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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) May 19, 2021 (May 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

 

On May 22, 2020 (the “Petition Date”), Hertz Global Holdings, Inc. (the “Company”, “HGH” or “we”), The Hertz Corporation (“THC”) and certain of their direct and indirect subsidiaries in the U.S. and Canada (collectively, the “Debtors”) filed voluntary petitions for relief (collectively, the “Petitions”) under chapter 11 (“Chapter 11”) of the United States Code (the “Bankruptcy Code”) in the U.S. Bankruptcy Court for the District of Delaware (the “Bankruptcy Court”). The Chapter 11 cases (the “Chapter 11 Cases”) are being jointly administered for procedural purposes only under the caption In re The Hertz Corporation, et al., Case No. 20-11218 (MFW). Additional information about the Chapter 11 Cases, including access to documents filed with the Bankruptcy Court, is available online at https://restructuring.primeclerk.com/hertz, a website administered by Prime Clerk, LLC (“Prime Clerk”), a third-party bankruptcy claims and noticing agent. The information on that website is not incorporated by reference and does not constitute part of this Current Report on Form 8-K.  

 

The Debtors filed with the Bankruptcy Court a proposed joint chapter 11 plan of reorganization, 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 and a related proposed disclosure statement, in each case dated as of March 29, 2021; a proposed second amended joint Chapter 11 plan of reorganization and a related proposed disclosure statement, in each case dated as of April 3, 2021; a proposed modified second amended joint Chapter 11 plan of reorganization and a related proposed disclosure statement, in each case dated as of April 10, 2021; a proposed second modified second amended joint Chapter 11 plan of reorganization and a related proposed disclosure statement, dated as of April 14, 2021 and April 15, 2021, respectively; a proposed third modified second amended joint Chapter 11 plan of reorganization and a related proposed disclosure statement, in each case dated as of April 16, 2021; and a proposed fourth modified second amended joint Chapter 11 plan of reorganization and a related proposed disclosure statement, in each case dated as of April 21, 2021, which disclosure statement the Debtors further updated on April 21, 2021. On April 22, 2021, after receiving approval from the Bankruptcy Court to solicit the Prior Plan (as defined below), the Debtors filed the solicitation version of the fourth modified second amended joint Chapter 11 plan of reorganization (the “Prior Plan”) and the solicitation version of the related disclosure statement (the “Solicitation Disclosure Statement”) in the form approved by the Bankruptcy Court. Thereafter, the Debtors commenced solicitation of the Prior Plan.

 

The Debtors filed a proposed Third Amended Joint Chapter 11 Plan of Reorganization, dated as of May 12, 2021, which embodied the plan proposal of the plan sponsor group comprised of (a) one or more funds associated with Knighthead Capital Management, LLC (“Knighthead”), (b) one or more funds associated with Certares Opportunities LLC (“Certares”), (c) the investment funds, separate accounts, and other entities owned (in whole or in part), controlled, or managed by Apollo Capital Management, L.P. or its affiliates that are signatories to the PSA (as defined below) (“Apollo” and, together with Knighthead and Certares, the “PE Sponsors”), and (d) certain other entities in their capacity as owners and/or beneficial owners (or managers or advisors of funds or accounts that are beneficial owners) of interests in HGH or that have otherwise provided backstop and/or investment commitments under the EPCA (as defined below) (the “Consenting Investors” and, together with the PE Sponsors, the “Plan Sponsors”). The Debtors submitted to the Bankruptcy Court for approval a related proposed supplement to the Solicitation Disclosure Statement, dated as of May 12, 2021. The Debtors filed with the Bankruptcy Court a proposed First Modified Third Amended Joint Chapter 11 Plan of Reorganization, dated as of May 13, 2021, and submitted to the Bankruptcy Court for approval a related proposed supplement to the Solicitation Disclosure Statement, dated as of May 13, 2021.

 

On May 14, 2021, the Bankruptcy Court entered an order approving, among other things, the Debtors’ selection of the Plan Sponsors, the Debtors’ proposed supplement to the Solicitation Disclosure Statement, the Debtors’ entrance into the EPCA (as defined below), and related rights offering materials related to the Debtors’ First Modified Third Amended Plan of Reorganization. Thereafter, the Debtors filed with the Bankruptcy Court a proposed solicitation version of the First Modified Third Amended Joint Chapter 11 Plan of Reorganization, dated as of May 14, 2021 (the “Proposed Plan”) and related proposed solicitation version of a supplement, dated as of May 14, 2021 (the “Supplemental Disclosure”) to the Solicitation Disclosure Statement (the Solicitation Disclosure Statement as supplemented by the Supplemental Disclosure, the “Disclosure Statement”). The Proposed Plan remains subject to confirmation by the Bankruptcy Court.

 

In connection with the Proposed Plan, the Debtors entered into a Plan Support Agreement, dated as of May 14, 2021 (the “PSA”), with the Plan Sponsors. Pursuant to the PSA, the parties thereto have agreed to take certain actions to support the prosecution and consummation of the Proposed Plan on the terms and conditions set forth in the PSA. The PSA also includes a “fiduciary out” provision that makes clear, to the extent set forth in the PSA, that the Debtors are not required to take any action or to refrain from taking any action with respect to the PSA to the extent taking or failing to take such action would be inconsistent with applicable law or the fiduciary obligations of the Debtors’ boards of directors (or similar governing body) under applicable law. Among other things, the PSA establishes certain milestones for the prosecution and consummation of the Proposed Plan, including fixing (i) May 31, 2021 as the outside date for obtaining Bankruptcy Court approval of certain commitment documents entered into in connection with the PSA and payment by the Debtors of related premiums, fees and expenses as required by such documents, (ii) June 30, 2021 as the outside date for obtaining confirmation of the Proposed Plan, and (iii) July 31, 2021 as the outside date for consummating the Proposed Plan (in each case subject to the right of the Plan Sponsors to extend such milestones in their discretion). The PSA contemplates that additional parties, including the official committee of unsecured creditors appointed in the Chapter 11 Cases (the “Creditors’ Committee”) and certain holders of claims against or interests in any of the Debtors, may join the PSA by executing one or more joinders thereto.

 

2 

 

 

The Debtors also entered into an Equity Purchase and Commitment Agreement, dated as of May 14, 2021 (the “EPCA”) with the Plan Sponsors. The EPCA provides for the purchase or otherwise syndication of $1.5 billion in preferred stock and $2.781 billion in common stock by the Plan Sponsors. In addition, certain Plan Sponsors have agreed to backstop the rights offering contemplated by the Proposed Plan totaling $1.635 billion of common stock to be offered first to eligible holders of existing common stock and then, if not fully subscribed, to eligible holders of claims with respect to (i) the letter of credit facility provided pursuant to 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 and (ii) (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; and (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.

 

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

 

Item 8.01     Other Events.

 

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

 

In connection with the Chapter 11 Cases, on May 14, 2021, the Bankruptcy Court entered an order approving, among other things, the Debtors’ entry into the EPCA and the Supplemental Disclosure, as disclosed above. In connection with authorization of entry into the EPCA, the Debtors terminated (i) their prior Equity Purchase and Commitment Agreement dated as of April 3, 2021 (the “Prior EPCA”) entered into with Centerbridge Partners, L.P., Warburg Pincus LLC, and Dundon Capital Partners, LLC and certain of their respective affiliates (collectively, the “Prior PE Sponsors”) and certain holders of over 85% of the Debtors’ unsecured notes (the “Supporting Noteholders,” and together with the PE Sponsors the “Prior Plan Sponsors”) and (ii) their prior Plan Support Agreement, dated as of April 3, 2021, entered into with the Prior Plan Sponsors and the Creditors’ Committee. In connection with termination of the Prior EPCA, a provision in the Prior EPCA specifies that the Debtors are obligated, upon the Effective Date of the Proposed Plan, to pay the Prior Plan Sponsors a termination payment in the amount of $77,200,000 plus certain expenses pursuant to the terms of the Prior EPCA, as approved by the Bankruptcy Court on April 22, 2021.

 

This Current Report on Form 8-K is not a solicitation of votes to accept or reject the Proposed Plan. Information contained in the Proposed Plan, the Disclosure Statement, or described in this Current Report on Form 8-K is subject to change, whether as a result of additional amendments or supplements to the Proposed Plan or Disclosure Statement or otherwise. The documents and other information available via website or elsewhere are not part of this Current Report on Form 8-K and shall not be deemed incorporated herein.

 

3 

 

 

Cautionary Statement Concerning Forward-Looking Statements

 

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

 

Item 9.01     Exhibits

 

(d) Exhibits

 

Exhibit
Number

 

Title

10.1   Plan Support Agreement, dated as of May 14, 2021
     
10.2   Equity Purchase and Commitment Agreement, dated as of May 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)

 

4 

 

 

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:  May 19, 2021

 

5 

 

 

 

Exhibit 10.1

 

Execution Version

 

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

 

PLAN SUPPORT AGREEMENT

 

This PLAN SUPPORT AGREEMENT, dated as of May 14, 2021 (as amended, supplemented, or otherwise modified from time to time in accordance with the terms hereof, together with all exhibits attached hereto and incorporated herein, this “Agreement”) is entered into by and among: (i) The Hertz Corporation (“Hertz”), a corporation incorporated in the State of Delaware, and its affiliated debtors and debtors-in-possession (collectively with Hertz, the “Company” or the “Debtors”) in the Chapter 11 Cases (as defined below) pending in the United States Bankruptcy Court for the District of Delaware (the “Bankruptcy Court”); (ii) (a) one or more funds associated with Knighthead Capital Management, LLC (“Knighthead”), (b) one or more funds associated with Certares Opportunities LLC (“Certares”), and (c) the investment funds, separate accounts, and other entities owned (in whole or in part), controlled, or managed by Apollo Capital Management, L.P. or its affiliates that are signatories to this Agreement (“Apollo” and, together with Knighthead and Certares, the “PE Sponsors”); (iii) the undersigned in their capacity as owners and/or beneficial owners1 (or managers or advisors of funds or accounts that are beneficial owners) of Interests in Hertz Global Holdings, Inc. (“Hertz Parent”) or that have otherwise provided backstop and/or investment commitments under the EPCA (the “Consenting Investors” and, together with the PE Sponsors, the “Plan Sponsors”); (iv) the official committee of unsecured creditors appointed in the Chapter 11 Cases (the “Committee”) upon executing the joinder attached as Exhibit A hereto (the “Committee Joinder”); and (v) any additional owners or beneficial owners of Claims against or Interests in any of the Debtors (the “Additional Consenting Stakeholders”) that execute the joinder attached as Exhibit B hereto (the “Consenting Stakeholder Joinder”).

 

The Company and the Plan Sponsors and any subsequent person or entity that becomes a party hereto in accordance with the terms hereof are referred to herein as the “Parties” and individually as a “Party.” As used herein, (i) “Requisite Consenting Investors” means, at any relevant time, the Consenting Investors holding at least (a) 66.7% in amount of the Interests in Hertz Parent held by all Consenting Investors, at any relevant time and (b) 66.7%% of the commitments (including rights offering backstop commitments and direct investment commitments) to purchase Reorganized Equity (as defined below) under the EPCA held by all Consenting Investors and (ii) “Requisite Commitment Parties” means, at any relevant time, the Requisite Consenting Investors and each of the PE Sponsors. Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to such terms in the Plan (as defined below).

 

 

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

 

 

 

 

RECITALS

 

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

 

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

 

WHEREAS, to effectuate the Restructuring, in accordance with, and pursuant to, this Agreement and the Commitment Documents (as defined below), (i) the Reorganized Debtors will make distributions of cash and Subscription Rights to participate in the Rights Offering pursuant to the Plan and issue new common stock (“Reorganized Equity”) to the PE Sponsors, Consenting Investors, and holders of Claims against and Interests in the Company that validly exercise Subscription Rights, in each case in a manner consistent with the Plan and the Equity Purchase and Commitment Agreement attached as Exhibit D hereto (as may be further amended, supplemented, or otherwise modified in accordance with its terms, the “EPCA”) and (ii) each of the PE Sponsors and the Consenting Investors will commit, severally and not jointly, to purchase the Reorganized Equity and Preferred Stock on the terms set forth in the EPCA and Plan;

 

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

 

AGREEMENT

 

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

 

Section 1.               Conditions to Effectiveness.

 

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

 

(a)               counsel to the Company shall have received executed counterparts to this Agreement by each of (i) the PE Sponsors and (ii) the Consenting Investors;

 

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

 

2

 

 

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

 

(d)               the Existing Plan Support Agreement2 and the Existing Equity Purchase and Commitment Agreement3 shall each have been terminated by the Debtors, and the financing commitments for the Exit Term Loan Facility, the Exit Revolving Credit Facility, and HVF III (each as defined in the Plan) shall have been modified or replaced so that such facilities may be entered into in connection with the Restructuring;

 

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

 

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

 

 

2        “Existing Plan Support Agreement” means that certain Plan Support Agreement, dated as of April 3, 2021, among (i) the Debtors, (ii) one or more funds associated with Centerbridge Partners, L.P. (“Centerbridge”), (iii) one or more funds associated with Warburg Pincus LLC (“WP”), (iv) Dundon Capital Partners LLC (“Dundon”), (v) the owners and/or beneficial owners (or managers or advisors of funds or accounts that are beneficial owners) of certain Claims against the Debtors that are signatory thereto (the “Initial Consenting Noteholders”), (vi) the Committee, and (vii) any additional holder of certain Claims against the Debtors that executes a joinder thereto.

 

3       “Existing Equity Purchase and Commitment Agreement” means that certain Equity Purchase and Commitment Agreement, dated as of April 3, 2021, among Hertz Global Holdings, Inc., WP, Centerbridge, Dundon and the Initial Consenting Noteholders signatory thereto.

 

3

 

 

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

 

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

 

(b)               the EPCA and all schedules, annexes and exhibits thereto, together with the Rights Offering Procedures (collectively, the “Commitment Documents”);

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

The Definitive Documents not executed or not in a form attached to this Agreement as of the Agreement Effective Date remain subject to negotiation and, upon completion, all Definitive Documents shall (a) reflect and contain the terms, conditions, representations, warranties, and covenants set forth in this Agreement (including the exhibits and annexes hereto), as they may be modified, amended, or supplemented in accordance with Section 9 hereof, and (b) otherwise be in form and substance acceptable to the Debtors and the PE Sponsors (and, to the extent of any provisions in such Definitive Document that are Consenting Investor Provisions (as defined below), the Requisite Consenting Investors).

 

4

 

 

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

 

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

 

(b)               by no later than May 31, 2021, the Bankruptcy Court shall have entered, in form and substance in accordance with Section 3 hereof, an order approving (i) the Commitment Documents, and (ii) payment by the Debtors of related premiums, fees and expenses as required under the Commitment Documents;

 

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

 

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

 

Section 5.               Commitments of the Parties.

 

(a)               Plan Sponsors’, Committee’s, and Additional Consenting Stakeholders’ Commitments. Each of the Plan Sponsors, the Committee (upon the occurrence of the Committee Effective Date and solely with respect to Sections 5(a)(1), 5(a)(2)(i), 5(a)(3)-(4), and 5(a)(6)-(8)), and the Additional Consenting Stakeholders agree, severally and not jointly, during the period beginning on the Agreement Effective Date and ending on the Termination Date (defined in Section 8) applicable to such Party (such period, the “Effective Period”), to:

 

(1)               cooperate and coordinate activities (to the extent practicable and subject to the terms hereof) with the other Parties and use commercially reasonable and good faith efforts to pursue, support, obtain additional support for, solicit, implement, confirm, and consummate the Restructuring, the Commitment Documents, and the Plan, and to execute and take all actions contemplated thereby and as reasonably necessary, or as may be required by order of the Bankruptcy Court, to support and achieve consummation of the Restructuring; provided that, for the avoidance of doubt, seeking the allowance of any interest, costs, and other fees owing on the First Lien Claims, Second Lien Claims or General Unsecured Claims shall not be inconsistent with this Agreement;

 

(2)               not, directly or indirectly, (i) object to, delay, impede, or take any other action to interfere with the acceptance, implementation, or consummation of the Restructuring (including the payment in full of all administrative, priority, and secured claims) or (ii) solicit, propose, file, support, consent to, encourage, take any action in furtherance of or vote for any Alternative Transaction4 (but without limiting the consent, approval, or termination rights provided in this Agreement); provided, however, that nothing herein shall prohibit the Plan Sponsors, the Committee, and the Additional Consenting Stakeholders from discussing with the Debtors any unsolicited Alternative Transaction Proposal in accordance with Section 5(f)(24) hereof, so long as any communications in connection therewith are not inconsistent with this Agreement and are not for the purpose of delaying, interfering, or impeding the Restructuring contemplated by the Plan;

 

 

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

  

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(3)              not, directly or indirectly, file any pleading with the Bankruptcy Court or otherwise support, encourage, seek, solicit, pursue, initiate, assist, join or participate in any challenge to the validity, enforceability, perfection or priority of, or any action seeking avoidance, claw-back, recharacterization or subordination of, any portion of the First Lien Claims or Second Lien Claims or any liens or collateral securing such First Lien Claims or Second Lien Claims; provided that, notwithstanding the foregoing, all Parties’ rights are reserved to challenge, propose or support the rate and/or amount of any interest, costs, and other fees allowable as First Lien Claims or Second Lien Claims in accordance with the Bankruptcy Code from the Petition Date through the Effective Date;

 

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

 

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

 

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

 

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

 

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

 

(9)               with respect to the Plan Sponsors and, upon the occurrence of the Committee Effective Date, the Committee, use commercially reasonable efforts 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 Plan, the Rights Offering Procedures, any other Definitive Document or this 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 this Agreement, to the extent reasonably practicable.

 

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

 

For the avoidance of doubt, (i) the obligations under this 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 this Agreement that are applicable to an individual member of the Committee that has separately executed this Agreement or a joinder to this 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 this Agreement and any motions filed before the Bankruptcy Court.

 

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

 

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

 

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

 

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

 

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

 

(1)              pursuant to and in accordance with the EPCA, to commit, severally and not jointly, to purchase the Preferred Stock and Reorganized Equity on the terms set forth in the EPCA;

 

(2)               in the case of Knighthead and Certares, to provide financing to refinance or replace the HIL Facility on substantially the same terms as set forth in the Credit Agreement, dated as of April 23, 2021, among HIL, as Borrower, the lenders party thereto, and Wilmington Trust, National Association, as Administrative Agent or more Debtor-friendly terms, which financing shall be available promptly upon Bankruptcy Court approval of the Commitment Documents;

 

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

 

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

 

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(5)               solely with respect to the Consenting Investors, dismiss with prejudice the appeal filed by the Ad Hoc Committee of Shareholders of the Order (I) Authorizing Entry into Equity Purchase and Commitment Agreement, (II) Allowing the HHN Notes Guarantee Claims, and (III) Authorizing the Debtors to Grant the HHN Notes Guarantee Confirmations [D.I. 4116].

 

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

 

(e)               Committee’s Additional Commitments. Upon occurrence of the Committee Effective Date, in addition to the commitments enumerated in Section 5(a) hereof, the Committee further agrees to:

 

(1)               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;

 

(2)               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 this Agreement, if, following the Agreement 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 this 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 5(e)(2), 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 this Agreement and (z) is at least as feasible and as likely to achieve confirmation and consummation as the transactions contemplated under this 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 this Agreement;

 

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

 

(4)               not object to the Mandatory Payment Notice for the Donlen Sale [Docket No. 3684] or the distribution of funds as contemplated therein.

 

The obligations of the Committee under this 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 this 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 this Agreement or any of the Definitive Documents by or on behalf of itself or any class of unsecured creditors. 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 100% recovery for Allowed General Unsecured Claims under the 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. For the avoidance of doubt, the Committee is permitted to take into account the interests of all unsecured Claims against the Debtors in connection with actions taken pursuant to this Agreement.

 

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

 

(1)              within one business day of the Agreement Effective Date, (a) file the Plan in the form of an amended version of the proposed plan of reorganization filed at [Docket No. 4077] in the Chapter 11 Cases and (b) file a copy of this Agreement;

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

(17)           provide counsel to each of the Plan Sponsors and, upon the occurrence of the Committee Effective Date, the Committee with any reporting received by the DIP Lenders pursuant to the Order (I) Authorizing the Debtors to Obtain Debtor-in-Possession Financing and Granting Liens and Superpriority Administrative Claims and (II) Granting Related Relief [Docket No. 1661] (the “DIP Order”) or any of the DIP Loan Documents (as defined in the DIP Order) on the same schedule as the Committee or the DIP Lenders, as applicable, receive such reporting, confer with each of the Plan Sponsors and their respective Representatives5, as reasonably requested, on operational matters and the general status of ongoing operations, and provide each of the Plan Sponsors with any information reasonably requested regarding the Debtors (subject to any applicable confidentiality obligations) and reasonable access to management and advisors of the Debtors during normal business hours for the purposes of evaluating the Debtors’ assets, liabilities, operations, businesses, finances, strategies, prospects and affairs; provided that the Debtors shall not be required to provide any information or access that the Debtors reasonably believe would violate applicable law, including antitrust laws and data protection laws, or the terms of any applicable contract (including confidentiality obligations) or cause forfeiture of any attorney-client privilege or an expectation of client confidence or any other rights to any evidentiary privilege;

 

 

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

 

 

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

 

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

 

(20)           not seek to amend or modify, or file a pleading seeking authority to amend or modify, the Definitive Documents in a manner that is materially inconsistent with this Agreement or the Plan without the prior written consent of the PE Sponsors (and, to the extent any such amendment or modification relates to any of the Consenting Investor Provisions (as defined below) in the Definitive Documents, the Requisite Consenting Investors);

 

(21)           withdraw or amend the Debtors’ motions filed in the Bankruptcy Court seeking approval of entry into the commitment and fee letters related to the Exit Term Loan Facility, the Exit Revolving Credit Facility, and HVF III to reflect the terms agreed in connection with the Restructuring;

 

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

 

(23)           not to settle or otherwise agree to the allowance of (a) any Claims related to interest, costs, fees, premiums, or “make whole” amounts arising on and from the Petition Date through the Effective Date (except a settlement or agreement approved by the Bankruptcy Court prior to the Agreement Effective Date) with respect to the First Lien Claims, Second Lien Note Claims, Unsecured Funded Debt Claims, or HHN Notes Guarantee Claims, or (b) any General Unsecured Claim in an allowed amount in excess of $1,000,000.00 (except a settlement or agreement approved by the Bankruptcy Court prior to the Agreement Effective Date), in each case without the prior written consent of each of the PE Sponsors and shall consult with the PE Sponsors with respect to any objection to any such Claims (other than with respect to any PE Sponsor that owns or is the beneficial owner of a Claim that is the subject of such objection);

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

 

(25)           upon occurrence of the Committee Effective Date, (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 Plan, the Rights Offering Procedures, any other Definitive Document or this 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 this Agreement, to the extent reasonably practicable.

 

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(g)               Moretti Settlement. Upon the occurrence of the Committee Effective Date, the Debtors agree that they shall timely pursue, and the Committee and Plan Sponsors hereby agree that they shall support, a full and final settlement under Federal Bankruptcy Rule 9019 of all Claims related to or arising under the action Moretti v. The Hertz Corporation et al., Case No. 14-cv-00469-LPS (D. Del.), pursuant to which all such Claims shall be Allowed in the aggregate amount of $20,000,000.00 and treated as General Unsecured Claims in accordance with the Plan on terms and conditions that are substantially similar to other class action settlements that have resulted in General Unsecured Claims in the Chapter 11 Cases.

 

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

 

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Section 6.               Transfers of Claims.

 

(a)               Restrictions on Transfers. Each Plan Sponsor, Consenting Investor, and Additional Consenting Stakeholder agrees that such Plan Sponsor, Consenting Investor, or Additional Consenting Stakeholder shall not sell, transfer, loan, issue, pledge, hypothecate, assign or otherwise dispose of, directly or indirectly, in whole or in part (each, a “Transfer”), any Claims against or Interests in any of the Debtors that it owns or has beneficial ownership of, or any option thereon or any right or interest therein (including granting any proxies, depositing any of its Claims or Interests into a voting trust or entering into a voting agreement with respect to any of its Claims or Interests), unless, subject in all cases to the terms and conditions set forth in the EPCA, the transferee thereof either (i) is a Plan Sponsor, Consenting Investor, or Additional Consenting Stakeholder (provided that written notice of such transfer shall be provided to counsel to the Debtors and the Plan Sponsors within two (2) business days after the consummation of such transfer) or (ii) prior to, or contemporaneous with, such Transfer, agrees in writing for the benefit of the Parties to become an Additional Consenting Stakeholder and to be bound by all of the terms of this Agreement applicable to an Additional Consenting Stakeholder, as applicable (including with respect to any and all Claims against or Interests in any of the Debtors), by executing a Consenting Stakeholder Joinder and delivering an executed copy thereof within two (2) business days after such execution, to counsel to the Debtors, in which event the transferee (a “Permitted Transferee”) shall be deemed to be an Additional Consenting Stakehodler, as applicable, hereunder to the extent of such transferred Claims or Interests. Any transfer made while this Agreement remains in effect in violation of this provision shall be void ab initio.

 

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

 

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

 

Section 7.               Representations and Warranties.

 

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

 

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

 

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

 

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

 

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

 

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

 

Section 8.               Termination Events.

 

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

 

(1)              the breach by any Debtor of any obligation, commitment, agreement, representation, warranty, covenant, or other provision contained in this Agreement in any material respect, which breach (i) would materially and adversely impede or interfere with the overall acceptance, implementation, or consummation of the Restructuring on the terms and conditions set forth in this Agreement and the Plan and (ii) remains uncured for a period of five (5) business days after the receipt by the other Parties of written notice of such breach from the terminating Plan Sponsor, other than with respect to any breach that is incurable, for which no cure period shall be required or apply;

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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(c)           Committee Termination Events. This Agreement may be terminated by the Committee, with respect to itself only, upon one (1) business day’s written notice thereof by the Committee to the other Parties in accordance with Section 11(l) hereof, upon the occurrence of any of the following events, in each case after the Committee Effective Date, and with respect to the events enumerated in Sections 8(c)(1)-(7), if 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:

 

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

 

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

 

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

 

(4)               the Debtors withdraw the Plan or the Bankruptcy Court enters an order denying confirmation of the Plan, the effect of which would render the Plan incapable of consummation on the terms set forth herein; provided that, for the avoidance of doubt, no Party shall have the right to terminate this Agreement pursuant to this Section 8(c)(4) if the Bankruptcy Court denies confirmation of the Plan subject only to the making of ministerial, administrative, or immaterial modifications to the Plan;

 

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

 

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

 

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(7)               the termination of the EPCA in accordance with its terms;

 

(8)              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 Plan;

 

(9)               the Committee determines in good faith, based upon advice of counsel, that, in light of a Superior Committee Proposal received in compliance with Section 5(e)(2) of this Agreement, 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 5(e)(2), 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 8(c)(7) (electronic mail among counsel being sufficient);

 

(10)           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 Plan;

 

(11)           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 Plan, the Rights Offering Procedures or this 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 Parties;

 

(12)           this 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;

 

(13)           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;

 

(14)          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;

 

(15)           the Confirmation Order has not been entered by the Bankruptcy Court by November 22, 2021; or

 

(16)           the Effective Date shall not have occurred by January 1, 2022.

 

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

 

(1)               the breach by any of the Plan Sponsors of any obligation, commitment, agreement, representation, warranty, covenant, or other provision contained in this Agreement in any material respect, which breach (i) would materially and adversely impede or interfere with the overall acceptance, implementation, or consummation of the Restructuring on the terms and conditions set forth in this Agreement and the Plan and (ii) remains uncured for a period of five (5) business days after the receipt by the other Parties of written notice of such breach from the Debtors, other than with respect to any breach that is incurable, for which no cure period shall be required or apply;

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

(f)                Effect of Termination. The date on which termination of this Agreement is effective with respect to any Party in accordance with this Section 8 shall be referred to as a “Termination Date” with respect to such Party. Upon the occurrence of a Termination Date, the applicable Parties’ obligations under this Agreement shall be terminated effective immediately, and the Parties, subject to such termination in accordance with this Section 8, shall be released from all commitments, undertakings, and agreements hereunder; provided, however, that each of the following shall survive any such termination: (i) any claim for breach of this Agreement that occurs prior to such Termination Date, and all rights and remedies with respect to such claims, (ii) this Section 8, and (iii) Section 11 hereof.

 

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

 

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Section 9.               Amendments and Waivers.

 

(a)           The terms and conditions of this Agreement, including any exhibits, annexes or schedules to this Agreement, may not be waived, modified, amended, or supplemented without the prior written consent of (i) each of the Debtors, (ii) the PE Sponsors (and, to the extent any such amendment would reduce the Rights Offering Backstop Commitment (as defined in the EPCA) or Direct Investment Portion (as defined in the EPCA) of any Consenting Investor or reduce the Backstop Fee (as defined in the EPCA) payable to any Consenting Investor, change the form of payment of the Backstop Fee payable to any Consenting Investor from Common Stock (as defined in the EPCA), delays beyond the Closing Date (as defined in the EPCA) the date on which payment of the Backstop Fee is paid to any Consenting Investor, or otherwise materially and adversely affects the economic interests of the Consenting Investors (collectively, the “Consenting Investor Provisions”), the Requisite Consenting Investors), (iii) subject to the occurrence of the Committee Effective Date and solely with respect to any rights or obligations of the Committee under Sections 5(a), 5(e), 8(c), and 9 hereof, the Committee, provided, for the avoidance of doubt, that none of this 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, and (iv) subject to the occurrence of the Consenting Stakeholder Effective Date and solely with respect to any rights or obligations of the Additional Consenting Stakeholder under Sections 5(a), 5(d), 8(b), and 9 hereof, the Additional Consenting Stakeholders holding a majority of the principal amount of the Claims against the Debtors that all Additional Consenting Stakeholders hold at the time of such waiver, modification, amendment, or supplement. Any proposed modification, amendment, waiver, or supplement that does not comply with this Section 9 shall be ineffective and void ab initio as to any non-consenting Party affected thereby. The waiver by any Party of a breach of any provision of this Agreement shall not operate or be construed as a further or continuing waiver of such breach or as a waiver of any other or subsequent breach. No failure on the part of any Party to exercise, and no delay in exercising, any right, power or remedy under this Agreement shall operate as a waiver of any such right, power or remedy or any provision of this Agreement, nor shall any single or partial exercise of such right, power or remedy by a Party preclude any other or further exercise of such right, power or remedy or the exercise of any other right, power or remedy by such Party. All remedies under this Agreement are cumulative and are not exclusive of any other remedies provided by Law. Any consent or waiver contemplated in this Agreement may be provided by electronic mail from counsel to the relevant Parties.

 

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(b)               The Requisite Consenting Investors shall not agree to any amendment to this Agreement, the EPCA or the Plan related to a Consenting Investor Provision that is disproportionately materially and economically adverse to any individual Consenting Investor unless the obligations and commitments thereunder of any such Consenting Investor that does not consent to such amendment are immediately terminated by the Debtors, the other Consenting Investors and the Plan Sponsors.

 

Section 10.          Fees and Expenses. The Debtors shall promptly pay or reimburse, as and when required under either the EPCA or the Plan, all reasonable and documented out-of-pocket fees (including success fees, transaction fees or similar fees) of: (i) Kirkland & Ellis LLP, as counsel to Knighthead and Certares, (ii) Paul, Weiss, Rifkind, Wharton & Garrison LLP, as counsel to Apollo, (iii) Klehr Harrison Harvey Branzburg LLP, as Delaware counsel to the PE Sponsors, (iv) Guggenheim Securities, LLC, as investment banker to Knighthead and Certares, (v) Alvarez & Marsal Corporate Performance Improvement, LLC, as financing advisor to Knighthead and Certares, (vi) Glenn Agre Bergman & Fuentes LLP, as counsel to the Consenting Investors, (vii) Morris, Nichols, Arsht & Tunnell LLP, as Delaware counsel to the Consenting Investors, (viii) Pericles Capital Advisors, LLC, as financial advisor to the Consenting Investors, and (ix) any other accountants and other professionals, advisors and consultants retained by the PE Sponsors with the prior written consent of the Company, in each case, to implement the Restructuring (regardless of when such fees are or were incurred) (the “Fees”). To the extent not paid or reimbursed under the EPCA or otherwise by the Debtors before the Effective Date, the Plan shall provide for the payment in full in cash on the Effective Date of any unpaid Fees. The Fees shall be payable by the Debtors without any requirement to (x) file retention or fee applications, (y) provide notice to any Person other than the Debtors, or (z) provide itemized time detail to the Debtors or any other Person; provided that the applicable advisors will provide additional detail as reasonably requested by the Debtors.

 

Section 11.           Miscellaneous.

 

(a)              Entire Agreement. This Agreement constitutes the entire agreement among the Parties with respect to the subject matter hereof and supersedes all prior agreements, oral, or written, among the Parties (or any subset thereof) with respect thereto, including the Existing Plan Support Agreement, that certain Joinder Agreement in Respect of Plan Support Agreement, dated as of April 14, 2021, and that certain Supplement to Joinder Agreement in Respect of Plan Support Agreement dated as of April 14, 2021 (each of which, for the avoidance of doubt, shall no longer be in effect).

 

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

 

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

 

26

 

 

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

 

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

 

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

 

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

 

27

 

 

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

 

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

 

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

 

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

 

28

 

 

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

 

(1)          If to the Company, to:

 

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

 

with a copy to:

 

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

 

and

 

White & Case LLP
1221 Avenue of the Americas
New York, New York 10020
Attention: David Turetsky; Andrew Zatz
Email: david.turetsky@whitecase.com; azatz@whitecase.com

 

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

 

Kirkland & Ellis LLP

601 Lexington Avenue

New York, New York 10022

Attn.: Stephen E. Hessler, P.C.

shessler@kirkland.com

 

and

 

Kirkland & Ellis LLP

300 North LaSalle Dr.

Chicago, IL 60654

Attn.: John R. Luze

john.luze@kirkland.com

 

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

 

Paul, Weiss, Rifkind, Wharton & Garrison LLP
1285 Avenue of the Americas
New York, New York 10019

Attn.: Jeffrey D. Saferstein, Kyle J. Kimpler
jsaferstein@paulweiss.com; kkimpler@paulweiss.com

 

29

 

 

(4)          If to the Consenting Investors, to the electronic mail addresses set forth below such Party’s signature, with copies to:

 

Glenn Agre Bergman & Fuentes LLP

55 Hudson Yards

20th Floor

New York, New York 10001

Attn: Andrew Glenn

aglenn@glennagre.com

 

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

 

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

 

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

 

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

 

[Remainder of Page Intentionally Left Blank]

 

30

 

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

 

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

 

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

 

  CMGC Canada Acquisition ULC (CCAA)
     
  By: /s/ M. David Galainena
  Name: M. David Galainena
  Title: Vice President, General Counsel and Secretary

 

  Dollar Rent A Car, Inc.
     
  By: /s/ M. David Galainena
  Name: M. David Galainena
  Title: Vice President, General Counsel and Secretary

 

[Signature Page to Plan Support Agreement]

 

 

  Dollar Thrifty Automotive Group Canada, Inc.
     
  By: /s/ M. David Galainena
  Name: M. David Galainena
  Title: Vice President, General Counsel and Secretary

 

  Dollar Thrifty Automotive Group, Inc.
     
  By: /s/ M. David Galainena
  Name: M. David Galainena
  Title: Vice President, General Counsel and Secretary

 

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

 

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

 

[Signature Page to Plan Support Agreement]

 

 

  DTG Supply, LLC
     
  By: DTG Operations, Inc.,
Its sole member and manager
     
  By: /s/ M. David Galainena
  Name: M. David Galainena
  Title: Vice President, General Counsel and Secretary

 

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

 

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

 

[Signature Page to Plan Support Agreement]

 

 

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

 

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

 

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

 

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

 

[Signature Page to Plan Support Agreement]

 

 

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

 

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

 

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

 

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

 

[Signature Page to Plan Support Agreement]

 

 

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

 

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

 

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

 

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

 

[Signature Page to Plan Support Agreement]

 

 

  SellerCo Fleet Leasing, Ltd.
     
  By: /s/ M. David Galainena
  Name: M. David Galainena
  Title: President

 

  SellerCo Corporation
     
  By: /s/ M. David Galainena
  Name: M. David Galainena
  Title: President and Chief Executive Officer

 

  SellerCo FSHCO Company
     
  By: /s/ M. David Galainena
  Name: M. David Galainena
  Title: President and Chief Executive Officer

 

  SellerCo Mobility Solutions, Inc.
     
  By: /s/ M. David Galainena
  Name: M. David Galainena
  Title: Chairman of the Board and President

 

[Signature Page to Plan Support Agreement]

 

 

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

 

  Thrifty, LLC
     
  By: Dollar Thrifty Automotive Group, Inc.,
Its sole member and manager
     
  By: /s/ M. David Galainena
  Name: M. David Galainena
  Title: Vice President, General Counsel and Secretary

 

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

 

[Signature Page to Plan Support Agreement]

 

 

 

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

 

  KNIGHTHEAD CAPITAL MANAGEMENT, LLC, or one of its affiliates, solely on behalf of certain funds managed and/or advised by it
     
  By: /s/ Laura L. Torrado
    Name: Laura L. Torrado
    Title: General Counsel
     
  CERTARES OPPORTUNITIES LLC
  By: Certares Management LLC, its sole member
     
  By: /s/ Tom LaMacchia
    Name: Tom LaMacchia
    Title: Managing Director and General Counsel

 

[Signature Page to the Plan Support Agreement] 

 

 

AP KENT CREDIT MASTER FUND, L.P.
     
By: AP Kent Advisors, L.P., its general partner  
     
By: AP Kent Advisors GP, LLC, its general partner  
     
By: /s/ Joseph D. Glatt  
Name:  Joseph D. Glatt  
Title:    Vice President  
     
APOLLO ACCORD IV AGGREGATOR A, L.P.
     
By: Apollo Accord Advisors IV, L.P., its general partner  
     
By: Apollo Accord Advisors IV GP, LLC, its general partner  
     
By: /s/ Joseph D. Glatt  
Name:  Joseph D. Glatt  
Title:    Vice President  
     
APOLLO A-N CREDIT FUND (DELAWARE), L.P.
     
By: Apollo A-N Credit Management, LLC, its investment manager
     
By: /s/ Joseph D. Glatt  
Name:  Joseph D. Glatt
Title:    Vice President  
     
APOLLO A-N CREDIT FUND (DELAWARE) L.P. - OVERFLOW 2
     
By: Apollo A-N Credit Management, LLC, its investment manager  
     
By: /s/ Joseph D. Glatt  
Name:  Joseph D. Glatt  
Title:    Vice President  

 

[Signature Page to Plan Support Agreement]

 

 

APOLLO ATLAS MASTER FUND, LLC
     
By: Apollo Atlas Management, LLC, its investment manager  
     
By: /s/ Joseph D. Glatt  
Name:  Joseph D. Glatt  
Title:    Vice President  
     
APOLLO CENTRE STREET PARTNERSHIP, L.P.  
     
By: Apollo Centre Street Management, LLC, its investment manager
     
By: /s/ Joseph D. Glatt  
Name:  Joseph D. Glatt
Title:    Vice President
     
APOLLO CREDIT MASTER FUND LTD.  
     
By: Apollo ST Fund Management LLC, its investment manager  
     
By: /s/ Joseph D. Glatt  
Name:  Joseph D. Glatt
Title:    Vice President
     
APOLLO CREDIT STRATEGIES MASTER FUND LTD.
     
By: Apollo ST Fund Management LLC, its investment manager  
     
By: /s/ Joseph D. Glatt  
Name:  Joseph D. Glatt  
Title:    Vice President  

 

[Signature Page to Plan Support Agreement

 

 

APOLLO LINCOLN FIXED INCOME FUND, L.P.
     
By: Apollo Lincoln Fixed Income Advisors (APO DC), L.P., its general partner  
   
By: Apollo Lincoln Fixed Income Advisors (APO DC-GP), LLC, its general partner  
     
By: /s/ Joseph D. Glatt  
Name:  Joseph D. Glatt  
Title:    Vice President  
   
APOLLO OASIS PARTNERS (FC), LLC  
     
By: Apollo Oasis Partners, L.P., its managing member  
     
By: Apollo Oasis Management, LLC, its investment manager  
     
By: /s/ Joseph D. Glatt  
Name:  Joseph D. Glatt  
Title:    Vice President  
     
APOLLO PPF CREDIT STRATEGIES, LLC  
     
By: Apollo PPF Credit Strategies (Lux), SCSp, its member  
     
By: Apollo PPF Credit Strategies Management, LLC, its investment manager  
     
By: /s/ Joseph D. Glatt  
Name:  Joseph D. Glatt  
Title:    Vice President  
     
APOLLO PPF OPPORTUNISTIC CREDIT PARTNERS LLC  
     
By: /s/ Joseph D. Glatt  
Name:  Joseph D. Glatt  
Title:    Vice President  

 

[Signature Page to Plan Support Agreement

 

 

APOLLO SENIOR FLOATING RATE FUND INC.  
   
By: Apollo Credit Management, LLC, its investment manager  
     
By: /s/ Joseph D. Glatt  
Name:  Joseph D. Glatt  
Title:    Vice President  
   
APOLLO TACTICAL INCOME FUND INC.  
     
By: Apollo Credit Management, LLC, its investment manager  
     
By: /s/ Joseph D. Glatt  
Name:  Joseph D. Glatt  
Title:    Vice President  
     
APOLLO TACTICAL VALUE SPN INVESTMENTS, L.P.  
     
By: Apollo Tactical Value SPN Advisors (APO DC), L.P., its general partner  
     
By: Apollo Tactical Value SPN Capital Management (APO DC-GP), LLC, its general partner  
     
By: /s/ Joseph D. Glatt  
Name:  Joseph D. Glatt  
Title:    Vice President  
     
APOLLO TR OPPORTUNISTIC LTD.  
     
By: Apollo Total Return Enhanced Management LLC, its investment manager  
     
By: /s/ Joseph D. Glatt  
Name:  Joseph D. Glatt  
Title:    Vice President  

 

[Signature Page to Plan Support Agreement

 

 

APOLLO MANAGEMENT INTERNATIONAL LLP,
as advisor on behalf of MERCER QIF FUND PLC,
acting solely in respect of its sub-fund, MERCER
MULTI-ASSET CREDIT FUND
 
By: AMI (Holdings), LLC, its member  
     
By /s/ Joseph D. Glatt  
Name:  Joseph D. Glatt  
Title:    Vice President  
   
MPI (LONDON) LIMITED  
     
By: Apollo TRF MP Management, LLC, its investment manager
     
By: /s/ Joseph D. Glatt  
Name:  Joseph D. Glatt  
Title:    Vice President  
   
APOLLO ACCORD MASTER FUND III B, L.P.  
   
By: Apollo Accord Advisors III B, L.P, its general partner  
     
By: Apollo Accord Advisors GP III B, L.P., its general partner  
     
By: /s/ Joseph D. Glatt  
Name:  Joseph D. Glatt  
Title:    Vice President  
     
APOLLO MANAGEMENT INTERNATIONAL LLP,
 as investment manager on behalf of SHCLUMBERGER
COMMON INVESTMENT FUND, acting as trustee for
SCHLUMBERGER UK COMMON INVESTMENT FUND
 
By: AMI (Holdings), LLC, its member  
     
By: /s/ Joseph D. Glatt  
Name:  Joseph D. Glatt  
Title:    Vice President  

 

[Signature Page to Plan Support Agreement

 

 

  Hampton Road Capital Master Fund LP
       
    By: /s/ Kenneth Palumbo
    Name:  Kenneth Palumbo
    Title:    Pres. COO

 

[Signature Page

 

 

  Jefferies Strategic Investments, LLC
       
    By: /s/ Kenneth Palumbo
    Name:  Kenneth Palumbo
    Title:    Pres-COO of Investment Manager

 

[Signature Page

 

 

  Highbridge Tactical Credit Master Fund, L.P
     
  By: Highbridge Capital Management, LLC,
     
         as Trading Manager
     
  /s/ Jonathan Segal
    Name: Jonathan Segal
    Title: Managing Director, Co-CIO

 

[Signature Page

 

 

  JEFFERIES LLC
     
  By: /s/ William P. McLoughlin
  Name:  William P. McLoughlin
  Title:    Senior Vice President

 

[Signature Page

 

 

  Oaktree value Opportunities Fund Holdings, L.P.
     
  By: Oaktree Value Opportunities Fund GP, L.P.
  Its: General Partner
     
  By: Oaktree Value Opportunities Fund GP Ltd.
  Its: General Partner
     
  By: Oaktree Capital Management,  L.P.
  Its: Director
     
  By: /s/ Andrew West
  Name:  Andrew West
  Title:    Vice President
   
  By: /s/ Steven Tesoriere
  Name:  Steven Tesoriere
  Title:    Managing Director

 

[Signature Page

 

 

  Oaktree Opportunities Fund XI Holdings (Delaware), L.P.
     
  By: Oaktree Fund GP, LLC
  Its: General Partner
     
  By: Oaktree Fund GP I, L.P.
  Its: Managing Member
     
  By: /s/ Kaj Vazales
  Name:  Kaj Vazales
  Title:    Authorized Signatory
   
  By: /s/ Jordan Mikes
  Name:  Jordan Mikes
  Title:    Authorized Signatory

 

[Signature Page

 

 

  Oaktree Opportunities Fund Xb Holdings (Delaware), L.P.
     
  By: Oaktree Fund GP, LLC
  Its: General Partner
     
  By: Oaktree Fund GP I, L.P.
  Its: Managing Member
     
  By: /s/ Kaj Vazales
  Name:  Kaj Vazales
  Title:    Authorized Signatory
   
  By: /s/ Jordan Mikes
  Name:  Jordan Mikes
  Title:    Authorized Signatory

 

[Signature Page

 

 

  Oaktree Phoenix Investment Fund, L.P.
     
  By: Oaktree Phoenix Investment Fund GP, L.P.
  Its: General Partner
     
  By: Oaktree Phoenix Investment Fund GP Ltd.
  Its: General Partner

 

[Signature Page

 

 

  Oaktree Value Equity Holding, L.P.
     
  By: Oaktree Value Equity Fund GP, L.P.
  Its: General Partner
     
  By: Oaktree Value Equity Fund GP Ltd.
  Its: General Partner
     
  By: Oaktree Capital Management,  L.P.
  Its: Director
     
  By: /s/ Peter Boos
  Name:  Peter Boos
  Title:    Vice President
   
  By: /s/ Henry Orren
  Name:  Henry Orren
  Title:    Senior Vice President

 

[Signature Page

 

 

  Rubric Capital Master Fund LP
       
    By: /s/ Michael Nachmani
    Name:  Michael Nachmani
    Title:    Authorized Signatory

 

[Signature Page

 

 

  BEMAP Master Fund Ltd
       
  By: /s/ Michael Nachmani
  Name:  Michael Nachmani
  Title:    Authorized Signatory

 

[Signature Page

 

 

  Blackstone CSP-MST FMAP Fund
       
  By: /s/ Michael Nachmani
  Name:  Michael Nachmani
  Title:    Authorized Signatory

 

[Signature Page

 

 

  Two Seas Global (Master) Fund LP
       
  By: /s/ Sina Toussi
  Name: Sina Toussi
  Title: Managing Member  of Two Seas
Global Fund GP LLC, its general partner

 

[Signature Page

 

 

  Two Seas Duration Litigation Opportunities Fund LLC
       
  By: /s/ Sina Toussi
  Name: Sina Toussi
  Title: Managing Member  of Two Seas Litigation Opportunities Fund Manager LLC, its managing member

 

[Signature Page

 

 

  Discovery Global Opportunity Master Fund, Ltd.
       
  By: /s/ Adam Schreck
  Name:  Adam Schreck
  Title:    General Counsel

 

[Signature Page

 

 

  Jefferies Strategic Investments, LLC
       
  By: /s/ William M. Kelly
  Name: William M. Kelly
  Title: Co-Managing Partner  FourSixThree Capial LP
Investment Manager for Jefferies Strategic Investments, LLC

 

[Signature Page

 

 

  FourSixThree Master Fund, LP
       
  By: /s/ William M. Kelly
  Name:  William M. Kelly
  Title:    Managing Member of GP

 

[Signature Page

 

 

  ALTA FUNDAMENTAL ADVISERS MASTER L.P.
     
  By: /s/ Jeremy Carton
  Name:  Jeremy Carton
  Title:    Authorized Signatory

 

[Signature Page

 

 

  BLACKWELL PARTNERS LLC – SEREIS A
     
  By: /s/ Jeremy Carton
  Name:  Jeremy Carton
  Title:    Authorized Signatory, solely with respect to assets managed by Alta Fundamental Advisers LLC

 

[Signature Page

 

 

  STAR V PARTNERS LLC
     
  By: /s/ Jeremy Carton
  Name:  Jeremy Carton
  Title:    Authorized Signatory

 

[Signature Page

 

 

  ALTA FUNDAMENTAL ADVISERS SP LLC
     
  By: /s/ Jeremy Carton
  Name:  Jeremy Carton
  Title:    Authorized Signatory, solely with respect to assets managed by Alta Fundamental Advisers LLC

 

[Signature Page

 

 

  Boothbay Absolute Return Strategies, LP
       
  By: /s/ Peter Bremberg
  Name:  Peter Bremberg
  Title:    COO

 

[Signature Page

 

 

  Boothbay Diversified Alpha Master Fund LP
       
  By: /s/ Peter Bremberg
  Name:  Peter Bremberg
  Title:    COO

 

[Signature Page

 

 

  Cadence Hill Opportunity Fund LP
     
  By: /s/ Matthew P Lamberti
  Name:  Matthew P Lamberti
  Title:    Managing Member

 

[Signature Page

 

 

  FourWorld Event Opportunities Fund, LP
       
  By: /s/ John Addis
  Name:  John Addis
  Title:    Authorized Signatory

 

[Signature Page

 

 

  FourWorld Global Opportunities Fund, Ltd.
       
  By: /s/ John Addis
  Name:  John Addis
  Title:    Authorized Signatory

 

[Signature Page

 

 

  FourWorld Special Opportunities Fund, LLC
       
  By: /s/ John Addis
  Name:  John Addis
  Title:    Authorized Signatory

 

[Signature Page

 

 

  Glenview Institutional Partners, L.P.
     
  By: Glenview Capital Management, LLC, its investment adviser
       
  By: /s/ Mark Horowitz
  Name:  Mark Horowitz
  Title:    Co-President

 

[Signature Page

 

 

  Glenview Capital Partners, L.P.
     
  By: Glenview Capital Management, LLC, its investment adviser
       
    By: /s/ Mark Horowitz
    Name:  Mark Horowitz
    Title:    Co-President

 

[Signature Page

 

 

  Glenview Capital Master Fund, Ltd.
   
  By: Glenview Capital Management, LLC, its investment adviser
     
    By: /s/ Mark Horowitz
    Name:  Mark Horowitz
    Title:    Co-President

 

[Signature Page

 

 

  Glenview Capital Opportunity Fund, L.P.
   
  By: Glenview Capital Management, LLC, its investment adviser
     
    By: /s/ Mark Horowitz
    Name:  Mark Horowitz
    Title:    Co-President

 

[Signature Page

 

 

  Glenview Offshore Opportunity Master Fund, Ltd.
   
  By: Glenview Capital Management, LLC, its investment adviser
     
    By: /s/ Mark Horowitz
    Name:  Mark Horowitz
    Title:    Co-President

 

[Signature Page

 

 

  Accepted and agreed:
   
  HEIN PARK CAPITAL MANAGEMENT LP,
on behalf of certain funds it manages
     
  By: /s/ Jay Schoenfarber
  Name:  Jay Schoenfarber
  Title:    General Counsel
  Date:    May 1, 2021

 

[Signature Page to Plan Support Agreement]

 

 

 

Exhibit A

 

Form of Committee Joinder

 

Pursuant to this joinder agreement (the “Committee Joinder”), the undersigned official committee of unsecured creditors appointed in the Chapter 11 Cases (the “Committee”) acknowledges that it has read and understands the Plan Support Agreement (the “Agreement”), dated as of May 12, 2021, by and among (i) The Hertz Corporation (“Hertz”), a corporation incorporated in the State of Delaware, and its affiliated debtors and debtors-in-possession (collectively with Hertz, the “Company” or the “Debtors”) in the Chapter 11 Cases (as defined below) pending in the United States Bankruptcy Court for the District of Delaware (the “Bankruptcy Court”); (ii)(a) one or more funds associated with Knighthead Capital Management, LLC (“Knighthead”), (b) one or more funds associated with Certares Opportunities LLC (“Certares”), and (c) Apollo Capital Management, L.P., on behalf of one or more investment funds, separate accounts, and other entities owned (in whole or in part), controlled, or managed by it or its affiliates (“Apollo” and, together with Knighthead and Certares, the “PE Sponsors”); (iii) the Parties thereto in their capacity as owners and/or beneficial owners1 (or managers or advisors of funds or accounts that are beneficial owners) of Interests in Hertz Global Holdings, Inc. (“Hertz Parent”) or that have otherwise provided backstop and/or investment commitments under the EPCA (the “Consenting Investors” and, together with the PE Sponsors, the “Plan Sponsors”); (iv) the official committee of unsecured creditors appointed in the Chapter 11 Cases (the “Committee”) upon executing this Committee Joinder; and (v) any additional owners or beneficial owners of Claims against or Interests in any of the Debtors (the “Additional Consenting Stakeholders”) that execute a Consenting Stakeholder Joinder. Capitalized terms used but not defined herein shall have the meanings set forth in the Agreement.

 

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

 

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

 

3.                 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 Committee Joinder) shall be deemed to refer to the Plan Support Agreement as amended and supplemented by this Committee Joinder.

 

4.                 Effectiveness. This Committee Joinder shall be effective on the date upon which the Committee shall have executed and delivered the signature page of this Joinder to counsel to each of the Debtors and the Plan Sponsors (the “Joinder Effective Date”). For purposes of the Agreement, the Joinder Effective Date shall be deemed the Committee Effective Date.

 

 

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

 

 

 

 

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

 

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

 

Kramer Levin Naftalis & Frankel LLP

1177 Sixth Avenue

New York, NY 10036

Attention: Amy Caton

                   Thomas Moers Mayer

                   Alice Byowitz

Email: acaton@kramerlevin.com

tmayer@kramerlevin.com

abyowitz@kramerlevin.com

 

 

 

 

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

 

   
 

OFFICIAL COMMITTEE OF UNSECURED

CREDITORS IN IN RE THE HERTZ CORPORATION, ET AL.,

CASE NO. 20-11218 (MFW) (BANKR. D. DEL.)

   
  By:  
  Name:
  Title: Counsel to the Official Committee of Unsecured Creditors

 

 

 

 

Exhibit B

Form of Consenting Stakeholder Joinder

 

Pursuant to this joinder agreement (the “Consenting Stakeholder Joinder”), the undersigned holder of Claims against any of the Debtors (the “Joining Party”) acknowledges that it has read and understands the Plan Support Agreement (the “Agreement”), dated as of May 12, 2021, by and among (i) The Hertz Corporation (“Hertz”), a corporation incorporated in the State of Delaware, and its affiliated debtors and debtors-in-possession (collectively with Hertz, the “Company” or the “Debtors”) in the Chapter 11 Cases (as defined below) pending in the United States Bankruptcy Court for the District of Delaware (the “Bankruptcy Court”); (ii)(a) one or more funds associated with Knighthead Capital Management, LLC (“Knighthead”), (b) one or more funds associated with Certares Opportunities LLC (“Certares”), and (c) Apollo Capital Management, L.P., on behalf of one or more investment funds, separate accounts, and other entities owned (in whole or in part), controlled, or managed by it or its affiliates (“Apollo” and, together with Knighthead and Certares, the “PE Sponsors”); (iii) the Parties thereto in their capacity as owners and/or beneficial owners2 (or managers or advisors of funds or accounts that are beneficial owners) of Interests in Hertz Global Holdings, Inc. (“Hertz Parent”) or that have otherwise provided backstop and/or investment commitments under the EPCA (the “Consenting Investors” and, together with the PE Sponsors, the “Plan Sponsors”); (iv) the official committee of unsecured creditors appointed in the Chapter 11 Cases (the “Committee”); and (v) any additional owners or beneficial owners of Claims against or Interests in any of the Debtors (the “Additional Consenting Stakeholders”) that execute this Consenting Stakeholder Joinder. Capitalized terms used but not defined herein shall have the meanings set forth in the Agreement.

 

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

 

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

 

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

 

 

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

 

B-1 

 

 

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

 

To the Joining Party at:

 

[JOINING PARTY]

[ADDRESS]

Attn:

Facsimile:

EMAIL:

 

B-2 

 

 

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

 

  [Consenting Stakeholder]
   
  By:  
  Name:
  Title:
   
  Claims (principal amount):

 

 

 

 

Exhibit C

 

Plan

 

 

 

 

SOLICITATION VERSION

 

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)

 

FIRST MODIFIED THIRD 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: May 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.

 

 

 

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 34

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 35

H. Controlling Document 35

 

Article II. ADMINISTRATIVE CLAIMS AND PRIORITY CLAIMS   36

A. Administrative Claims 36

B. DIP Claims 37

C. HVF Master Lease Administrative Claims 37

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   39

A. Summary of Classification 39

B. Treatment of Claims and Interests 41

C. Special Provision Governing Unimpaired Claims 46

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 47

 

Article IV. MEANS FOR IMPLEMENTATION OF THE PLAN   47

A. No Substantive Consolidation 47

B. Restructuring Transactions; Effectuating Documents 48

C. Sources of Consideration for Plan Distributions 48

D. New Money Investment 48

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 51

H. HVF II and Interim Fleet Financing Settlement 51

I. HVF III Fleet Financing 53

J. Intercompany Claim Settlement 53

K. HHN Restructuring 53

L. New Registration Rights Agreement 53

M. International Vehicle Financing Claims 54

N. Corporate Existence 54

O. Vesting of Assets in the Reorganized Debtors 54

P. Cancellation of Existing Securities 55

Q. Corporate Action 57

R. New Organizational Documents 57

S. Reorganized Hertz Parent and Reorganized Hertz Corp. Board 57

T. Exemption from Certain Taxes and Fees 58

U. Preservation of Causes of Action 58

V. Insurance Policies and Surety Bonds 59

W. Management Equity Incentive Plan 60

 

ii

 

 

X. Employee Obligations 61

Y. Workers’ Compensation Programs 62

Z. Collective Bargaining Agreements 62

AA. Plan Support Agreement and Equity Purchase Agreement 62

 

Article V. TREATMENT OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES   63

A. Assumption and Rejection of Executory Contracts and Unexpired Leases 63

B. Claims Based on Rejection of Executory Contracts or Unexpired Leases 64

C. Cure of Defaults for Assumed Executory Contracts and Unexpired Leases 64

D. Assumption Dispute Resolution 65

E. Indemnification Obligations 66

F. Contracts and Leases Entered into After the Petition Date 66

G. Modifications, Amendments, Supplements, Restatements, or Other Agreements 66

H. Reservation of Rights 66

I. Nonoccurrence of Effective Date; Bankruptcy Code Section 365(d)(4) 67

 

Article VI. PROVISIONS GOVERNING DISTRIBUTIONS   67

A. Timing and Calculation of Amounts to Be Distributed 67

B. Special Rules for Distributions to Holders of Disputed Claims and Interests 67

C. Rights and Powers of Distribution Agent 67

D. Delivery of Distributions and Undeliverable or Unclaimed Distributions 68

E. Securities Registration Exemption 72

F. Compliance with Tax Requirements 73

G. Allocations 74

H. No Postpetition or Default Interest on Claims 74

I. Setoffs and Recoupment 74

J. Claims Paid or Payable by Third Parties 74

 

Article VII. PROCEDURES FOR RESOLVING CONTINGENT, UNLIQUIDATED, AND DISPUTED CLAIMS   76

A. Allowance of Claims 76

B. Claims and Interests Administration Responsibilities 76

C. ADR Procedures 77

D. Estimation of Claims 77

E. Adjustment to Claims Register Without Objection 77

F. Time to File Objections to Claims 78

G. Disallowance of Claims 78

H. Amendments to Proofs of Claim 78

I. Reimbursement or Contribution 78

J. No Distributions Pending Allowance 79

K. Distributions After Allowance 79

L. Single Satisfaction of Claims 79

 

Article VIII. SETTLEMENT, RELEASE, INJUNCTION, AND RELATED PROVISIONS   79

A. Compromise and Settlement of Claims, Interests, and Controversies 79

B. Discharge of Claims and Termination of Interests 80

C. Releases by the Debtors 80

D. Releases by Holders of Claims and Interests 81

E. Exculpation 81

F. Injunction 82

G. Subordination Rights 83

H. Release of Liens 83

 

Article IX. CONDITIONS PRECEDENT TO CONSUMMATION OF THE PLAN   83

A. Conditions Precedent to the Effective Date 83

B. Waiver of Conditions 85

C. Substantial Consummation 85

D. Committee Complaint 85

E. Bifurcation Motion 85

F. Effect of Non-Occurrence of Conditions to the Effective Date 85

 

iii

 

 

Article X. MODIFICATION, REVOCATION, OR WITHDRAWAL OF THE PLAN   86

A. Modification and Amendments 86

B. Effect of Confirmation on Modifications 86

C. Effect of Confirmation 86

D. Revocation or Withdrawal of the Plan 86

 

Article XI. RETENTION OF JURISDICTION   87

 

Article XII. MISCELLANEOUS PROVISIONS   89

A. Immediate Binding Effect 89

B. Additional Documents 89

C. Payment of Statutory Fees 89

D. Reservation of Rights 89

E. Transaction Expenses 90

F. Successors and Assigns 90

G. Service of Documents 90

H. Term of Injunctions or Stays 91

I. Entire Agreement 92

J. Nonseverability of Plan Provisions 92

K. Dissolution of Committee 92

L. Expedited Tax Determination 92

 

EXHIBITS

 

New Warrant Term Sheet Exhibit A

 

iv

 

 

INTRODUCTION

 

The Hertz Corporation and its Debtor Affiliates hereby propose this First Modified Third 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.

 

1

 

 

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.

 

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.

 

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34.            ABS Released Parties” shall have the meaning ascribed to such term the Second Interim HVF Master Lease Settlement Order.

 

35.            Ad Hoc Equity Committee” means the ad hoc group of certain shareholders, in its capacity as such, represented by Glenn Agre Bergman & Fuentes LLP identified in the Amended Verified Statement of Glenn Agre Bergman & Fuentes LLP Pursuant to Bankruptcy Rule 2019 [Docket No. 4078].

 

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 Plan Sponsors 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 [Docket No. 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 expressly specified in the Plan (including with respect to First Lien Claims and Second Lien Note 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 or any premium 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.            Amarillo” means CK Amarillo LP.

 

48.            Apollo” means Apollo Capital Management, L.P., on behalf of one or more investment funds, separate accounts, and other entities owned (in whole or in part), controlled, managed, and/or advised by it or its Affiliates.

 

49.            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 Plan Sponsors 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.

 

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

 

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

 

52.            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.

 

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

 

54.            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.

 

55.            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.

 

56.            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.

 

57.            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.

 

58.            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.

 

59.            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.

 

60.            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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61.            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].

 

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

 

63.            Bondholder Subscription Rights” means the subscription rights distributed to Holders of Allowed Unsecured Funded Debt Claims to participate in the Rights Offering solely to the extent the Rights Offering is not fully subscribed and funded by Holders of Existing Hertz Parent Interests, offered in accordance with the Equity Commitment Agreement and the Rights Offering Procedures.

 

64.            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.

 

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

 

66.            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.

 

67.            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.

 

68.            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.

 

69.            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.

 

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

 

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

 

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

 

73.         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.

 

74.         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.

 

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

 

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

 

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

 

78.          “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) 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) 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.

 

79.         “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%.

 

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

 

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81.          Certares” means certain funds and accounts managed or advised by Certares Opportunities LLC or one of its Affiliates.

 

82.         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).

 

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

 

84.          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].

 

85.          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.

 

86.         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.

 

87.          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.

 

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

 

89.          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.

 

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

 

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

 

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

 

93.          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.

 

94.          Commitment Letter” means the letter between the Debtors and the Plan Sponsors (other than Apollo) dated March 2, 2021.

 

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95.        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.

 

96.         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)).

 

97.        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.

 

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

 

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

 

100.        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.

 

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

 

102.        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 Plan Sponsors in good faith.

 

103.        Consenting Investor Provision” shall have the meaning set forth in the Plan Support Agreement.

 

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

 

105.        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 under 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.

 

106.        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.

 

 

 

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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107.        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.

 

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

 

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

 

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

 

111.        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].

 

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

 

113.        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.

 

114.        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.

 

115.        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.

 

116.        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).

 

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

 

118.        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.

 

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119.        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.

 

120.        Disclosure Statement” means (i) the Disclosure Statement for the Fourth Modified Second Amended Joint Chapter 11 Plan of Reorganization of The Hertz Corporation and Its Debtor Affiliates, dated as of April 22, 2021 (as amended, modified or supplemented from time to time in accordance with its terms), including all exhibits and schedules thereto and references therein that relate to the Plan that are prepared and distributed in accordance with applicable law and (ii) any supplement, amendment, or modification thereto which shall be in form and substance reasonably acceptable to the Plan Sponsors in good faith.

 

121.        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 April 22, 2021 [Docket No. 4111] (as amended, modified, or supplemented from time to time with any such amendments, modifications, or supplements in form and substance acceptable to the Plan Sponsors in good faith).

 

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

 

123.        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.

 

124.        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, 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.

 

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

 

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

 

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

 

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

 

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129.        DTAC” means DTC Car Rental Partnership Limited.

 

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

 

131.        DTC” means The Depository Trust Company.

 

132.        ECA Approval Order” means an Order of the Bankruptcy Court that is not stayed (under Bankruptcy Rule 6004(h) or otherwise) that (i) authorizes the Debtors to enter into and perform under the Equity Commitment Documents, and (ii) provides that the termination payment, expense reimbursement, and the indemnification provisions contained therein shall constitute Allowed Administrative Expense Claims of the Debtors’ estates under sections 503(b) and 507 of the Bankruptcy Code and shall be payable by the Debtors as provided in the Equity Commitment Documents without further Order of the Bankruptcy Court.

 

133.        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.

 

134.        Eligible Existing Hertz Shareholders” means each Holder of an Allowed Existing Hertz Parent Interest on the Record Date (as such terms are defined in the Rights Offering Procedures) that is either (i) an “accredited investor” within the meaning of Rule 501 Regulation D under the Securities Act or (ii) a “qualified institutional buyer” within the meaning of Rule 144A under the Securities Act, as certified in accordance with the Rights Offering Procedures.

 

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

 

136.        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.

 

137.        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 Plan Sponsors.

 

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

 

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139.        Equity Commitment” means the purchase of Reorganized Hertz Parent Common Interests and Preferred Stock by the Equity Commitment Parties under the Equity Commitment Agreement.

 

140.        Equity Commitment Agreement” means that certain Equity Commitment and Stock Purchase Agreement, dated as of May 2, 2021, by and among Hertz Parent, the other Debtors party thereto, and the Equity Commitment Parties, as the same may be amended, modified, or amended and restated from time to time in accordance with its terms, setting forth, among other things, the terms and conditions of (i) the New Money Investment, (ii) the Rights Offering, and (iii) the commitments and investment by the Ad Hoc Equity Committee and related fees.

 

141.        Equity Commitment Documents” means the Equity Commitment Agreement together with all schedules, annexes and exhibits thereto.

 

142.        Equity Commitment Parties” means, collectively, the parties purchasing Reorganized Hertz Parent Common Interests and Preferred Stock under the Equity Commitment Agreement, including Apollo and Amarillo.

 

143.        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.

 

144.        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.

 

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

 

146.        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.

 

147.        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.

 

148.        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.

 

149.        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.

 

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

 

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151.        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.

 

152.        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) each of the Plan Sponsors; (vi) each of the Equity Commitment Parties; (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 Equity Commitment Parties, 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.

 

153.        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.

 

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

 

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

 

156.        Exit Credit Agreement” means the credit agreement to be entered into in connection with the Exit Term Loan Facility and the Exit 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 Plan Sponsors in good faith.

 

157.       “Exit Facility Documents” means the Exit 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 Plan Sponsors in good faith.

 

158.        Exit Revolving Credit Facility” means a senior secured revolving credit facility in an aggregate commitment amount of $1,500,000,000.00 (as such amount may be adjusted with the consent of the Debtors and the Plan Sponsors), 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 Plan Sponsors.

 

159.        Exit Term Loan Facility” means a senior secured credit facility in a principal amount of $1,300,000,000.00 (as such amount may be adjusted with the consent of the Debtors and the Plan Sponsors), 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 Plan Sponsors.

 

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

 

161.        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.

 

162.        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.

 

163.        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].

 

164.        First Lien Agent” means Barclays Bank PLC, in its capacity as administrative agent, collateral agent, 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.

 

165.        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.

 

166.        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.

 

167.        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.

 

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

 

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169.        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.

 

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

 

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

 

172.        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.

 

173.        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.

 

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

 

175.        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.

 

176.        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.

 

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

 

178.        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.

 

179.        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.

 

180.        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.

 

181.        General Unsecured Claim” means any Unsecured Claim, against any Debtor, other than (i) Administrative Claims; (ii) Priority Tax Claims; (iii) Other Priority Claims; (iv) Intercompany Claims; (v) Unsecured Funded Debt Claims; and (vi) 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 against the Debtors in full and final satisfaction of all such Claims.

 

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

 

183.        HC Limited” means HC Limited Partnership.

 

184.        HCVP” means Hertz Canada Vehicles Partnership.

 

185.        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.

 

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

 

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

 

188.        Hertz Corp.” means The Hertz Corporation.

 

189.        Hertz Canada” means Hertz Canada Limited.

 

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

 

191.       “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.

 

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

 

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 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.

 

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

 

196.       “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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197.        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.

 

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

 

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

 

200.        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.

 

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

 

202.        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.

 

203.        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.

 

204.        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.

 

205.        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.

 

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

 

207.        HIL” means Hertz International Limited.

 

208.        HIL Facility” means the direct lending facility provided by certain of the Plan Sponsors or their affiliates to HIL prior to the Effective Date.

 

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

 

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

 

211.        HVF” means Hertz Vehicle Financing LLC.

 

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

 

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213.        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.

 

214.        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.

 

215.        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.

 

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

 

217.        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.

 

218.        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.

 

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

 

220.        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.

 

221.        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.

 

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

 

223.        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.

 

224.        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.

 

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225.        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.

 

226.        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.

 

227.        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.

 

228.        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.

 

229.        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.

 

230.        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.

 

231.        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.

 

232.        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.

 

233.        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.

 

234.        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.

 

235.        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.

 

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

 

237.        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.

 

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238.        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.

 

239.        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 Plan Sponsors in good faith.

 

240.        HVF III Documents” means the financing documents to be entered into in connection with the HVF III (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 Plan Sponsors in good faith.

 

241.        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.

 

242.        HVF Claims” means any Claims against any Debtor or any 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.

 

243.        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.

 

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

 

245.        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.

 

246.        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.

 

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

 

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

 

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

 

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

 

251.        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.

 

252.        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.

 

253.        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.

 

254.        Ineligible Existing Hertz Shareholder” means each Holder of an Allowed Existing Hertz Parent Interest on the Record Date (as such terms are defined in the Rights Offering Procedures) that is not an Eligible Existing Hertz Shareholder.

 

255.        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.

 

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

 

257.        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].

 

258.        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.

 

259.        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.

 

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

 

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

 

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

 

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

 

264.        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.

 

265.        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 Subordinated 510(b) Interests.

 

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

 

267.        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.

 

268.        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.

 

269.        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.

 

270.        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.

 

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

 

272.        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.

 

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273.        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.

 

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

 

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

 

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

 

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

 

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

 

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

 

280.        Knighthead” means certain funds and accounts managed or advised by Knighthead Capital Management, LLC or one of its Affiliates.

 

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

 

282.        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.

 

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

 

284.        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.

 

285.        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.

 

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

 

287.        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.

 

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288.        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 Plan Sponsors.

 

289.       New Money Investment” means Cash in an amount equal to $5,915,941,666.67.

 

290.        New Organizational Documents” means the Reorganized Hertz Parent Organizational Documents and Reorganized Debtor Organizational Documents, including the New Registration Rights Agreement, which shall be acceptable to the Debtors and the Plan Sponsors.

 

291.        New Registration Rights Agreement” means the registration rights agreement or other similar agreement with respect to Reorganized Hertz Parent, which shall be acceptable to the Debtors and the Plan Sponsors.

 

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

 

293.        New Warrants” means the warrants referenced in the term sheet attached as Exhibit A hereto.

 

294.        New Warrants Agreement” means that certain agreement providing for, among other things, the issuance of the New Warrants by the Reorganized Debtors, which shall contain terms and conditions consistent with the term sheet attached as Exhibit A hereto and shall otherwise be in form and substance reasonably acceptable to the Plan Sponsors and the Debtors.

 

295.        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.

 

296.        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.

 

297.        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.

 

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

 

299.        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.

 

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

 

301.        Petition Date” is May 22, 2020.

 

302.        Plan” means this First Modified Third 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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303.             Plan Sponsors” means each of (i) Apollo, (ii) Knighthead, and (iii) Certares.

 

304.            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 the Equity Commitment Documents, and otherwise acceptable to the Plan Sponsors and 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 Credit Agreement; (x) the New Registration Rights Agreement; (xi) the Restructuring Transactions Memorandum; (xii) the ADR Procedures; (xii) the certificates of designation and other documents governing the Preferred Stock; and (xiii) 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 (xiii), 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 subject to the consent of the Plan Sponsors.

 

305.            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 Equity Commitment Parties, as the same may be amended, modified, supplemented, or amended and restated from time to time in accordance with its terms.

 

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

 

307.            Preferred Stock” means the new preferred stock issued to certain Equity Commitment Parties pursuant to the Equity Commitment Documents.

 

308.            Prepetition Debt Documents” means, collectively, the (i) First Lien Loan Documents, (ii) Second Lien Note Documents, (iii) the Unsecured Notes Documents, (iv) the ALOC Facility Documents, (v) the Lombard Vehicle Financing Facility Documents, (vi) the 7.000% Unsecured Promissory Notes Documents, (vii) the European ABS Documents, and (viii) any guarantee of the HHN Notes by the Debtors.

 

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

 

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

 

311.            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.

 

312.            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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313.            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.

 

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

 

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

 

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

 

317.            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.

 

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

 

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

 

320.            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) each of the Plan Sponsors; (v) the Committee; (vi) each of the Committee Members, solely in its capacity as a Committee Member; (vii) each of the Equity Commitment Parties; (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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321.            Releasing Party” means each of the following in their capacity as such: (i) each of the Plan Sponsors; (ii) each of the Equity Commitment Parties; (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 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 (xi) with respect to each of the foregoing Entities in clauses (i) through (x), such Entity and its current and former Affiliates, and such Entities’ and their current and former Affiliates’ current and former directors, managers, officers, equity holders (regardless of whether such interests are held directly or indirectly), predecessors, successors, and assigns, subsidiaries, and each of their respective current and former equity holders, officers, directors, managers, principals, members, employees, agents, advisory board members, financial advisors, partners, attorneys, accountants, managed accounts or funds, management companies, fund advisors, investment bankers, consultants, representatives, and other professionals, each in its capacity as such.

 

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

 

323.            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 Plan Sponsors in good faith.

 

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

 

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

 

326.            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 Plan Sponsors in good faith.

 

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

 

328.            Reorganized Hertz Parent Board” means the initial board of directors of Reorganized Hertz Parent, as identified in the Plan Supplement; provided, that at least a majority of the directors shall be appointed by the Plan Sponsors (other than Apollo).

 

329.            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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330.            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 Plan Sponsors in good faith.

 

331.            Requisite Consenting Investors” shall have the meaning set forth in the Plan Support Agreement.

 

332.            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 Equity Commitment Documents.

 

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

 

334.            Restructuring Transactions Memorandum” means the memorandum outlining as necessary certain of the steps the Debtors and/or Reorganized Debtors shall take to implement the Restructuring Transactions and HHN Restructuring as set forth in the Plan and Plan Supplement which shall be consistent in all respects with the Plan and Equity Commitment Agreement.

 

335.            Rights Offering” means that certain offering of rights pursuant to which each Holder of an Allowed Existing Hertz Parent Common Interests is entitled to receive Shareholder Subscription Rights to acquire, to the extent it is an Eligible Existing Hertz Shareholder, its Pro Rata share of $1,635,000,000.00 in Reorganized Hertz Parent Common Interests and each Holder of an Allowed Unsecured Funded Debt Claim is entitled to receive Bondholder Subscription Rights to acquire, to the extent it is an Eligible Unsecured Funded Debt Holder, its Pro Rata Share of the amount of such $1,635,000,000.00 in Reorganized Hertz Parent Common Interests not acquired by Holders of Allowed Existing Hertz Parent Common Interests after taking into account all exercised Shareholder Subscription Rights, all in accordance with the Equity Commitment Agreement and the Rights Offering Procedures.

 

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

 

337.            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 Plan Sponsors, consistent with the Plan Support Agreement and the Equity Commitment Documents, and approved by the Bankruptcy Court.

 

338.            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 Plan Sponsors.

 

339.            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] and April 14, 2021 [Docket Nos. 3892-3896], as the same may be further amended, modified, or supplemented from time to time.

 

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

 

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341.            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].

 

342.            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 (including, without limitation, legal fees), costs, and expenses incurred by the Second Lien Note Trustees that are required to be paid under the Second Lien Note Documents.

 

343.            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, which principal outstanding as of the Petition Date was in the aggregate amount equal to approximately $350,000,000.00, plus all accrued but unpaid interest (including postpetition interest) at the applicable rate, costs, fees, indemnities, Second Lien Indenture Trustee Fees, and any Claims against the Debtors not duplicative of the foregoing, due, owing, and payable to the Second Lien Note Trustee, the Holders of Second Lien Note Claims, or their professionals pursuant to the Cash Collateral Order, including any professionals’ fees and expenses.

 

344.            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.

 

345.            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.

 

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

 

347.            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.

 

348.            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.

 

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.

 

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.

 

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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.            Shareholder Subscription Rights” means the subscription rights distributed to Holders of Allowed Existing Hertz Parent Interests to participate in the Rights Offering offered in accordance with the Equity Commitment Agreement and the Rights Offering Procedures.

 

358.            Shareholder Subscription Rights Auction” means that certain auction conducted in accordance with the Rights Offering Procedures pursuant to which holders of Existing Hertz Parent Interests that are not Eligible Existing Hertz Shareholders may elect to have their Shareholder Subscription Rights sold pursuant to a competitive auction process.

 

359.            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.

 

360.            Subordinated 510(b) Interests” means any Claim related to any Interests against any Debtor that is subject to Section 510(b) of the Bankruptcy Code, whether arising from rescission of a purchase or sale of an Interest in the Debtors or an Affiliate of the Debtors, for damages arising from such transaction, or for reimbursement or contribution allowed under section 502 of the Bankruptcy Code on account of such Claim, or otherwise.

 

361.            Subscription Rights” means, collectively, (i) the Shareholder Subscription Rights and (ii) the Bondholder Subscription Rights.

 

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.

 

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.

 

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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) Kirkland & Ellis LLP, (ii) Paul, Weiss, Rifkind, Wharton & Garrison, LLP, (iii) Klehr Harrison Harvey Branzburg LLP, (iv) Morris, Nichols, Arsht & Tunnell LLP, (v) Alvarez & Marsal Corporate Performance Improvement, LLC, (vi) Guggenheim Securities, LLC, (vii) Glenn Agre Bergman & Fuentes LLP, (vii) Pericles Capital Advisors, LLC, and (viii) any other accountants, financial advisors and other professionals, advisors, and consultants retained by the Plan Sponsors, Amarillo, or the Ad Hoc Equity Committee with the consent of the Debtors (such consent not to be unreasonably withheld), in each case solely to the extent incurred on behalf of the Plan Sponsors 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 (i) the Unsecured Notes Claims, and (ii) the ALOC Facility Claims.

 

372.            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.

 

373.            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.

 

374.            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.

 

375.            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.

 

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376.            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.

 

377.            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.

 

378.            Unsubscribed Shares” shall have the meaning ascribed to such term in the Equity Commitment Agreement.

 

379.            Voting Deadline” means 4:00 p.m. (prevailing Eastern Time) on June 1, 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.

 

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 provisions may be interpreted by the Debtors, or after the Effective Date, the Reorganized Debtors (in consultation with the Plan Sponsors), in such a manner that is consistent with the overall purpose and intent of the Plan all without further notice to or action, order, or approval of the Bankruptcy Court or any other Entity; and (xiv) except as otherwise provided, any references to the Effective Date shall mean the Effective Date or as soon as reasonably practicable thereafter.

 

C. Computation of Time

 

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

 

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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, the Equity Commitment Parties, and the Committee, if any, set forth in the Plan Support Agreement, the Equity Commitment 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, Equity Commitment Agreement, other Definitive Document, or herein shall not impair such rights or obligations.

 

F. Reference to Monetary Figures

 

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

 

G. Reference to the Debtors or the Reorganized Debtors

 

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

 

H. Controlling Document

 

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

 

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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.

 

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.

 

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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.

 

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.

 

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

 

3. Professional Fee Escrow

 

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

 

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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 and the Distribution Agent, 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.

 

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 11 shall be vacant for each Debtor other than Hertz Parent. Voting tabulations for recording acceptances or rejections of the Plan shall be conducted on a Debtor-by-Debtor basis as set forth above.

 

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

 

Class Applicable Entities Claim / Interest Status Voting Rights
1 Each Debtor Other Priority Claims Unimpaired Not Entitled to Vote
(Presumed to Accept)
2 Each Debtor Other Secured Claims Unimpaired Not Entitled to Vote
(Presumed to Accept)
3 Hertz Corp., the Subsidiary Guarantors, and Rental Car Intermediate Holdings, LLC First Lien Claims Unimpaired Not Entitled to Vote
(Presumed to Accept)
4 Hertz Corp., the Subsidiary Guarantors, and Rental Car Intermediate Holdings, LLC Second Lien Note Claims Unimpaired Not Entitled to Vote
(Presumed to Accept)
5 Hertz Corp., the Subsidiary Guarantors, and Rental Car Intermediate Holdings, LLC Unsecured Funded Debt Claims Unimpaired Not Entitled to Vote
(Presumed to Accept)
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 Unimpaired

Not Entitled to Vote

(Presumed to Accept)

8 Each Debtor Prepetition Intercompany Claims Unimpaired  Not Entitled to Vote
(Presumed to Accept)
9 RESERVED N/A N/A N/A
10 Each Debtor Intercompany Interests Unimpaired Not Entitled to Vote
(Presumed to Accept)
11 Hertz Parent Existing Hertz Parent Interests Impaired Entitled to Vote

 

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B. Treatment of Claims and Interests

 

1. Class 1 – Other Priority Claims

 

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

 

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

 

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

 

2. Class 2 – Other Secured Claims

 

a. Classification: Class 2 consists of all Other Secured Claims against each Debtor.

 

b. Treatment: Except to the extent that a Holder of an Allowed Other Secured Claim and the applicable Debtor prior to the Effective Date, or after the Effective Date, such Holder and the applicable Reorganized Debtor agree to a less favorable treatment, in full and final satisfaction, compromise, settlement, release, and discharge of and in exchange for such Allowed Other Secured Claim, each such Holder shall receive at the applicable Debtor’s, or the applicable Reorganized Debtor’s, discretion:

 

(i) payment in full in Cash of the unpaid portion of such Holder’s Allowed Other Secured Claim on the Effective Date or as soon thereafter as reasonably practicable (or if payment is not then due, payment shall be made in accordance with its terms in the ordinary course);

 

(ii) Reinstatement of such Holder’s Allowed Other Secured Claim;

 

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(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.

 

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 Note Documents, from the Petition Date through the Effective Date as required to render the Second Lien Note 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 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.

 

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  

 

in each case, plus all accrued and unpaid interest at the applicable rate, costs, and other fees, in each case to the extent owed and Allowed from the Petition Date through the Effective Date as required to render the Unsecured Note Claims Unimpaired.

 

(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 plus all accrued and unpaid interest at the applicable rate, costs, and other fees, in each case to the extent owed and Allowed, from the Petition Date through the Effective Date as required to render the ALOC Facility 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 Unsecured Funded Debt Claim against Hertz Corp., the Subsidiary Guarantors, and, as applicable, Rental Car Intermediate Holdings, LLC, shall receive payment in full, in Cash of the Allowed amount of such Claim.

  

d. Voting: Class 5 is Unimpaired under the Plan. Each Holder of an Allowed Unsecured Funded Debt Claim is conclusively presumed to have accepted the Plan pursuant to section 1126(f) of the Bankruptcy Code. Therefore, Holders of Allowed Unsecured Funded Debt Claims are not 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.

 

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 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.

 

a. 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 to the extent required to render the 7.000% Unsecured Promissory Notes Unimpaired.  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 so as to render such Claims Unimpaired.

 

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b. Treatment: On the Effective Date or as soon as reasonably practicable thereafter, in full and final satisfaction, compromise, settlement, release, and discharge of and in exchange for such Claims, each Holder of an Allowed General Unsecured Claim against a Debtor shall (at the option of the applicable Debtor or Reorganized Debtor (in consultation with the Plan Sponsors): (i) be Reinstated or (ii) receive payment in full, in Cash of the Allowed amount of such Claim.

 

c. Voting: Class 7 is Unimpaired under the Plan. Each Holder of a General Unsecured Claim is conclusively presumed to have accepted the Plan pursuant to section 1126(f) of the Bankruptcy Code. Therefore, Holders of General Unsecured Claims are not 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 Reinstated or shall received such treatment as may be mutually agreed by the applicable Debtors or Reorganized Debtors in consultation with the Plan Sponsors; provided, however, that the 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 the Plan pursuant to section 1126(f) of the Bankruptcy Code. Therefore, such Holders are not entitled to vote or accept or reject the Plan.

 

9. Class 9 - RESERVED

 

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.

 

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b. Treatment: Except to the extent that a Holder of an Allowed Existing Hertz Parent Interest agrees to a similar or less favorable treatment of such Interest, 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 Interest, each Holder of an Allowed Existing Hertz Parent Interest shall receive:

 

(i) Cash in an amount equal to $1.53 per share of Existing Hertz Parent Interests held by such Holder; and

 

(ii) its Pro Rata share of:

 

(1) three (3%) percent of total Reorganized Hertz Parent Common Interests, subject to dilution on account of the Management Equity Incentive Plan and New Warrants; and

 

(2) the New Warrants; provided that an Eligible Existing Hertz Shareholder may elect to receive its Pro Rata (based on Existing Hertz Parent Interests held by all Holders of Existing Hertz Parent Interests) share of the Shareholder Subscription Rights instead of New Warrants by timely exercising such Subscription Rights in accordance with the Rights Offering Procedures prior to the Subscription Expiration Deadline (as defined in the Rights Offering Procedures); provided, further that any holder of Existing Hertz Parent Interests that is not an Eligible Existing Hertz Shareholder may elect prior to the Subscription Rights Expiration Deadline to have its Pro Rata (based on Existing Hertz Parent Interests held by all Holders of Existing Hertz Parent Interests) share of the Shareholder Subscription Rights sold pursuant to the Shareholder Subscription Rights Auction and receive its Pro Rata share of proceeds of the Shareholder Subscription Rights Auction instead of New Warrants.

 

c. Voting: Class 11 is Impaired under the Plan. Each Holder of an Existing Hertz Parent Interest is entitled to vote to accept or reject the Plan.

 

C. Special Provision Governing Unimpaired Claims

 

Except as otherwise specifically provided in the Plan, nothing herein shall be deemed to affect, diminish, or impair the Debtors’ or the Reorganized Debtors’ rights and defenses, both legal and equitable, with respect to any Reinstated Claim or otherwise Unimpaired Claim, including legal and equitable defenses to setoffs or recoupment against Reinstated Claims or otherwise Unimpaired Claims; and, except as otherwise specifically provided in the Plan, nothing herein shall be deemed to be a waiver or relinquishment of any Claim, Cause of Action, right of setoff, or other legal or equitable defense that the Debtors had immediately prior to the Petition Date, against or with respect to any Claim that is Unimpaired by the Plan. Except as otherwise specifically provided in the Plan, the Reorganized Debtors shall have, retain, reserve, and be entitled to assert all such Claims, Causes of Action, rights of setoff, and other legal or equitable defenses that the Debtors had immediately prior to the Petition Date fully as if the Chapter 11 Cases had not been commenced, and all of the Reorganized Debtors’ legal and equitable rights and defenses with respect to any Reinstated Claim or otherwise Unimpaired Claim may be asserted after the Confirmation Date and the Effective Date to the same extent as if the Chapter 11 Cases had not been commenced. 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 Holders of Second Lien Note Claims to release Liens or collateral as required by the Plan.

 

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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.

 

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.

 

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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 execution, delivery, and filing of the New Warrants, 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.

 

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.            Plan Sponsor Direct Equity Investment

 

On the Effective Date, in accordance with the Equity Commitment Documents and subject to the terms and conditions thereof, the Equity Commitment Parties shall fund the New Money Investment in exchange for Reorganized Hertz Parent Common Interests and Preferred Stock. As more fully set forth in the Equity Commitment Documents, the Equity Commitment Parties shall purchase an aggregate of (i) up to $4,415,941,666.67 of Reorganized Hertz Parent Common Interests and (ii) up to $1,500,000,000.00 of Preferred Stock (in each case subject to adjustment pursuant to the terms of the Equity Commitment Documents). Of the Reorganized Hertz Parent Common Interests to be purchased pursuant to the Equity Commitment Agreement, Amarillo will fund up to $1,987,000,000.00, which shall account for more than 42% of total Reorganized Hertz Parent Common Interests, after accounting for any dilution as set forth in the Equity Commitment Documents but subject to dilution on account of the Management Equity Incentive Plan and New Warrants. Additionally, certain of the Equity Commitment Parties shall receive premiums in an aggregate amount of $163,500,000.00 of Reorganized Hertz Parent Common Interests, as more fully set forth in the Equity Commitment Documents. The foregoing allocations may be adjusted before the Effective Date solely in accordance with the Equity Commitment Documents.

 

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2. 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 and Equity Commitment Documents. Instead of receiving New Warrants, each Holder of Existing Hertz Parent Interests may elect to be issued Shareholder Subscription Rights to purchase, pursuant to the terms of the Rights Offering Procedures, its Pro Rata allocation of the Rights Offering to the extent it is an Eligible Existing Hertz Shareholder. Such election shall be made if and when such Eligible Existing Hertz Shareholder exercises such Subscription Rights pursuant to the terms of the Rights Offering Procedures. Each Holder of Allowed Unsecured Funded Debt Claims shall be issued Bondholder Subscription Rights to purchase, pursuant to the terms of the Rights Offering Procedures, its Pro Rata allocation of the Rights Offering to the extent any such amounts remain unsubscribed and unfunded by Holders of Allowed Existing Hertz Parent Interests and the applicable Holder of an Allowed Unsecured Funded Debt Claim is an Eligible Unsecured Funded Debt Holder. Any transfer of an Existing Hertz Parent Interest or Unsecured Funded Debt Claim shall include the applicable Subscription Rights. In the event there are any Bondholder Subscription Rights available for distribution to Eligible Unsecured Funded Debt Holders, as a condition to and upon seeking to exercise such Bondholder Subscription Rights, by signing the Subscription Form and delivering it to the Subscription Agent or tendering through DTC, as applicable, the applicable Eligible Unsecured Funded Debt Holder shall, subject to the entry of the Confirmation Order, be deemed to have released and irrevocably waived any right to receive payment of any amounts on account of any of its Allowed Unsecured Funded Debt Claim actually tendered in the Rights Offering (including interest, costs, fees, premiums, or any “make-whole” amounts) that exceeds the aggregate amount of the principal of such Unsecured Funded Debt Claim, interest accrued, but unpaid as of the Petition Date at the non-default rate, and postpetition interest accrued, but unpaid as of the Effective Date at the Federal Judgment Rate (and such release and waiver shall remain effective notwithstanding any failure by any Eligible Unsecured Funded Debt Holder to properly exercise such Bondholder Subscription Rights in accordance with the Rights Offering Procedures, including by failing to timely deliver the applicable purchase price).

 

The consummation of the Rights Offering is conditioned on the satisfaction or waiver (in accordance with the Equity Commitment Agreement) of all conditions specified in the terms of the Equity Commitment Documents.

 

Each Ineligible Existing Hertz Shareholder may elect prior to the Subscription Rights Expiration Deadline to have its Pro Rata (based on Existing Hertz Parent Interests held by all Holders of Existing Hertz Parent Interests) share of the Shareholder Subscription Rights sold pursuant to the Shareholder Subscription Rights Auction by submitting such election in accordance with the Rights Offering Procedures. Such election shall include a minimum price at which such Ineligible Existing Hertz Shareholder will agree to sell its Subscription Rights (each a “Minimum Auction Price”).

 

In addition to exercising their Pro Rata (based on Existing Hertz Parent Interests held by all Holders of Existing Hertz Parent Interests) share of the Shareholder Subscription Rights, each Eligible Existing Hertz Shareholder may elect prior to the Subscription Rights Expiration Deadline to purchase available Shareholder Subscription Rights at the Shareholder Subscription Rights Auction by submitting such election in accordance with the Rights Offering Procedures. Any such election will include the maximum amount and price per Shareholder Subscription Right such Eligible Existing Hertz Shareholder is willing to purchase at the Shareholder Subscription Rights Auction. The Shareholder Subscription Rights Auction will conclude prior to the Effective Date in accordance with the Rights Offering Procedures. If an Ineligible Existing Hertz Shareholder is unable to sell its Subscription Rights because its Minimum Auction Price is not met, such Ineligible Existing Hertz Shareholders shall be deemed to have elected to receive New Warrants instead of Subscription Rights and shall receive such New Warrants as provided in the Plan.

 

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

 

The issuance of the Reorganized Hertz Parent Common Interests, Preferred Stock, and the New Warrants (including any shares of Reorganized Hertz Parent Common Interests issuable upon the valid conversion or exercise, as applicable, of the foregoing) in accordance with the Rights Offering Procedures and Equity Commitment Documents, the New Warrants 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.

 

Any Entities’ acceptance of Reorganized Hertz Parent Common Interests and Preferred Stock shall be deemed to be its agreement to be bound by the Reorganized Debtor Organizational Documents, as the same may be amended or modified from time to time following the Effective Date in accordance with their terms. The Reorganized Debtor Organizational Documents, as applicable, shall be binding on all Entities receiving, and all holders of, the Reorganized Hertz Parent Common Interests and Preferred Stock (and their respective successors and assigns), whether any such Reorganized Hertz Parent Common Interests and Preferred Stock are received or to be received on or after the Effective Date, in each case, pursuant to the Plan and regardless of whether such Entity executes or delivers a signature page to the Reorganized Debtor Organizational Documents.

 

All of the shares of Reorganized Hertz Parent Common Interests and Preferred Stock and all of the New Warrants (including any shares of Reorganized Hertz Parent Common Interests issuable upon the valid conversion or exercise, as applicable, of the foregoing) issued pursuant to the Plan shall be, to the extent applicable, duly authorized, validly issued, fully paid, and non-assessable. Each distribution and issuance of the Reorganized Hertz Parent Common Interests, Preferred Stock, and New Warrants 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.

 

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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.

 

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 connection with the Forbearance Agreement, dated May 4, 2020, by and among the agent under the HVF II VFN Supplement and Hertz Vehicle Financing II LP shall in each case be deemed to be an obligation with respect to the HVF II Notes. Not later than three (3) Business Days following a written request by the Debtor (email sufficient), the HVF Trustee shall provide a payoff statement detailing all amounts owed by the category specified in the HVF II Facility Documents.

 

On or prior to the Effective Date, the Debtors may cause HVIF to repay in full in Cash the then-outstanding HVIF Obligations 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. or Reorganized Hertz Parent, as applicable. To the extent HVIF does not repay in full in Cash the HVIF Obligations, the Debtors shall assume all of their obligations with respect to the Interim Fleet Financing Facility pursuant to Article II.D, supra.

 

The Debtors shall consult with the Plan Sponsors with respect to the terms of the repayment of the HVF II Notes and the Interim Fleet Financing Notes and such terms shall be in form and substance acceptable to the Plan Sponsors in good faith.

 

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The payment of the HVF II Obligations and, to the extent applicable, payment of the HVIF Obligations, in full shall constitute the full and final satisfaction, settlement, release, and discharge of each HVF Claim and, to the extent applicable, each Interim Fleet Financing Administrative Claim against the Debtors, including any Administrative Claims granted under section 364(c) of the Bankruptcy Code. Contemporaneously with the foregoing payment, (i) the HVF II Notes, the Series 2013-G1 Note, and, to the extent applicable, the Interim Fleet Financing Notes shall be deemed canceled; (ii) the HVF Facility Documents, the HVF II Facility Documents, and, to the extent applicable, the Interim Fleet Financing Facility Documents shall be deemed terminated (except if utilized for HVF III), (iii) all Liens on property of HVF, HVF II, or, to the extent applicable, HVIF arising out of or related to the Series 2013-G1 Note, the HVF II Notes, or, to the extent applicable, the Interim Fleet Financing Notes shall automatically terminate, and all collateral subject to such applicable Liens shall be automatically released, in each case without further action by the HVF Trustee, HVF II Trustee, the HVF II Lenders, the HVIF Trustee, and the Interim Fleet Financing Lenders; and (iv) all undrawn letters of credit issued with respect to the HVF II Facility and, if applicable, the Interim Fleet Financing Facility shall be cancelled. The (i) HVF Trustee, HVF II Trustee, and the HVF II Lenders, and (ii) to the extent applicable, the HVIF Trustee, and the Interim Fleet Financing Lenders, shall, at the expense of the Debtors or Reorganized Debtors, as applicable, take all actions to effectuate and confirm such termination, release and discharge as reasonably requested by HVF, HVF II, HVIF, the Debtors or the Reorganized Debtors. The Debtors or Reorganized Debtors, as applicable, shall use commercially reasonable efforts to cause HVF, HVF II and, to the extent applicable, HVIF, to execute and provide to the HVF Trustee, the HVF II Trustee, the HVF II Lenders and, to the extent applicable, the HVIF Trustee and the Interim Fleet Financing Lenders, customary documentation in connection with the repayment of the HVF II Notes and, to the extent applicable, the Interim Fleet Financing Notes, that is reasonably satisfactory to the HVF Trustee, the HVF II Trustee and the ABS Lenders (as defined in the Second Interim HVF Master Lease Settlement Order), and, to the extent applicable, the HVIF Trustee and the Interim Fleet Financing Lenders, and to execute and provide such other documentation and take such other actions as may be reasonably requested by the HVF Trustee, the HVF II Trustee and the ABS Lenders (as defined in the Second Interim HVF Master Lease Settlement Order) and/or, to the extent applicable, the HVIF Trustee and the Interim Fleet Financing Lenders, in connection with the repayment of the HVF II Notes, and, to the extent applicable, the Interim Fleet Financing Notes.

 

Upon the occurrence of the HVF II Notes Repayment Date and subject to the release and discharge of each HVF Claim, the HVF II Notes, and the Series 2013-G1 Note, each of the Debtors, on behalf of themselves and their parents, subsidiaries, affiliates, shareholders, agents, representatives, predecessors-in-interest, nominees, managers, members, partners, officers, directors, employees, advisors, and each of their respective successors and assigns shall be deemed to release, remise and forever discharge the Debtors and the ABS Released Parties, solely in their respective capacities under the HVF II Facility, HVF II Facility Documents, and HVF Facility Documents, as applicable, of and from any and all debts, losses, demands, actions, causes of action, suits, accounts, covenants, contracts, agreements, claims, counterclaims, controversies, disputes, obligations, judgments, rights, damages, costs, losses, expenses, liens, or liabilities of any and every nature or description whatsoever, both at law or in equity, whether asserted or unasserted, express or implied, known or unknown, matured or unmatured, fixed or contingent, liquidated or unliquidated, which arose at any time through the HVF II Notes Repayment Date, arising out of or related to the HVF II Facility. Notwithstanding anything to the contrary in the foregoing, nothing in this Article IV.H shall release any ABS Released Party from Claims or Causes of Action arising from an act or omission that constitutes fraud, willful misconduct, or gross negligence.

 

Notwithstanding anything herein to the contrary, including Article XII.I., the stipulations and releases set forth in paragraph 11 of the Second Interim HVF Master Lease Settlement Order shall remain in full force and effect.

 

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I. HVF III Fleet Financing

  

On or prior to the Effective Date, the Debtors or Reorganized Debtors, as applicable, may form a non-Debtor bankruptcy remote subsidiary or subsidiaries of Hertz Corp. or Reorganized Hertz Parent, as applicable, to issue the HVF III asset-backed securitization facility and/or securities. Simultaneously with the payment of the HVF II Obligations in full, as described in Article IV.H., and, to the extent applicable, the payment of the HVIF Obligations in full, the Debtors may use any of the vehicles in the HVF II Facility and, to the extent applicable, the Interim Fleet Financing Facility and/or the equity with respect to the HVF II Facility and, to the extent applicable, the Interim Fleet Financing Facility to support any facility or securities issued by HVF III. The Debtors shall consult with the Plan Sponsors with respect to the terms of HVF III with such terms in form and substance acceptable to the Plan Sponsors in good faith. Further, the Debtors, in the issuance of the HVF III asset-backed securitization facility and/or securities, shall comply with the obligations set forth in paragraph 12 of the Second Interim HVF Master Lease Settlement Order.

 

J. Intercompany Claim Settlement

 

The entry of the Confirmation Order and the treatment accorded to General Unsecured Creditors pursuant to this Plan shall constitute a settlement pursuant to section 1123(b)(3) of all disputes relating to the Intercompany Claims and the allocation of value among the various Debtors.

 

K. HHN Restructuring

 

On the Effective Date, the Debtors shall make the cash payment provided as treatment for the HHN Notes Guarantee Claims pursuant to Article III.B.6 of this Plan to the HHN Notes Trustee and/or HHN Notes Paying Agent. Pursuant to this Plan, such cash payment shall be applied pro rata to the HHN Notes based on the principal and interest outstanding at the time of such cash payment. The HHN Notes Trustee and/or HHN Notes Paying Agent shall then, to the extent required, convert such cash payment to Euros using the European Central Bank reference rate published on the date that the HHN Notes Trustee and/or HHN Notes Paying Agent received such payment and apply such amount to the then outstanding principal and interest due in respect of each series of HHN Notes as set forth in the allocation provided by the Plan. Such payment on account of the HHN Notes Guarantee Claims is not, and shall not be deemed to constitute, a prepayment (voluntary or otherwise) under the HHN Notes Indentures or otherwise and shall remain subject to the HHN Notes Trustee Charging Lien on the terms set forth in the HHN Notes Indentures.

 

Upon the occurrence of the Effective Date, immediately after the payments in respect of the HHN Notes Guarantee Claims have been made pursuant to the Plan, HHN shall redeem the HHN Notes for a Cash payment equal to (a) the principal and interest due in respect of the HNN Notes on the date of such payment, minus (b) the amount paid to the HHN Notes Trustee and/or HHN Notes Paying Agent in respect of the HHN Notes Guarantee Claim pursuant to the Plan, plus (c) any unpaid interest remaining through the date of payment to the beneficial holders of the HHN Notes, any unpaid HHN Notes Trustee Fees and any premiums, prepayment penalties, and make-whole payments due in respect of the HHN Notes calculated solely upon the difference between the amounts set forth in clause (a) and clause (b) above. Such payments with respect to the HHN Notes Guarantee Claims and HHN Notes shall constitute a complete satisfaction and release of all Claims and obligations with respect to the HHN Note Documents.

 

On the Effective Date, the Debtors shall make an equity contribution to HIL in an amount sufficient to repay the HIL Facility and cause HIL to repay the HIL Facility.

 

L. New Registration Rights Agreement

 

On the Effective Date, the Reorganized Debtors shall execute and deliver the New Registration Rights Agreement and take all actions required by the New Registration Rights Agreement, subject to and in accordance with the terms and conditions of the Plan Support Agreement and the Equity Commitment Agreement.

 

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M. International Vehicle Financing Claims

 

On or prior to the Effective Date, as part of the restructuring of the business of HHN and its European subsidiaries, the Debtors shall cause the European Vehicle Financing Entities to enter into and consummate the European ABS Restructuring Settlement. The entry of the Confirmation Order shall (i) constitute approval and authorization for the Debtors to perform their obligations under the European ABS Restructuring Settlement under Bankruptcy Rule 9019, (ii) approve the complete release of the Lombard Vehicle Financing Facility Guarantee, the European ABS Performance Guarantees and any claims related thereto, including the Lombard Facility Guarantee Claims and the European ABS Performance Guarantee Claims, and (iii) approve the irrevocable disallowance of all such claims, which shall be permanently removed from the Claims Register.

 

On or prior to the Effective Date, as part of the restructuring of the business of Hertz Australia and its subsidiaries, the Debtors shall cause Hertz Australia and the Australian Financing Entity to enter into and consummate the Australian ABS Restructuring Settlement. The entry of the Confirmation Order shall (i) constitute approval and authorization for the Debtors to perform their obligations under the Australian ABS Restructuring Settlement under Bankruptcy Rule 9019, (ii) approve the complete release of the Australian Performance Guarantee and any claims related thereto, including any Australian Performance Guarantee Claims, and (iii) approve the irrevocable disallowance of all such claims, which shall be permanently removed from the Claims Register.

 

N. Corporate Existence

 

Except as otherwise provided in the Plan (including with respect to any Restructuring Transaction undertaken pursuant to the Plan), the New Organizational Documents, or any agreement, instrument, or other document incorporated in the Plan or the Plan Supplement, on and after the Effective Date, each Debtor shall continue to exist as a Reorganized Debtor and as a separate corporation, limited liability company, partnership, or other form of entity, as the case may be, with all the powers of a corporation, limited liability company, partnership, or other form of entity, as the case may be, pursuant to the applicable law in the jurisdiction in which each applicable Debtor is incorporated or formed and pursuant to the respective certificate of incorporation and bylaws (or other analogous formation documents) in effect before the Effective Date, except to the extent such certificate of incorporation and bylaws (or other analogous formation documents) are amended by the Plan or otherwise, and to the extent such documents are amended, such documents are deemed to be amended pursuant to the Plan and require no further action or approval (other than any requisite filings required under applicable state, provincial, federal law, or other non-bankruptcy law).

 

O. Vesting of Assets in the Reorganized Debtors

 

Except as otherwise provided in the Plan, or any agreement, instrument, or other document incorporated in the Plan or the Plan Supplement, on the Effective Date, all property in each Estate, all the Debtors’ Causes of Action (including, without express or implied limitation, all Causes of Action identified in the Schedule of Retained Causes of Action), all Executory Contracts and Unexpired Leases assumed, but not assigned, by any of the Debtors, and any property acquired by any of the Debtors, including Interests held by the Debtors in non-Debtor subsidiaries, shall vest in each respective Reorganized Debtor, free and clear of all Liens, Claims, charges, or other encumbrances unless expressly provided otherwise by the Plan or Confirmation Order. On and after the Effective Date, each Reorganized Debtor may operate its business and may use, acquire, or dispose of property, and compromise or settle any Claims, Interests, or Causes of Action without supervision or approval by the Bankruptcy Court and free of any restrictions of the Bankruptcy Code or Bankruptcy Rules.

 

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P. Cancellation of Existing Securities

 

Except as otherwise provided in the Plan, or any agreement, instrument, or other document incorporated in the Plan, or the Plan Supplement, on the Effective Date (i) the Prepetition Debt Documents and any other certificate, share, note, bond, indenture, purchase right, option, warrant, or other instrument or document, directly or indirectly, evidencing or creating any indebtedness or obligation of or ownership interest in the Debtors giving rise to any Claim or Interest (except such certificates, notes, or other instruments or documents evidencing indebtedness or obligations of the Debtors that are specifically Reinstated pursuant to the Plan) shall be deemed canceled, discharged and of no force or effect, without further action or approval of the Bankruptcy Court, the Debtors, or any Holder and the First Lien Agent, the Second Lien Note Trustee, the Unsecured Notes Trustees and the 7.000% Unsecured Promissory Notes Trustee and their respective agents, successors and assigns shall each be automatically and fully released and discharged of and from all duties as applicable under the respective Prepetition Debt Documents, except, as applicable, as necessary to (a) enforce the rights, Claims and interests of the First Lien Agent, the Second Lien Note Trustee, the Unsecured Notes Trustees, the 7.000% Unsecured Promissory Notes Trustee, and, as applicable, and any predecessor thereof vis-a-vis parties other than the Released Parties, (b) allow the receipt of and distributions under the Plan and, as applicable, the subsequent distribution of such amounts in accordance with the respective terms of the Prepetition Debt Documents and (c) preserve any rights of (1) the First Lien Agent and any predecessor thereof as against any money or property distributable to Holders of First Lien Claims, including any priority in respect of payment, (2) the Second Lien Note Trustee and any predecessor thereof as against any money or property distributable to Holders of Second Lien Note Claims, (3) the 5.500% Unsecured Notes Trustee and any predecessor thereof as against any money or property distributable to Holders of the 5.500% Unsecured Notes Claims, (4) the 6.000% Unsecured Notes Trustee and any predecessor thereof as against any money or property distributable to Holders of the 6.000% Unsecured Notes Claims, (5) the 6.250% Unsecured Notes Trustee and any predecessor thereof as against any money or property distributable to Holders of the 6.250% Unsecured Notes Claims, (6) the 7.000% Unsecured Promissory Notes Trustee and any predecessor thereof as against any money or property distributable to Holders of the 7.000% Unsecured Promissory Notes Claims, and (7) the 7.125% Unsecured Notes Trustee and any predecessor thereof as against any money or property distributable to Holders of the 7.125% Unsecured Notes Claims; and (ii) the obligations of the Debtors pursuant, relating, or pertaining to any agreements, indentures, certificates of designation, bylaws, or certificate or articles of incorporation or similar documents governing the shares, certificates, notes, bonds, purchase rights, options, warrants, or other instruments or documents evidencing or creating any indebtedness or obligation of the Debtors (except such agreements, certificates, notes, or other instruments evidencing indebtedness or obligations of the Debtors that are specifically Reinstated pursuant to the Plan) shall be released and discharged; provided that notwithstanding Confirmation or the occurrence of the Effective Date, any such indenture or agreement that governs the rights of the Holder of a Claim or Interest shall also continue in effect to allow each of the First Lien Agent, the Second Lien Note Trustee, the Unsecured Notes Trustees, and the 7.000% Unsecured Promissory Notes Trustee to appear and be heard in the Chapter 11 Cases or in any proceeding in the Bankruptcy Court or any other court, including, without limitation, to enforce the respective obligations owed to such parties under the Plan.

 

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Subsequent to the performance by: (i) the First Lien Agent of its obligations under the Plan, the First Lien Agent and its respective agents shall be relieved of all further duties and responsibilities related to the First Lien Loan Documents upon the occurrence of the Effective Date, except with respect to such other rights of the First Lien Agent that, pursuant to the First Lien Loan Documents, survive the termination of the First Lien Loan Documents; (ii) the Second Lien Note Trustee of its obligations under the Plan, the Second Lien Note Trustee and its respective agents shall be relieved of all further duties and responsibilities related to the Second Lien Note Documents upon the occurrence of the Effective Date, except with respect to such other rights of the Second Lien Note Trustee that, pursuant to the Second Lien Note Documents, survive the termination of the Second Lien Note Documents; (iii) the 5.500% Unsecured Notes Trustee of its obligations under the Plan, the 5.500% Unsecured Notes Trustee and its respective agents shall be relieved of all further duties and responsibilities related to the 5.500% Unsecured Notes Documents upon the occurrence of the Effective Date, except with respect to such other rights of the 5.500% Unsecured Notes Trustee that, pursuant to the 5.500% Unsecured Notes Documents, survive the termination of the 5.500% Unsecured Notes Documents; (iv) the 6.000% Unsecured Notes Trustee of its obligations under the Plan, the 6.000% Unsecured Notes Trustee and its respective agents shall be relieved of all further duties and responsibilities related to the 6.000% Unsecured Notes Documents upon the occurrence of the Effective Date, except with respect to such other rights of the 6.000% Unsecured Notes Trustee that, pursuant to the 6.000% Unsecured Notes Documents, survive the termination of the 6.000% Unsecured Notes Documents; (v) the 6.250% Unsecured Notes Trustee of its obligations under the Plan, the 6.250% Unsecured Notes Trustee and its respective agents shall be relieved of all further duties and responsibilities related to the 6.250% Unsecured Notes Documents upon the occurrence of the Effective Date, except with respect to such other rights of the 6.250% Unsecured Notes Trustee that, pursuant to the 6.250% Unsecured Notes Documents, survive the termination of the 6.250% Unsecured Notes Documents; (vi) the 7.000% Unsecured Promissory Notes Trustee of its obligations under the Plan, the 7.000% Unsecured Promissory Notes Trustee and its respective agents shall be relieved of all further duties and responsibilities related to the 7.000% Unsecured Promissory Notes Documents upon the occurrence of the Effective Date, except with respect to such other rights of the 7.000% Unsecured Promissory Notes Trustee that, pursuant to the 7.000% Unsecured Promissory Notes Documents, survive the termination of the 7.000% Unsecured Promissory Notes Documents; and (vii) the 7.125% Unsecured Notes Trustee of its obligations under the Plan, the 7.125% Unsecured Notes Trustee and its respective agents shall be relieved of all further duties and responsibilities related to the 7.125% Unsecured Notes Documents upon the occurrence of the Effective Date, except with respect to such other rights of the 7.125% Unsecured Notes Trustee that, pursuant to the 7.125% Unsecured Notes Documents, survive the termination of the 7.125% Unsecured Notes Documents.

 

If the record Holder of any of the Second Lien Notes or Unsecured Notes is DTC or its nominee or another securities depository or custodian thereof, and such Second Lien Notes or Unsecured Notes are represented by a global security held by or on behalf of DTC or such other securities depository or custodian, then each such Holder of the Second Lien Notes or Unsecured Notes shall be deemed to have surrendered such Holder’s note, debenture or other evidence of indebtedness upon surrender of such global security by DTC or such other securities depository or custodian thereof.

 

The commitments and obligations, if any, of each DIP Lender to extend any further or future credit or financial accommodations to any of the Debtors, any of their respective subsidiaries, or any of their respective successors or assigns under the DIP Loan Documents, as applicable, shall fully terminate and be of no further force or effect on the Effective Date.

 

Notwithstanding the foregoing, any provision in any document, instrument, lease, or other agreement that causes or effectuates, or purports to cause or effectuate, a default, termination, waiver, or other forfeiture of, or by, the Debtors as a result of the cancellations, terminations, satisfaction, releases, or discharges provided for in the Plan shall be deemed null and void and shall be of no force and effect solely in connection with such cancellations, terminations, satisfactions, releases or discharges. Nothing contained herein shall be deemed to cancel, terminate, release, or discharge the obligation of the Debtors or any of their counterparties under any Executory Contract or Unexpired Lease to the extent such Executory Contract or Unexpired Lease has been assumed by the Debtors pursuant to a Final Order of the Bankruptcy Court or hereunder.

 

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Q. Corporate Action

 

Upon the Effective Date, or as soon thereafter as is reasonably practicable, all actions contemplated by the Plan shall be deemed authorized and approved by the Bankruptcy Court in all respects, including, as applicable (i) the issuance of the Reorganized Hertz Parent Common Interests, Preferred Stock, and New Warrants; (ii) the selection and appointment of the directors and officers for Reorganized Hertz Parent and the other Reorganized Debtors; (iii) implementation of the Restructuring Transactions; and (iv) all other actions contemplated by the Plan (whether to occur before, on, or after the Effective Date). Upon the Effective Date, all matters provided for in the Plan involving the corporate structure of Reorganized Hertz Parent and the other Reorganized Debtors, and any corporate action required by the Debtors, Reorganized Hertz Parent, or the other Reorganized Debtors in connection with the Plan shall be deemed to have occurred and shall be in effect, without any requirement of further action by the Security Holders, directors, or officers of the Debtors, Reorganized Hertz Parent, or the other Reorganized Debtors. On or before the Effective Date, as applicable, the appropriate officers of the Debtors, Reorganized Hertz Parent, or the Reorganized Debtors shall be authorized to issue, execute, and deliver the agreements, documents, securities, and instruments contemplated by the Plan (or necessary or desirable to effect the transactions contemplated by the Plan), in the name of and on behalf of Reorganized Hertz Parent and the other Reorganized Debtors, to the extent not previously authorized by the Bankruptcy Court. The authorizations and approvals contemplated by this Article IV.Q shall be effective notwithstanding any requirements under non-bankruptcy law.

 

R. New Organizational Documents

 

To the extent required under the Plan, or applicable non-bankruptcy law, on the Effective Date, or as soon as reasonably practicable thereafter, the Reorganized Debtors will File such New Organizational Documents as are required to be Filed with the applicable Secretary of State and/or other applicable authorities in the state, province, or country of incorporation in accordance with the corporate laws of the respective state, province, or country of incorporation. Pursuant to section 1123(a)(6) of the Bankruptcy Code, the New Organizational Documents will prohibit the issuance of non-voting equity securities. After the Effective Date, the Reorganized Debtors may amend and restate their respective New Organizational Documents, and the Reorganized Debtors may File their respective certificates or articles of incorporation, bylaws, or such other applicable formation documents, and other constituent documents as permitted by the laws of the respective states, provinces, or countries of incorporation and the New Organizational Documents. Additionally, on the Effective Date, each recipient of Reorganized Hertz Parent Common Interests and Preferred Stock will be subject to the Reorganized Hertz Parent Organizational Documents.

 

The New Organizational Documents shall not contain any prohibitions on any of the Reorganized Debtors becoming a publicly listed company.

 

S. Reorganized Hertz Parent and Reorganized Hertz Corp. Board

 

As of the Effective Date, except as set forth in this Article IV.S, all directors, managers, and other members of existing boards or governance bodies of Hertz Parent and Hertz Corp., as applicable, shall cease to hold office or have any authority from and after such time unless such individuals are selected to hold positions pursuant to the applicable governing body or documents with respect to the Reorganized Debtors.

 

The Reorganized Hertz Parent Board and Reorganized Hertz Corp. Board shall have at least seven (7) members.  All members shall be selected in accordance with generally accepted best practices for large institutional investors in public companies.  The composition of the board shall comply with applicable stock exchange and SEC independence requirements and directors shall have relevant industry, financial and operational backgrounds.

 

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Pursuant to section 1129(a)(5) of the Bankruptcy Code, the Debtors will disclose in the Plan Supplement the identity and affiliations of any person proposed to serve on the initial board of directors of Reorganized Hertz Parent and Reorganized Hertz Corp. To the extent any such director or officer of the Reorganized Hertz Parent and Reorganized Hertz Corp. is an “insider” under the Bankruptcy Code, the Debtors also will disclose the nature of any compensation to be paid to such direct or officer. Each such director and officer shall serve from and after the Effective Date pursuant to the terms of the New Organizational Documents, the Employment Agreements (assumed and assigned to the Reorganized Debtors, subject to the reasonable consent of the Plan Sponsors), and other constituent documents of the Reorganized Debtors. The selection of directors and officers of Reorganized Hertz Parent and Reorganized Hertz Corp. shall be disclosed in the Plan Supplement, and at least a majority of the directors shall be appointed by the Plan Sponsors (other than Apollo).

 

T. Exemption from Certain Taxes and Fees

 

To the maximum extent permitted pursuant to section 1146(a) of the Bankruptcy Code, (i) the issuance, transfer or exchange of any securities, instruments, or documents, (ii) the creation of any Lien, mortgage, deed of trust or other security interest, (iii) any transfers (directly or indirectly) of property pursuant to the Plan or the Plan Supplement, (iv) any assumption, assignment, or sale by the Debtors of their interests in unexpired leases of nonresidential real property or executory contracts pursuant to section 365(a) of the Bankruptcy Code, (v) the grant of collateral under the Exit Facility Documents, and (vi) the issuance, renewal, modification or securing of indebtedness by such means, and the making, delivery or recording of any deed or other instrument of transfer under in furtherance of, or in connection with, the Plan, including the Confirmation Order, shall not be subject to any document recording tax, stamp tax, conveyance fee, intangibles or similar tax, mortgage tax, stamp act, real estate transfer tax, sale or use tax, mortgage recording tax, or other similar tax or governmental assessment, and upon entry of the Confirmation Order, the appropriate state or local governmental officials or agents shall forgo the collection of any such tax or governmental assessment and accept for filing and recordation any of the foregoing instruments or other documents pursuant to such transfers of property without the payment of any such tax, recordation fee, or governmental assessment.

 

U. Preservation of Causes of Action

 

In accordance with section 1123(b) of the Bankruptcy Code, but subject in all respects to Article VIII, the Reorganized Debtors shall retain and may enforce all rights to commence and pursue, as appropriate, any and all of the Debtors’ Causes of Action, whether arising before or after the Petition Date, including any Causes of Action specifically enumerated in the Plan Supplement. The Reorganized Debtors (in consultation with the Plan Sponsors) shall have the exclusive right, authority, and discretion to determine and to initiate, file, prosecute, enforce, abandon, settle, compromise, release, withdraw, or litigate to judgment any such Causes of Action, and to decline to do any of the foregoing without the consent or approval of any third party or further notice to or action, order, or approval of the Bankruptcy Court. The Debtors or the Reorganized Debtors, as applicable, expressly reserve all rights to prosecute any and all Causes of Action.

 

No Entity may rely on the absence of a specific reference in the Plan, the Plan Supplement, or the Disclosure Statement to any Cause of Action against it as any indication that the Debtors or the Reorganized Debtors, as applicable, shall not pursue any and all available Causes of Action against it. Unless such Causes of Action against any Entity are expressly waived, relinquished, exculpated, released, compromised, assigned, or settled in the Plan or a Final Order, all such Causes of Action shall be expressly reserved by the Debtors or the Reorganized Debtors, as applicable, for later adjudication, and, therefore, no preclusion doctrine, including the doctrines of res judicata, collateral estoppel, issue preclusion, claim preclusion, estoppel (judicial, equitable, or otherwise), or laches, shall apply to any Cause of Action upon, after, or as a consequence of Confirmation or the occurrence of the Effective Date.

 

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The Reorganized Debtors reserve and shall retain such Causes of Action of the Debtors notwithstanding the rejection or repudiation of any Executory Contract or Unexpired Lease during the Chapter 11 Cases or pursuant to the Plan. The applicable Reorganized Debtors, through their authorized agents or representatives, shall retain and may exclusively enforce any and all such Causes of Action.

 

Notwithstanding anything to the contrary contained in this Article IV.U., on the Effective Date, all Avoidance Actions with respect to trade vendors that continue to do business with the Reorganized Debtors and that are not specifically identified in the Schedule of Retained Causes of Action shall be released by the Debtors.

 

V. Insurance Policies and Surety Bonds

 

1. Director and Officer Liability Insurance

 

On the Effective Date, the Reorganized Debtors shall be deemed to have assumed all D&O Liability Insurance Policies with respect to the Debtors’ directors, managers, officers, and employees, as applicable, who served in such capacity at any time on or prior to the Effective Date pursuant to sections 105 and 365 of the Bankruptcy Code. Entry of the Confirmation Order shall constitute the Bankruptcy Court’s approval of the Reorganized Debtors’ assumption of each of the D&O Liability Insurance Policies.

 

On or before the Effective Date, the Debtors, on behalf of the Reorganized Debtors, will obtain the Tail D&O Policy.

 

After the Effective Date, none of the Debtors or the Reorganized Debtors shall terminate or otherwise reduce the coverage under any D&O Liability Insurance Policies in effect on the Effective Date, including the Tail D&O Policy, with respect to conduct occurring prior thereto, and all officers, directors, managers, and employees of the Debtors who served in such capacity at any time before the Effective Date shall be entitled to the full benefits of any such policy for the full term of such policy subject to the terms thereof regardless of whether such officers, directors, managers, or employees remain in such positions after the Effective Date, provided that nothing in this paragraph shall preclude a reduction in the amount of available policy proceeds under the D&O Liability Insurance Policies through payment of claims under any D&O Liability Insurance Policies to or on behalf of the Debtors or the Reorganized Debtors.

 

Notwithstanding anything to the contrary contained in the Plan, Confirmation of the Plan shall not discharge, impair, or otherwise modify any indemnity obligations assumed by the foregoing assumption of the D&O Liability Insurance Policies and related documents, and each such indemnity obligation will be deemed and treated as an Executory Contract that has been assumed by the Reorganized Debtors under the Plan and no Proof of Claim need be Filed with respect thereto.

 

2. Assumption of Insurance Policies

 

On the Effective Date, each Insurance Policy shall be assumed by the applicable Reorganized Debtor pursuant to sections 105 and 365 of the Bankruptcy Code, unless such Insurance Policy (i) was rejected by the Debtors pursuant to an order of the Bankruptcy Court, or (ii) is the subject of a motion to reject pending on the date of the Confirmation Hearing. Entry of the Confirmation Order shall constitute the Bankruptcy Court’s approval of the Reorganized Debtors assumption of each of such Insurance Policies

 

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3. Insurance Neutrality

 

Nothing in the Plan or the Confirmation Order, shall in any way operate to, or have the effect of, impairing, altering, supplementing, changing, expanding, decreasing, or modifying (a) the rights or obligations of any Insurer or (b) any rights or obligations of the Debtors or the Reorganized Debtors arising out of or under any Insurance Policy. The Insurers, the Debtors, and Reorganized Debtors, as applicable, shall retain all rights and defenses under such Insurance Policies, and such Insurance Policies shall apply to, and be enforceable by and against, the insureds and the Reorganized Debtors in the same manner and according to the same terms and practices applicable to the Debtors, as existed prior to the Effective Date. Further, for all issues relating to insurance coverage, the provisions, terms, conditions, and limitations of the Insurance Policies shall control. For the avoidance of doubt, nothing contained in the Plan or the Confirmation Order shall operate to require any Insurer to indemnify or pay the liability for any claim that it would not have been required to pay in the absence of the Plan and Confirmation Order.

 

4. Surety Bonds

 

On the Effective Date, (i) all of the Debtors’ obligations and commitments to any surety bond providers shall be deemed reaffirmed by the Reorganized Debtors; (ii) surety bonds and related indemnification and collateral agreements entered into by any Debtor will be vested and performed by the applicable Reorganized Debtor and will survive and remain unaffected by entry of the Confirmation Order; and (iii) the Reorganized Debtors shall be authorized to enter into new surety bond agreements and related indemnification and collateral agreements, or to modify any such existing agreements, in the ordinary course of business. Without diminution of the foregoing, the applicable Reorganized Debtors will continue to pay all premiums and other amounts due, including loss adjustment expenses, on the existing surety bonds as they become due prior to the release or discharge of such surety bonds. Surety bond providers shall have the discretion to replace (or issue name-change riders with respect to) any existing surety bonds or related general agreements of indemnity with new surety bonds and related general agreements of indemnity on the same terms and conditions provided in the applicable existing surety bonds or related general agreements of indemnity. Nothing in the Plan or Confirmation Order shall in any way operate to, or have the effect of, impairing, altering, supplementing, changing, expanding, decreasing, or modifying the rights or obligations of the Debtors or any surety bond provider with respect to any unexpired surety bond agreement or related indemnification or collateral agreement.

 

W. Management Equity Incentive Plan

 

On or as soon as reasonably practical following the Effective Date, the Reorganized Hertz Parent Board will adopt and implement the Management Equity Incentive Plan, which shall provide for not less than 5% of Reorganized Hertz Parent Common Interests to be reserved for directors, officers, and employees of the Reorganized Debtors in accordance with the MIP Term Sheet and as otherwise determined by the Reorganized Hertz Parent Board.

 

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X. Employee Obligations

 

Except as (i) otherwise provided in the Plan or Plan Supplement; (ii) identified on the Rejected Executory Contracts and Unexpired Leases Schedule; (iii) was rejected by the Debtors pursuant to a Bankruptcy Court order; or (iv) is the subject of a motion to reject pending on the date of the Confirmation Hearing, the Reorganized Debtors shall honor the Debtors’ Employee Obligations and, to the extent not already satisfied, the Debtors’ Employee Obligations shall become obligations of the Reorganized Debtors in accordance with their terms. To the extent the Employee Obligations are executory contracts and (i) such executory contracts are not identified on the Rejected Executory Contracts and Unexpired Leases Schedule, (ii) were not previously rejected by a Final Order, pursuant to section 365 and 1123 of the Bankruptcy Code, or (iii) are not the subject of a motion to reject pending on the date of the Confirmation Hearing, each will be deemed assumed as of the Effective Date and the obligations thereunder shall be paid in the ordinary course consistent with the terms thereof; provided, that, the consummation of the Restructuring Transactions and any associated organizational changes shall not constitute a “change of control,” “change in control,” or other similar event under any of the above-listed written contracts, agreements, policies, programs and plans. Notwithstanding anything else set forth in this paragraph, the cure provisions of Article V.C hereof shall apply to any Employee Obligation arising from an Executory Contract assumed in accordance with the provisions of Article V hereof.

 

Notwithstanding anything to the contrary in the foregoing paragraph, the Reorganized Debtors shall assume, continue, and maintain in all respects, and shall not in any way reduce or diminish, the bonus programs approved by the Bankruptcy Court pursuant to the 2020 EIP Order and the 2021 KEIP/EIP Order in accordance with the respective terms of such programs, including by timely paying all awards earned by the participants therein in accordance with the terms thereof.

 

On the Effective Date, each Employment Agreement will be deemed assumed and shall become obligations of the Reorganized Debtors in accordance with their terms.

 

Notwithstanding anything to the contrary in this Plan, as of the Effective Date, any provision of an Employee Obligation that provides for equity-based awards, including any termination-related provisions with respect to equity-based awards, shall be deemed cancelled and shall be of no further force and effect, whether surrendered for cancellation or otherwise.

 

Notwithstanding anything to the contrary in this Plan, the Reorganized Debtors shall continue and assume the Pension Plans to the extent of their respective obligations under the Pension Plans and applicable law, including, as applicable, (i) the minimum funding standards in 26 U.S.C. §§ 412 and 430 and 29 U.S.C. §§ 1082 and 1083 and (ii) the premiums under 29 U.S.C. §§ 1306 and 1307. All Proofs of Claim filed by the PBGC with respect to the Pension Plans shall be deemed withdrawn on the Effective Date. No provision of the Disclosure Statement, Plan, Confirmation Order, or section 1141 of the Bankruptcy Code shall be construed to discharge, release, or relieve the Reorganized Debtors, their successors, or individuals from liabilities or requirements imposed under any law or regulatory provision with respect to the Pension Plans or from claims of the PBGC with respect to the Pension Plans.  The PBGC and the Pension Plans will not be enjoined or precluded from enforcing such liability with respect to the Pension Plans as a result of any provision of the Disclosure Statement, Plan, Confirmation Order, or section 1141 of the Bankruptcy Code.

 

Notwithstanding anything to the contrary in this Plan, in accordance with section 1129(a)(13) of the Bankruptcy Code, the Reorganized Debtors shall continue to honor all retiree benefits, as such term is defined in section 1114(a) of the Bankruptcy Code, as and to the extent required by the agreements giving rise to such obligations.

 

On the Effective Date, each severance plan of the Debtors in existence immediately prior to the Effective Date, including (i) the Amended and Restated Hertz Global Holdings, Inc. Severance Plan for Senior Executives, and (ii) the Amended and Restated Hertz Global Holdings, Inc. Severance Plan for Vice Presidents, shall be terminated in accordance with its terms. Entry of the Confirmation Order shall constitute authorization for such termination without further action by any of the Debtors, the Debtors’ board of directors or any committee thereof, or any officer or other employee of the Debtors, or any delegee of any of the foregoing. To the extent any severance plan constitutes an Executory Contract deemed rejected pursuant to Article V.A hereof, termination of such severance plan in accordance with its terms pursuant to this paragraph shall be deemed to have occurred immediately prior to such rejection. Notwithstanding the foregoing, on and subject to the occurrence of the Effective Date, the Reorganized Debtors (a) shall covenant, agree, and undertake, as obligations of the Reorganized Debtors, that in the event that any individual who is part of the Senior Management Group is terminated by the Reorganized Debtors without cause within twelve (12) months following the Effective Date, the Reorganized Debtors shall, within thirty (30) days following such termination, pay such terminated individual a single lump-sum cash payment equal to two (2) times the value of such terminated individual’s annual base compensation (i.e., base salary and non-variable benefits) and (b) shall adopt and implement such other plans, policies, or other agreements with respect to employee severance for certain of the Reorganized Debtors’ other employees on terms to be determined by the Reorganized Debtors and acceptable to the Plan Sponsors or Reorganized Hertz Parent Board in good faith.

 

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Y. Workers’ Compensation Programs

 

As of the Effective Date, the Reorganized Debtors shall continue to honor their obligations under (i) all applicable workers’ compensation laws in jurisdictions in which the Reorganized Debtors operate or the Debtors previously operated; and (ii) the Debtors’ (a) written contracts, agreements, and agreements of indemnity, in each case relating to workers’ compensation, (b) self-insurer workers’ compensation bonds, policies, programs, and plans for workers’ compensation and (c) workers’ compensation insurance policies and programs. All Proofs of Claim filed by the Debtors’ current or former employees on account of workers’ compensation claims shall be deemed withdrawn automatically and without any further notice to or action, order, or approval of the Bankruptcy Court based upon the treatment provided for herein; provided, that nothing in the Plan shall limit, diminish, or otherwise alter the Debtors’ or Reorganized Debtors’ defenses, Causes of Action, or other rights under applicable non-bankruptcy law with respect to any such contracts, agreements, policies, programs and plans.

 

Z. Collective Bargaining Agreements

 

On or prior to the Effective Date, and subject to the occurrence of the Effective Date, the Reorganized Debtors shall assume all of the Debtors’ unexpired collective bargaining agreements.

 

AA. Plan Support Agreement and Equity Purchase Agreement

 

To the extent not previously approved pursuant to an order of the Bankruptcy Court authorizing the Debtors’ entry into the Plan Support Agreement and the Equity Purchase Agreement, entry into each of the Plan Support Agreement and the Equity Purchase Agreement shall be authorized by the Bankruptcy Court pursuant to the Confirmation Order, and the Debtors shall continue to perform thereunder and comply therewith in all respects through and including the Effective Date.

 

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Article V.
TREATMENT OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES

 

A. Assumption and Rejection of Executory Contracts and Unexpired Leases

 

On the Effective Date, except as otherwise provided herein, all Executory Contracts or Unexpired Leases not otherwise assumed or rejected will be deemed assumed by the applicable Reorganized Debtor pursuant to sections 365 and 1123 of the Bankruptcy Code, other than those Executory Contracts and Unexpired Leases that (i) are identified on the Rejected Executory Contracts and Unexpired Leases Schedule; (ii) have been previously rejected by a Final Order; (iii) have been previously assumed or assumed and assigned by a Final Order; (iv) are the subject of a motion to reject Executory Contracts or Unexpired Leases that is pending on the Confirmation Date; (v) which the Debtors have, as of the Confirmation Date, received authority to reject pursuant to an order of the Bankruptcy Court with the effective date of such rejection is after the Effective Date; (vi) provide for payment of severance or other benefits to former employees of the Debtors (other than retiree benefits within the meaning of such term in section 1114(a) of the Bankruptcy Code), whether in the form of a plan or individual agreement; and (vii) are solely with a Donlen Debtor, which to the extent not previously assumed by a Final Order shall be deemed to be rejected; provided, that, nothing in the Plan or Confirmation Order shall constitute an admission or finding that any plan or agreement referenced in the immediately preceding clauses constitutes an Executory Contract; and provided further, that the Debtors reserve the right to seek enforcement of or other relief with respect to an assumed or assumed and assigned Executory Contract or Unexpired Lease following the Confirmation Date, including but not limited to seeking an order of the Bankruptcy Court for the rejection of such Executory Contract or Unexpired Lease for cause. The terms of any Final Order entered by the Bankruptcy Court prior to the entrance of the Confirmation Order that provide for the assumption and assignment of nonresidential real property shall control over the terms of the Plan and Confirmation Order.

 

Entry of the Confirmation Order shall constitute an order of the Bankruptcy Court approving the assumptions and rejections of such Executory Contracts or Unexpired Leases as set forth in the Plan, the Assumed Executory Contracts and Unexpired Leases Schedule, the Collective Bargaining Agreements, and the Rejected Executory Contracts and Unexpired Leases Schedule, pursuant to sections 365(a) and 1123 of the Bankruptcy Code. Except as otherwise specifically set forth herein, assumptions or rejections of Executory Contracts and Unexpired Leases pursuant to the Plan are effective as of the Effective Date. The Debtors are authorized to abandon any of the Debtors’ personal property at or on the leased premises subject to an Unexpired Lease rejected pursuant to the Plan, and the counterparties to rejected leases may dispose of any such personal property remaining at or on the leased premises following the applicable lease rejection date.

 

Each Executory Contract or Unexpired Lease assumed pursuant to the Plan or by Bankruptcy Court order but not assigned to a third party before the Effective Date shall re-vest in and be fully enforceable by the applicable contracting Reorganized Debtor in accordance with its terms, except as such terms may have been modified by any order of the Bankruptcy Court authorizing and providing for its assumption under applicable federal law (in each case, in accordance with applicable law, including by consent of the counterparty to such Executory Contract or Unexpired Lease). Subject to applicable law, including section 365(d)(4) of the Bankruptcy Code, any motions to assume Executory Contracts or Unexpired Leases pending on the Effective Date shall be subject to approval by a Final Order of the Bankruptcy Court on or after the Effective Date but may be withdrawn, settled, or otherwise prosecuted by the Reorganized Debtors, with any such disposition to be deemed to effect an assumption, assumption and assignment, or rejection, as applicable, as of the Effective Date.

 

To the maximum extent permitted by law, to the extent any provision in any Executory Contract or Unexpired Lease assumed or assumed and assigned pursuant to the Plan restricts, conditions or prevents, or purports to restrict, condition or prevent, or is breached or deemed breached by, the assumption or assumption and assignment of such Executory Contract or Unexpired Lease (including any “anti-assignment,” “change of control,” consent right, or similar provision), then such provision shall be deemed modified such that the transaction contemplated by the Plan shall not entitle the non-Debtor party thereto to terminate such Executory Contract or Unexpired Lease or to exercise any other default-related rights with respect thereto. The consummation of the Plan and the implementation of the Restructuring Transactions are not intended to, and shall not, constitute a “change of control,” “change in control,” or other similar event under any lease, contract, or agreement to which a Debtor is a party.

 

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B. Claims Based on Rejection of Executory Contracts or Unexpired Leases

 

Proofs of Claim with respect to Claims arising from the rejection of Executory Contracts or Unexpired Leases, if any, must be Filed with the Bankruptcy Court by the later of thirty (30) days from (i) the date of entry of an order of the Bankruptcy Court (including the Confirmation Order) approving such rejection, and (ii) the effective date of the rejection of such Executory Contract or Unexpired Lease. Any Claims arising from the rejection of an Executory Contract or Unexpired Lease not Filed within such time shall be Disallowed pursuant to the Confirmation Order, forever barred from assertion, and shall not be enforceable against, as applicable, the Debtors, the Reorganized Debtors, the Estates, or property of the foregoing parties, without the need for any objection by the Debtors or the Reorganized Debtors, as applicable, or further notice to, or action, order, or approval of the Bankruptcy Court or any other Entity, and any Claim arising out of the rejection of the Executory Contract or Unexpired Lease shall be deemed fully satisfied, released, and discharged, notwithstanding anything in the Schedules, if any, or a Proof of Claim to the contrary. Claims arising from the rejection of the Debtors’ Executory Contracts or Unexpired Leases shall be classified as General Unsecured Claims and shall be treated in accordance with Article III.B.7, and such claims may be objected to in accordance with this Plan.

 

C. Cure of Defaults for Assumed Executory Contracts and Unexpired Leases

 

The Debtors or the Reorganized Debtors, as applicable, shall pay Cure Claims that are not subject to an Assumption Dispute on the Effective Date, or to the extent necessary, no later than three (3) Business Days following the Effective Date, or on such other terms as the parties to such Executory Contracts or Unexpired Leases may otherwise agree. The Reorganized Debtors may settle any Cure Claim on account of any Executory Contract or Unexpired Lease without any further notice to or action, order, or approval of the Bankruptcy Court.

 

Except as set forth below, any Cure Claims shall be satisfied for the purposes of section 365(b)(1) of the Bankruptcy Code by payment in Cash of the cure amount set forth on the Assumed Executory Contracts or Unexpired Leases Schedule or the Collective Bargaining Agreement Schedule, as applicable, for the applicable Executory Contract or Unexpired Lease, or on such other terms as the parties to such Executory Contracts or Unexpired Leases and the Debtors or the Reorganized Debtors, as applicable, may otherwise agree or as determined by the Bankruptcy Court by a Final Order. Any Cure Claim shall be deemed fully satisfied, released, and discharged upon payment by the Debtors or the Reorganized Debtors of such Cure Claim, as applicable.

 

Unless otherwise provided by an order of the Bankruptcy Court, the Debtors shall use reasonable best efforts to file an initial Assumed Executory Contracts and Unexpired Leases Schedule and Rejected Executory Contracts and Unexpired Leases Schedule no later than twenty-eight (28) days prior to the earlier to occur of (a) the Voting Deadline and (b) the deadline for objecting to the Plan. Further, the Debtors shall file their list of Assumed Executory Contracts and Unexpired Leases Schedule and Rejected Executory Contracts and Unexpired Leases Schedule no later than fourteen (14) days prior to the earlier to occur of (a) the Voting Deadline and (b) the deadline for objecting to the Plan, which shall supersede the initial schedule if any such initial schedule is filed. The Debtors shall cause all Filed Assumed Executory Contracts and Unexpired Leases Schedules and Rejected Executory Contracts and Unexpired Leases Schedules or notices of proposed assumption, proposed amounts of Cure Claims, and proposed rejections to be served by first class mail on counterparties to Executory Contracts and Unexpired Leases to be assumed or rejected pursuant to the Plan that are identified in such schedule. The Debtors may supplement or modify the Assumed Executory Contract and Unexpired Leases Schedule or Rejected Executory Contracts and Unexpired Leases Schedule up to one (1) Business Day prior to the Confirmation Hearing. Any objection to the assumption or rejection of an Executory Contract or Unexpired Lease under the Plan must be Filed, served and actually received by the Debtors by the later of (1) the Confirmation Objection Deadline or (2) with respect to any Executory Contract or Unexpired Lease that is added to the Assumed Executory Contract and Unexpired Leases Schedule after the date that is fourteen (14) days prior to the Confirmation Objection Deadline, the date that is fourteen (14) days following the filing of the relevant supplement to the Assumed Executory Contract and Unexpired Leases Schedule.

 

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Any party that fails to timely object to the assumption of its Executory Contract or Unexpired Lease (including the ability of the applicable Reorganized Debtor or assignee to provide “adequate assurance of future performance” under such Executory Contract or Unexpired Lease within the meaning of section 365 of the Bankruptcy Code) or the amount of the Cure Claim listed on the Assumed Executory Contracts and Unexpired Leases Schedule or the Collective Bargaining Agreement Schedule as set forth in the paragraph above, shall be (i) deemed to have consented to the assumption of its Executory Contract or Unexpired Lease and to such Cure Claim and (ii) forever barred, estopped, and enjoined from disputing the amount of the Cure Claim set forth on the Assumed Executory Contracts and Unexpired Leases Schedule or the Collective Bargaining Agreement Schedule (including a cure amount of $0.00) and/or from asserting any Claim against the applicable Debtor or Reorganized Debtor arising under section 365(b)(1) of the Bankruptcy Code.

 

Assumption of any Executory Contract or Unexpired Lease pursuant to the Plan or otherwise, subject to the payment of the applicable Cure Claim as set forth in the Plan Supplement, shall result in the full release and satisfaction of any Claims or defaults, whether monetary or nonmonetary, including defaults of provisions restricting the change in control or ownership interest composition or other bankruptcy-related defaults, arising under any assumed Executory Contract or Unexpired Lease at any time before the date that the Debtors assume such Executory Contract or Unexpired Lease; provided, that the Debtors or the Reorganized Debtors, as applicable, will remain obligated to pay any accrued but unbilled amounts under any such assumed Executory Contract or Unexpired Lease to the extent that such unbilled amounts were not due to be billed prior to the date of assumption. Any Proofs of Claim Filed with respect to an Executory Contract or Unexpired Lease that has been assumed shall be deemed Disallowed and expunged, without further notice to or action, order, or approval of the Bankruptcy Court upon payment of the applicable Cure Claim.

 

D. Assumption Dispute Resolution

 

In the event of a timely Filed objection regarding (i) the amount of any Cure Claim; (ii) the ability of the Reorganized Debtors or any assignee to provide “adequate assurance of future performance” (within the meaning of section 365 of the Bankruptcy Code) under an Executory Contract or Unexpired Lease to be assumed; or (iii) any other matter pertaining to assumption or payment of a Cure Claim required by section 365(b)(1) of the Bankruptcy Code, such dispute (an “Assumption Dispute”) shall be resolved by a Final Order of the Bankruptcy Court (which may be the Confirmation Order) or as may be agreed upon by the Debtors or the Reorganized Debtors, as applicable, and the counterparty to the Executory Contract or Unexpired Lease.

 

To the extent an Assumption Dispute relates solely to the amount of a Cure Claim, the Debtors may assume and/or assume and assign the applicable Executory Contract or Unexpired Lease prior to the resolution of such Assumption Dispute; provided, that the Debtors reserve Cash in an amount sufficient to pay the full amount reasonably asserted as the required cure payment by the counterparty or counterparties to such Executory Contract or Unexpired Lease. To the extent that the Assumption Dispute is resolved or determined unfavorably to the Debtors, the Debtors may reject the applicable Executory Contract or Unexpired Lease after such determination, which rejection shall supersede, nullify, and render of no force or effect the earlier assumption and/or assumption and assignment.

 

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For the avoidance of doubt, if the Debtors are unable to resolve an Assumption Dispute relating solely to the amount of a Cure Claim prior to the Confirmation Hearing, such Assumption Dispute may be scheduled to be heard by the Bankruptcy Court after the Confirmation Hearing (the “Adjourned Cure Dispute”).

 

E. Indemnification Obligations

 

Notwithstanding anything in the Plan to the contrary, each Indemnification Obligation shall be assumed by the applicable Debtor effective as of the Effective Date, pursuant to sections 365 and 1123 of the Bankruptcy Code or otherwise, unless such obligation (i) was rejected by the Debtors pursuant to a Final Order or (ii) is the subject of a motion to reject that is pending as of the date of the Confirmation Hearing. Each Indemnification Obligation shall remain in full force and effect, shall not be modified, reduced, discharged, impaired, or otherwise affected in any way, and shall survive Unimpaired and unaffected, irrespective of when such obligation arose.

 

F. Contracts and Leases Entered into After the Petition Date

 

Contracts and leases entered into after the Petition Date by the Debtors, including any Executory Contracts and Unexpired Leases assumed by the Debtors, and not assigned to a non-Debtor Entity, will be performed by the Debtors or the Reorganized Debtors in the ordinary course of its operations. Accordingly, such contracts and leases (including any assumed Executory Contract and Unexpired Leases) shall survive and remain unaffected by entry of the Confirmation Order.

 

G. Modifications, Amendments, Supplements, Restatements, or Other Agreements

 

Unless otherwise provided in the Plan, each Executory Contract or Unexpired Lease that is assumed shall include all modifications, amendments, supplements, restatements, or other agreements that in any manner affect such Executory Contract or Unexpired Lease, and Executory Contracts and Unexpired Leases related thereto, if any, including easements, licenses, permits, rights, privileges, immunities, options, rights of first refusal, and any other interests, unless any of the foregoing agreements has been previously rejected or repudiated or is rejected or repudiated under the Plan.

 

Modifications, amendments, and supplements to, or restatements of, prepetition Executory Contracts and Unexpired Leases that have been executed by the Debtors during the Chapter 11 Cases shall not be deemed to alter the prepetition nature of the Executory Contract or Unexpired Lease, or the validity, priority, or amount of any Claims that may arise in connection therewith.

 

H. Reservation of Rights

 

Neither the inclusion of any Executory Contract or Unexpired Lease on the Debtors’ Schedules, the Assumed Executory Contracts and Unexpired Leases Schedule or the Rejected Executory Contracts and Unexpired Leases Schedule, nor anything contained in the Plan, shall constitute an admission by the Debtors that any such contract or lease is in fact an Executory Contract or Unexpired Lease or that any Debtor or Reorganized Debtor has any liability thereunder. If there is a dispute regarding whether a contract or lease is or was executory or unexpired at the time of assumption or rejection, the Debtors, or, after the Effective Date, the Reorganized Debtors, shall have thirty (30) days following entry of a Final Order resolving such dispute to alter their treatment of such contract or lease. For the avoidance of doubt, the Debtors reserve all rights with respect to any Causes of Action or other right with respect to any Executory Contract or Unexpired Lease.

 

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I. Nonoccurrence of Effective Date; Bankruptcy Code Section 365(d)(4)

 

If the Effective Date fails to occur, the Bankruptcy Court shall retain jurisdiction with respect to any request to further extend the deadline for assuming or rejecting Unexpired Leases under section 365(d)(4) of the Bankruptcy Code.

 

Article VI.
PROVISIONS GOVERNING DISTRIBUTIONS

 

A. Timing and Calculation of Amounts to Be Distributed

 

Unless otherwise provided in the Plan, on the Initial Distribution Date (or, if a Claim is not an Allowed Claim on the Initial Distribution Date, on the next Quarterly Distribution Date following the date that such Claim becomes an Allowed Claim or as soon as reasonably practicable thereafter), the Distribution Agent shall make initial distributions under the Plan on account of each Holder of an Allowed Claim in the full amount of the distributions that the Plan provides for Allowed Claims in each applicable Class. In the event that any payment or act under the Plan is required to be made or performed on a date that is not a Business Day, then the making of such payment or the performance of such act may be completed on the next Business Day, but shall be deemed to have been completed as of the required date. If and to the extent that there are Disputed Claims, distributions on account of any such Disputed Claims shall be made pursuant to the provisions set forth in Article VII. Except as specifically provided in the Plan, Holders of Claims shall not be entitled to interest, dividends, or accruals on the distributions provided for in the Plan, regardless of whether such distributions are delivered on or at any time after the Effective Date.

 

B. Special Rules for Distributions to Holders of Disputed Claims and Interests

 

Except as otherwise agreed by the Debtors and the Reorganized Debtors with respect to Allowed General Unsecured Claims or as otherwise agreed by the Debtors or the Reorganized Debtors (i) no partial payments and no partial distributions shall be made with respect to a Disputed Claim until all such disputes in connection with such Disputed Claim have been resolved by settlement or Final Order; and (ii) other than a Holder of a Claim in Class 7, any Entity that holds both an Allowed Claim and a Disputed Claim shall not receive any distribution on account of the Allowed Claim unless and until all objections to the Disputed Claim have been resolved by settlement or Final Order or the Disputed Claims have been Allowed or expunged. Any dividends or other distributions arising from property distributed to Holders of Allowed Claims in a Class and paid to such Holders under the Plan shall also be paid, in the applicable amounts, to any Holder of a Disputed Claim in such Class that becomes an Allowed Claim after the date or dates that such dividends or other distributions were earlier paid to Holders of Allowed Claims in such Class.

 

C. Rights and Powers of Distribution Agent

 

1. Rights and Powers of the Distribution Agent

 

Except as otherwise agreed by the Debtors and the Reorganized Debtors, the Distribution Agent shall be empowered to (i) effect all actions and execute all agreements, instruments, and other documents necessary to perform its duties under the Plan; (ii) make all distributions contemplated hereby, including, subject to the express written consent and direction of the Second Lien Note Trustee and with the cooperation of the Second Lien Note Trustee, distributions on account of the Second Lien Note Claims, subject in all respects to the right of the Second Lien Note Trustee Charging Lien against such distributions; (iii) employ professionals to represent it with respect to its responsibilities; and (iv) exercise such other powers as may be vested in the Distribution Agent by order of the Bankruptcy Court, pursuant to the Plan, or as deemed by the Distribution Agent to be necessary and proper to implement the provisions hereof. The Distribution Agent may request an expedited determination of taxes under section 505(b) of the Bankruptcy Code for all returns filed for or on behalf of any creditor pools created hereunder for all taxable periods through the date on which final distributions are made.

 

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2. Expenses Incurred On or After the Effective Date

 

Except as otherwise ordered by the Bankruptcy Court, the amount of any reasonable fees and expenses incurred by the Distribution Agent on or after the Effective Date (including any taxes) and any reasonable compensation and expense reimbursement claims (including reasonable attorney fees and expenses) made by the Distribution Agent may be paid in Cash by the Reorganized Debtors.

 

D. Delivery of Distributions and Undeliverable or Unclaimed Distributions