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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 19, 2021 (April 14, 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.

 

As previously disclosed, 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”) had 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 Debtors have entered into a Joinder Agreement, dated as of April 14, 2021 (the “Joinder”), in respect of the Plan Support Agreement with (a) the Plan Sponsors and (b) the official committee of unsecured creditors in the Chapter 11 Cases (the “Committee”). Pursuant to the Joinder, the Committee has agreed to take certain actions to support the prosecution and consummation of the Proposed Plan on the terms and conditions set forth in the Joinder and the Plan Support Agreement, as modified by the Joinder.

 

The foregoing summary of the Joinder has been included to provide investors and security holders with information regarding its terms and is qualified in its entirety by the terms and conditions of the Joinder, a copy of which is attached hereto as Exhibit 10.1 and which is incorporated herein by reference. The representations, warranties and covenants contained in the Joinder have been made solely for the purpose of the Joinder 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 Joinder which may differ from what may be viewed as material by investors, and (iii) have been included in the Joinder 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 Joinder, which subsequent information may or may not be fully reflected in the Company’s public disclosures. The Proposed Plan (as defined below), the Plan Support Agreement and the Joinder are subject to approval by the Bankruptcy Court.

 

2 

 

 

Item 7.01 Regulation FD Disclosure.

 

On May 22, 2020 (the “Petition Date”), 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, and filed a proposed Second Amended Joint Chapter 11 Plan of Reorganization of the Debtors and a related proposed Disclosure Statement, in each case dated as of April 3, 2021. The Debtors filed a proposed Second Modified Second Amended Joint Chapter 11 Plan of Reorganization of the Debtors on April 14, 2021, and a related proposed form of Disclosure Statement on April 15, 2021.  On April 16 2021, the Debtors filed a proposed Third Modified 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”). The information contained in this Item 7.01 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.

 

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.

 

The Proposed Plan and the related Proposed Disclosure Statement describe, 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.).

 

At a hearing in the Chapter 11 Cases on April 16, 2021, the Bankruptcy Court adjourned, among other things, its consideration of approval of the adequacy of the Debtors’ Proposed Disclosure Statement and the procedures to be used in connection with the solicitation of votes on the Proposed Plan to April 21, 2021.

 

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 has been submitted to the Bankruptcy Court for approval but has not been approved by the Bankruptcy Court to date.

 

If the Bankruptcy Court enters an order approving the adequacy of the Proposed Disclosure Statement, the Debtors can then commence solicitation of votes from their creditors for approval of the Proposed Plan. The Proposed Disclosure Statement remains subject to Bankruptcy Court approval and consummation of the Proposed Plan is subject to Bankruptcy Court approval and satisfaction of other conditions. The Debtors’ proposed confirmation timeline, which is subject to change and approval of the Bankruptcy Court, currently contemplates that a hearing to consider confirmation of the Proposed Plan will occur on or around June 10, 2021.

 

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 until approved by the Bankruptcy Court. The documents and other information available via website or elsewhere are not part of this Current Report and shall not be deemed incorporated herein.

 

On April 15, 2021, THC entered into a commitment letter (the “Exit Credit Facilities Commitment Letter”) with Barclays Bank PLC, Deutsche Bank AG, New York Branch, Deutsche Bank Securities Inc., BNP Paribas, BNP Paribas Securities Corp., Royal Bank of Canada (acting through such of its affiliates or branches as it deems appropriate), RBC Capital Markets (which is the brand name for the capital markets business of Royal Bank of Canada and its affiliates), and Citizens Bank, N.A. (collectively, the “Commitment Parties”). Pursuant to the Exit Credit Facilities Commitment Letter, THC has obtained commitments with respect to (x) a senior secured revolving credit facility in an aggregate principal amount of $1,500,000,000 (the “Revolving Credit Facility”) and (y) a senior secured term loan facility in an aggregate principal amount of $1,300,000,000 (the “Term Loan Facility”, and together with the Revolving Credit Facility, the “ Exit Credit Facilities”).The Borrower’s obligations under the Exit Credit Facilities Commitment Letter are subject in all respects to receipt of approval of the Exit Credit Facilities Commitment Letter by the Bankruptcy Court.

 

3 

 

 

Borrowings under the Revolving Credit Facility would bear interest, at the option of THC, (i) in the case of U.S. dollar-denominated loans, at LIBOR, subject to a customary adjustment (“Adjusted LIBOR”), plus a margin of between 1.50% to 3.50% per annum, which is determined based on THC’s leverage ratio and is subject to adjustment from time to time based upon THC’s corporate credit rating (the “Applicable Margin”), or the applicable benchmark rate (“ABR”) plus the Applicable Margin, (ii) in the case of Canadian dollar-denominated loans, at CDOR, plus the Applicable Margin, or the Canadian prime rate, plus the Applicable Margin, and (iii) in the case of Euro-denominated loans, Sterling-denominated loans, and Australian dollar-denominated loans, at ABR, plus the Applicable Margin. The interest rates under the Term Loan Facility will be, at the option of THC, Adjusted LIBOR, plus the Applicable Margin or ABR, plus the Applicable Margin. The Revolving Credit Facility and the Term Loan Facility mature in five years and seven years, respectively.

 

The Exit Credit Facilities will contain customary conditions precedent, representations and warranties, mandatory prepayments, affirmative and negative covenants, and events of default customary for financings of this type, subject to certain carve-outs and exceptions. The Exit Credit Facilities will be secured by, subject to permitted liens and other exceptions, substantially all of the present and after acquired assets of each of THC and the guarantors of the Exit Credit Facilities.

 

The commitment to provide the Exit Credit Facilities is subject to customary conditions, including customary closing documentation, financial reporting, perfection of security interests and minimum liquidity of $800,000,000. THC will pay fees and expenses in connection with obtaining the Exit Credit Facilities. The Revolving Credit Facility is subject to a commitment fee with respect to unutilized amounts.

 

On April 15, 2021, THC entered into a commitment letter (the “ABS Commitment Letter”) with Deutsche Bank AG, New York Branch, Barclays Bank PLC, BNP Paribas, Citizens Bank, N.A., and Royal Bank of Canada (collectively, the “ABS Commitment Parties”). Pursuant to the ABS Commitment Letter, THC has obtained commitments for a secured rental car asset-backed securities facility (the “ABS Facility”) in an aggregate amount of $7.0 billion. Certain of the proceeds of the ABS Facility would be used to repay outstanding vehicle financing facilities and to support THC’s fleet financing needs for its U.S. rental car operations. The ABS Facility will be comprised of (x) a secured rental car asset-backed variable funding note financing in the aggregate amount of $3.0 billion (the “VFN Facility”) and (y) a secured rental car asset-backed bridge financing in an aggregate amount of up to $4.0 billion (the “Bridge Facility”).The Borrower’s obligations under the ABS Commitment Letter are subject in all respects to receipt of approval of the ABS Commitment Letter by the Bankruptcy Court.

 

The VFN Facility will consist of two classes of notes, the Class A Notes and Class B Notes. The Class A Notes will bear interest at a rate of one-month LIBOR plus 1.50% and will constitute the majority of the VFN Facility. The Class B Notes will bear a fixed interest rate to be determined. The VFN Facility will be a two-year facility with a 36 month legal final payment date.

 

The Bridge Facility will bear interest at a rate of one-month LIBOR plus a margin of between 1.75% and 3.25%, depending on the usage of the Bridge Facility. The Bridge Facility will be a 364-day facility.

 

The ABS Facility will contain customary conditions precedent, representations and warranties, mandatory prepayments, affirmative and negative covenants, and amortization events customary for financings of this type and substantively similar to THC’s securitization program established in 2013 by Hertz Vehicle Financing II LP (the “HVF II Facility”).

 

The commitment to provide the ABS Facility is subject to customary conditions, including the simultaneous repayment of the HVF II Facility, the satisfaction of conditions precedent set forth in the transaction documents for the ABS Facility and the satisfaction (or waiver by the ABS Commitment Parties) of conditions precedent set forth in the Exit Credit Facilities Commitment Letter. THC will pay fees and expenses in connection with obtaining the ABS Facility.

 

The foregoing descriptions of the Exit Credit Facilities Commitment Letter and the ABS Commitment Letter and the transactions contemplated by each of them are subject to, and qualified in their entirety by, the full text of the Exit Credit Facilities Commitment Letter and the ABS Commitment Letter, copies of which may be obtained from the website of the Debtors’ claims and noticing agent at https://restructuring.primeclerk.com/hertz and which are hereby incorporated by reference in this Item 8.01. Except as otherwise described herein, the other information on such web site is not incorporated by reference into, and does not constitute part of, this Form 8-K.

 

4 

 

 

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   Joinder Agreement, dated as of April 14, 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)

 

5 

 

 

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 19, 2021

 

6 

 

Exhibit 10.1

 

JOINDER AGREEMENT IN RESPECT OF PLAN SUPPORT AGREEMENT

 

This JOINDER AGREEMENT, dated as of April 14, 2021 (this “Joinder”), in respect of the Plan Support Agreement, dated as of April 3, 2021 (as amended, modified, and/or supplemented from time to time, including by this Joinder, the “Plan Support Agreement” or the “Agreement”),1 is made and entered into by:

 

 

(a)

the original Parties (as defined in the Agreement) who were party to the Plan Support Agreement as of April 3, 2021; and

 

 

(b)

the official committee of unsecured creditors in the Chapter 11 Cases (as defined in the Agreement), in its capacity as an official committee, and not any members of the Committee in their individual capacities (the “Committee”).

 

The foregoing parties identified in clauses (a) through (b) are referred to collectively in this Joinder as the “Joinder Parties” and each individually as a “Joinder Party.”

 

RECITALS

 

WHEREAS, pursuant to this Joinder, the Joinder Parties desire (a) that the Agreement be amended to effectuate certain limited modifications necessary to implement this Joinder, and (b) that the Plan and other Definitive Documents be amended to reflect certain terms, as set forth herein; and

 

WHEREAS, Section 9 of the Agreement permits modifications, amendments, waivers, or supplements to the Agreement under specified circumstances.

 

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 Joinder Party, intending to be legally bound hereby, agrees as follows:

 

1.           Exhibits to Plan Support Agreement. The Joinder Parties agree that the Agreement shall be deemed amended, as follows:

 

a.        Plan. Subject to the terms hereof, Exhibit C to the Agreement shall be amended and restated in the form attached as Exhibit A to this Joinder (as may be amended, supplemented or modified in accordance with the terms of the Plan Support Agreement, the “Amended Plan”) and all references to the “Plan” throughout the Plan Support Agreement (including, for the avoidance of doubt, in this Joinder) shall be deemed to refer to the Amended Plan.

 

 

 

1 Capitalized terms used but not otherwise defined in this Joinder have the meanings ascribed to such terms in the Plan Support Agreement.
 
 

b.            Rights Offering Procedures. Subject to the terms hereof, the Joinder Parties consent to the Rights Offering Procedures in the form attached as Exhibit B to this Amendment (as may be amended, supplemented or modified in accordance with the terms of the Agreement, the “Amended Rights Offering Procedures”), and all references to the “Rights Offering Procedures” throughout the Agreement shall be deemed to refer to the Amended Rights Offering Procedures. The Disclosure Statement, Disclosure Statement Order, Solicitation Materials subscription agreement, subscription form and other documents implementing the Rights Offering shall be amended in a manner consistent with the Amended Plan, Amended Rights Offering Procedures and otherwise reasonably acceptable to the Committee.

 

c.            EPCA. The Amended Plan, the Amended Rights Offering Procedures and this Joinder reflect terms negotiated between the Joinder Parties. Notwithstanding anything contained in the Plan Support Agreement to the contrary, to the extent of any inconsistency between the Amended Plan and/or Amended Rights Offering Procedures, on the one hand, and the EPCA, on the other hand, on the other, and such inconsistency has bearing (directly or indirectly) on the rights or obligations of the Committee under the Plan Support Agreement, the Amended Plan and/or Amended Rights Offering Procedures shall control for purposes of the rights or obligations of the Committee; provided that, for the avoidance of doubt, the Committee has no rights or obligations under the EPCA and nothing in this Joinder or the Agreement shall amend or modify the EPCA as to the parties thereto.

 

d.            References to Agreement. All references to the “Agreement” or to “Plan Support Agreement” in the Plan Support Agreement (including, for the avoidance of doubt, in this Joinder) shall be deemed to refer to the Plan Support Agreement as amended and supplemented by this Joinder.

 

2.            Joinder Party Mutual Representations.

 

Each of the Joinder Parties represents, warrants, and covenants to each other Joinder Party, that, as of the date hereof, such Joinder Party makes, as of the date hereof, the representations and warranties set forth in Sections 7(a)(1)-(4) of the Plan Support Agreement to each other Party, replacing each reference therein to the Agreement with references to this Joinder.

 

Additionally, each of the Consenting Noteholders party hereto, represents, warrants and covenants to each other Joinder Party, that as of the date hereof, such Consenting Noteholder makes as of the date hereof, the representations and warranties set forth in Section 7(b) of the Agreement to each other Party, replacing (i) each reference therein to the Agreement with references to this Joinder and (ii) each reference therein to Claims with references to Senior Notes and ALOC Claims.

 

3.            Obligations of Committee.

 

a.            Notwithstanding anything to the contrary in the Agreement, the obligations of the Committee under the Agreement shall be exclusively limited to the obligations expressly set forth in this Joinder and not any other obligations in the Agreement.

 

b.            For the avoidance of doubt, (i) the obligations under the Agreement applicable to the Committee shall not be construed to bind any individual member of the Committee in its individual capacity, and (ii) the obligations under the Agreement that are applicable to an individual member of the Committee that has separately executed the Agreement or a joinder to the Agreement shall not be construed to bind the Committee. All members of the Committee reserve and retain their individual rights, whatever they may be, with respect to the Agreement and any motions filed before the Bankruptcy Court.

 
 

c.         The Committee agrees to comply with the covenants of the Committee set forth in Sections 5(a)(1), 5(a)(2)(i), 5(a)(3) - 5(a)(4), 5(a)(6)-(8) and 5(e)(3) of the Agreement.

 

d.         The Committee agrees, during the period beginning on the Agreement Effective Date and ending on the Termination Date applicable to the Committee, to:

 

i.             support the Restructuring, the Plan, and consummation of the transactions described in the Definitive Documents, including by (i) delivering a draft two (2) business days prior to the Disclosure Statement hearing, filing in the Chapter 11 Cases, and delivering to counsel to the Debtors to include in the Solicitation Materials, a letter of the Committee’s support for the Plan and the Committee’s recommendation that holders of unsecured Claims against the Debtors vote to accept the Plan; and (ii) not objecting to or otherwise directly or indirectly interfering with the Debtors’ plan exclusivity;

 

ii.            not solicit, propose, file, support, consent to, encourage, or take any action in furtherance of any Alternative Transaction (but without limiting the consent, approval, or termination rights provided in the Agreement); provided, however, notwithstanding anything to the contrary in the Agreement, if, following the Committee Effective Date, the Committee or any Debtor receives a bona fide written proposal, expression of interest or offer for an Alternative Transaction (an “Alternative Transaction Committee Proposal”) from any Person not solicited in violation of this Section 3(d)(ii) or, to the Committee’s actual knowledge, Section 5(f)(24) of the Agreement, the Committee may, directly or indirectly through its Representatives, (i) contact any Person that has made an unsolicited Alternative Transaction Committee Proposal (and its advisors) for the purpose of clarifying the proposal and any terms thereof and whether it could reasonably be expected to meet the standards set forth in clauses (x), (y) and (z) of this Section 3(d)(ii), so as to determine whether such proposal constitutes, or could reasonably be expected to lead to, a Superior Committee Proposal (as defined below) or (ii) if the Committee shall have determined in good faith and, after considering the advice of its counsel and independent financial advisor(s), that (A) such Alternative Transaction Committee Proposal, constitutes, or could reasonably be expected to result in, a transaction that: (x) would be in the best interests of holders of unsecured Claims against the Debtors, (y) would reasonably be expected to provide each class of unsecured creditors either treatment sufficient to unimpair the Claims in such class or to provide distributions with a value materially in excess of the distributions provided to such class under the transactions contemplated under the Agreement and (z) is at least as feasible and as likely to achieve confirmation and consummation as the transactions contemplated under the Agreement (a “Superior Committee Transaction”) and, (B) in any case, that failure of the Committee to pursue such Alternative Transaction Committee Proposal would reasonably be expected to result in a breach of the Committee’s fiduciary duties under applicable laws (a “Superior Committee Proposal”), the Committee may, in response to such Superior Committee Proposal, engage or participate in discussions and negotiations with such Person, the Debtors and/or the Plan Sponsors regarding such Superior Committee Proposal; provided, further, that, subject to any confidentiality restrictions under which the proposal was submitted, (i) the Committee shall provide (A) notice of each Alternative Transaction Committee Proposal to the Company and each of the Plan Sponsors within 24 hours after the time of receipt of such Alternative Transaction Committee Proposal and (B) a copy of each written Alternative Transaction Committee Proposal, (ii) the Committee shall also notify the Company and each of the Plan Sponsors promptly if the Committee determines that an Alternative Transaction Committee Proposal is a Superior Committee Proposal (and the rationale therefore) no later than 24 hours following such determination, and (iii) if the Committee determines that an Alternative Transaction Committee Proposal is a Superior Committee Proposal, the Committee shall inform counsel to the Company and the Plan Sponsors promptly upon the Committee’s receipt of definitive documents to implement such Superior Committee Proposal. Upon a receipt of a notice from the Committee pursuant to the preceding clause (ii) of its determination that an Alternative Transaction Committee Proposal is a Superior Committee Proposal, the Company and / or Plan Sponsors shall have five (5) Business Days to notify the Committee if they disagree with such determination and include in such notice the basis for such disagreement. If the Company and Plan Sponsors do not provide such notice, then such Alternative Transaction Committee Proposal shall be deemed a Superior Committee Proposal for purposes of the Agreement; and

 
 

iii.           not object to the Mandatory Payment Notice for the Donlen Sale [D.I. 3684] or the distribution of funds as contemplated therein.

 

e.         The obligations of the Committee under the Agreement shall not limit any of the Committee’s rights:

 

i.             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 the Agreement or the Plan and do not hinder, delay or prevent consummation of the Restructuring;

 

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

 

iii.           to enforce any right, remedy, condition, consent or approval requirement under the Agreement or any of the Definitive Documents by or on behalf of itself or any class of unsecured creditors.

 

f.          Notwithstanding anything contained in the Agreement to the contrary, specific performance and injunctive or other equitable relief and the right to terminate the Agreement in accordance with the terms and provisions thereof shall be the sole and exclusive remedies for any breach of this Agreement by the Committee, and no Party (or any other person) shall be entitled to monetary damages for any breach by the Committee of any provision of the Agreement.

 
 

g.        Notwithstanding anything to the contrary in the Agreement, nothing in the Agreement, the Plan, or anything included in any Definitive Document shall prevent the Committee from taking any action which is aimed at preserving the estimated 82% recovery for Allowed General Unsecured Claims under the Amended Plan, including reviewing, analyzing, defending, objecting and/or responding to any motion, issue or claim that arises in connection with the Chapter 11 Cases that may directly or indirectly impact that estimated recovery.

 

4.           Rights of Committee. The Joinder Parties agree that the Agreement is hereby deemed amended:

 

a.            to provide that none of the Agreement, the Plan or the Rights Offering Procedures may be amended, supplemented, modified or waived without the prior written consent of the Committee, to the extent such amendment, supplement, modification or waiver affects the rights or obligations of the Committee or materially impairs distributions under the Plan to any class of unsecured creditors;

 

b.            to provide the Committee with the same rights as are provided to the Plan Sponsors, PE Sponsors, Requisite Consenting Noteholders and/or Requisite Commitment Parties in the following Sections of the Agreement: 5(a)(6), 5(f)(7), 5(f)(12), 5(f)(13), 5(f)(14), and 5(f)(17);

 

c.            to permit the Committee to take into account the interests of all unsecured Claims against the Debtors (not just those of the Consenting Noteholders), including, without limitation, for purposes of Sections 5(a)(6) and 5(f)(12);

 

d.            to include a covenant by the Debtors and Plan Sponsors to (A) consult in good faith with the Committee regarding the form and substance of any material amendment, supplement, waiver or other modification to or under (or deviation from) the Amended Plan, the Amended Rights Offering Procedures, any other Definitive Document or the Agreement (each, a “Material Modification”) as soon as reasonably practicable, (B) provide the Committee drafts of any Material Modification no later than five (5) Business Days prior to the date the Company intends to file such Material Modification with the Bankruptcy Court, to the extent reasonably practicable, and (C) provide the Committee at least five (5) days advance notice of all other amendments, supplements, waivers or other modifications to or under (or deviations from) the Definitive Documents or the Agreement, to the extent reasonably practicable.

 

5.           Committee Termination Events.

 

a.        The Joinder Parties agree that the Agreement is hereby deemed amended to grant to the Committee the rights to terminate the Agreement (solely with respect to itself) granted (i) to PE Sponsors or the Requisite Consenting Noteholders under clauses (2), (5) - (7), (12) and (14) of Section 8(a) of the Agreement or (ii) to the Debtors under clauses (2), and (10) of Section 8(d) of the Agreement; provided that the Committee determines in good faith that the occurrence of such Committee Termination Event has had, or is reasonably likely to have, a material adverse effect on the rights, interests or treatment of the Committee or any class of unsecured creditors. In furtherance of the foregoing, each such Termination Event is hereby deemed incorporated as an independent additional Committee Termination Event under Section 8(c) of the Agreement, mutatis mutandis.

 
 

b.         The Committee may terminate the Agreement (including, for the avoidance of doubt, this Joinder) as 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) of the Agreement, upon the occurrence of any of the following events, each of which is hereby incorporated as an independent additional Committee Termination Event under Section 8(c) of the Agreement and shall replace and supersede the Committee Termination Events set forth in Section 8(c) of the Agreement in effect prior to the Joinder Effective Date in their entirety:

 

i.             any of the Committee Termination Events described in Section 5(a) of this Joinder and the Committee determines in good faith that the occurrence of such Committee Termination Event has had, or is reasonably likely to have, a material adverse effect on the rights, interests or treatment of the Committee or any class of unsecured creditors;

 

ii.            the Committee determines in good faith, based upon advice of counsel, that, in light of a Superior Committee Proposal received in compliance with Section 3(d)(ii) of this Joinder, continuing to support the Restructuring would be inconsistent with the exercise of its fiduciary duties under applicable law; provided that, for purposes of considering whether any potential treatment or distribution would reasonably be expected to satisfy the standards set forth in clauses (x), (y) and (z) of Section 3(d)(ii) of this Joinder, the Committee shall consider the reasonably expected cost and delay of obtaining such treatment or distribution and the risk of forgoing the treatment of holders of unsecured Claims against the Debtors under the Plan, including the risk of implementing and closing the Superior Committee Proposal; and provided, further, that the Committee shall give prompt written notice to counsel to the Debtors and Plan Sponsors of any determination in accordance with this Section 5(b)(ii) (electronic mail among counsel being sufficient);

 

iii.           the treatment of the unsecured Claims in the Plan for any class of unsecured creditors is materially and adversely modified or otherwise materially and adversely deviates from that specified in the Amended Plan;

 

iv.           any of the Debtors or the Plan Sponsors proposes or explicitly supports any Alternative Transaction that proposes treatment for any class of unsecured creditors that materially and adversely deviates from the treatment specified in the Amended Plan;

 

v.            any Definitive Document is amended, submitted, modified, or supplemented or any provisions contained therein are waived in a manner that materially and adversely affects the rights, interests or treatment of the Committee or any class of unsecured creditors, as compared to such treatment as set out in the Amended Plan, the Amended Rights Offering Procedures or the Agreement, without the consent of the Committee, and such amendment remains in effect for five (5) Business Days after the Committee transmits a written notice to the other Joinder Parties;

 
 

vi.           the Agreement is amended, supplemented or modified (or a waiver granted thereunder) without the prior written consent of the Committee and the Committee determines in good faith that such amendment, supplement or waiver has a material and adverse effect on the rights, interests or treatment of the Committee or any class of unsecured creditors;

 

vii.          the breach by any Debtor or Plan Sponsor 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 affect the rights, interest or treatment of the Committee or any class of unsecured creditors 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 Committee, other than a breach that is incurable, for which no cure period shall be required or apply; provided that a breach by an individual Consenting Noteholder of the type specified in the proviso to Section 8(d)(1) of the Agreement may be cured in in such manner and within such time as set forth in such proviso;

 

viii.         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 Committee;

 

ix.           the Confirmation Order has not been entered by the Bankruptcy Court by November 22, 2021; or

 

x.            the Effective Date shall not have occurred by January 1, 2022.

 

6.           Effectiveness of Amendment. This Joinder shall be effective on the date upon which each of the Debtors, the Committee and the Requisite Commitment Parties shall have executed and delivered counterpart signature pages of this Joinder to counsel to each of the other Joinder Parties (the “Joinder Effective Date”). For purposes of the Agreement, the Joinder Effective Date shall be deemed the Committee Effective Date. The Debtors shall file the Amended Plan and Amended Rights Offering Procedures with the Bankruptcy Court within one (1) Business Day of the Joinder Effective Date.

 

7.           Miscellaneous.

 

a.         Sections 11(b)-(o) are hereby incorporated into this Joinder, mutatis mutandis.

 

b.         Copies of all notices to Committee pursuant to the Agreement shall be sent by email to acaton@kramerlevin.com, tmayer@kramerlevin.com, and abyowitz@kramerlevin.com.

 

c.          Interpretation.

 

i.             On and after the Joinder Effective Date, whenever the Plan Support Agreement is referred to in any agreements, documents, or instruments, such reference shall be deemed to be to the Plan Support Agreement as amended by this Joinder. Without limiting the foregoing, references to the Plan Support Agreement and this Joinder include each of their exhibits, annexes, and schedules.

 
 

ii.            For the avoidance of doubt, any consent, consultation, information, termination or other right provided to the Committee under the Agreement (including, for the avoidance of doubt, as amended by this Joinder) shall be cumulative to, and not in lieu of, any other consent, consultation, information, termination or other right provided to the Committee under the Agreement or otherwise.

 

d.           Ratification. This Joinder constitutes a valid amendment and supplement to the Plan Support Agreement in accordance with its terms.

 

e.           Acknowledgement Regarding Termination Rights. This Joinder is being effectuated in accordance with the Plan Support Agreement and therefore, shall not constitute a termination event thereunder or otherwise constitute a breach by any of the Parties under the Plan Support Agreement.

 

[Signature pages follow.]

 
 

IN WITNESS WHEREOF, the parties hereto have caused this Joinder 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 Joinder Agreement in Respect of 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 Joinder Agreement in Respect of 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 Joinder Agreement in Respect of 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 Joinder Agreement in Respect of 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 Joinder Agreement in Respect of 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 Joinder Agreement in Respect of 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 Joinder Agreement in Respect of 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 Joinder Agreement in Respect of Plan Support Agreement]

 

Committee Signature Page to Joinder Agreement in Respect of Plan Support Agreement

 

OFFICIAL COMMITTEE OF UNSECURED CREDITORS IN IN RE THE HERTZ CORPORATION, ET AL., 20-11218 (MFW) (BANKR. DISTRICT OF DELAWARE)
   
/s/ Amy Caton  
Name: Amy Caton  
Title:   Counsel to the Official Committee of Unsecured Creditors  
 
Address:  
   
E-mail address(es): acaton@kramerlevin.com  

 

  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: /s/ Bao Truong
  Name: Bao Truong
  Title: Authorised 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 Joinder 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 Page to Joinder 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 Page to Joinder 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.co

 

[Signature Page to Joinder to Plan Support Agreement]

 

Initial Consenting Noteholder Signature Page to Joinder Agreement in Respect of Plan Support Agreement

 

INITIAL CONSENTING NOTEHOLDER  
   
400 Capital Management LLC  
   
By: /s/ Sang Kim  
Name: Sang Kim  
Title: Chief Financial Officer  

 

Initial Consenting Noteholder Signature Page to Joinder Agreement in Respect of Plan Support Agreement

 

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

 

Initial Consenting Noteholder Signature Page to Joinder Agreement in Respect of Plan Support Agreement

 

AEGON USA INVESTMENT MANAGEMENT, LLC  
   
   
By: /s/ Derek Thoms  
Name: Derek Thoms  
Title: Authorized Signatory  

 

Initial Consenting Noteholder Signature Page to Joinder Agreement in Respect of Plan Support Agreement

 

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

 

BofA Securities Inc.  
   
By: /s/ Vincenzo Ruocco  
Name: Vincenzo Ruocco  
Title: Director, US Asset Services  

 

Initial Consenting Noteholder Signature Page to Joinder Agreement in Respect of Plan Support Agreement

 

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 Banc 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

 

Banc of America Credit Products, Inc.  
   
By: /s/ Austin Penland  
Name: Austin Penland  
Title: AVP

 

 

Initial Consenting Noteholder Signature Page to Joinder Agreement in Respect of Plan Support Agreement

 

INITIAL CONSENTING NOTEHOLDER  
   
Brean Asset Management, LLC  
   
   
By: /s/ Patrick L. Marano, Jr.  
Name:   Patrick L. Marano, Jr.  
Title: General Counsel & CCO  

 

Initial Consenting Noteholder Signature Page to Joinder Agreement in Respect of Plan Support Agreement

 

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  

 

Initial Consenting Noteholder Signature Page to Joinder Agreement in Respect of Plan Support Agreement

 

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  

 

Initial Consenting Noteholder Signature Page to Joinder Agreement in Respect of Plan Support Agreement

 

INITIAL CONSENTING NOTEHOLDER  
   
CarVal Investors LP, on behalf of the funds it manages  
   
By: /s/ Ryan Morrell  
Name: Ryan Morrell  
Title: Managing Director  

 

Initial Consenting Noteholder Signature Page to Joinder Agreement in Respect of Plan Support Agreement

 

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

 

Initial Consenting Noteholder Signature Page to Joinder Agreement in Respect of Plan Support Agreement

 

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

 

Initial Consenting Noteholder Signature Page to Joinder Agreement in Respect of Plan Support Agreement

 

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

 

Initial Consenting Noteholder Signature Page to Joinder Agreement in Respect of Plan Support Agreement

 

INITIAL CONSENTING NOTEHOLDER  
   
CVC Global Credit Opportunities Master Fund LP  
   
By: /s/ Scott Bynum  
Name: Scott Bynum  
Title: Managing Director  

 

Initial Consenting Noteholder Signature Page to Joinder Agreement in Respect of Plan Support Agreement

 

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

 

Initial Consenting Noteholder Signature Page to Joinder Agreement in Respect of Plan Support Agreement

 

INITIAL CONSENTING NOTEHOLDER  
   
DEUTSCHE BANK SECURITIES INC.  
(solely with respect to the Distressed Products Group)  
   
By: /s/ Shawn Faurot  
Name:   Shawn Faurot  
Title: Managing Director  
   
By: /s/ Joanne Adkins  
Name: Joanne Adkins  
Title: Managing Director  

 

Initial Consenting Noteholder Signature Page to Joinder Agreement in Respect of Plan Support Agreement

 

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  

 

Initial Consenting Noteholder Signature Page to Joinder Agreement in Respect of Plan Support Agreement

 

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  

 

Initial Consenting Noteholder Signature Page to Joinder Agreement in Respect of Plan Support Agreement

 

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

 

Initial Consenting Noteholder Signature Page to Joinder Agreement in Respect of Plan Support Agreement

 

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  

 

Initial Consenting Noteholder Signature Page to Joinder Agreement in Respect of Plan Support Agreement

 

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

 

Initial Consenting Noteholder Signature Page to Joinder Agreement in Respect of Plan Support Agreement

 

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

 

Initial Consenting Noteholder Signature Page to Joinder Agreement in Respect of Plan Support Agreement

 

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  

 

Initial Consenting Noteholder Signature Page to Joinder Agreement in Respect of Plan Support Agreement

 

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

 

Initial Consenting Noteholder Signature Page to Joinder Agreement in Respect of Plan Support Agreement

 

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

 

Initial Consenting Noteholder Signature Page to Joinder Agreement in Respect of Plan Support Agreement

 

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

 

Initial Consenting Noteholder Signature Page to Joinder Agreement in Respect of Plan Support Agreement

 

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

 

Initial Consenting Noteholder Signature Page to Joinder Agreement in Respect of Plan Support Agreement

 

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  

 

Initial Consenting Noteholder Signature Page to Joinder Agreement in Respect of Plan Support Agreement

 

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

 

Initial Consenting Noteholder Signature Page to Joinder Agreement in Respect of Plan Support Agreement

 

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

 

Initial Consenting Noteholder Signature Page to Joinder Agreement in Respect of Plan Support Agreement

 

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

 

Initial Consenting Noteholder Signature Page to Joinder Agreement in Respect of Plan Support Agreement

 

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

 

Initial Consenting Noteholder Signature Page to Joinder Agreement in Respect of Plan Support Agreement

 

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

 

Initial Consenting Noteholder Signature Page to Joinder Agreement in Respect of Plan Support Agreement

 

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

 

Initial Consenting Noteholder Signature Page to Joinder Agreement in Respect of Plan Support Agreement

 

INITIAL CONSENTING NOTEHOLDER

 

Farmstead Capital Management, LLC on behalf of itself and certain funds under management

     
By: /s/ Michael Scott  
Name: Michael Scott  
Title: Managing Member  

 

 

Initial Consenting Noteholder Signature Page to Joinder Agreement in Respect of Plan Support Agreement

 

INITIAL CONSENTING NOTEHOLDER

 

Fidelity Securities Fund: Fidelity Flex Large Cap Growth Fund

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

 

 

Initial Consenting Noteholder Signature Page to Joinder Agreement in Respect of Plan Support Agreement

 

INITIAL CONSENTING NOTEHOLDER

 

Fidelity Securities Fund: Fidelity Blue Chip Growth K6 Fund

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

 

 

Initial Consenting Noteholder Signature Page to Joinder Agreement in Respect of Plan Support Agreement

 

INITIAL CONSENTING NOTEHOLDER

 

FIDELITY SUMMER STREET TRUST: Fidelity Capital & Income Fund

 

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

 

 

Initial Consenting Noteholder Signature Page to Joinder Agreement in Respect of Plan Support Agreement

 

INITIAL CONSENTING NOTEHOLDER

 

Fidelity Investments Canada ULC: Fidelity Blue Chip Growth Institutional Trust

 

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

 

 

Initial Consenting Noteholder Signature Page to Joinder Agreement in Respect of Plan Support Agreement

 

INITIAL CONSENTING NOTEHOLDER

 

Fidelity Canadian Balanced Fund, by Fidelity Investments Canada ULC as Trustee

 

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

 

 

Initial Consenting Noteholder Signature Page to Joinder Agreement in Respect of Plan Support Agreement

 

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  

 

 

Initial Consenting Noteholder Signature Page to Joinder Agreement in Respect of Plan Support Agreement

 

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  

 

 

Initial Consenting Noteholder Signature Page to Joinder Agreement in Respect of Plan Support Agreement

 

INITIAL CONSENTING NOTEHOLDER

 

Fidelity Funds SICAV / Fidelity Funds – US High Yield

 

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

 

 

Initial Consenting Noteholder Signature Page to Joinder Agreement in Respect of Plan Support Agreement

 

INITIAL CONSENTING NOTEHOLDER

 

Fidelity Securities Fund: Fidelity Series Blue Chip Growth Fund

 

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

 

 

Initial Consenting Noteholder Signature Page to Joinder Agreement in Respect of Plan Support Agreement

 

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  

 

 

Initial Consenting Noteholder Signature Page to Joinder Agreement in Respect of Plan Support Agreement

 

INITIAL CONSENTING NOTEHOLDER

 

FIDELITY ADVISOR SERIES II: Fidelity Advisor Strategic Income Fund

 

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

 

 

Initial Consenting Noteholder Signature Page to Joinder Agreement in Respect of Plan Support Agreement

 

INITIAL CONSENTING NOTEHOLDER

 

Fidelity Securities Fund: Fidelity Blue Chip Growth Fund

 

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

 

 

Initial Consenting Noteholder Signature Page to Joinder Agreement in Respect of Plan Support Agreement

 

INITIAL CONSENTING NOTEHOLDER

 

Fidelity Management Trust Company: Fidelity Blue Chip Growth Commingled Pool

 

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

 

 

Initial Consenting Noteholder Signature Page to Joinder Agreement in Respect of Plan Support Agreement

 

INITIAL CONSENTING NOTEHOLDER

 

FIDELITY SUMMER STREET TRUST: Fidelity Global High Income Fund

 

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

 

 

Initial Consenting Noteholder Signature Page to Joinder Agreement in Respect of Plan Support Agreement

 

INITIAL CONSENTING NOTEHOLDER

 

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

 

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

 

 

Initial Consenting Noteholder Signature Page to Joinder Agreement in Respect of Plan Support Agreement

 

INITIAL CONSENTING NOTEHOLDER

 

FMR Capital, Inc. High Income 2 Pilot Portfolio - Portfolio Number 5559

 

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

 

 

Initial Consenting Noteholder Signature Page to Joinder Agreement in Respect of Plan Support Agreement

 

INITIAL CONSENTING NOTEHOLDER

 

FIDELITY CENTRAL INVESTMENT PORTFOLIOS LLC: Fidelity High Income Central Fund

 

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

 

 

Initial Consenting Noteholder Signature Page to Joinder Agreement in Respect of Plan Support Agreement

 

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  

 

 

Initial Consenting Noteholder Signature Page to Joinder Agreement in Respect of Plan Support Agreement

 

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  

 

 

Initial Consenting Noteholder Signature Page to Joinder Agreement in Respect of Plan Support Agreement

 

INITIAL CONSENTING NOTEHOLDER

 

FIDELITY ADVISOR SERIES I: Fidelity Advisor High Income Advantage Fund

 

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

 

 

Initial Consenting Noteholder Signature Page to Joinder Agreement in Respect of Plan Support Agreement

 

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  

 

 

Initial Consenting Noteholder Signature Page to Joinder Agreement in Respect of Plan Support Agreement

 

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  

 

 

Initial Consenting Noteholder Signature Page to Joinder Agreement in Respect of Plan Support Agreement

 

INITIAL CONSENTING NOTEHOLDER

 

VARIABLE INSURANCE PRODUCTS FUND V: Strategic Income Portfolio

 

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

 

 

Initial Consenting Noteholder Signature Page to Joinder Agreement in Respect of Plan Support Agreement

 

  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  

 

 

Initial Consenting Noteholder Signature Page to Joinder Agreement in Respect of Plan Support Agreement

 

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 Manager  

 

*This signature page to the Joinder Agreement in Respect of 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.

 

 

Initial Consenting Noteholder Signature Page to Joinder Agreement in Respect of Plan Support Agreement

 

INITIAL CONSENTING NOTEHOLDER

 

King Street Capital Management, L.P.  
     
By: /s/ Howard Baum  
Name: Howard Baum  
Title: Authorized Signatory  

 

 

Initial Consenting Noteholder Signature Page to Joinder Agreement in Respect of Plan Support Agreement

 

INITIAL CONSENTING NOTEHOLDER

 

___Livello Capital Special Opportunities Master Fund LP_________  
     
By: /s/ Joseph Salegna  
Name: Joseph Salegna  
Title: Chief Financial Officer, Livello Capital Management LP, its investment manager  

 

 

Initial Consenting Noteholder Signature Page to Joinder Agreement in Respect of Plan Support Agreement

 

INITIAL CONSENTING NOTEHOLDER

 

Lord, Abbett & Co. LLC, as investment adviser on behalf of certain accounts

     
By: /s/ Steven Rocco  
Name: Steven Rocco  
Title: Member & Director of Taxable Fixed Income  

 

 

Initial Consenting Noteholder Signature Page to Joinder Agreement in Respect of Plan Support Agreement

 

INITIAL CONSENTING NOTEHOLDER  
Marathon Asset Management, LP acting on behalf of one or more investment funds managed and/or advised by Marathon Asset Management, LP  
     
By: /s/ Louis Hanover  
Name: Louis Hanover  
Title: Chief Investment Officer  

 

 

Initial Consenting Noteholder Signature Page to Joinder Agreement in Respect of Plan Support Agreement

 

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  

 

 

Initial Consenting Noteholder Signature Page to Joinder Agreement in Respect of Plan Support Agreement

 

INITIAL CONSENTING NOTEHOLDER

 

Moore Global Investments, LLC by Moore Capital Management, LP Investment Manager

 

By: /s/ James Kaye   
Name: James Kaye  
Title: VP  

 

 

Initial Consenting Noteholder Signature Page to Joinder Agreement in Respect of Plan Support Agreement

 

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  

 

 

Initial Consenting Noteholder Signature Page to Joinder Agreement in Respect of Plan Support Agreement

 

INITIAL CONSENTING NOTEHOLDER

 

Napier Park Global Capital (US) LP, on behalf of its managed funds and accounts

 

     
By: /s/ Rutvij Shanghavi   
Name: Rutvij Shanghavi  
Title:   Director  

 

 

Initial Consenting Noteholder Signature Page to Joinder Agreement in Respect of Plan Support Agreement

 

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  

 

 

Initial Consenting Noteholder Signature Page to Joinder Agreement in Respect of Plan Support Agreement

 

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  

 

 

Initial Consenting Noteholder Signature Page to Joinder Agreement in Respect of Plan Support Agreement

 

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  

 

 

Initial Consenting Noteholder Signature Page to Joinder Agreement in Respect of Plan Support Agreement

 

INITIAL CONSENTING NOTEHOLDER

 

Sunrise Partners Limited Partnership

 

     
By: /s/ Douglas W. Ambrose  
Name: Douglas W. Ambrose  
Title: Executive Vice President of
Paloma Partners Management Company,
general partner of
Sunrise Partners Limited Partnership
 

 

 

Initial Consenting Noteholder Signature Page to Joinder Agreement in Respect of Plan Support Agreement

 

INITIAL CONSENTING NOTEHOLDER

 

Pentwater Capital Management LP

 

By: /s/ David M. Zirin  
Name: David M. Zirin  
Title: Chief Operating Officer  

 

 

Initial Consenting Noteholder Signature Page to Joinder Agreement in Respect of Plan Support Agreement

 

INITIAL CONSENTING NOTEHOLDER

 

Capital Ventures International

 

By: Susquehanna Advisors Group, Inc., its authorized agent

 

By: /s/ Kathy Harley  
Name: Kathy Harley  
Title: Assistant Vice President  

 

 

Initial Consenting Noteholder Signature Page to Joinder Agreement in Respect of Plan Support Agreement

 

INITIAL CONSENTING NOTEHOLDER  
     
Warlander Partners, LP  
     
By: /s/ Matt Tuminello   
Name: Matt Tuminello  
Title: Chief Financial Officer  

 

 

Initial Consenting Noteholder Signature Page to Joinder Agreement in Respect of Plan Support Agreement

 

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/ Mark Zand   
Name: Mark Zand  
Title: Partner  

 

 

Initial Consenting Noteholder Signature Page to Joinder Agreement in Respect of Plan Support Agreement

 

INITIAL CONSENTING NOTEHOLDER  
     
Whitebox Relative Value Partners, L.P.  
By: Whitebox Advisors LLC its investment manager  
     
By: /s/ Luke Harris  
Name: Luke Harris  
Title: General Counsel – Corporate, Transactions & Litigation  

 

 

Support Agreement

 

INITIAL CONSENTING NOTEHOLDER  
     
Whitebox GT Fund, LP  
By: Whitebox Advisors LLC its investment manager  
     
By: /s/ Luke Harris   
Name: Luke Harris  
Title: General Counsel – Corporate, Transactions & Litigation  

-2-

 

Initial Consenting Noteholder Signature Page to Joinder Agreement in Respect of Plan Support Agreement

 

INITIAL CONSENTING NOTEHOLDER  
     
Whitebox Multi-Strategy Partners, L.P.  
By: Whitebox Advisors LLC its investment manager  
     
By: /s/ Luke Harris   
Name: Luke Harris  
Title: General Counsel – Corporate, Transactions & Litigation  

-3-

 

Initial Consenting Noteholder Signature Page to Joinder Agreement in Respect of Plan Support Agreement

 

INITIAL CONSENTING NOTEHOLDER  
     
Pandora Select Partners, L.P.  
By: Whitebox Advisors LLC its investment manager  
     
By: /s/ Luke Harris   
Name: Luke Harris  
Title: General Counsel – Corporate, Transactions & Litigation  

-4-

 

EXHIBIT A

Amended 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 MODIFIED 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 14, 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.

 i

 

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 34
  C. Computation of Time 35
  D. Governing Law 35
  E. Consultation, Information, Notice, and Consent Rights 35
  F. Reference to Monetary Figures 35
  G. Reference to the Debtors or the Reorganized Debtors 36
  H. Controlling Document 36
       
ARTICLE II. ADMINISTRATIVE CLAIMS AND PRIORITY CLAIMS 36
  A. Administrative Claims 36
  B. DIP Claims 37
  C. HVF Master Lease Administrative Claims 38
  D. Postpetition Fleet Financing Administrative Claims 38
  E. Professional Fee Claims 38
  F. Priority Tax Claims 39
       
ARTICLE III. CLASSIFICATION AND TREATMENT OF CLAIMS AND INTERESTS 40
  A. Summary of Classification 40
  B. Treatment of Claims and Interests 41
  C. Special Provision Governing Unimpaired Claims 47
  D. Confirmation Pursuant to Sections 1129(a)(10) and 1129(b) of the Bankruptcy Code 47
  E. Elimination of Vacant Classes 47
  F. Separate Classification of Other Secured Claims 47
  G. Voting Classes; Presumed Acceptance by Non-Voting Classes 47
  H. Controversy Concerning Impairment 48
       
ARTICLE IV. MEANS FOR IMPLEMENTATION OF THE PLAN 48
  A. No Substantive Consolidation 48
  B. Restructuring Transactions; Effectuating Documents 48
  C. Sources of Consideration for Plan Distributions 49
  D. New Money Investment 49
  E. Issuance and Distribution of Reorganized Hertz Parent Common Interests and Preferred Stock 50
  F. New Reorganized Corporate Debt 50
  G. Replacement of First Lien Letters of Credit 50
  H. HVF II and Interim Fleet Financing Settlement 51
  I. HVF III Fleet Financing 52
  J. General Unsecured Claim Recoveries 53
  K. Intercompany Claim Settlement 54
  L. HHN Restructuring 54
  M. Registration Rights Agreement 54
  N. International Vehicle Financing Claims 54
  O. Corporate Existence 55
  P. Vesting of Assets in the Reorganized Debtors 55
  Q. Cancellation of Existing Securities 56
  R. Corporate Action 58
  S. New Organizational Documents 58
  T. Reorganized Hertz Parent and Reorganized Hertz Corp. Board 58

 ii

 

  U. Exemption from Certain Taxes and Fees 59
  V. Preservation of Causes of Action 60
  W. Insurance Policies and Surety Bonds 61
  X. Management Equity Incentive Plan 62
  Y. Employee Obligations 62
  Z. Workers’ Compensation Programs 64
  AA. Collective Bargaining Agreements 64
  BB. Plan Support Agreement and Stock Purchase Agreement 64
  CC. Additional Tax Matters 64
       
ARTICLE V. TREATMENT OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES 64
  A. Assumption and Rejection of Executory Contracts and Unexpired Leases 64
  B. Claims Based on Rejection of Executory Contracts or Unexpired Leases 66
  C. Cure of Defaults for Assumed Executory Contracts and Unexpired Leases 66
  D. Assumption Dispute Resolution 67
  E. Indemnification Obligations 68
  F. Contracts and Leases Entered into After the Petition Date 68
  G. Modifications, Amendments, Supplements, Restatements, or Other Agreements 68
  H. Reservation of Rights 68
  I. Nonoccurrence of Effective Date; Bankruptcy Code Section 365(d)(4) 69
       
ARTICLE VI. PROVISIONS GOVERNING DISTRIBUTIONS 69
  A. Timing and Calculation of Amounts to Be Distributed 69
  B. Special Rules for Distributions to Holders of Disputed Claims and Interests 69
  C. Rights and Powers of Distribution Agent 70
  D. Rights and Powers of the GUC Oversight Administrator 70
  E. Delivery of Distributions and Undeliverable or Unclaimed Distributions 71
  F. Securities Registration Exemption 76
  G. Compliance with Tax Requirements 77
  H. Allocations 77
  I. No Postpetition or Default Interest on Claims 78
  J. Setoffs and Recoupment 78
  K. Claims Paid or Payable by Third Parties 78
       
ARTICLE VII. PROCEDURES FOR RESOLVING CONTINGENT, UNLIQUIDATED, AND DISPUTED CLAIMS 80
  A. Allowance of Claims 80
  B. Claims and Interests Administration Responsibilities 80
  C. ADR Procedures 81
  D. Estimation of Claims 81
  E. Adjustment to Claims Register Without Objection 82
  F. Time to File Objections to Claims 82
  G. Disallowance of Claims 82
  H. Amendments to Proofs of Claims 82
  I. Reimbursement or Contribution 83
  J. No Distributions Pending Allowance 83
  K. Distributions After Allowance 83
  L. Single Satisfaction of Claims 83
       
ARTICLE VIII. SETTLEMENT, RELEASE, INJUNCTION, AND RELATED PROVISIONS 83
  A. Compromise and Settlement of Claims, Interests, and Controversies 83
  B. Discharge of Claims and Termination of Interests 84
  C. Releases by the Debtors 84
  D. Releases by Holders of Claims and Interests 85
  E. Exculpation 86
  F. Injunction 86
  G. Subordination Rights 87
  H. Release of Liens 87

 iii

 

ARTICLE IX. CONDITIONS PRECEDENT TO CONSUMMATION OF THE PLAN 87
  A. Conditions Precedent to the Effective Date 87
  B. Waiver of Conditions 89
  C. Substantial Consummation 89
  D. Committee Complaint 89
  E. Bifurcation Motion 89
  F. Effect of Non-Occurrence of Conditions to the Effective Date 89
       
ARTICLE X. MODIFICATION, REVOCATION, OR WITHDRAWAL OF THE PLAN 90
  A. Modification and Amendments 90
  B. Effect of Confirmation on Modifications 90
  C. Effect of Confirmation 90
  D. Revocation or Withdrawal of the Plan 90
       
ARTICLE XI. RETENTION OF JURISDICTION 91
   
ARTICLE XII. MISCELLANEOUS PROVISIONS 93
  A. Immediate Binding Effect 93
  B. Additional Documents 93
  C. Payment of Statutory Fees 93
  D. Reservation of Rights 94
  E. Transaction Expenses 94
  F. Successors and Assigns 94
  G. Service of Documents 94
  H. Term of Injunctions or Stays 96
  I. Entire Agreement 96
  J. Nonseverability of Plan Provisions 96
  K. Dissolution of Committee 96
  L. Expedited Tax Determination 97

 iv

 

INTRODUCTION

 

The Hertz Corporation and its Debtor Affiliates hereby propose this Second Modified 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 $28,274,393.81.

 

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 National Association, 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 (including, without limitation, legal fees) 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.          “ABS Released Parties” shall have the meaning ascribed to such term the Second Interim HVF Master Lease Settlement Order.

 

35.          “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.

 

36.          “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.

 

37.          “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.

 

38.          “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.

 

39.          “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. For the avoidance of doubt, prior to the Effective Date, ADR Procedures refers to those procedures approved by the Bankruptcy Court on April 13, 2021 [D.I. 3835] and after the Effective Date, the ADR Procedures in the Plan Supplement.

 

40.          “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.

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41.          “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 (including with respect to First Lien Claims) 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.

 

42.          “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.

 

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

 

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

 

45.          “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.

 

46.          “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.

 

47.          “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.

 

48.          “Australian ABS Restructuring Settlement” means the restructuring of the Australian Securitization Facility on terms and conditions reasonably acceptable to the Debtors, the Requisite Commitment Parties, 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.

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

 

50.          “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.

 

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

 

52.          “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.

 

53.          “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.

 

54.          “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

 

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

 

56.          “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.

 

57.          “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.

 

58.          “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.

 

59.          “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.

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60.          “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].

 

61.          “BNY Canada” means BNY Trust Company of Canada.

 

62.          “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.

 

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

 

64.          “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.

 

65.          “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.

 

66.          “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.

 

67.          “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.

 

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

 

69.          “Canadian Fleet Financing Indenture” means the Canadian Fleet Financing Base Indenture and the Canadian Fleet Financing Supplemental Indenture.

 

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

 

71.          “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.

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72.          “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.

 

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

 

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

 

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

 

76.          “Cash Collateral Orders” means the (i) Agreed Interim Order (I) Authorizing Use of Cash Collateral and (II) Granting Adequate Protection and Related Relief to Prepetition Secured Parties [Docket No. 204], (ii) the Second Agreed Order (I) Authorizing Use of Cash Collateral and (II) Granting Adequate Protection and Related Relief to Prepetition Secured Parties [Docket No. 559] and (iii) the Third Agreed Order (I) Authorizing Use of Cash Collateral and (II) Granting Adequate Protection and Related Relief to Prepetition Secured Parties [Docket No. 1131], each as amended, supplemented, or modified from time to time.

 

77.          “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%.

 

78.          “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; provided, that notwithstanding anything to the contrary herein, such right with respect to GUC Administrator Claims shall be controlled solely by the GUC Oversight Administrator; (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.

 

79.          “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.

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80.          “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).

 

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

 

82.          “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].

 

83.          “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.

 

84.          “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.

 

85.          “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.

 

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

 

87.           “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.

 

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

 

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

 

90.          “Collective Bargaining Agreements” means all the collective bargaining agreements of the Debtors.

 

91.          “Collective Bargaining Agreement Schedule” means the schedule of cure amounts due on account of the Debtors’ Collective Bargaining Agreements, as may be amended by the Debtors.

 

92.          “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.

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93.          “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)).

 

94.          “Committee Members” means, each in its capacity as a member of the Committee, (i) American Automobile Association, Inc.; (ii) Janice Dawson; (iii) International Brotherhood of Teamsters;2 (iv) Pension Benefit Guaranty Corporation; (v) Sirius XM Radio Inc.; (vi) Southwest Airlines Co.; (vii) U.S. Bank National Association; and (viii) Wells Fargo Bank, N.A.

 

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

 

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

 

97.          “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.

 

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

 

99.          “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.

 

100.        “Consummation” means the occurrence of the Effective Date.

 

101.        “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.

 

102.        “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.

 

103.        “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.

 

 

2 The International Brotherhood of Teamsters is a Member in its capacity as representative for Local Unions 20, 25, 79, 89, 104, 114, 117, 118, 150, 175, 206, 222, 272, 299, 305, 317, 327, 355, 385, 399, 431, 449, 455, 481, 492, 495, 528, 529, 541, 618, 641, 665, 667, 682, 745, 769, 781, 813, 830, 853, 856, 886, 901, 922, 926, 931, 986, 988 and 996, and their respective members.

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

 

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

 

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

 

107.          “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].

 

108.          “DIP Agent” means Barclays Bank PLC, in its capacity as Administrative Agent and Collateral Agent under the DIP Credit Agreement, including any successor thereto.

 

109.          “DIP Claims” means any Claim in respect of any DIP Obligations (as defined in the DIP Order) owed by the Debtors under the DIP Order.

 

110.          “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.

 

111.          “DIP Loan Documents” has the meaning set forth in the DIP Order.

 

112.          “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.

 

113.          “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).

 

114.          “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.

 

115.          “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.

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116.        “Disclosure Statement” means the Disclosure Statement for the Second Modified 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.

 

117.        “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.

 

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

 

119.        “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 and, with respect to General Unsecured Claims, the GUC Oversight Administrator.

 

120.        “Distribution Agent Claims” means any Claim that is not a GUC Administrator Claim.

 

121.        “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 date of the Confirmation Hearing; provided, that the Distribution Record Date shall not apply 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, the Holders of which shall receive a distribution in accordance with Article VI of the Plan and, as applicable, the customary procedures of DTC and Euroclear.

 

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

 

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

 

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

 

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

 

126.        “DTAC” means DTC Car Rental Partnership Limited.

 

127.        “DTAG Canada” means Debtor Dollar Thrifty Automotive Group Canada Inc.

 

128.        “DTC” means The Depository Trust Company.

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129.       “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.

 

130.        “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.

 

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

 

132.        “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.

 

133.        “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.

 

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

 

135.        “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.

 

136.        “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.

 

137.        “Euroclear” means Euroclear S.A./N.V., as operator of the Euroclear system.

 

138.        “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.

 

139.        “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.

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140.        “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.

 

141.        “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.

 

142.       “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.

 

143.        “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.

 

144.        “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 a Committee Member; (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.

 

145.        “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.

 

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

 

147.        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.

 

148.       “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.

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149.        “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 in form and substance acceptable to the Debtors and the Requisite Commitment Parties in good faith.

 

150.        “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.

 

151.        “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.

 

152.        “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.

 

153.        “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.

 

154.        “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.

 

155.       “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].

 

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

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157.        “First Lien Claims” means all (i) First Lien Term Loan Claims; (ii) First Lien Revolving Loan Claims; (iii) First Lien Hedge Claims; (iv) First Lien LC Claims; and (v) any Claims against the Debtors not duplicative of the foregoing clauses (i) – (iv), due, owing, and payable to the First Lien Agent, First Lien Lenders, or their professionals pursuant to the Cash Collateral Orders, including any professionals’ fees and expenses.

 

158.        “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.

 

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

 

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

 

161.        “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.

 

162.        “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.

 

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

 

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

 

165.        “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 at the applicable rate, costs, fees, and indemnities.

 

166.        “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 at the applicable rate, costs, fees, and indemnities, which principal outstanding as of the Petition Date was in the aggregate amount equal to $615,000,000.00.

 

167.        “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.

 

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

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169.        “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 at the applicable rate, costs, fees, and indemnities.

 

170.        “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.

 

171.        “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 at the applicable rate, costs, fees, and indemnities, which principal outstanding as of the Petition Date was in the aggregate amount equal to approximately $656,250,000.00.

 

172.        “First Lien Lenders” means, collectively, the lenders under the First Lien Loan Documents.

 

173.        “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; and (vii) HHN Notes Guarantee 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.

 

174.        “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.

 

175.        “General Unsecured Recovery Cash Pool Amount” means Cash in the amount of $448,540,000.00, to be distributed in accordance with Article IV.J, to fund distributions to Holders of Allowed General Unsecured Claims.

 

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

 

177.        “GUC Administrator Claims” means any Disputed General Unsecured Claim in a claimed amount in excess of $1,000,000.00, other than such claims agreed to by the Debtors and the Committee.

 

178.        “GUC Administrator Claim Related Action” means a Cause of Action (other than an Avoidance Action) to the extent such Cause of Action may be asserted as a defense in respect of a GUC Administrator Claim.

 

179.        “GUC Oversight Administrator” means the individual appointed by the Committee in accordance with Article VI.D. of the Plan that shall be identified in the Plan Supplement.

 

180.        “GUC Oversight Administrator Costs” means the reasonable and documented costs and expenses of the GUC Oversight Administrator, including the reasonable professionals’ fees and expenses;

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provided that the Reorganized Debtors shall be permitted to challenge the reasonableness of the fees and expenses before the Bankruptcy Court.

 

181.        “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 to be filed as part of the Plan Supplement, which shall be reasonably acceptable to the Debtors, the Committee, and the Requisite Commitment Parties.

 

182.        “HCVP” means Hertz Canada Vehicles Partnership.

 

183.        “HC Limited” means HC Limited Partnership.

 

184.        “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.

 

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

 

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

 

187.        “Hertz Corp.” means The Hertz Corporation

 

188.        “Hertz Canada” means Hertz Canada Limited

 

189.        “Hertz Parent” means Hertz Global Holdings, Inc.

 

190.       “HHN” means Hertz Holdings Netherlands B.V. or any Entity into which Hertz Holdings Netherlands B.V. merges prior to the Effective Date, including Hertz Holdings Netherlands II B.V.

 

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

 

192.       “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.

 

193.        “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.

 

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

 

195.       “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.

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196.        “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.

 

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

 

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

 

199.        “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.

 

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

 

201.        “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.

 

202.        “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.

 

203.        “HHN Notes Trustee Charging Lien” means any Lien or other priority of payment to which the HHN Notes Trustee is entitled under the HHN Notes Documents against distributions to be made to Holders of HHN Notes Guarantee Claims for payment of any HHN Notes Trustee Fees and Expenses.

 

204.        “HHN Notes Trustee Fees and Expenses” means the reasonable and documented fees, costs, and expenses incurred by the HHN Notes Trustee that are required to be paid under the HHN Notes Documents.

 

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

 

206.        “HIL” means Hertz International Limited.

 

207.        “HIL 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.

 

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

 

209.        “HUK” means Hertz U.K. Receivables Ltd.

 

210.        “HVF” means Hertz Vehicle Financing LLC.

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211.        “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.

 

212.        “HVF Claims” means any Claims against any Debtor or any other Affiliate of a Debtor pursuant to, arising out of, or related to the HVF Master Lease Agreement, any other HVF Facility Document, or any HVF II Facility Document, including any HVF Master Lease Administrative Claim.

 

213.        “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.

 

214.        “HVF II” means Hertz Vehicle Financing II LP.

 

215.        “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.

 

216.        “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.

 

217.        “HVF II Collateral Agency Agreement” means the Fourth Amended and Restated Collateral Agency Agreement (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, Hertz General Interest, LLC, DTG Operations, Inc., Hertz Corp., the financing sources party thereto from time to time, the beneficiaries party thereto from time to time, and the grantors party thereto from time to time.

 

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

 

219.        “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.

 

220.        “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.

 

221.        “HVF II Lenders” means the Holders of the HVF II Notes.

 

222.        “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.

 

223.        “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.

 

224.        “HVF II Notes Repayment Date” has the meaning set forth in Article IV.H.

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225.        “HVF II Obligations” means the non-contingent contractual obligations arising under or with respect to the HVF II Notes, including such amounts payable pursuant to the waterfalls in Article VII of the Series 2013-G1 Supplement, Article V of the HVF II VFN Supplement, Article V of each of the MTN Series Supplements and Article VII of the HVF II Group I Supplement, collateral agent fees payable pursuant to Section 5.8 of the HVF II Collateral Agency Agreement, and any other amounts under the HVF Facility Documents or HVF II Facility Documents that would be payable in Cash in an ordinary course repayment and termination of such facilities.

 

226.        “HVF II Refinancing Steps Document” means a document to be filed with the Plan Supplement that describes the sequence of transactions required to refinance the HVF II Facility and HVIF Facility, if applicable, and provide payment in full of the HVF II Obligations and HVIF Obligations, if applicable.

 

227.        “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.

 

228.        “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.

 

229.        “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.

 

230.        “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.

 

231.        “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.

 

232.        “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.

 

233.        “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.

 

234.        “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.

 

235.        “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.

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236.        “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.

 

237.        “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.

 

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

 

239.        “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.

 

240.        “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.

 

241.        “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..

 

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

 

243.       “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.

 

244.        “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.

 

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

 

246.        “HVIF” means Hertz Vehicle Interim Financing, LLC.

 

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

 

248.        “HVIF Obligations” means the non-contingent contractual obligations with respect to the Interim Fleet Financing Facility Documents, including the Interim Fleet Financing Notes.

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249.        “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.

 

250.        “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.

 

251.        “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.

 

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

 

253.        “Insurance Policiesmeans 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.

 

254.        “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].

 

255.        “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.

 

256.        “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.

 

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

 

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

 

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

 

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

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261.        “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.

 

262.        “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.

 

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

 

264.        “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 Corp., HVIF, Lord Securities Corporation and the HVIF Trustee.

   

265.        “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.

 

266.        “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.

 

267.        “Interim Fleet Financing Debtor Facility Documents” means the Interim Fleet Financing Indenture, the Interim Fleet Financing Supplemental Indenture, the Interim Fleet Financing Facility 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.

 

268.        “Interim Fleet Financing Facility” means the asset-backed securitization facility issued pursuant to the Interim Fleet Financing Facility Documents.

 

269.        “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.

 

270.        “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 Corp. and DTG Operations, Inc.

 

271.        “Interim Fleet Financing Lenders” means the Holders of the Interim Fleet Financing Notes.

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

 

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

 

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

 

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

 

276.        “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.

 

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

 

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

 

279.        “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.

 

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

 

281.       “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.

 

282.       “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.

 

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

 

284.        “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.

 

285.        “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.

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286.        “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.

 

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

 

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

 

289.        “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.

 

290.        “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 Holders of Allowed Unsecured Funded Debt Claims in accordance with, and subject to the terms and conditions of, the Stock Purchase Agreement, the Rights Offering, and this Plan.

 

291.        “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.

 

292.        “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.

 

293.        “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.

 

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

 

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

 

296.        “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.

 

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

 

298.        “Petition Date” is May 22, 2020.

 

299.        “Plan” means this Second Modified 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.

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

 

301.        “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 ADR Procedures; (xii) the GUC Settlement Procedures; (xiii) the documents governing the Preferred Stock; (xiv) the Registration Rights Agreement; and (xv) the HVF II Refinancing Steps Document. Any reference to the Plan Supplement in the Plan shall include each of the documents identified above as (i) through (xiv), 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.

 

302.        “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, supplemented, or amended and restated from time to time in accordance with its terms.

 

303.        “Plan Support Party” means any party that executes a joinder to the Plan Support Agreement.

 

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

 

305.        “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.

 

306.        “Prepetition KERP Program” means the Key Employee Retention Letter Agreements executed on or about May 2020.

 

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

 

308.        “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.

 

309.        “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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310.        “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.

 

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

 

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

 

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

 

314.        “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.

 

315.        “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.

 

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

 

317.        “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 in consultation with the Committee, as may be amended by the Debtors from time to time in consultation with the Committee, and which shall be in form and substance acceptable to the Requisite Commitment Parties in good faith.

 

318.        “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; (ix) the 7.000% Unsecured Promissory Notes Trustee; (x) the ABS Released Parties; (xi) the Plan Support Parties; and (xii) with respect to each of the foregoing Entities in clauses (i) through (xi), 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, (a) the Clawback Defendants, (b) Accenture LLP and its Affiliates, (c) the Herc Parties (solely with respect to Claims arising from the Herc Documents), (d) the Donlen Debtors and their direct and indirect subsidiaries (solely with respect to Claims arising from the Donlen Documents), and (e) the Specified Prepetition KERP Participants, solely with respect to amounts owed pursuant to the terms of the Prepetition KERP Program, 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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319.        “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) the ABS Released Parties; (vi) the Plan Support Parties; (vii) 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); (viii) 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); (ix) all Holders of Claims or Interests that vote to accept the Plan; (x) 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; (xi) 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; and (xii) with respect to each of the foregoing Entities in clauses (i) through (xi), 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.

 

320.        “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.

 

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

 

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

 

323.        “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.

 

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

 

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

 

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

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327.        “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.

 

328.        “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.

 

329.        “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.

 

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

 

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

 

332.        “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.

 

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

 

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

 

335.       “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.

 

336.        “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.

 

337.        “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.

 

338.        “SEC” means the United States Securities and Exchange Commission.

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339.        “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].

 

340.        “Second Lien Indenture Trustee 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 Second Lien Note Trustees that are required to be paid under the Second Lien Note Documents.

 

341.        “Second Lien Lenders” means, collectively, the lenders under the Second Lien Note Documents.

 

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

 

343.        “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.

 

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

 

345.        “Second Lien Note Trustee Charging Lien” means any Lien or other priority of payment to which the Second Lien Note Trustee is entitled under the Second Lien Note Indenture, or any ancillary documents, instruments, or agreements, against distributions to be made to Holders of Claims for payment of any Second Lien Indenture Trustee Fees.

 

346.        “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 principal and accrued but unpaid interest, costs, fees, indemnities, and Second Lien Indenture Trustee Fees, which principal outstanding as of the Petition Date was in the aggregate amount equal to approximately $350,000,000.00.

 

347.        “Second Lien Note Documents” means the Second Lien Note Indenture and all related agreements and documents, including any collateral agreements, executed by any of the Debtors in connection with the Second Lien Note Indenture.

 

348.       “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.

 

349.        “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.

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350.        “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.

 

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

 

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

 

353.       “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.

 

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

 

355.       “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.

 

356.       “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.

 

357.       “Specified Causes of Action” means the following Causes of Action: (i) The Hertz Corporation v. Accenture LLP, Case No. 19-3508 (S.D.N.Y.); (ii) The Hertz Corporation v. Frissora et al., Case No. 2:19-cv-08927 (D.N.J.); (iii) Hertz Global Holdings, Inc. v. National Union Fire Insurance of Pittsburgh and U.S. Specialty Insurance Company, Case No. 19-06957 (S.D.N.Y.); and (iv) all Claims and Causes of Action against any Specified Prepetition KERP Participants solely with respect to amounts owed pursuant to the Prepetition KERP Program.

 

358.       “Specified Prepetition KERP Participants” means any individual that (i) received a payment on account of the Prepetition KERP Program, (ii) is required by the terms of the Prepetition KERP Program to return all or a portion of the payment to the Debtors, and (iii) as of April 13, 2021, has failed to repay such amount to the Debtors.

 

359.       “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.

 

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

 

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

 

362.       “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.

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363.       “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.

 

364.       “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.

 

365.       “TCL Funding” means TCL Funding Limited Partnership.

 

366.       “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.

 

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

 

368.       “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.

 

369.       “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.

 

370.       “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; and (iii) General Unsecured Claims.

 

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

 

372.       “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.

 

373.       “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.

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374.       “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.

 

375.       “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.

 

376.       “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.

 

377.       “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.

 

378.       “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 (including, without limitation, legal fees) incurred by the Unsecured Notes Trustees that are required to be paid under the Unsecured Notes Documents.

 

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

 

380.       “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.

 

381.       “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.

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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.

 

E.

Consultation, Information, Notice, and Consent Rights

 

Any and all consultation, information, notice, and consent rights of the Plan Sponsors and the Committee 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.

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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.

 

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, HVF Master Lease Administrative 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.

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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 Loan Documents, including, the reasonable and documented fees and expenses of the attorneys and other advisors (including financial advisors) of the DIP Agent and the DIP Lenders to the extent provided in the DIP Loan 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 and the DIP Loan Documents shall be deemed canceled, all commitments under the DIP Loan 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. Notwithstanding anything to the contrary in this paragraph, the DIP Loan Documents shall survive to the extent necessary to preserve any rights of the DIP Agent (i) as against any money or property distributable to the Holders of DIP Claims, including any priority in respect of payment and (ii) to appear and be heard in the Chapter 11 Cases or in any proceeding relating to the Debtors in the Bankruptcy Court or any other court to enforce the respective obligations owed to the DIP Agent under the Plan.

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Subsequent to the performance by the DIP Agent of its obligations under the Plan, the DIP Agent and its respective agents shall be relieved of all further duties and responsibilities related to the DIP Loan Documents upon the occurrence of the Effective Date, except with respect to such other rights and obligations of the DIP Agent (if any) that, pursuant to the express terms of the DIP Loan Documents, survive the termination of the DIP Loan Documents.

 

C.

HVF Master Lease Administrative Claims

 

The payment of the HVF II Obligations on the HVF II Notes Repayment Date 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.

 

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.

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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.

 

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.

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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.

 

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)

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Class

Applicable Entities

Claim / Interest

Status

Voting Rights

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

Prepetition

Intercompany

Claims

Unimpaired / Impaired

Not Entitled to Vote
(Presumed to Accept or Reject)

9

Each Debtor

Section 510(b)

Claims

Impaired

Not Entitled to Vote
(Presumed to Reject)

10

Each Debtor

Intercompany

Interests

Unimpaired

Not Entitled to Vote
(Presumed to Accept)

11

Hertz Parent

Existing Hertz

Parent Interest

Impaired

Not Entitled to Vote
(Presumed to Reject)

 

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).

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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

 

 

(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 all accrued and unpaid interest (at the non-default rate for Eurocurrency Loans (as defined in the First Lien Credit Agreement) and not including any interest on obligations to cash collateralize letters of credit, in each case, unless the Bankruptcy Court orders otherwise, including with respect to the applicable interest rate), costs, and fees, in each case owed under the First Lien Loan Documents, from the Petition Date through the Effective Date as required to render the First Lien Claims Unimpaired.

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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 all accrued and unpaid interest (including interest accruing after the Petition Date), Second Lien Indenture Trustee Fees, costs, and other fees, in each case owed under the Second Lien Notes Documents, 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.

 

 

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.

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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 Holdings, LLC only to the extent determined by the Bankruptcy 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 Holdings, LLC shall receive, its Pro Rata share of:

 

 

(1)

the Unsecured Funded Debt Equity Allocation; and

 

 

(2)

the Subscription Rights.

 

 

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, premiums, and fees, including the HHN Notes Trustee Fees and Expenses, in each case owed under the HHN Notes Documents, from the Petition Date through the Effective Date to the extent required to render the HHN Notes Guarantee Claims Unimpaired.

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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.

Allowance: The 7.000% Unsecured Promissory Note Claims shall be Allowed against Hertz Corp. in an aggregate amount of $28,274,393.81, plus any other amounts that may be Allowed by the Bankruptcy Court. The allowance of all other General Unsecured Claims will be determined pursuant to the terms of this Plan, the Bankruptcy Code, and other applicable law.

 

 

c.

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 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 eighty-two (82%) percent of the Allowed amount of its General Unsecured Claim.

 

 

d.

Voting: Class 7 is Impaired under the Plan and is entitled to vote to accept or reject the Plan.

 

 

8.

Class 8 – Prepetition Intercompany Claims

 

 

a.

Classification: Class 8 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;

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provided, however, that Intercompany Claims of HIRE (Bermuda) Limited against Hertz Corp. shall be Reinstated.

 

 

c.

Voting: Holders of Claims in Class 8 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.

 

 

9.

Class 9 – Section 510(b) Claims

 

 

a.

Classification: Class 9 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 9 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.

 

 

10.

Class 10 – Intercompany Interests

 

 

a.

Classification: Class 10 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 10 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.

 

 

11.

Class 11 – Existing Hertz Parent Interests

 

 

a.

Classification: Class 11 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 11 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.

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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. Notwithstanding anything in this paragraph to the contrary, and subject to the obligations of the First Lien Agent, Second Lien Note Trustee, and HHN Notes Trustee set forth in this Plan, the Debtors hereby acknowledge and agree that any Claim, Cause of Action, right of setoff, or other legal or equitable defense of the Debtors with respect to the First Lien Claims, the Second Lien Note Claims, and the HHN Notes Guarantee Claims that may exist as of the Effective Date or may have existed as of the Petition Date shall be released upon the payment in full of the Allowed First Lien Claims, Allowed Second Lien Note Claims, and Allowed HHN Notes Guarantee Claims, respectively, pursuant to this Plan. Nothing in the previous sentence shall release or otherwise impair the obligations of the First Lien Agent, the First Lien Lenders, the Second Lien Note Trustee, or the Second Lien Lenders to release Liens or Collateral as required by the Plan.

 

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.

 

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.

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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 of the New Organizational Documents, including any appropriate certificates or articles of incorporation, reincorporation, merger, consolidation, conversion, amalgamation, arrangement, continuance, or dissolution pursuant to applicable state or law; (iv) such other transactions that are required to effectuate the Restructuring Transactions, including any sales, mergers, consolidations, restructurings, conversions, dispositions, transfers, formations, organizations, dissolutions, or liquidations; (v) the execution, delivery, and filing of the Exit Facility Documents; (vi) the execution and delivery of the HVF III Documents; (vii) the implementation of the HHN Restructuring and execution and delivery of any documents in connection therewith, (viii) the solicitation and implementation of the Rights Offering, (ix) the conversion of Hertz Corp. to a limited liability company under state law pursuant to a “plan of reorganization” within the meaning of Treasury Regulations section 1.368-2(g), and (x) all other actions that the Debtors determine to be necessary or appropriate, including in connection with making filings or recordings that may be required by applicable law in connection with the Plan (collectively, the “Restructuring Transactions”). The Restructuring Transactions shall be structured in a manner that takes into account the tax position of creditors, the Plan Sponsors, and the Reorganized Debtors.

 

The Confirmation Order shall and shall be deemed to, pursuant to sections 363 and 1123 of the Bankruptcy Code, authorize, among other things, all actions as may be necessary or appropriate to effect any transaction described in, approved by, contemplated by, or necessary to effectuate the Plan, including the Restructuring Transactions.

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C.

Sources of Consideration for Plan Distributions

 

Except as otherwise provided in the Plan or the Confirmation Order, the Reorganized Debtors shall fund distributions under the Plan with (i) Cash on hand; (ii) Cash proceeds from the New Money Investment; and (iii) the proceeds of the Exit Term Loan Facility.

 

D.

New Money Investment

 

1. Preferred Stock

 

On the Effective Date, in accordance with the Stock Purchase Agreement and Plan Support Agreement and subject to the terms and conditions thereof, Reorganized Hertz Parent shall issue, and each of PE Sponsors or their respective affiliates or related funds shall purchase, on a several and not joint basis, shares of Preferred Stock at purchase price of $385,000,000.00 in the aggregate in Cash.

 

 

2.

Offered Stock

 

 

(a)

New Money Investors. On the Effective Date, in accordance with the Stock Purchase Agreement and subject to the terms and conditions thereof, each PE Sponsor shall purchase Offered Stock in the following aggregate Cash amounts:

 

 

i.

Dundon or its affiliates or related funds shall purchase shares of Offered Stock at the Offering Purchase Price (without any discounts or premiums) in the aggregate amount of $400,000,000.00;

 

 

ii.

Centerbridge or its affiliates or related funds shall purchase shares of the Offered Stock at the Offering Purchase Price (without any discounts or premiums) in the aggregate amount of $82,500,000.00; and

 

 

iii.

Warburg Pincus or its affiliates or related funds shall purchase shares of the Offered Stock at the Offering Purchase Price (without any discounts or premiums) in the aggregate amount of $82,500,000.00; and

 

 

(b)

Rights Offering. Following approval by the Bankruptcy Court of the Disclosure Statement and the Rights Offering Procedures, Hertz Parent shall conduct the Rights Offering in accordance with the Rights Offering Procedures. The Subscription Rights issued under the Rights Offering shall be deemed issued as of the Effective Date.

 

 

a.

Each Holder of an Allowed Unsecured Funded Debt Claim shall be issued Subscription Rights to purchase, pursuant to the terms set forth in the Rights Offering Procedures, its Pro Rata allocation of the shares of Offered Stock remaining after the purchase of Offered Stock by the PE Sponsors set forth in Article IV.D.2.a, above, subject to dilution from conversion of the Preferred Stock and the Management Equity Incentive Plan (the “Rights Offering Common Equity Allocation”) at the Offering Purchase Price (without any discounts or premiums). The Equity Commitment Parties shall exercise the Subscription Rights distributed on account of their Allowed Unsecured Funded Debt Claims pursuant to the terms of the Stock Purchase Agreement.

     

 

b.

Any transfer of an Allowed Unsecured Funded Debt Claim shall include the applicable Subscription Rights.

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c.

The consummation of the Rights Offering is conditioned on the satisfaction or waiver (in accordance with the Stock Purchase Agreement) of all conditions specified in the terms of the Rights Offering Procedures.

 

 

(c)

Backstop. In accordance with the Stock Purchase Agreement and subject to the terms and conditions thereof, on or prior to the Effective Date, the Backstop Investors shall purchase the Unsubscribed Shares. There shall be no backstop fee or other commitment fee owed or payable to the Backstop Investors; provided, however, that the Stock Purchase Agreement shall provide for a break-up fee to each of the PE Sponsors and each of the Equity Commitment Parties in the amount of 3% of each of PE Sponsor’s and Equity Commitment Party’s aggregate commitment to purchase the Preferred Stock and/or Offered Stock, as applicable.

 

E.

Issuance and Distribution of Reorganized Hertz Parent Common Interests and Preferred Stock

 

The issuance of the Reorganized Hertz Parent Common Interests and Preferred Stock in accordance with the Stock Purchase Agreement, Rights Offering Procedures, the Plan Support Agreement, and this Plan shall be authorized without the need for any further corporate action and without any further action by the Holders of Claims or Interests.

 

All of the shares of Reorganized Hertz Parent Common Interests and Preferred Stock issued pursuant to the Plan shall be duly authorized, validly issued, fully paid, and non-assessable. Each distribution and issuance of the Reorganized Hertz Parent Common Interests and Preferred Stock under the Plan shall be governed by the terms and conditions set forth in the Plan applicable to such distribution or issuance and by the terms and conditions of the instruments evidencing or relating to such distribution or issuance, which terms and conditions shall bind each Entity receiving such distribution or issuance.

 

F.

New Reorganized Corporate Debt

 

The Reorganized Debtors shall issue the New Reorganized Corporate Debt and provide any related guarantees, and the New Reorganized Corporate Debt will be made available to the Reorganized Debtors, pursuant to and subject to the terms and conditions set forth in the Exit Facility Documents.

 

Confirmation shall be deemed approval of the issuance and incurrence of the New Reorganized Corporate Debt (including the transactions contemplated thereby, and all actions to be taken, undertakings to be made, and obligations and guarantees to be incurred and fees paid in connection therewith), and to the extent not approved by the Bankruptcy Court previously, the Reorganized Debtors shall be authorized to execute and deliver those documents necessary or appropriate to issue and incur the New Reorganized Corporate Debt and related guarantees, including the Exit Facility Documents, without further notice to or order of the Bankruptcy Court, act or action under applicable law, regulation, order or rule, or vote, consent, authorization, or approval of any Person, subject to such modifications as the Debtors or Reorganized Debtors may deem to be necessary to consummate the New Reorganized Corporate Debt.

 

G.

Replacement of First Lien Letters of Credit

 

On or prior to the Effective Date, the Debtors shall replace or backstop the outstanding and undrawn letters of credit issued pursuant to the First Lien Revolving LC Facility and the First Lien Standalone LC Facility with letters of credit issued pursuant to the Exit Facility Documents, or otherwise cash collateralize such letters of credit. Contemporaneously therewith, all outstanding undrawn letters of credit issued under the First Lien Revolving LC Facility and First Lien Standalone LC Facility shall be deemed canceled for purposes of the First Lien Revolving LC Facility or First Lien Standalone LC Facility, as applicable.

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H.

HVF II and Interim Fleet Financing Settlement

 

On or prior to the Effective Date, the Debtors shall cause HVF II to repay in full in Cash the then-outstanding HVF II Obligations (such date, the “HVF II Notes Repayment Date”), with the proceeds of a new asset backed securitization facility, including the HVF III asset-backed securitization facility, and/or securities to be issued by a newly formed non-Debtor bankruptcy remote subsidiary of Hertz Corp. On the Effective Date or as soon as reasonably practicable thereafter, the Debtors shall pay all unpaid amounts accrued pursuant to paragraph 9 of the Second Interim HVF Master Lease Settlement Order through the HVF II Notes Repayment Date, provided, that prior to the payment of any such amounts the applicable Entities shall have complied with paragraph 10 of the Second Interim HVF Master Lease Settlement Order. Notwithstanding anything to the contrary herein, the obligations with respect to the HVF II Notes shall be determined solely pursuant to the terms of the HVF II Facility Documents and HVF Facility Documents, including, that such obligations shall include, to the extent outstanding and without causing a double recovery on account of more than one payment being made with respect to such obligations, all accrued and unpaid (i) Class A Monthly Default Interest Amounts, Class B Monthly Default Interest Amounts, Class C Monthly Default Interest Amounts and Class D Monthly Default Interest Amounts (as each such term is defined in the HVF II VFN Supplement), pursuant to Section 5.2(f) of the HVF II VFN Supplement or otherwise and (ii) Class A Deficiency Amounts, Class B Deficiency Amounts, Class C Deficiency Amounts and Class D Deficiency Amounts and all interest accrued on such Class A Deficiency Amounts, Class B Deficiency Amounts, Class C Deficiency Amounts and Class D Deficiency Amounts, pursuant to the applicable HVF II MTN Series Supplement, provided, for the avoidance of doubt, that each of (A) the Forbearance Fee payable pursuant to Section 4(g) of that certain HVF II Series 2013-A Forbearance Agreement dated May 4, 2020 (the “Forbearance Agreement”) and (B) the Administrative Agent Fee payable pursuant to that certain Administrative Agent Fee Letter entered into in connec