          Estate” means, as to each Debtor, the estate created for the Debtor in its Chapter 11 Case pursuant to sections 301 and 541 of the Bankruptcy Code.

 

135.         European ABS Facility” means that certain €600,000,000.00 asset-backed securitization facility originally dated September 25, 2018 between (among others) International Fleet Financing No. 2 B.V. as Issuer, Credit Agricole Corporate and Investment Bank as European ABS Facility Administrative Agent and BNP Paribas Trust Corporation UK Limited as Issued Security Trustee.

 

136.         European ABS Facility Documents” means all related agreements and documents executed by Hertz Corp. or any of its non-Debtor Affiliates in connection with the European ABS Facility.

 

137.         European ABS Performance Guarantees” means (i) that certain THC Guarantee and Indemnity, dated as of September 25, 2018, between Hertz Corp., Stuurgroep Fleet (Netherlands) B.V., RAC Finance S.A.S., Hertz Fleet Limited, Stuurgroep Fleet (Netherlands) B.V. Spanish Branch, and BNP Paribas Trust Corporation UK Limited, as issued security trustee and fleetco security trustee, and (ii) that certain German Fleetco THC Indemnity, dated September 25, 2018, between Hertz Corp., Hertz Fleet Limited, BNP Paribas Trust Corporation UK Limited, as issued security trustee and fleetco security trustee, and certain entities named as beneficiaries therein.

 

138.         European ABS Performance Guarantee Claim” means all Claims against Hertz Corp. pursuant to the European ABS Performance Guarantees or otherwise arising from the European ABS Facility or the European ABS Facility Documents.

 

139.         “European ABS Restructuring Settlement” means the restructuring of the Lombard Vehicle Financing Facility and the European ABS Facility on terms and conditions acceptable to the Debtors, the European Vehicle Financing Entities and the requisite consenting lenders from time to time party to the Lombard Vehicle Financing Facility and the European ABS Facility, which restructuring and settlement shall include the complete release and disallowance of the Lombard Financing Facility Guarantee, the European ABS Performance Guarantee and any claims related thereto, including the Lombard Vehicle Financing Facility Guarantee Claims and European ABS Performance Guarantee Claims. 

 

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140.         European Vehicle Financing Entities” means (i) Hertz (U.K.) Limited; and (ii) the non-Debtor Affiliates of Hertz Corp. party to the European ABS Facility Documents.

 

141.         Exculpated Parties” means each of the following in their capacity as such: (i) the Debtors; (ii) each of the Debtors’ respective directors and officers serving after the Petition Date; (iii) the Committee; (iv) each of the Committee Members, solely in its capacity as Committee Members; (v) the Plan Sponsors; (vi) the Backstop Investors; (vii) the Unsecured Notes Trustees, (viii) the 7.000% Unsecured Promissory Notes Trustee; and (ix) with respect to each of the foregoing Entities in clauses (i) through (viii), such Entity and its current and former Affiliates, and such Entities’ and their current and former Affiliates’ current and former directors, officers, predecessors, successors, and assigns, subsidiaries, and each of their respective current and former officers, directors, managers, principals, members, employees, agents, advisory board members, financial advisors, partners, attorneys, accountants, investment bankers, consultants, representatives, and other professionals, each in its capacity as such; provided, that with respect to the Plan Sponsors, the Backstop Investors, the Unsecured Notes Trustees, and the 7.000% Unsecured Promissory Notes Trustee, any exculpations afforded under the Plan or Confirmation Order shall be granted only to the extent provided for pursuant to section 1125(e) of the Bankruptcy Code.

 

142.         Executory Contract” means a contract to which one or more of the Debtors is a party that is subject to assumption or rejection under sections 365 or 1123 of the Bankruptcy Code.

 

143.         Existing Hertz Parent Interests” means all Interests in (or against) Hertz Parent.

 

144.        Exit Agent” means, collectively, in their respective capacities as such, the administrative and collateral agents with respect to the Exit Term Loan Credit Agreement and the Exit Revolving Credit Agreement including any successors thereto.

 

145.         “Exit Facility Documents” means the Exit Term Loan Credit Agreement, the Exit Revolving Credit Agreement and such other financing documents to be entered into in connection with the Exit Term Loan Facility and Exit Revolving Credit Facility (including any guarantee agreements, pledge and collateral agreements, intercreditor agreements and other security documents), which shall be materially consistent with the Plan and otherwise acceptable to the Debtors and the Requisite Commitment Parties in good faith.

 

146.         Exit Revolving Credit Agreement” means the credit agreement to be entered into in connection with the Revolving Credit Facility (including any guarantee agreements, pledge and collateral agreements, and other security documents), which shall be materially consistent with the Plan and which shall be materially consistent with the Plan and which shall be in form and substance acceptable to the Debtors and the Requisite Commitment Parties in good faith.

 

147.         Exit Revolving Credit Facility” means a senior secured revolving credit facility in an aggregate commitment amount of $1,500,000,000.00, with the capacity for the issuance of letters of credit, secured by a first Lien on substantially all assets of Hertz Corp and the Subsidiary Guarantors (except Donlen Corporation), which shall be on prevailing market terms, materially consistent with the Plan, and otherwise acceptable to the Debtors and the Requisite Commitment Parties.

 

148.         Exit Term Loan Credit Agreement” means the credit agreement to be entered into in connection with the Exit Term Loan Facility (including any guarantee agreements, pledge and collateral agreements, and other security documents), which shall be materially consistent with the Plan and which shall be in form and substance acceptable to the Debtors and the Requisite Commitment Parties in good faith.

 

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149.         Exit Term Loan Facility” means a senior secured credit facility in a principal amount of $1,300,000,000.00, secured by a first Lien on substantially all assets of Hertz Corp and the Subsidiary Guarantors (except Donlen Corporation), which shall be on prevailing market terms, materially consistent with the Plan, and otherwise acceptable to the Debtors and the Requisite Commitment Parties.

 

150.         Federal Judgment Rate” means the federal judgment rate in effect as of the Petition Date, compounded annually.

 

151.         File,” “Filed,” or “Filing” means file, filed, or filing in the Chapter 11 Cases with the Bankruptcy Court or, with respect to the filing of a Proof of Claim or proof of Interest, with the Claims and Noticing Agent.

 

152.         Final Order” means, as applicable, an order or judgment of the Bankruptcy Court or other court of competent jurisdiction with respect to the relevant subject matter, which has not been reversed, stayed, modified, or amended, including any order subject to appeal but for which no stay of such order has been entered, and as to which the time to appeal or seek certiorari has expired and no appeal or petition for certiorari has been timely taken, or as to which any appeal that has been taken or any petition for certiorari that has been or may be Filed has been resolved by the highest court to which the order or judgment was appealed or from which certiorari was sought; provided, that, the possibility that a request for relief under Rule 60 of the Federal Rules of Civil Procedure, or any analogous rule under the Bankruptcy Rules, the local rules of the Bankruptcy Court or applicable non-bankruptcy law, may be Filed relating to such order shall not prevent such order from being a Final Order.

 

153.         “First Interim HVF Master Lease Settlement Order” means the Order Temporarily Resolving Certain Matters Related to the Master Lease Agreement, Setting A Schedule for Further Litigation Related Thereto in 2021 and Adjourning Hearing on the Debtors’ Motion for Order Rejecting Certain Unexpired Vehicle Leases Effective Nunc Pro Tunc to June 11, 2020 Pursuant to Sections 105 and 365(a) of the Bankruptcy Code [Docket No. 390] Sine Die [Docket No. 805].

 

154.         First Lien Agent” means Barclays Bank PLC, in its capacity as administrative agent and collateral agent under the First Lien Credit Agreement and the other First Lien Loan Documents, including any successor thereto.

 

155.         First Lien Claims” means all (i) First Lien Term Loan Claims; (ii) First Lien Revolving Loan Claims; (iii) First Lien Hedge Claims; and (iv) First Lien LC Claims.

 

156.         First Lien Credit Agreement” means that certain Credit Agreement (as the same may have been amended, modified, supplemented, or amended and restated from time to time), dated as of June 30, 2016, by and among Hertz Corp, the Subsidiary Borrowers (as such term is defined in the First Lien Credit Agreement) party thereto, as borrowers, the First Lien Agent, and the lenders party thereto.

 

157.         First Lien Donlen Paydown Amount” means the Cash proceeds received from the Donlen Sale that are applied to paydown the First Lien Claims pursuant to the DIP Order and DIP Credit Agreement.

 

158.         “First Lien Hedge Agreements” means all Hedge Agreements (as such term is defined in the First Lien Credit Agreement).

 

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159.         First Lien Hedge Claims” means all Claims against any Debtor arising from or based upon the First Lien Hedge Agreements, including all accrued but unpaid interest, costs, fees, and indemnities, in an aggregate amount equal to approximately $2,312,987.44.

 

160.         First Lien Loan Documents” means (i) the First Lien Credit Agreement and all related agreements and documents executed by any of the Debtors in connection with the First Lien Credit Agreement, and (ii) the First Lien Standalone LC Agreement and all related agreements and documents executed by any of the Debtors in connection with the First Lien Standalone LC Agreement.

 

161.         First Lien LC Claims” means all (i) First Lien Revolving LC Claims, and (ii) First Lien Standalone LC Facility Claims.

 

162.         First Lien Revolving LC Facility” means the letter of credit facility provided pursuant to the First Lien Credit Agreement.

 

163.         First Lien Revolving LC Claims” means all Claims against any Debtor arising from or based upon the letters of credit issued under the First Lien Credit Agreement, including all accrued but unpaid interest, costs, fees, and indemnities.

 

164.         First Lien Revolving Loan Claims” means all Claims against any Debtor arising from or based upon the revolving loans issued pursuant to the First Lien Credit Agreement or any other First Lien Loan Document, including all accrued but unpaid interest, costs, fees, and indemnities, which principal outstanding as of the Petition Date was in the aggregate amount equal to $615,000,000.00.

 

165.         First Lien Standalone LC Agreement” means that certain Letter of Credit Agreement (as the same may have been amended, modified, supplemented, or amended and restated from time to time), dated as of November 2, 2017, by and among Hertz Corp., as applicant, and Barclays Bank PLC, as administrative agent and collateral agent.

 

166.         First Lien Standalone LC Facility” means the letter of credit facility provided pursuant to the First Lien Standalone LC Agreement.

 

167.         First Lien Standalone LC Facility Claims” means all Claims against any Debtor arising from or based upon letters of credit issued under the First Lien Standalone LC Agreement or any other First Lien Standalone LC Facility Documents, including accrued but unpaid interest, costs, fees, and indemnities.

 

168.         First Lien Standalone LC Facility Documents” means the First Lien Standalone LC Agreement and all related agreements and documents executed by any of the Debtors in connection with the First Lien Standalone LC Facility.

 

169.         First Lien Term Loan Claims” means all Claims against any Debtor arising from or based upon the term loans issued pursuant to the First Lien Credit Agreement or any other First Lien Term Loan Document, including all accrued but unpaid interest, costs, fees, and indemnities, which principal outstanding as of the Petition Date was in the aggregate amount equal to approximately $656,250,000.00.

 

170.         General Unsecured Claim” means any Unsecured Claim, against any Debtors, other than (i) Administrative Claims; (ii) Priority Tax Claims; (iii) Other Priority Claims; (iv) Section 510(b) Claims; (v) Intercompany Claims; (vi) Unsecured Funded Debt Claims; (vii) HHN Notes Guarantee Claims; and (viii) General Unsecured Elective Claims; provided, however, that, notwithstanding anything to the contrary herein, to the extent that a Holder of a General Unsecured Claim against a Debtor holds any joint and several liability Claims, guarantee Claims, or other similar Claims against any other Debtors arising from or relating to the same obligations or liability as such General Unsecured Claim, such Holder shall only be entitled to a distribution on one General Unsecured Claim in full and final satisfaction of all such Claims.

 

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171.         General Unsecured Elective Claim” means a Claim, other than a 7.000% Unsecured Promissory Notes Claim, a Class Action Claim, or any Claim Filed on account of an individual included in any Class Action Claim, that would otherwise be an Allowed General Unsecured Claim that (i) is either (a) Allowed in the amount of $[●] or less, or (b) Allowed in an amount greater than $[●], but which is reduced to $[●] and treated as a General Unsecured Elective Claim for purposes of this Plan in full and final satisfaction of such Claim by an irrevocable written election of the Holder of such Claim made on a timely and properly delivered and completed Ballot or other writing reasonably acceptable to the Debtors; and (ii) the Holder of which makes an irrevocable written election for such Claim to be treated as a General Unsecured Elective Claim on a timely and properly delivered and completed Ballot or other writing reasonably acceptable to the Debtors; provided, however, that any General Unsecured Claim that was originally Allowed in excess of $[●] may not be subdivided into multiple General Unsecured Claims of $[●] or less for purposes of receiving treatment as a General Unsecured Elective Claim; provided, further, that, notwithstanding anything to the contrary herein, to the extent that a Holder of a General Unsecured Elective Claim against a Debtor holds any joint and several liability Claims, guarantee Claims, or other similar Claims against any other Debtors arising from or relating to the same obligations or liability as such General Unsecured Elective Claim, such Holder shall only be entitled to a distribution on one General Unsecured Elective Claim against the Debtors in full and final satisfaction of all such Claims.

 

172.         General Unsecured Recovery Cash Pool Account” means a segregated account to be funded on or prior to the Effective Date in accordance with Article IV.J.

 

173.         General Unsecured Recovery Cash Pool Amount” means Cash in the amount of $410,250,000.00, subject to reduction in accordance with Article IV.J, to fund distributions to Holders of Allowed General Unsecured Claims and Allowed General Unsecured Elective Claims.

 

174.         Governmental Unit” shall have the meaning set forth in section 101(27) of the Bankruptcy Code.

 

175.         GUC Oversight Administrator” means the individual appointed by the Committee in accordance with Article IV.W of the Plan.

 

176.         GUC Oversight Administrator Costs” means the reasonable and documented costs and expenses of the GUC Oversight Administrator, including the reasonable professionals’ fees and expenses; provided that the Reorganized Debtors shall be permitted to challenge the reasonableness of the fees and expenses before the Bankruptcy Court; provide, further, that such fees and expenses shall not exceed $[●] in the aggregate.

 

177.         GUC Settlement Procedures” means the procedures governing the rights of the GUC Oversight Administrator with respect to the objection to, estimation, or Allowance of, General Unsecured Claims and General Unsecured Elective Claims to be filed as part of the Plan Supplement, which shall be reasonably acceptable to the Debtors and the Requisite Commitment Parties.

 

178.         HCVP” means Hertz Canada Vehicles Partnership.

 

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179.         HC Limited” means HC Limited Partnership.

 

180.         Herc Documents” means that certain Separation and Distribution Agreement, dated as of June 30, 2016, between Hertz Parent and Herc Holding Inc. and all other documents executed in connection therewith or related thereto.

 

181.         Herc Parties” means Herc Holding Inc. and any of its Affiliates, successors, or assigns.

 

182.         Hertz Australia” means Hertz Australia Pty. Limited (ACN 004 407 087).

 

183.         Hertz Corp.” means The Hertz Corporation

 

184.         Hertz Canada” means Hertz Canada Limited

 

185.         Hertz Parent” means Hertz Global Holdings, Inc.

 

186.         “HHN” means Hertz Holdings Netherlands B.V.

 

187.         “HHN 4.125% Unsecured Notes” means the senior notes due 2021 issued pursuant to the HHN 4.125% Unsecured Notes Indenture.

 

188.         “HHN 4.125% Unsecured Notes Indenture” means that certain indenture (as the same may have been amended, modified, or supplemented from time to time), dated as of September 22, 2016, for the HHN 4.125% Unsecured Notes by and among HHN and HUK, as co-issuers, Hertz Corp., as Parent Guarantor, the subsidiary guarantors from time to time parties thereto, as guarantors, Wilmington Trust SP Services (London) Limited, solely in its capacity as trustee, Deutsche Bank AG, London Branch, as Paying Agent and Deutsche Bank Luxembourg S.A., as Registrar, Transfer Agent and Authenticating Agent.

 

189.         HHN 4.125% Unsecured Notes Documents” means, collectively, the HHN 4.125% Unsecured Notes Indenture, the HHN 4.125% Unsecured Notes, and all related agreements and documents executed by any of the Debtors in connection with the HHN 4.125% Unsecured Notes.

 

190.         “HHN 5.500% Unsecured Notes” means the senior notes due 2023 issued pursuant to the HHN 5.500% Unsecured Notes Indenture.

 

191.         “HHN 5.500% Unsecured Notes Indenture” means that certain indenture (as the same may have been amended, modified, or supplemented from time to time), dated as of March 23, 2018, for the HHN 5.500% Unsecured Notes by and among HHN and HUK, as co-issuers, Hertz Corp., as Parent Guarantor, the subsidiary guarantors from time to time parties thereto, as guarantors, Wilmington Trust SP Services (London) Limited, solely in its capacity as trustee, Deutsche Bank AG, London Branch, as Paying Agent and Deutsche Bank Luxembourg S.A., as Registrar, Transfer Agent and Authenticating Agent.

 

192.         HHN 5.500% Unsecured Notes Documents” means, collectively, the HHN 5.500% Unsecured Notes Indenture, the HHN 5.500% Unsecured Notes, and all related agreements and documents executed by any of the Debtors in connection with the HHN 5.500% Unsecured Notes.

 

193.         “HHN Notes” means (i) the HHN 4.125% Unsecured Notes and (ii) the HHN 5.500% Unsecured Notes.

 

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194.         HHN Notes Documents” means (i) the HHN 5.500% Unsecured Notes Documents and (ii) the HHN 4.125% Unsecured Notes Documents.

 

195.         HHN Notes Guarantee Claims” means, collectively, all Claims against Hertz Corp. and the Subsidiary Guarantors arising from or related to the HHN Notes Documents, including their guarantee of the HHN 4.125% Unsecured Notes and the HHN 5.500% Unsecured Notes.

 

196.         HHN Notes Indentures” means, collectively, the (i) HHN 4.125% Unsecured Notes Indenture and (ii) the HHN 5.00% Unsecured Notes Indenture.

 

197.         HHN Notes Paying Agent” means Deutsche Bank AG, London Branch, in its capacity as paying agent under each series of the HHN Notes, including any successor thereto.

 

198.         HHN Notes Trustee” means Wilmington Trust SP Services (London) Limited, in its capacity as trustee under each series of the HHN Notes, including any successor thereto.

 

199.         HHN Restructuring” means the restructuring described in Article IV.L, infra, and any other related transactions in connection therewith.

 

200.         HIL” means Hertz International Limited.

 

201.         HIL Financing Facility” means the direct lending facility provided by certain of the Plan Sponsors to HIL prior to the Effective Date in accordance with the term sheet attached to the Plan Support Agreement as Exhibit B.

 

202.         Holder” means an Entity holding a Claim or an Interest, as applicable, each solely in its capacity as such.

 

203.        HUK” means Hertz U.K. Receivables Ltd.

 

204.         HVF” means Hertz Vehicle Financing LLC.

 

205.         HVF Base Indenture” means the Fourth Amended and Restated Base Indenture (as the same may have been amended, modified, supplemented, or amended and restated from time to time), dated as of November 25, 2013, between HVF and the HVF Trustee.

 

206.         HVF Claims” means any Claims against Hertz Corp. or any other Debtor pursuant to, arising out of, or related to the HVF Master Lease Agreement, any other HVF Facility Document, or any other HVF II Facility Document, including any HVF Master Lease Administrative Claim.

 

207.         HVF Facility Documents” means the HVF Base Indenture, the Series 2013-G1 Supplement, the Series 2013-G1 Note, the HVF Master Lease Agreement, and all other documents related to the Series 2013-G1 Note or the Series 2013-G1 Collateral.

 

208.         HVF II” means Hertz Vehicle Financing II LP.

 

209.         HVF II Base Indenture” means that certain Amended and Restated Base Indenture (as the same may have been amended, modified, supplemented, or amended and restated from time to time), dated as of October 31, 2014, between HVF II, the HVF II Trustee.

 

210.         HVF II Collateral” means the collateral as defined in the HVF II Base Indenture, the HVF II Group I Supplement, and the HVF II Series Supplements.

 

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211.         HVF II Facility” means the asset-backed securitization facility issued pursuant to the HVF II Facility Documents.

 

212.         HVF II Facility Documents” means the HVF II Base Indenture, the HVF II Group I Supplement, the HVF II Series Supplements, the HVF II Notes and all other documents related to the HVF II Notes or the HVF II Collateral.

 

213.         HVF II Group I Supplement” means that certain Amended and Restated Group I Supplement to the HVF II Base Indenture, dated as of October 31, 2014 (as amended by Amendment No. 1 thereto, dated as of June 17, 2015, and as further amended, modified or supplemented from time to time, exclusive of Series Supplements), between HVF II and the HVF II Trustee.

 

214.         HVF II Lenders” means the Holders of the HVF II Notes.

 

215.         HVF II MTN Series Supplements” means collectively, the HVF II Series 2015-3 Supplement, the HVF II Series 2016-2 Supplement, the HVF II Series 2016-4 Supplement, the HVF II Series 2017-1 Supplement, the HVF II Series 2017-2 Supplement, the HVF II Series 2018-1 Supplement, the HVF II Series 2018-2 Supplement, the HVF II Series 2018-3 Supplement, the HVF II Series 2019-1 Supplement, the HVF II Series 2019-2 Supplement, and the HVF II Series 2019-3 Supplement.

 

216.         HVF II Notes” means the Rental Car Asset Backed Notes issued by HVF II and authenticated by or on behalf of the HVF II Trustee pursuant to the HVF II Series Supplements.

 

217.         HVF II Notes Repayment Date” means the date on which HVF II repays in full in Cash the then outstanding non-contingent contractual obligations arising under or with respect to the HVF II Notes.

 

218.         HVF II Series 2015-3 Supplement” means the Series 2015-3 Supplement to the HVF II Group I Supplement, dated as of October 7, 2015, by and among HVF II, Hertz Corp., and the HVF II Trustee, as amended from time to time.

 

219.         HVF II Series 2016-2 Supplement” means the Series 2016-2 Supplement to the HVF II Group I Supplement, dated as of February 11, 2016, by and among HVF II, Hertz Corp., and the HVF II Trustee, as amended from time to time.

 

220.         HVF II Series 2016-4 Supplement” means the Series 2016-4 Supplement to the HVF II Group I Supplement, dated as of June 8, 2016, by and among HVF II, Hertz Corp., and the HVF II Trustee, as amended from time to time.

 

221.         HVF II Series 2017-1 Supplement” means the Series 2017-1 Supplement to the HVF II Group I Supplement, dated as of September 20, 2017, by and among HVF II, Hertz Corp., and the HVF II Trustee, as amended from time to time.

 

222.        HVF II Series 2017-2 Supplement” means the Series 2017-2 Supplement to the HVF II Group I Supplement, dated as of September 20, 2017, by and among HVF II, Hertz Corp., and the HVF II Trustee, as amended from time to time.

 

223.         HVF II Series 2018-1 Supplement” means the Series 2018-1 Supplement to the HVF II Group I Supplement, dated as of January 24, 2018, by and among HVF II, Hertz Corp., and the HVF II Trustee, as amended from time to time.

 

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224.         HVF II Series 2018-2 Supplement” means the Series 2018-2 Supplement to the HVF II Group I Supplement, dated as of June 27, 2018, by and among HVF II, Hertz Corp., and the HVF II Trustee, as amended from time to time.

 

225.         HVF II Series 2018-3 Supplement” means the Series 2018-3 Supplement to the HVF II Group I Supplement, dated as of June 27, 2018, by and among HVF II, Hertz Corp., and the HVF II Trustee, as amended from time to time.

 

226.         HVF II Series 2019-1 Supplement” means the Series 2019-1 Supplement to the HVF II Group I Supplement, dated as of February 6, 2019, by and among HVF II, Hertz Corp., and the HVF II Trustee, as amended from time to time.

 

227.         HVF II Series 2019-2 Supplement” means the Series 2019-2 Supplement to the HVF II Group I Supplement, dated as of May 29, 2019, by and among HVF II, Hertz Corp., and the HVF II Trustee, as amended from time to time.

 

228.         HVF II Series 2019-3 Supplement” means the Series 2019-3 Supplement to the HVF II Group I Supplement, dated as of November 26, 2019, by and among HVF II, Hertz Corp., and the HVF II Trustee, as amended from time to time.

 

229.         HVF II Series Supplements” means collectively, the HVF II VFN Supplement and the HVF II MTN Series Supplements.

 

230.         HVF II Trustee” means The Bank of New York Mellon Trust Company, N.A., solely in its role as trustee under the HVF II Indenture.

 

231.         HVF II VFN Supplement” means that certain Sixth Amended and Restated Series 2013-A Supplement to the HVF II Group I Supplement, dated as of February 21, 2020, by and among Deutsche Bank AG, New York Branch, HVF II, the HVF II Trustee, Hertz Corp., certain committed note purchasers party thereto from time to time, certain conduit investors party thereto from time to time, and certain funding agents for the investor groups party thereto from time to time.

 

232.         HVF III” means a new asset backed securitization facility to issue notes to fund its purchase of vehicles to be used in the Debtors and Reorganized Debtors’ rental car business, which shall be materially consistent with the Plan and otherwise in form and substance acceptable to the Debtors and the Requisite Commitment Parties in good faith..

 

233.         HVF Indenture” means collectively the HVF Base Indenture and the Series 2013-G1 Supplement.

 

234.        “HVF Master Lease Administrative Claims” means any Claim against the Debtors under the HVF Master Lease Agreement that arose after the Petition Date and is owed but unpaid pursuant to the HVF Master Lease Agreement, including the Casualty Superpriority Administrative Expense Claim.

 

235.         HVF Master Lease Agreement” is that certain Amended and Restated Master Motor Vehicle Operating Lease and Servicing Agreement (Series 2013-G1) dated as of October 31, 2014 (as amended by Amendment No. 1 thereto, dated as of February 22. 2017, and as further amended, modified or supplemented from time to time), by and among HVF, in its capacity as lessor, Hertz Corp., in its capacity as lessee, in its capacity as servicer and in its capacity as guarantor, DTG Operations, Inc., in its capacity as lessee and those permitted leases from time to time becoming lessees thereunder.

 

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236.         HVF Trustee” means The Bank of New York Mellon Trust Company, N.A., solely in its capacity as trustee under the HVF Indenture.

 

237.         HVIF” means Hertz Vehicle Interim Financing, LLC.

 

238.        “HVIF Administrative Agent” means Deutsche Bank AG, New York Branch, as administrative agent under the Interim Fleet Financing Facility.

 

239.         HVIF Trustee” means The Bank of New York Mellon Trust Company, N.A., as Trustee and Securities Intermediary under the Interim Fleet Financing Facility Documents.

 

240.         Impaired” means, when used in reference to a Claim or Interest, a Claim or Interest that is impaired within the meaning of section 1124 of the Bankruptcy Code.

 

241.         Indemnification Obligations” means each of the Debtors’ indemnification obligations in place as of the Effective Date, whether in the bylaws, certificates of incorporation or formation, limited liability company agreements, other organizational or formation documents, board resolutions, management or indemnification agreements, or employment or other contracts, or otherwise, for the directors and officers that are currently employed by, or serving on the board of directors of, any of the Debtors as of the date immediately prior to the Effective Date, and the employees, attorneys, accountants, investment bankers, and other professionals and agents that are currently employed by any of the Debtors as of the date immediately prior to the Effective Date, each of the foregoing solely in their capacity as such.

 

242.         [“Ineligible Unsecured Funded Debt Holder” means a Holder of an Unsecured Funded Debt Claim that is not an Eligible Unsecured Funded Debt Holder.]3

 

243.         Initial Consenting Noteholders” has the meaning ascribed to such term in the Plan Support Agreement.

 

244.         Insurance Policies” means any and all known and unknown insurance policies or contracts that have been issued at any time to, or that provide coverage in any capacity to, the Debtors or any predecessor, subsidiary, or past or present Affiliate of the Debtors, as an insured (whether as the first named insured, a named insured or an additional insured), or otherwise alleged to afford the Debtors insurance coverage, and all agreements, documents or instruments related thereto, including but not limited to, the D&O Liability Insurance Policies and/or any agreements with third-party administrators.

 

245.         Insurance Programs” has the meaning ascribed to such term in the Order (I) Authorizing Assumption of the Insurance Program with the Chubb Companies, (II) Modifying the Automatic Stay, and (III) Granting Related Relief [Docket No. 898].

 

246.         Insured Claim” means any Claim against a Debtor for which any Debtor is entitled to coverage, indemnification, reimbursement, contribution or other payment under an Insurance Policy.

 

247.         Insurer” means any company or other entity that issued any Insurance Policies, any third-party administrators of claims against the Debtors or asserted under the Insurance Policies, and any respective predecessors and/or affiliates thereof.

 

 

3 [Note to Draft: Subject to further review and revision.]

 

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248.         Intercompany Claims” means, collectively, (i) Intercompany Debtor Claims and (ii) Intercompany Subsidiary Claims.

 

249.         Intercompany Debtor Claims” means any Claim held by a Debtor against any other Debtor.

 

250.         Intercompany Interest” means an Interest held by a Debtor in another Debtor or a non-Debtor subsidiary.

 

251.         Intercompany Subsidiary Claims” means any Claim of a non-Debtor direct or indirect subsidiary of Hertz Parent against any Debtor.

 

252.         Intercreditor Agreement” means that certain intercreditor agreement (as amended, restated, supplemented, or otherwise modified from time to time) dated as of June 6, 2017, by and between the First Lien Agent and the Second Lien Note Trustee.

 

253.         Interest” means any common stock, limited liability company interest, equity security (as defined in section 101(16) of the Bankruptcy Code), equity, ownership, profit interests, unit, or share in any Debtor (including all issued, unissued, authorized, or outstanding shares of capital stock of the Debtors and any other rights, options, warrants, stock appreciation rights, phantom stock rights, restricted stock units, redemption rights, repurchase rights, convertible, exercisable, or exchangeable securities or other agreements, arrangements or commitments of any character relating to, or whose value is related to, any such interest or other ownership interest in any Debtor), whether or not arising under or in connection with any employment agreement and whether or not certificated, transferable, preferred, common, voting, or denominated “stock” or a similar security, and any Claim against any Debtor subject to subordination pursuant to section 510(b) of the Bankruptcy Code arising from or related to any of the foregoing.

 

254.         Interim Fleet Financing Administrative Claims” means any and all Administrative Claims arising under or related to the Interim Fleet Financing Debtor Facility Documents.

 

255.         Interim Fleet Financing Back-Up Administrative Agreement” means that certain HVIF Back-Up Administrative Agreement dated as of January 22, 2021 by and among Hertz, HVIF, Lord Securities Corporation and the HVIF Trustee.

 

256.         Interim Fleet Financing Back-Up Disposition Agent Agreement” means that certain HVIF Back-Up Disposition Agreement dated as of January 22, 2021 by and among defi AUTO, LLC, Hertz Corp., and the HVIF Trustee.

 

257.         Interim Fleet Financing Base Indenture” means that certain Base Indenture (as the same may have been amended, modified, supplemented, or amended and restated from time to time), dated as of November 25, 2020 between HVIF, Hertz Corp., the HVIF Administrative Agent, Apollo Capital Management, L.P., the holders of the Interim Fleet Financing Notes and the HVIF Trustee.

 

258.         Interim Fleet Financing Debtor Facility Documents” means the Interim Fleet Financing Indenture, the Interim Fleet Financing Supplemental Indenture, the Interim Fleet Financing Master Lease Agreement, the Interim Fleet Financing Back-Up Administrative Agreement, the Interim Fleet Financing Back-Up Disposition Agent Agreement and any other agreements, documents and instruments executed by any Debtor in connection therewith.

 

259.         Interim Fleet Financing Facility” means the asset-back securitization facility issued pursuant to the Interim Fleet Financing Facility Documents.

 

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260.         Interim Fleet Financing Facility Documents” means the Interim Fleet Financing Debtor Documents, the Interim Fleet Financing Notes and any other agreements, instruments and documents executed in connection therewith.

 

261.         Interim Fleet Financing Facility Master Lease Agreement” means that certain Master Motor Vehicle Operating Lease and Servicing Agreement (HVIF) dated as of November 25, 2020 among HVIF, Hertz and DTG Operations, Inc.

 

262.         Interim Fleet Financing Lenders” means the Holders of the Interim Fleet Financing Notes.

 

263.         Interim Fleet Financing Notes” means the Series 2020-1 notes issued pursuant to the 2020-1 Series Supplement.

 

264.         Interim Fleet Financing Supplemental Indenture” means the Series 2020-1 Supplement to the Interim Fleet Financing Base Indenture.

 

265.         Interim Fleet Financing Indenture” means, collectively, the Interim Fleet Financing Base Indenture and Series 2020-1 Supplement.

 

266.         Interim HVF Master Lease Settlement Orders” means the First Interim HVF Master Lease Settlement Order and the Second Interim HVF Master Lease Settlement Order.

 

267.         Initial Distribution Date” means the date on which the Reorganized Debtors or the Distribution Agent shall make initial distributions to Holders of Claims and Interests pursuant to the Plan, which shall be as soon as reasonably practicable after the Effective Date.

 

268.         Judicial Code” means title 28 of the United States Code, 28 U.S.C. §§ 1–4001.

 

269.         Lien” shall have the meaning set forth in section 101(37) of the Bankruptcy Code.

 

270.        Lombard Vehicle Financing Facility Agreement” means that certain agreement relating to the vehicle funding facilities (as the same may have been amended, modified, supplemented, or amended and restated from time to time), dated February 7, 2013, by and between Hertz (U.K.) Limited and Lombard North Central Plc.

 

271.         Lombard Vehicle Financing Facility” means the vehicle funding facility issued pursuant to the Lombard Vehicle Financing Facility Documents.

 

272.        “Lombard Vehicle Financing Facility Documents” means, collectively, the Lombard Vehicle Financing Facility Agreement, the Lombard Vehicle Financing Facility Guarantee, and all related agreements and documents executed by any of the Debtors in connection with the Lombard Vehicle Financing Facility Agreement.

 

273.         Lombard Vehicle Financing Facility Guarantee” means that certain Guarantee (as the same may have been amended, modified, supplemented, or amended and restated from time to time), dated February 7, 2013, by Hertz Corp. in favor of Lombard North Central Plc with respect to the Lombard Vehicle Financing Facility Agreement.

 

274.         Lombard Vehicle Financing Facility Guarantee Claims” means all Claims of a Debtor arising from or related to the Lombard Vehicle Financing Facility Documents.

 

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275.         Management Equity Incentive Plan” means the post-Effective Date management equity incentive plan implemented and approved by the Reorganized Hertz Parent Board in accordance with the MIP Term Sheet.

 

276.         MIP Term Sheet” means the term sheet describing the terms and conditions of the Management Equity Incentive Plan, which shall be reasonably acceptable to the Requisite Commitment Parties.

 

277.         New Money Investment” shall mean the aggregate amount of Cash received from the sale of Reorganized Hertz Parent Common Interests and Preferred Stock pursuant to the Stock Purchase Agreement and the Rights Offering.

 

278.          New Organizational Documents” means the Reorganized Hertz Parent Organizational Documents and Reorganized Debtor Organizational Documents.

 

279.         New Reorganized Corporate Debt” means the Exit Term Loan Facility and the Exit Revolving Credit Facility.

 

280.         Non-Obligor Debtors” means (i) Hertz Global Holding, Inc.; (ii) CMGC Canada Acquisition ULC; (iii) Hertz Aircraft, LLC; (iv) Donlen FSHCO Company; (v) Hertz Canada Limited; (vi) Donlen Mobility Solutions, Inc.; and (vii) Donlen Fleet Leasing Ltd.

 

281.         Offered Stock” means no less than 51.8% of the Reorganized Hertz Parent Common Interests, subject to dilution from conversion of the Preferred Stock and the Management Equity Incentive Plan, that will be offered to the Plan Sponsors and Eligible Unsecured Funded Debt Holders in accordance with, and subject to the terms and conditions of, the Stock Purchase Agreement, the Rights Offering, and this Plan.

 

282.         Offering Purchase Price” shall mean the cash purchase price of the Offered Stock upon issuance, based on a common equity valuation of $4,223,000,000.00.

 

283.          Other Priority Claim” means any Claim against any Debtor entitled to priority in right of payment under section 507(a) of the Bankruptcy Code, other than (i) an Administrative Claim; or (ii) a Priority Tax Claim.

 

284.         Other Secured Claim” means any Secured Claim against any Debtor, including any Secured Tax Claim, other than a (i) First Lien Claim; (ii) Second Lien Note Claim; and (iii) DIP Claim, unless otherwise classified in Article III.B.

 

285.         PBGC” means Pension Benefit Guaranty Corporation, a wholly-owned United States government corporation and agency created under Title IV of ERISA

 

286.         PE Sponsors” means, collectively, (i) Centerbridge, (ii) Warburg Pincus, and (iii) Dundon.

 

287.         Pension Plans” means collectively, (i) the Defined Benefit Plan, (ii) Retirement Plan for the Employees of Puerto Ricancars, Inc. and Related Companies Residing in the Commonwealth of Puerto Rico, and (iii) Retirement Plan for Employees of Puerto Ricancars, Inc. and Related Companies Residing in St. Thomas, U.S. Virgin Islands.

 

288.         Person” shall have the meaning set forth in section 101(41) of the Bankruptcy Code.

 

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289.         Petition Date” is May 22, 2020.

 

290.        Plan” means this Second Amended Joint Chapter 11 Plan of Reorganization of The Hertz Corporation and its Debtor Affiliates (including the Plan Supplement and all exhibits hereto and thereto), as the same may be amended, modified, supplemented or amended and restated from time to time.

 

291.         Plan Sponsors” means, collectively, (i) the PE Sponsors; and (ii) the Initial Consenting Noteholders.

 

292.         Plan Supplement” means the compilation of documents and forms of documents, schedules, and exhibits to the Plan, each of which shall be in form and substance materially consistent with this Plan, the Plan Support Agreement and otherwise acceptable to the Debtors, as may be amended, modified, or supplemented from time to time, including, as applicable (i) Reorganized Hertz Parent Organizational Documents; (ii) Reorganized Hertz Corp. Organizational Documents; (iii) the Rejected Executory Contracts and Unexpired Leases Schedule; (iv) the Assumed Executory Contracts and Unexpired Leases Schedule; (v) the identity of the members of the Reorganized Hertz Parent Board and executive management for Hertz Parent; (vi) the identity of the members of the Reorganized Hertz Corp. Board and executive management for Hertz Corp.; (vii) Schedule of Retained Causes of Action; (viii) the MIP Term Sheet; (ix) the Exit Term Loan Credit Agreement; (x) the Exit Revolving Credit Agreement; (xi) the Collective Bargaining Agreement Schedule; (xii) the ADR Procedures; (xiii) the GUC Settlement Procedures; (xiv) the documents governing the Preferred Stock; and (xv) the Registration Rights Agreement. Any reference to the Plan Supplement in the Plan shall include each of the documents identified above as (i) through (xv), as applicable. The Debtors shall be entitled to amend such documents in accordance with their respective terms and Article X of this Plan through and including the Effective Date.

 

293.         Plan Support Agreement” means that certain Plan Support Agreement by and among Hertz Parent and each of the Debtors identified on the signature pages thereto and the Plan Sponsors, as the same may be amended, modified, or amended and restated from time to time in accordance with its terms.

 

294.         Preferred Stock” shall have the meaning set forth in the Stock Purchase Agreement.

 

295.         Prepetition Debt Documents” means, collectively, the (i) First Lien Loan Documents, (ii) Second Lien Note Documents, (iii) the Unsecured Notes Documents, (vi) the ALOC Facility Documents, (vii) the Lombard Vehicle Financing Facility Documents, (viii) the 7.000% Unsecured Promissory Notes Documents, (ix) the European ABS Documents, and (x) the HHN Notes Documents.

 

296.         Priority Tax Claim” means any Claim of a Governmental Unit of the kind specified in section 507(a)(8) of the Bankruptcy Code.

 

297.         Pro Rata” means the proportion that an Allowed Claim in a particular Class bears to the aggregate amount of Allowed Claims in that respective Class, or the proportion that Allowed Claims in a particular Class bear to the aggregate amount of Allowed Claims in a particular Class and other Classes entitled to share in the same recovery as such Allowed Claim under the Plan, as applicable.

 

298.         Professional” means an Entity (i) employed pursuant to a Bankruptcy Court order in accordance with sections 327, 363, or 1103 of the Bankruptcy Code and to be compensated for services rendered before or on the Effective Date, pursuant to sections 327, 328, 329, 330, 331, or 363 of the Bankruptcy Code; or (ii) awarded compensation and reimbursement by the Bankruptcy Court pursuant to section 503(b)(4) of the Bankruptcy Code.

 

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299.        Professional Fee Claims” means all Claims for fees and expenses (including transaction and success fees) incurred by a Professional on or after the Petition Date through the Effective Date.

 

300.        Professional Fee Claims Estimate” means the aggregate unpaid Professional Fee Claims through the Effective Date as estimated in accordance with Article II.E.2.

 

301.         Professional Fee Escrow” means an escrow account established and funded pursuant to Article II.E.3.

 

302.         Proof of Claim” means a proof of Claim Filed against any of the Debtors in the Chapter 11 Cases.

 

303.         Quarterly Distribution Date” means the first Business Day after the end of each quarterly calendar period (i.e., March 31, June 30, September 30, and December 31 of each calendar year) occurring after the Effective Date.

 

304.         Registration Rights Agreement” means a customary registration rights agreement in the form filed as part of the Plan Supplement with respect to the Reorganized Hertz Parent Common Interests and the Preferred Stock, entered into among the Reorganized Debtors, the PE Sponsors, the Initial Consenting Noteholders, and their respective affiliates and related funds that acquire Reorganized Hertz Parent Common Interests or Preferred Stock under the Plan.

 

305.         Reinstated” or “Reinstatement” means, with respect to Claims and Interests, the treatment provided for in section 1124(2) of the Bankruptcy Code.

 

306.         Rejected Executory Contracts and Unexpired Leases Schedule” means the schedule of Executory Contracts and Unexpired Leases to be rejected by the Debtors pursuant to the Plan, included in the Plan Supplement, as may be amended by the Debtors from time to time, and which shall be in form and substance acceptable to the Requisite Commitment Parties in good faith.

 

307.         Released Party” means each of the following in their capacity as such: (i) the Debtors; (ii) the Reorganized Debtors; (iii) each of the Debtors’ Estates; (iv) the Plan Sponsors; (v) the Backstop Investors; (vi) the Committee; (vii) the Committee Members; (viii) the Unsecured Notes Trustees; and (ix) the 7.000% Unsecured Promissory Notes Trustee; and (x) with respect to each of the foregoing Entities in clauses (i) through (ix), such Entity and its current and former Affiliates, and such Entities’ and their current and former Affiliates’ current and former directors, managers, officers, equity holders (regardless of whether such interests are held directly or indirectly), predecessors, successors, and assigns, subsidiaries, and each of their respective current and former equity holders, officers, directors, managers, principals, members, employees, agents, advisory board members, financial advisors, partners, attorneys, accountants, managed accounts or funds, management companies, fund advisors, investment bankers, consultants, representatives, and other professionals, each in its capacity as such; provided, that notwithstanding anything set forth above, the Clawback Defendants, Accenture LLP, the Herc Parties (solely with respect to Claims arising from the Herc Documents), and the Donlen Debtors and their direct and indirect subsidiaries (solely with respect to Claims arising from the Donlen Documents) shall not be Released Parties. Notwithstanding the foregoing, any Person or Entity that opts out of the releases shall not be a Released Party.

 

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308.         Releasing Party” means each of the following in their capacity as such: (i) the Plan Sponsors; (ii) the Backstop Investors; (iii) the Unsecured Notes Trustees; (iv) the 7.000% Unsecured Promissory Notes Trustee; (v) all Holders of Unimpaired Claims or Interests who do not File a timely objection to the third party releases provided for in Article VIII.D (provided that, for the avoidance of doubt, Holders of Unimpaired Claims or Interests that timely file an objection to the third party releases provided pursuant to Article VIII.D shall not be Releasing Parties); (vi) all Holders of Administrative Expense Claims and Priority Tax Claims that do not hold Claims or Interests in any Class that do not File a timely objection to the third party releases provided for in Article VIII.D of the Plan (provided, that, for the avoidance of doubt, Holders of Administrative Expense Claims and Priority Tax Claims that do not hold Claims or Interests in any Class that timely File an objection to the third party releases provided pursuant to Article VIII.D shall not be Releasing Parties); (vii) all Holders of Claims or Interests that vote to accept the Plan; (viii) all Holders of Claims or Interests that are entitled to vote on the Plan who abstain from voting on the Plan and that do not affirmatively opt out of the third party releases provided for in Article VIII.D of the Plan by checking the box on the applicable Ballot indicating that they opt not to grant such releases in the Plan submitted on or before the Voting Deadline; (ix) all Holders of Claims or Interests that are entitled to vote on the Plan who vote to reject the Plan and do not affirmatively opt out of the third party releases provided for in Article VIII.D by checking the box on the applicable Ballot indicating that they opt not to grant such releases in the Plan submitted on or before the Voting Deadline; (x) all Holders of Claims that elect to be treated as a General Unsecured Elective Claim; and (xi) with respect to each of the foregoing Entities in clauses (i) through (x), such Entity and its current and former Affiliates, and such Entities’ and their current and former Affiliates’ current and former directors, managers, officers, equity holders (regardless of whether such interests are held directly or indirectly), predecessors, successors, and assigns, subsidiaries, and each of their respective current and former equity holders, officers, directors, managers, principals, members, employees, agents, advisory board members, financial advisors, partners, attorneys, accountants, managed accounts or funds, management companies, fund advisors, investment bankers, consultants, representatives, and other professionals, each in its capacity as such.

 

309.         Reorganized Debtors” means the Debtors, or any successors thereto, by merger, consolidation, or otherwise, on and after the Effective Date, including Reorganized Hertz Parent and Reorganized Hertz Corp.

 

310.         Reorganized Hertz Corp.” means reorganized Hertz Corp., or any successors thereto, by merger, consolidation, or otherwise on or after the Effective Date.

 

311.         Reorganized Hertz Corp. Board” means the initial board of directors of Reorganized Hertz Corp. as identified in the Plan Supplement.

 

312.         Reorganized Hertz Corp. Organizational Documents” means the form of the certificates or articles of incorporation, bylaws, or such other applicable formation documents of Reorganized Hertz Corp., which forms shall be included in the Plan Supplement all in form and substance acceptable to the Debtors, and which shall be in form and substance acceptable to the Requisite Commitment Parties in good faith.

 

313.         Reorganized Hertz Parent” means reorganized Hertz Global Holdings, Inc., or any successors thereto, by merger, consolidation, or otherwise, on or after the Effective Date.

 

314.          Reorganized Hertz Parent Board” means the initial board of directors of Reorganized Hertz Parent as identified in the Plan Supplement.

 

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315.         Reorganized Hertz Parent Common Interests” means the single class of common stock of Reorganized Hertz Parent to be issued upon Consummation of the Plan.

 

316.         Reorganized Hertz Parent Organizational Documents” means the form of the certificates or articles of incorporation, bylaws, or such other applicable formation documents of Reorganized Hertz Parent, which forms shall be included in the Plan Supplement all in form and substance acceptable to the Debtors, and which shall be in form and substance acceptable to the Requisite Commitment Parties in good faith.

 

317.         Reorganized Debtor Organizational Documents” means the form of the certificates or articles of incorporation, bylaws, or such other applicable formation documents of each Reorganized Debtor, all in form and substance acceptable to the Debtors and the Requisite Commitment Parties in good faith.

 

318.         Restructuring” means the restructuring of the existing debt and other obligations of the Debtors and their non-Debtor Affiliates on the terms and conditions set forth in the Plan and Plan Supplement and consistent in all respects with the Plan Support Agreement and Stock Purchase Agreement.

 

319.         Restructuring Transactions” shall have the meaning set forth in Article IV.B hereof.

 

320.         Requisite Commitment Parties” shall have the meaning set forth in the Plan Support Agreement.

 

321.         Rights Offering” means that certain offering of rights pursuant to which each holder of an Allowed Unsecured Funded Debt Claim is entitled to receive Subscription Rights to acquire Reorganized Hertz Parent Common Interests in accordance with the Stock Purchase Agreement and the Rights Offering Procedures.

 

322.         Rights Offering Backstop Commitment” shall have the meaning set forth in the Stock Purchase Agreement.

 

323.         Rights Offering Common Equity Allocation” shall have the meaning ascribed to such term in Article IV.D.2.b.

 

324.         Rights Offering Procedures” means, collectively, the procedures governing and for the implementation of the Rights Offering in a form acceptable to the Debtors and the Requisite Commitment Parties, consistent with the Plan Support Agreement and the Stock Purchase Agreement, and approved by the Bankruptcy Court.

 

325.         Schedule of Retained Causes of Action” means a schedule of retained Causes of Action filed in connection with the Plan Supplement, in form and substance acceptable to the Debtors and the Requisite Commitment Parties.

 

326.         Schedules” means, collectively, the schedules of assets and liabilities, schedules of Executory Contracts and Unexpired Leases, and statements of financial affairs Filed by the Debtors on August 11, 2020 [Docket Nos. 964-1023] pursuant to section 521 of the Bankruptcy Code and in substantial accordance with the Official Bankruptcy Forms, as amended on November 21, 2020 [Docket Nos. 1824, 1826-1880, 1882, 1884-1886, 1889], as the same may be further amended, modified, or supplemented from time to time.

 

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327.         Second Interim HVF Master Lease Settlement Order” means the Second Order Resolving Certain Matters Related to the HVF II Master Lease Agreement [Docket No. 2489].

 

328.         Section 510(b) Claims” means any Claim (i) arising from the rescission of a purchase or sale of a Security of any Debtor or an Affiliate of any Debtor; (ii) for damages arising from the purchase or sale of such a Security; or (iii) for reimbursement or contribution Allowed under section 502 of the Bankruptcy Code on account of such a Claim; provided that a Section 510(b) Claim shall not include any Claims subject to subordination under section 510(b) of the Bankruptcy Code arising from or related to any Interest.

 

329.         SEC” means the United States Securities and Exchange Commission.

 

330.         Secured” means, when referring to a Claim, a Claim secured by a Lien on property in which the applicable Estate has an interest, which Lien is valid, perfected, and enforceable pursuant to applicable law or by a Final Order, or that is subject to setoff pursuant to section 553 of the Bankruptcy Code, to the extent of the value of the applicable creditor’s interest in such Estate’s interest in such property or to the extent of the amount subject to setoff, as applicable, in each case, as determined pursuant to section 506(a) of the Bankruptcy Code.

 

331.         Second Lien Notes” means the senior secured second priority notes issued by Hertz Corp. pursuant to the Second Lien Notes Indenture.

 

332.         Second Lien Note Indenture” means that certain Indenture (as the same may have been amended, modified, or supplemented from time to time), dated as of June 6, 2017, by and among Hertz Corp, as issuer, and the Second Lien Note Trustee.

 

333.         Second Lien Note Trustee” means BOKF, National Association, in its capacity as successor trustee and collateral agent under the Second Lien Indenture and the other Second Lien Note Documents, including any successor thereto.

 

334.         Second Lien Note Claims” means all Claims against any Debtor arising from or based upon the Second Lien Note Indenture or any other Second Lien Note Document, including all accrued but unpaid interest, costs, fees, and indemnities, which principal outstanding as of the Petition Date was in the aggregate amount equal to approximately $350,000,000.00.

 

335.         Second Lien Note Documents” means the Second Lien Note Indenture and all related agreements and documents executed by any of the Debtors in connection with the Second Lien Note Indenture.

 

336.         Secured Tax Claim” means any Secured Claim against any Debtor that, absent its secured status, would be entitled to priority in right of payment under section 507(a)(8) of the Bankruptcy Code (determined irrespective of time limitations), including any related Secured Claim for penalties.

 

337.         Securities Act” means the Securities Act of 1933, 15 U.S.C. §§ 77a–77aa, as amended, together with the rules and regulations promulgated thereunder.

 

338.         Security” shall have the meaning set forth in section 101(49) of the Bankruptcy Code.

 

339.         Senior Management Group” means (i) Paul Stone, (ii) Kenny Cheung, (iii) M. David Galainena, (iv) Opal Perry, (v) Darren Arrington, (vi) Eric Leef, (vii) Laura Suenon Nestar, (viii) Joseph McPherson, (ix) Jeffrey Adams, (x) Robert Massengill, and (xi) Jayesh Patel.

 

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340.        Series 2013-G1 Collateral” means the collateral defined in the Series 2013-G1 Supplement.

 

341.         Series 2013-G1 Note” means the Series 2013-G1 Variable Funding Rental Car Asset Backed Note issued by HVF and authenticated by or on behalf of the HVF Trustee pursuant to the Series 2013-G1 Supplement.

 

342.         Series 2013-G1 Supplement” means the Amended and Restated Series 2013-G1 Supplement to the HVF Base Indenture, dated as of October 31, 2014, between HVF and the HVF Trustee, as amended from time to time.

 

343.        Stock Purchase Agreement” means that certain Equity Purchase and Commitment Agreement, dated as of April 3, 2021 by and among Hertz Parent and the Plan Sponsors party thereto, as the same may be amended, modified, or amended and restated from time to time in accordance with its terms.

 

344.         Subscription Form” has the meaning ascribed to such term in the Rights Offering Procedures.

 

345.         Subscription Rights” means the subscription rights offered in accordance with the Stock Purchase Agreement and the Rights Offering Procedures.

 

346.         Subsidiary Guarantors” means Debtors (i) Thrifty Rent-A-Car System, LLC; (ii) Thrifty, LLC; (iii) Dollar Thrifty Automotive Group, Inc.; (iv) Firefly Rent A Car LLC; (v) Dollar Rent A Car, Inc.; (vi) Donlen Corporation; (vii) DTG Operations, Inc.; (viii) Hertz Car Sales LLC; (ix) DTG Supply, LLC; (x) Hertz Global Services Corporation; (xi) Hertz Local Edition Corp.; (xii) Hertz Local Edition Transporting, Inc.; (xiii) Hertz System, Inc.; (xiv) Smartz Vehicle Rental Corporation; (xv) Thrifty Car Sales, Inc.; (xvi) Hertz Technologies, Inc.; (xvii) TRAC Asia Pacific, Inc.; (xviii) Hertz Transporting, Inc.; and (xix) Rental Car Group Company, LLC.

 

347.         Substantial Contribution Claim” means a Claim for compensation or reimbursement of costs and expenses relating to services rendered in making a substantial contribution in the Chapter 11 Cases pursuant to section 503(b)(3), (4), or (5) of the Bankruptcy Code.

 

348.         Tail D&O Policy” means an insurance policy that provides sufficient liability insurance coverage for the six-year period following the Effective Date for the benefit of the Debtors’ current and former directors, managers, officers, and employees on terms no less favorable to the directors, managers, officers, and employees than the Debtors’ existing director, officer, manager, and employee coverage and with an available aggregate limit of liability upon the Effective Date, which is acceptable to the Debtors and of no less than the aggregate limit of liability under the existing director, officer, manager, and employee coverage upon placement.

 

349.         TCL Funding” means TCL Funding Limited Partnership.

 

350.         Transaction Expenses” means, collectively, all reasonable and documented out-of-pocket fees (including success fees, transaction fees or similar fees) and expenses (including travel costs and expenses) of (i) Milbank LLP, as counsel to the PE Sponsors, (ii) Perella Weinberg Partners, as financial advisor to the PE Sponsors, (iii) Willkie Farr & Gallagher LLP and Young Conaway Stargatt & Taylor LLP, as legal counsel to the Initial Consenting Noteholders, (iv) Ducera Partners LLC, as financial advisor to the Initial Consenting Noteholders, and (v) any other accountants and other professionals, advisors and consultants retained by the Equity Commitment Parties with the prior written consent of the Company, in each case, to implement the Restructuring Transactions.

 

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351.         U.S. Trustee” means the Office of the United States Trustee for the District of Delaware.

 

352.         Unexpired Lease” means a lease to which one or more of the Debtors is a party that is subject to assumption or rejection under sections 365 or 1123 of the Bankruptcy Code.

 

353.         Unimpaired” means, with respect to a Claim or a Class of Claims or Interests, a Claim or an Interest that is unimpaired within the meaning of section 1124 of the Bankruptcy Code.

 

354.         Unsecured” means, with respect to any Claim, any Claim that is not a Secured Claim, including, for the avoidance of doubt, (i) Unsecured Funded Debt Claims; (ii) HHN Notes Guarantee Claims; (iii) General Unsecured Claims; and (iv) General Unsecured Elective Claims.

 

355.         Unsecured Funded Debt Claims” means, collectively, (i) the Unsecured Notes Claims, and (ii) the ALOC Facility Claims.

 

356.         Unsecured Funded Debt Equity Allocation” means 48.2% of Reorganized Hertz Parent Common Interests, subject to dilution from conversion of the Preferred Stock and the Management Equity Incentive Plan.

 

357.         Unsecured Noteholders” means, collectively, (i) the 5.500% Unsecured Noteholders; (ii) the 6.000% Unsecured Noteholders; (iii) the 6.250% Unsecured Noteholders; and (iv) the 7.125% Unsecured Noteholders, each from time to time, in their capacity as such.

 

358.         Unsecured Notes” means, collectively, (i) the 5.500% Unsecured Notes, (ii) the 6.000% Unsecured Notes, (iii) the 6.250% Unsecured Notes, and (iv) the 7.125% Unsecured Notes.

 

359.         Unsecured Notes Claims” means, collectively, (i) the 5.500% Unsecured Note Claims; (ii) the 6.000% Unsecured Note Claims; (iii) the 6.250% Unsecured Note Claims; and (iv) the 7.125% Unsecured Note Claims.

 

360.        Unsecured Notes Documents” means, collectively, (i) the 5.500% Unsecured Note Documents; (ii) the 6.000% Unsecured Note Documents; (iii) the 6.250% Unsecured Note Documents; and (iv) the 7.125% Unsecured Note Documents.

 

361.         Unsecured Notes Trustees” means, collectively, (i) the 5.500% Unsecured Notes Trustee; (ii) the 6.000% Unsecured Notes Trustee; (iii) the 6.250% Unsecured Notes Trustee; and (iv) the 7.125% Unsecured Note Trustee.

 

362.         Unsecured Notes Trustees’ Fees” means, collectively, to the extent not previously paid in connection with the Chapter 11 Cases, the reasonable and documented fees, costs, and expenses incurred by the Unsecured Notes Trustees that are required to be paid under the Unsecured Notes Documents.

 

363.         Unsubscribed Shares” shall have the meaning ascribed to such term in the Stock Purchase Agreement.

 

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364.         Voting Deadline” means 4:00 p.m. (prevailing Eastern Time) on [●], 2021, as specifically set forth in the Disclosure Statement Order, which is the deadline for submitting Ballots to accept or reject the Plan in accordance with section 1126 of the Bankruptcy Code.

 

365.         Warburg Pincus” means Warburg Pincus LLC, acting solely in its capacity as an investment manager or advisor on behalf of certain funds or accounts or wholly-owned entities of such funds or accounts.

 

B. Rules of Interpretation 

 

For purposes herein: (i) in the appropriate context, each term, whether stated in the singular or the plural, shall include both the singular and the plural, and pronouns stated in the masculine, feminine, or neuter gender shall include the masculine, feminine, and the neuter gender; (ii) except as otherwise provided herein, any reference herein to a contract, lease, instrument, release, indenture, or other agreement or document being in a particular form or on particular terms and conditions means that the referenced document shall be substantially in that form or substantially on those terms and conditions; (iii) except as otherwise provided, any reference herein to an existing document or exhibit having been Filed or to be Filed shall mean that document or exhibit, as it may thereafter be amended, restated, supplemented, or otherwise modified in accordance with the Plan; (iv) unless otherwise specified herein, all references herein to “Articles” are references to Articles of the Plan or hereto; (v) unless otherwise stated herein, the words “herein,” “hereof,” and “hereto’’ refer to the Plan in its entirety rather than to a particular portion of the Plan; (vi) captions and headings to Articles are inserted for convenience of reference only and are not intended to be a part of or to affect the interpretation hereof; (vii) the words “include” and “including,” and variations thereof, shall not be deemed to be terms of limitation, and shall be deemed to be followed by the words “without limitation”; (viii) unless otherwise specified, the rules of construction set forth in section 102 of the Bankruptcy Code shall apply to the Plan; (ix) any term used in capitalized form herein that is not otherwise defined but that is used in the Bankruptcy Code or the Bankruptcy Rules shall have the meaning assigned to that term in the Bankruptcy Code or the Bankruptcy Rules, as the case may be; (x) any docket number references in the Plan shall refer to the docket number of any document Filed with the Bankruptcy Court in the Chapter 11 Cases; (xi) references to “Proofs of Claim,” “Holders of Claims,” “Disputed Claims,” and the like shall include “Proofs of Interest,” “Holders of Interests,” “Disputed Interests,” and the like as applicable; (xii) references to “shareholders,” “directors,” and/or “officers” shall also include “members” and/or “managers,” as applicable, as such terms are defined under the applicable state limited liability company laws; (xiii) any immaterial effectuating provision may be interpreted by the Debtors, or after the Effective Date, the Reorganized Debtors (in consultation with the Plan Sponsors), in such a manner that is consistent with the overall purpose and intent of the Plan all without further notice to or action, order, or approval of the Bankruptcy Court or any other Entity; and (xiv) except as otherwise provided, any references to the Effective Date shall mean the Effective Date or as soon as reasonably practicable thereafter.

 

C. Computation of Time 

 

Unless otherwise specifically stated herein, the provisions of Bankruptcy Rule 9006(a) shall apply in computing any period of time prescribed or allowed herein. If the date on which a transaction may occur pursuant to the Plan shall occur on a day that is not a Business Day, then such transaction shall instead occur on the next Business Day.

 

D. Governing Law 

 

Unless a rule of law or procedure is supplied by federal law (including the Bankruptcy Code and Bankruptcy Rules) or unless otherwise specifically stated herein, the laws of the State of Delaware, without giving effect to the principles of conflict of laws, shall govern the rights, obligations, construction, and implementation of the Plan, any agreements, documents, instruments, or contracts executed or entered into in connection with the Plan (except as otherwise set forth in those agreements, in which case the governing law of such agreement shall control); provided, that corporate or limited liability company governance matters relating to the Debtors or the Reorganized Debtors, as applicable, not incorporated or formed (as applicable) in the State of Delaware shall be governed by the laws of the state of incorporation or formation (as applicable) of the applicable Debtor or Reorganized Debtor.

 

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E. Consultation, Information, Notice, and Consent Rights 

 

Any and all consultation, information, notice, and consent rights of the Plan Sponsors set forth in the Plan Support Agreement or any Definitive Document, with respect to the form and substance of the Plan, all exhibits to the Plan, the Plan Supplement, and all other Definitive Documents, including any amendments, restatements, supplements, or other modifications to such agreements and documents, shall be incorporated herein by this reference and shall be fully enforceable as if stated herein.

 

Failure to reference the rights referred to in the immediately preceding paragraph as such rights relate to any document referenced in the Plan Support Agreement, other Definitive Document, or herein shall not impair such rights or obligations.

 

F. Reference to Monetary Figures 

 

All references in the Plan to monetary figures shall refer to currency of the United States of America, unless otherwise expressly provided herein. Any conversion required to convert foreign currency to United States dollars shall be done using the applicable exchange rates on the Petition Date.

 

G. Reference to the Debtors or the Reorganized Debtors 

 

Except as otherwise specifically provided in the Plan to the contrary, references in the Plan to the Debtors or the Reorganized Debtors shall mean the Debtors and the Reorganized Debtors, as applicable, to the extent the context requires.

 

H. Controlling Document 

 

In the event of an inconsistency between the Plan and the Disclosure Statement, the terms of the Plan shall control in all respects. In the event of an inconsistency between the Plan and the Plan Supplement, the terms of the relevant document in the Plan Supplement shall control (unless stated otherwise in such Plan Supplement document or in the Confirmation Order). In the event of an inconsistency between the Confirmation Order and the Plan, the Disclosure Statement, or the Plan Supplement, the Confirmation Order shall control.

 

Article II.
ADMINISTRATIVE CLAIMS AND PRIORITY CLAIMS

 

In accordance with section 1123(a)(1) of the Bankruptcy Code, (i) Administrative Claims, including DIP Claims, HVF Master Lease Administrative Claims, Professional Fee Claims, Canadian Fleet Financing Administrative Claims, Interim Fleet Financing Administrative Claims, and postpetition Intercompany Claims, and (ii) Priority Tax Claims have not been classified and, thus, are excluded from the classification of Claims and Interests set forth in Article III.

 

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A. Administrative Claims 

 

Except with respect to Professional Fee Claims, DIP Claims, HVF Master Lease Administrative Claims, Canadian Fleet Financing Administrative Claims, Interim Fleet Financing Administrative Claims, and Priority Tax Claims and except to the extent that an Administrative Claim has already been paid during the Chapter 11 Cases or a Holder of an Allowed Administrative Claim and the applicable Debtor, or after the Effective Date, such Holder and the applicable Reorganized Debtor agree to less favorable treatment, each Holder of an Allowed Administrative Claim shall be paid in full in Cash (i) if such Administrative Claim is Allowed as of the Effective Date, on or as soon as reasonably practicable after the Effective Date; or (ii) if such Administrative Claim is not Allowed as of the Effective Date, upon entry of an order of the Bankruptcy Court Allowing such Claim, or as soon as reasonably practicable thereafter; provided, that if an Allowed Administrative Claim arises from liabilities incurred by the Debtors’ Estates in the ordinary course of business after the Petition Date, including postpetition rent owed pursuant to assumed Unexpired Leases, such Claim shall be paid in accordance with the terms and conditions of the particular transaction giving rise to such Claim in the ordinary course.

 

Except as otherwise provided in this Article II.A or the Claims Bar Date Order, and except with respect to Administrative Claims that are Professional Fee Claims, DIP Claims, or Transaction Expenses, requests for payment of Allowed Administrative Claims must be Filed and served on the Reorganized Debtors pursuant to the procedures specified in the Confirmation Order and the notice of entry of the Confirmation Order no later than the Administrative Claims Bar Date; provided, that the Administrative Claims Bar Date does not apply to Professional Fee Claims or Administrative Claims arising in the ordinary course of business, including postpetition rent owed pursuant to assumed Unexpired Leases.

 

The Reorganized Debtors, in consultation with the Plan Sponsors, may settle Administrative Claims in the ordinary course of business without further Bankruptcy Court approval. The Debtors or the Reorganized Debtors, as applicable, may also choose to object to any Administrative Claim no later than the Administrative Claims Objection Deadline, subject to extensions by the Bankruptcy Court, agreement in writing of the parties, or on motion of a party in interest approved by the Bankruptcy Court. Unless the Debtors or the Reorganized Debtors (or other party with standing) object to a timely-Filed and properly served Administrative Claim, such Administrative Claim will be deemed Allowed in the amount requested. In the event that the Debtors or the Reorganized Debtors object to an Administrative Claim, the parties may confer to try to reach a settlement and, failing that, the Bankruptcy Court will determine whether such Administrative Claim should be Allowed and, if so, in what amount.

 

HOLDERS OF ADMINISTRATIVE CLAIMS THAT ARE REQUIRED TO, BUT DO NOT, FILE AND SERVE A REQUEST FOR PAYMENT OF SUCH ADMINISTRATIVE CLAIMS BY THE ADMINISTRATIVE CLAIMS BAR DATE SHALL BE FOREVER BARRED, ESTOPPED, AND ENJOINED FROM ASSERTING SUCH ADMINISTRATIVE CLAIMS AGAINST THE DEBTORS OR THEIR PROPERTY, AND SUCH ADMINISTRATIVE CLAIMS SHALL BE DEEMED DISCHARGED AS OF THE EFFECTIVE DATE.

 

B. DIP Claims 

 

All DIP Claims shall be deemed Allowed as of the Effective Date in an amount equal to the aggregate amount of the then outstanding DIP Obligations (as defined in the DIP Order), including (i) the principal amount outstanding under the DIP Financing on such date; (ii) all interest accrued and unpaid thereon through and including the date of payment; and (iii) all accrued and unpaid fees, expenses, and indemnification obligations payable under the DIP Documents. Except to the extent that a Holder of an Allowed DIP Claim agrees to a less favorable treatment, in full and final satisfaction, settlement, release, and discharge of, and in exchange for, each Allowed DIP Claim, each such Allowed DIP Claim shall be indefeasibly paid in full, in Cash, by the Debtors on the Effective Date or such later date as the DIP Claims become due and payable pursuant to any agreement such Holder and the Debtors or the Reorganized Debtors. Distributions to Holders of DIP Claims shall be deemed completed when made to (or at the direction of) the DIP Agent, which shall be deemed to be the Holder of such Claims for purposes of distributions to be made hereunder. Once received by the DIP Agent, distributions shall be made as soon as practicable to the Holders of Allowed DIP Claims in accordance with the DIP Credit Agreement. Contemporaneously with the foregoing payment, the DIP Financing facility and the DIP Documents shall be deemed canceled, all commitments under the DIP Documents shall be deemed terminated, all Liens on property of the Debtors and the Reorganized Debtors arising out of or related to the DIP Financing shall automatically terminate, all obligations of the Debtors or the Reorganized Debtors, as applicable, arising out of or related to the DIP Claims shall be automatically discharged and released and all collateral subject to such Liens shall be automatically released, in each case without further action by the DIP Agent or the DIP Lenders and all guarantees of the Debtors and Reorganized Debtors arising out of or related to the DIP Claims shall be automatically discharged and released, in each case without further action by the DIP Agent or the DIP Lenders. The DIP Agent and the DIP Lenders shall take all actions to effectuate and confirm such termination, release and discharge as reasonably requested by the Debtors or the Reorganized Debtors; provided, that any provisions of the “DIP Loan Documents” (as such term is defined in the DIP Order) governing the DIP Financing facility that by their terms survive the payoff and termination of such facility shall survive in accordance with the terms of such DIP Loan Documents.

 

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C. HVF Master Lease Administrative Claims 

 

As set forth in Article IV.H., infra, the repayment of the HVF II Notes (and payment of all unpaid amounts accrued pursuant to paragraph 9 of the Second Interim HVF Master Lease Settlement Order and amounts otherwise owed to the ABS Lender Professionals (as defined in the Second Interim HVF Master Lease Settlement Order), through the HVF II Notes Repayment Date) in full shall constitute the full and final satisfaction, settlement, release, and discharge of each HVF Master Lease Administrative Claim against the Debtors.

 

D. Postpetition Fleet Financing Administrative Claims 

 

Each Reorganized Debtor shall assume all of its obligations under the Canadian Fleet Financing Debtor Documents to the extent of such obligations and, as of the Effective Date, such obligations shall become obligations of such Reorganized Debtor as provided in the Canadian Fleet Financing Debtor Documents according to their terms and shall be Unimpaired. Upon such assumption, all of the Canadian Fleet Financing Administrative Claims shall be deemed satisfied in full, including any Administrative Claims granted under section 364(c) of the Bankruptcy Code.

 

To the extent HVIF does not repay in full in Cash the then-outstanding obligations with respect to the Interim Fleet Financing Notes pursuant to Article IV.H of this Plan, each Reorganized Debtor shall assume all of its obligations under the Interim Fleet Financing Debtor Facility Documents to the extent of such obligations and, as of the Effective Date, such obligations shall become obligations of such Reorganized Debtor as provided in the Interim Fleet Financing Debtor Facility Documents according to their terms and shall be Unimpaired. Upon such assumption, all of the Interim Fleet Financing Administrative Claims shall be deemed satisfied in full, including any Administrative Claims granted under section 364(c) of the Bankruptcy Code.

 

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E. Professional Fee Claims 

 

1. Final Fee Applications

 

All final requests for allowance and payment of Professional Fee Claims must be Filed with the Bankruptcy Court no later than the first Business Day that is forty-five (45) days after the Effective Date unless otherwise ordered by the Bankruptcy Court. Any objections to Professional Fee Claims shall be Filed and served no later than twenty-one (21) days after the filing of final requests for allowance and payment of Professional Fee Claims.

 

  2. Professional Fee Claims Estimate

 

Professionals shall estimate in good faith their unpaid Professional Fee Claims and other unpaid fees and expenses incurred in rendering services compensable by Debtors’ Estates before and as of the Effective Date and shall deliver such reasonable, good faith estimate to the Debtors no later than five (5) Business Days prior to the Effective Date; provided, that such estimate shall not be deemed to limit the amount of the fees and expenses that are the subject of the Professional’s final request for payment of Filed Professional Fee Claims. If a Professional does not provide an estimate, the Debtors, in consultation with the Plan Sponsors, shall estimate in good faith the unpaid and unbilled fees and expenses of such Professional.

 

3. Professional Fee Escrow

 

As soon as reasonably practicable after the Confirmation Date and no later than the Effective Date, the Debtors shall establish and fund the Professional Fee Escrow with Cash based on their evaluation of the Professional Fee Claims Estimates, and no Liens, Claims, or interests shall encumber the Professional Fee Escrow in any way (whether on account of the New Reorganized Corporate Debt, or otherwise). The Professional Fee Escrow (including funds held in the Professional Fee Escrow) (i) shall not be and shall not be deemed property of the Debtors or the Reorganized Debtors and (ii) shall be held in trust for the Professionals and for no other Person or Entity until all Professional Fee Claims have been irrevocably paid in full; provided, that funds remaining in the Professional Fee Escrow after all Allowed Professional Fee Claims have been irrevocably paid in full shall revert to the Reorganized Debtors. Allowed Professional Fee Claims shall be paid in Cash to such Professionals from funds held in the Professional Fee Escrow when such Claims are Allowed by an order of the Bankruptcy Court; provided that the Debtors’ obligations with respect to Professional Fee Claims shall not be limited nor deemed to be limited in any way to the balance of funds held in the Professional Fee Escrow.

 

If the amount of funds in the Professional Fee Escrow is insufficient to fund payment in full of all Allowed Professional Fee Claims and any other Allowed amounts owed to Professionals, the deficiency shall be promptly funded to the Professional Fee Escrow by the Reorganized Debtors without any further notice to, action, order, or approval of the Bankruptcy Court or by any other Entity.

 

4. Post-Effective Date Fees and Expenses

 

Except as otherwise specifically provided in the Plan, on and after the Effective Date, the Debtors or the Reorganized Debtors, as applicable, may, in the ordinary course of business and without any further notice to or action, order, or approval of the Bankruptcy Court, pay in Cash the reasonable and documented legal, professional, or other fees and expenses related to implementation of the Plan and Consummation incurred by the Debtors, the Reorganized Debtors, the Distribution Agent, and the GUC Oversight Administrator (solely with respect to the GUC Oversight Administrator Costs, subject to the terms of this Plan), as applicable.

 

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Upon the Effective Date, any requirement that Professionals comply with sections 327 through 331, 363, and 1103 of the Bankruptcy Code in seeking retention, compensation for services rendered, or reimbursement for expenses incurred on or after such date shall terminate, and the Debtors or the Reorganized Debtors, as applicable, may employ any Professional in the ordinary course of business without any further notice to or action, order, or approval of the Bankruptcy Court.

 

F. Priority Tax Claims 

 

Except to the extent that a Holder of an Allowed Priority Tax Claim and the applicable Debtor agree (whether before or after the Effective Date) to a less favorable treatment, in full and final satisfaction, settlement, release, and discharge of and in exchange for each Allowed Priority Tax Claim, each Holder of such Allowed Priority Tax Claim shall be treated in accordance with the terms set forth in section 1129(a)(9)(C) of the Bankruptcy Code and, for the avoidance of doubt, Holders of Allowed Priority Tax Claims will receive interest on such Allowed Priority Tax Claims after the Effective Date in accordance with sections 511 and 1129(a)(9)(C) of the Bankruptcy Code.

 

Article III.
CLASSIFICATION AND TREATMENT OF CLAIMS AND INTERESTS

 

A. Summary of Classification 

 

All Claims and Interests, except for Administrative Claims, including DIP Claims, Canadian Fleet Financing Administrative Claims, Interim Fleet Financing Administrative Claims, HVF Master Lease Administrative Claims, Professional Fee Claims, Priority Tax Claims, Transaction Expenses, and postpetition Intercompany Claims are classified in the Classes set forth in this Article III for all purposes, including voting, Confirmation, and distributions pursuant to the Plan and pursuant to sections 1122 and 1123(a)(1) of the Bankruptcy Code. A Claim or Interest is classified in a particular Class only to the extent that such Claim or Interest qualifies within the description of that Class and is classified in other Classes to the extent that any portion of such Claim or Interest qualifies within the description of such other Classes. A Claim or Interest also is classified in a particular Class for the purpose of receiving distributions pursuant to the Plan only to the extent that such Claim or Interest is an Allowed Claim or Allowed Interest in that Class and has not been paid, released, or otherwise satisfied prior to the Effective Date.

 

The classification of Claims and Interests pursuant to the Plan is as set forth below. All of the potential Classes for the Debtors are set forth herein. Certain of the Debtors may not have Claims or Interests in a particular Class or Classes, and such Claims shall be treated as set forth in Article III.B. hereof. The Plan shall constitute a separate Plan for each of the Debtors. For all purposes under the Plan, each Class contains a sub-Class for each Debtor: (i) Classes 3, 4, 5, and 6 shall be vacant for each Debtor other than Hertz Corp., the Subsidiary Guarantors and Rental Car Intermediate Holdings, LLC, and (ii) Class 12 shall be vacant for each Debtor other than Hertz Parent. Voting tabulations for recording acceptances or rejections of the Plan shall be conducted on a Debtor-by-Debtor basis as set forth above.

 

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The classification of Claims and Interests against each Debtor (as applicable) pursuant to the Plan is as follows:

 

Class Applicable Entities Claim / Interest Status Voting Rights
1 Each Debtor Other Priority Claims Unimpaired Not Entitled to Vote
(Presumed to Accept)
2 Each Debtor Other Secured Claims Unimpaired Not Entitled to Vote
(Presumed to Accept)
3 Hertz Corp., the Subsidiary Guarantors, and Rental Car Intermediate Holdings, LLC First Lien Claims Unimpaired Not Entitled to Vote
(Presumed to Accept)
4 Hertz Corp., the Subsidiary Guarantors, and Rental Car Intermediate Holdings, LLC Second Lien Note Claims Unimpaired Not Entitled to Vote
(Presumed to Accept)
5 Hertz Corp., the Subsidiary Guarantors, and Rental Car Intermediate Holdings, LLC Unsecured Funded Debt Claims Impaired Entitled to Vote
6 Hertz Corp., the Subsidiary Guarantors, and Rental Car Intermediate Holdings, LLC HHN Notes Guarantee Claims Unimpaired Not Entitled to Vote
(Presumed to Accept)
7 Each Debtor General Unsecured Claims Impaired Entitled to Vote
8 Each Debtor General Unsecured Elective Claims Unimpaired Not Entitled to Vote
(Presumed to Accept)
9 Each Debtor Prepetition Intercompany Claims Unimpaired / Impaired Not Entitled to Vote
(Presumed to Accept or Reject)
10 Each Debtor Section 510(b) Claims Impaired Not Entitled to Vote
(Presumed to Reject)
11 Each Debtor Intercompany Interests Unimpaired Not Entitled to Vote
(Presumed to Accept)
12 Hertz Parent Existing Hertz Parent Equity Interest Impaired Not Entitled to Vote
(Presumed to Reject)

 

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B. Treatment of Claims and Interests 

 

1. Class 1 – Other Priority Claims

 

a. Classification: Class 1 consists of all Other Priority Claims against each Debtor.

 

b. Treatment: Except to the extent that a Holder of an Allowed Other Priority Claim and the applicable Debtor prior to the Effective Date, or after the Effective Date, such Holder and the applicable Reorganized Debtor agree to a less favorable treatment, in full and final satisfaction, compromise, settlement, release, and discharge of and in exchange for such Allowed Other Priority Claim, each such Holder shall receive payment in full, in Cash, of the unpaid portion of its Allowed Other Priority Claim on the Effective Date or as soon thereafter as reasonably practicable (or, if payment is not then due, shall be paid in accordance with its terms in the ordinary course).

 

c. Voting: Class 1 is Unimpaired under the Plan. Each Holder of an Allowed Other Priority Claim is conclusively presumed to have accepted the Plan pursuant to section 1126(f) of the Bankruptcy Code. Therefore, Holders of Allowed Other Priority Claim are not entitled to vote to accept or reject the Plan.

 

2. Class 2 – Other Secured Claims

 

a. Classification: Class 2 consists of all Other Secured Claims against each Debtor.

 

b. Treatment: Except to the extent that a Holder of an Allowed Other Secured Claim and the applicable Debtor prior to the Effective Date, or after the Effective Date, such Holder and the applicable Reorganized Debtor agree to a less favorable treatment, in full and final satisfaction, compromise, settlement, release, and discharge of and in exchange for such Allowed Other Secured Claim, each such Holder shall receive at the applicable Debtor’s, or the applicable Reorganized Debtor’s, discretion:

 

(i) payment in full in Cash of the unpaid portion of such Holder’s Allowed Other Secured Claim on the Effective Date or as soon thereafter as reasonably practicable (or if payment is not then due, payment shall be made in accordance with its terms in the ordinary course);

 

(ii) Reinstatement of such Holder’s Allowed Other Secured Claim;

 

(iii) the applicable Debtor’s interest in the collateral securing such Holder’s Allowed Other Secured Claim; or

 

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(iv) such other treatment rendering such Holder’s Allowed Other Secured Claim Unimpaired.

 

c. Voting: Class 2 is Unimpaired under the Plan. Each Holder of an Allowed Other Secured Claim is conclusively presumed to have accepted the Plan pursuant to section 1126(f) of the Bankruptcy Code. Therefore, Holders of Allowed Other Secured Claims are not entitled to vote to accept or reject the Plan.

 

3. Class 3 - First Lien Claims

 

a. Classification: Class 3 consists of all First Lien Claims against (i) Hertz Corp.; (ii) the Subsidiary Guarantors; and (iii) Rental Car Intermediate Holdings, LLC.

 

b. Allowance: First Lien Claims shall be Allowed against Hertz Corp. and each Subsidiary Guarantor in the amount of $1,271,932,486.00, minus the First Lien Donlen Paydown Amount, plus letters of credit drawn after the Petition Date, plus the First Lien Hedge Claims, plus outstanding and accrued interest (at the non-default rate unless the Bankruptcy Court orders otherwise) and fees from the Petition Date through the Effective Date as required to render the First Lien Claims Unimpaired.

 

c. Treatment: On the Effective Date, in full and final satisfaction, compromise, settlement, release, and discharge of and in exchange for such Claim, each Holder of an Allowed First Lien Claim shall receive payment in full, in Cash, of the unpaid portion of its liquidated Allowed First Lien Claim on the Effective Date and with respect to any unliquidated Claim with respect to undrawn letters of credit shall retain all legal and equitable rights with respect to such Claims until such letters of credit are released.

 

d. Voting: Class 3 is Unimpaired under the Plan. Each Holder of an Allowed First Lien Claim is conclusively presumed to have accepted the Plan pursuant to section 1126(f) of the Bankruptcy Code. Therefore, Holders of Allowed First Lien Claims are not entitled to vote to accept or reject the Plan.

 

4. Class 4 – Second Lien Note Claims

 

a. Classification: Class 4 consists of all Second Lien Note Claims against (i) Hertz Corp. and (ii) the Subsidiary Guarantors.

 

b. Allowance: Second Lien Note Claims shall be Allowed against Hertz Corp. and each Subsidiary Guarantor in the amount of $362,750,694.00 plus accrued and outstanding interest and fees from the Petition Date through the Effective Date as required to render the Second Lien Note Claims Unimpaired.

 

c. Treatment: On the Effective Date, in full and final satisfaction, compromise, settlement, release, and discharge of and in exchange for such Claim, each Holder of an Allowed Second Lien Note Claim shall receive payment in full, in Cash of the Allowed amount of such Claim against Hertz Corp. and the Subsidiary Guarantors.

 

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d. Voting: Class 4 is Unimpaired under the Plan. Each Holder of an Allowed Second Lien Note Claim is conclusively presumed to have accepted the Plan pursuant to section 1126(f) of the Bankruptcy Code. Therefore, Holders of Allowed Second Lien Note Claims are not entitled to vote to accept or reject the Plan.

 

5. Class 5 – Unsecured Funded Debt Claims

 

a. Classification: Class 5 consists of all Unsecured Funded Debt Claims against (i) Hertz Corp.; (ii) the Subsidiary Guarantors; and (iii) solely with respect to ALOC Facility Claims, Rental Car Intermediate Holdings, LLC.

 

b. Allowance:

 

(i) Unsecured Notes Claims shall be Allowed against Hertz Corp and the Subsidiary Guarantors in the amounts set forth below:

 

Unsecured Funded Debt Claim   Allowed Amount  
5.500% Unsecured Note Claims   $ 804,522,222.00  
6.000% Unsecured Note Claims   $ 926,700,000.00  
6.250% Unsecured Note Claims   $ 503,211,806.00  
7.125% Unsecured Note Claims   $ 511,083,333.00  

 

(ii) ALOC Facility Claims shall be Allowed against Hertz Corp, the Subsidiary Guarantors, and Rental Car Intermediate Holding, LLC only to the extent determined by the Court and in no instance in more than an amount equal to the letters of credit drawn with respect to the ALOC Facility as of the Effective Date.

 

c. Treatment: On the Effective Date, in full and final satisfaction, compromise, settlement, release, and discharge of and in exchange for such Claim, each Holder of an Allowed Unsecured Funded Debt Claim against Hertz Corp., the Subsidiary Guarantors, and, as applicable, Rental Car Intermediate Holding, LLC shall receive:

 

(1) its Pro Rata share of the Unsecured Funded Debt Equity Allocation;
       
    (2) [with respect to each Eligible Unsecured Funded Debt Holder, its Pro Rata share of the Subscription Rights; and
       
    (3) with respect to each Ineligible Unsecured Funded Debt Holder, Cash with a value equal to the value of the Subscription Rights that would have been distributable to such Holder if such Holder was an Eligible Unsecured Funded Debt Holder.] 4

 

 

  4 [Note to Draft: Subject to further review and revision.]

 

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d. Voting: Class 5 is Impaired under the Plan and is entitled to vote to accept or reject the Plan.

 

6. Class 6 – HHN Notes Guarantee Claims

 

a. Classification: Class 6 consists of all HHN Notes Guarantee Claims against (i) Hertz Corp.; (ii) the Subsidiary Guarantors; and (iii) Rental Car Intermediate Holdings, LLC.

 

b. Allowance: The HHN Notes Guarantee Claims shall be Allowed against Hertz Corp., each Subsidiary Guarantor, and Rental Car Intermediate Holdings, LLC in an aggregate amount of $790,105,000.00 plus any accrued and outstanding interest and fees from the Petition Date through the Effective Date to the extent required to render the HHN Notes Guarantee Claims Unimpaired.

 

c. Treatment: On the Effective Date, in full and final satisfaction, compromise, settlement, release, and discharge of and in exchange for such Claim, each Holder of an Allowed HHN Notes Guarantee Claim shall receive payment in full in Cash of the Allowed amount of such Claim against Hertz Corp., the Subsidiary Guarantors, and Rental Car Intermediate Holdings, LLC.

 

d. Voting: Class 6 is Unimpaired under the Plan. Each Holder of an Allowed HHN Notes Guarantee Claim is conclusively presumed to have accepted the Plan pursuant to section 1126(f) of the Bankruptcy Code. Therefore, Holders of Allowed HHN Notes Guarantee Claims are not entitled to vote to accept or reject the Plan.

 

7. Class 7 – General Unsecured Claims

 

a. Classification: Class 7 consists of all General Unsecured Claims against a Debtor.

 

b. Treatment: On the Effective Date or as soon as reasonably practicable thereafter, in full and final satisfaction, compromise, settlement, release, and discharge of and in exchange for such Claims, each Holder of an Allowed General Unsecured Claim against a Debtor shall receive, subject to the General Unsecured Elective Claim election, its Pro Rata share of the General Unsecured Recovery Cash Pool Amount without regard to the particular Debtor against which such Claim is Allowed; provided, that, no Holder of an Allowed General Unsecured Claim shall receive a recovery that exceeds seventy-five (75%) percent of the Allowed amount of its General Unsecured Claim.

 

c. Voting: Class 7 is Impaired under the Plan and is entitled to vote to accept or reject the Plan.

 

8. Class 8 – General Unsecured Elective Claims

 

a. Classification: Class 8 consists of all General Unsecured Elective Claims against a Debtor.

 

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b. Treatment: Except to the extent that a Holder of an Allowed General Unsecured Elective Claim agrees to less favorable treatment, each Holder of an Allowed General Unsecured Elective Claims shall receive, on the Effective Date or as soon as practical thereafter, in full and final satisfaction, compromise, settlement, release, and discharge of and in exchange for such Allowed General Unsecured Elective Claim, Cash in an amount equal to the lesser of (a) the Allowed amount of such Holder’s General Unsecured Elective Claim and (b) [●] without regard to the particular Debtor against which such Claim is Allowed. The treatment provided to General Unsecured Elective Claims shall be funded from the General Unsecured Recovery Cash Pool Account. Each Holder electing to be treated as a Holder of an Allowed General Unsecured Elective Claim shall irrevocably waive the right to assert such Claim as a General Unsecured Claim.

 

c. Voting: Class 8 is Unimpaired under the Plan and is not entitled to vote to accept or reject the Plan.

 

9. Class 9 – Prepetition Intercompany Claims

 

a. Classification: Class 9 consists of all prepetition Intercompany Claims.

 

b. Treatment: Each prepetition Intercompany Claim shall be, at the option of Debtors or Reorganized Debtors as applicable (in consultation with the Plan Sponsors), either:

 

(i) Reinstated; or

 

(ii) canceled and released without any distribution on account of such Claims;

 

provided, however, that Intercompany Claims of HIRE (Bermuda) Limited against Hertz Corp. shall be Reinstated.

 

c. Voting: Holders of Claims in Class 9 are conclusively presumed to have accepted or rejected the Plan pursuant to section 1126(f) or section 1126(g) of the Bankruptcy Code, respectively. Therefore, such Holders are not entitled to vote or accept or reject the Plan.

 

10. Class 10 – Section 510(b) Claims

 

a. Classification: Class 10 consists of all Section 510(b) Claims against a Debtor.

 

b. Treatment: Section 510(b) Claims will be canceled, released, discharged, and extinguished as of the Effective Date, and will be of no further force or effect, and Holders of Section 510(b) Claims will not receive any distribution on account of such Claims.

 

c. Voting: Holders of Claims in Class 10 are conclusively presumed to have rejected the Plan pursuant to section 1126(g) of the Bankruptcy Code. Therefore, Holders of Section 510(b) Claims are not entitled to vote to accept or reject the Plan.

 

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11. Class 11 – Intercompany Interests

 

a. Classification: Class 11 consists of all Intercompany Interests held by a Debtor in another Debtor.

 

b. Treatment: Intercompany Interests shall be Reinstated so as to maintain the organizational structure of the Debtors as such structure exists on the Effective Date unless implementation of the Restructuring requires otherwise.

 

c. Voting: Class 11 is Unimpaired under the Plan. Each Holder of an Intercompany Interest is conclusively presumed to have accepted the Plan pursuant to section 1126(f) of the Bankruptcy Code. Therefore, Holders of Intercompany Interests are not entitled to vote to accept or reject the Plan.

 

12. Class 12 – Existing Hertz Parent Interests

 

a. Classification: Class 12 consists of all Existing Hertz Parent Interests.

 

b. Treatment: Existing Hertz Parent Interests shall be cancelled and released without any distribution on account of such Interests.

 

c. Voting: Class 12 is Impaired under the Plan. Each Holder of an Existing Hertz Parent Interest is conclusively presumed to have rejected the Plan pursuant to section 1126(g) of the Bankruptcy Code. Therefore, Holders of Existing Hertz Parent Interests are not entitled to vote to accept or reject the Plan.

 

C. Special Provision Governing Unimpaired Claims 

 

Except as otherwise specifically provided in the Plan, nothing herein shall be deemed to affect, diminish, or impair the Debtors’ or the Reorganized Debtors’ rights and defenses, both legal and equitable, with respect to any Reinstated Claim or otherwise Unimpaired Claim, including legal and equitable defenses to setoffs or recoupment against Reinstated Claims or otherwise Unimpaired Claims; and, except as otherwise specifically provided in the Plan, nothing herein shall be deemed to be a waiver or relinquishment of any Claim, Cause of Action, right of setoff, or other legal or equitable defense that the Debtors had immediately prior to the Petition Date, against or with respect to any Claim that is Unimpaired by the Plan. Except as otherwise specifically provided in the Plan, the Reorganized Debtors shall have, retain, reserve, and be entitled to assert all such Claims, Causes of Action, rights of setoff, and other legal or equitable defenses that the Debtors had immediately prior to the Petition Date fully as if the Chapter 11 Cases had not been commenced, and all of the Reorganized Debtors’ legal and equitable rights and defenses with respect to any Reinstated Claim or otherwise Unimpaired Claim may be asserted after the Confirmation Date and the Effective Date to the same extent as if the Chapter 11 Cases had not been commenced.

 

D. Confirmation Pursuant to Sections 1129(a)(10) and 1129(b) of the Bankruptcy Code 

 

Section 1129(a)(10) of the Bankruptcy Code shall be satisfied for purposes of Confirmation by acceptance of the Plan by an Impaired Class of Claims. The Debtors shall seek Confirmation of the Plan pursuant to section 1129(b) of the Bankruptcy Code with respect to any rejecting Class of Claims or Interests.

 

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E. Elimination of Vacant Classes 

 

Any Class of Claims or Interests that does not have a Holder of an Allowed Claim or Allowed Interest or a Claim or Interest temporarily Allowed by the Bankruptcy Court as of the date of the Confirmation Hearing shall be deemed eliminated from the Plan for purposes of voting to accept or reject the Plan and for purposes of determining acceptance or rejection of the Plan by such Class pursuant to section 1129(a)(8) of the Bankruptcy Code.

 

F. Separate Classification of Other Secured Claims 

 

Each Other Secured Claim, to the extent secured by a Lien on collateral different from the Collateral securing another Other Secured Claim, shall be treated as being in a separate sub-Class for purposes of receiving distributions under this Plan.

 

G. Voting Classes; Presumed Acceptance by Non-Voting Classes 

 

If a Class contains Claims or Interests eligible to vote and no Holders of Claims or Interests eligible to vote in such Class vote to accept or reject the Plan, the Plan shall be presumed accepted by the Holders of such Claims or Interests in such Class.

 

H. Controversy Concerning Impairment 

 

If a controversy arises as to whether any Claims or Interests, or any Class of Claims or Interests, are Impaired, the Bankruptcy Court shall, after notice and a hearing, determine such controversy on or before the Confirmation Date.

 

Article IV.
MEANS FOR IMPLEMENTATION OF THE PLAN

 

A. No Substantive Consolidation 

 

The Plan is being proposed as a joint plan of reorganization of the Debtors for administrative purposes only and constitutes a separate chapter 11 plan of reorganization for each Debtor. The Plan is not premised upon the substantive consolidation of the Debtors with respect to the Classes of Claims or Interests set forth in the Plan.

 

B. Restructuring Transactions; Effectuating Documents 

 

Prior to, on, or after the Effective Date, the Debtors or the Reorganized Debtors, as applicable, may take any and all actions as may be necessary or appropriate in the Debtors’ reasonable discretion to effectuate the Restructuring Transactions described in, approved by, contemplated by, or necessary to effectuate the Plan, in accordance with the Plan Support Agreement, including: (i) the execution and delivery of any New Organizational Documents, including any appropriate agreements or other documents of merger, amalgamation, consolidation, restructuring, conversion, disposition, transfer, formation, organization, arrangement, continuance, dissolution, sale, purchase, or liquidation, in each case, containing terms that are consistent with the terms of the Plan; (ii) the execution and delivery of appropriate instruments of transfer, assignment, assumption, or delegation of any asset, property, right, liability, debt, or obligation on terms consistent with the terms of the Plan; (iii) the filing