Exhibit 2.2
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE
)
In re: ) Chapter 11
)
ANC RENTAL CORPORATION, ET AL., ) Case No. 01-11200 (MFW)
) (Jointly Administered)
Debtors. )
)
ORDER CONFIRMING THE JOINT CHAPTER 11 LIQUIDATING PLAN
OF THE DEBTORS AND STATUTORY CREDITORS' COMMITTEE
ANC Rental Corporation ("ANC") and its Subsidiary Debtors, as debtors
and debtors-in-possession herein (collectively, the "Debtors"),(1) and the
Statutory Creditors' Committee (the "Committee") having filed their Amended
Joint Liquidating Plan of the Debtors and Statutory Creditors Committee dated
April 2, 2004 (as amended, the "Plan")(2) in accordance with section 1121 of
title 11 of the United States Code (the "Bankruptcy Code"), and the Disclosure
Statement pursuant to section 1125 of the Bankruptcy Code relating to the Plan
dated as of November 19, 2003 (the "Disclosure Statement"); and the Bankruptcy
Court by its Order Approving Disclosure Statement, dated November 19, 2003 (the
"Disclosure Statement Order") having approved the Disclosure Statement for
dissemination and voting on; and the Bankruptcy
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(1) The Debtors are the following entities: ANC Rental Corporation, Alamo
International Sales, Inc., Alamo Rent-A-Car Management, LP, Alamo
Rent-A-Car, LLC, ANC Aviation, Inc., ANC Collector Corporation, ANC
Financial Corporation, ANC Financial GP Corporation, ANC Financial
Properties LLC, ANC Financial, LP, ANC-GP, Inc., ANC Information
Technology, Inc., ANC Information Technology Holding, Inc., ANC
Information Technology, L.P., ANC IT Collector Corporation, ANC
Management Services Corporation, ANC Management Services, LP, ANC
Payroll Administration, LLC, ANC-TM Management LP, ARC-GP, Inc.,
ARC-TM, Inc., ARC-TM Properties LLC, ARG Reservation Services, LLC, ARI
Fleet Services, Inc., Auto Rental Inc., Car Rental Claims, Inc., Claims
Management Center, Inc., Guy Salmon USA, Inc., Liability Management
Companies Holding, Inc., National Car Rental Licensing, Inc., National
Car Rental System, Inc., NCR Affiliate Servicer Properties LLC, NCR
Affiliate Servicer, Inc., NCRAS Management, LP, NCRAS-GP, Inc., NCRS
Insurance Agency, Inc., Post Retirement Liability Management, Inc.,
Rental Liability Management Holdings, LLC, Rental Liability Management,
Inc., Republic Fiduciary, Inc., Republic Guy Salmon Partner, Inc.,
Spirit Leasing, Inc., Spirit Rent-A-Car, Inc., SRAC Management, LP,
SRAC-GP, Inc., and SRAC-TM, Inc.
Court by its Order (A) Approving the Solicitation and Tabulation Agent, (B)
Establishing Procedures for Solicitation and Tabulation of Votes to Accept or
Reject Proposed Joint Chapter 11 Liquidating Plan of the Debtors and Statutory
Creditors' Committee and (C) Scheduling a Hearing on Confirmation of Proposed
Joint Chapter 11 Liquidating Plan of the Debtors and Statutory Creditors'
Committee, dated November 19, 2003 (the "Solicitation Procedures Order") having,
INTER ALIA, (i) approved procedures for the solicitation and tabulation of votes
to accept or reject the Plan, (ii) established deadlines for voting on, and
objecting to, the Plan, and (iii) established January 7, 2004 as the date for
commencement of the hearing, pursuant to section 1129 of the Bankruptcy Code, to
consider confirmation of the Plan (the "Confirmation Hearing"); and the
transmittal of materials to Holders of Claims and other parties-in-interest, and
the solicitation of acceptances from Holders of Claims in Class 2 having been
made as required by the Solicitation Procedures Order; and affidavits of service
having been filed with respect to the service of the Voting Confirmation Hearing
Notice, the Non-Voting Confirmation Hearing Notice (as those terms are defined
in the Solicitation Procedures Order), and the notice of the confirmation
hearing that was published in THE NEW YORK TIMES and THE WALL STREET JOURNAL on
December 10, 2003; and all objections to confirmation of the Plan having been
withdrawn, settled or otherwise overruled by the Court; and the Confirmation
Hearing having been held on April 6, 2004, at which time the Court considered
(i) confirmation of the Plan, (ii) the settlements which are subsumed in the
Plan and (iii) the fairness and appropriateness of substantively consolidating
the Debtors' Chapter 11 estates; and notice of the Confirmation Hearing being
deemed good and sufficient notice of any modifications made to the Plan; and
upon the entire record of the Debtors' Chapter 11 Cases, including, without
limitation, the record
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(2) Except as specifically stated herein, all capitalized terms not
otherwise defined herein shall have the meanings ascribed to them in
the Plan.
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made at the Confirmation Hearing; and after finding that due, sufficient and
adequate notice of the Confirmation Hearing, the substantive consolidation of
the Debtors' estates, and the settlements and compromises embodied in the Plan
has been given to Holders of Claims, Interests and to all other
parties-in-interest herein, and after due deliberation, the Bankruptcy Court
makes the following findings of fact and conclusions of law:
FINDINGS OF FACT AND CONCLUSIONS OF LAW:
A. The Bankruptcy Court has jurisdiction over the Chapter 11 Cases
pursuant to 28 U.S.C.ss.ss.157(a) and 1334(a). Venue of these proceedings and
the Chapter 11 Cases in this district is proper pursuant to 28 U.S.C.ss.ss.1408
and 1409. Confirmation of the Plan is a core proceeding pursuant to 28
U.S.C.ss.157(b), and thus this Bankruptcy Court has jurisdiction to enter a
final order with respect thereto.
B. Due, timely, sufficient and adequate notice of the Plan, any
modifications to the Plan, the Confirmation Hearing, and the deadlines for
voting on, and filing objections to, the Plan has been given to all known
Holders of Claims and other parties-in-interest in accordance with the
procedures established by the Solicitation Procedures Order, the Bankruptcy
Code, the Bankruptcy Rules, the local rules of this Bankruptcy Court and all
other applicable laws, rules and regulations.
C. The solicitation by the Debtors and Committee of votes accepting or
rejecting the Plan was proposed and conducted in good faith and complied with
sections 1125 and 1126 of the Bankruptcy Code, Bankruptcy Rules 3017 and 3018,
the Solicitation Procedures Order and all other applicable provisions of the
Bankruptcy Code and all other applicable laws, rules and regulations.
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D. The procedures by which the Ballots were distributed to Holders of
Claims against the Debtors in Class 2 under the Plan entitled to vote on the
Plan and tabulated were fair, properly conducted and in accordance with the
Bankruptcy Code, the Bankruptcy Rules, the local rules of this Bankruptcy Court,
the Solicitation Procedures Order and all other applicable laws, rules and
regulations.
E. As evidenced by the Declaration of Carole G. Donlin Certifying the
Ballots Accepting or Rejecting the Joint Liquidating Plan of the Debtors and
Statutory Creditors Committee (the "Plan Vote Certification") dated December 31,
2003, certifying the method and results of the Ballot tabulation, (i) at least
two-thirds in dollar amount and more than one-half in number of the Holders of
Claims in Class 2 (General Unsecured Claims) actually voting on the Plan
accepted the Plan, excluding the votes of insiders.
F. The classification scheme of Claims and Interests in the Plan is
reasonable and complies with the requirements of sections 1122 and 1123 of the
Bankruptcy Code. Claims or Interests in each particular Class are substantially
similar to other Claims contained in such Class.
G. Class 1 (Other Priority Claims) is not Impaired under the Plan and,
therefore, such Class is deemed to have accepted the Plan pursuant to section
1126(f) of the Bankruptcy Code.
H. Ad Valorem Tax Claims are not Impaired under the Plan and,
therefore, such Claims are deemed to have accepted the Plan pursuant to section
1126(f) of the Bankruptcy Code.
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I. Other Secured Claims are not Impaired under the Plan and, therefore,
such Claims are deemed to have accepted the Plan pursuant to section 1126(f) of
the Bankruptcy Code.
J. Holders of Claims or Interests in Class 3 (Intercompany ANC Claims)
and Class 4 (ANC Common Stock Interests) will be extinguished, receive no
distribution and retain no interest under the Plan. Accordingly, these Classes
are deemed to have rejected the Plan pursuant to section 1126(g) of the
Bankruptcy Code.
K. As required by section 1129(a)(1) of the Bankruptcy Code, the Plan
complies with all applicable provisions of the Bankruptcy Code.
L. As required by and in compliance with sections 1123(a)(1), (a)(2)
and (a)(3) of the Bankruptcy Code, the Plan (i) identifies the Classes of Claims
against and Interests in the Debtors, (ii) specifies the Classes of Claims and
Interests that are not Impaired under the Plan as well as those that are
Impaired under the Plan, and (iii) specifies the treatment of each Class of
Claims or Interests under the Plan.
M. Consistent with section 1123(a)(4) of the Bankruptcy Code, the Plan
provides the same treatment for each Claim or Interest in a particular Class,
unless a Holder of a Claim or Interest has agreed with the Debtors to a less
favorable treatment.
N. As required by section 1123(a)(5) of the Bankruptcy Code, the Plan
contemplates adequate means for its execution and implementation including, but
not limited to, (i) the substantive consolidation of the Chapter 11 Cases and
extinguishment of Intercompany ANC Claims; and (ii) the formation and
administration of the Liquidating Trust for the purposes of
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liquidating the Debtors' remaining assets, winding up their affairs and making
distributions to holders of Allowed Claims.
O. Article 9 of the Plan provides for the dissolution of the Debtors
and therefore, section 1123(a)(6) of the Bankruptcy Code is inapplicable in
these Chapter 11 Cases.
P. Consistent with section 1123(a)(7) of the Bankruptcy Code, the Plan
provides for Denis O'Connor, a senior managing director with FTI Consulting, to
become the Liquidating Trustee to administer the Liquidating Trust in accordance
with in the Liquidating Trust Agreement previously filed with the Bankruptcy
Court, as of the Confirmation Date. The designation of Denis O'Connor as
Liquidating Trustee on and after the Confirmation Date is consistent with the
interests of Holders of Claims and Interests and public policy.
Q. Consistent with sections 1123(b)(1) and (b)(2) of the Bankruptcy
Code, the Plan Impairs or leaves Unimpaired, as the case may be, each Class of
Claims or Interests, and provides for the rejection of each of the Debtors'
executory contracts and unexpired leases which have not been previously assumed
or rejected pursuant to section 365 of the Bankruptcy Code by prior order of the
Bankruptcy Court, as of the Confirmation Date of the Plan, and except as
otherwise specified in this Confirmation Order.
R. Consistent with section 1123(b)(3) of the Bankruptcy Code, the Plan
provides for the Liquidating Trust (after the Effective Date) to retain and to
have the exclusive right, in its discretion, to enforce against any Entity any
and all Causes of Action of the Debtors or Debtor Claims, including, without
limitation, all Avoidance Actions (whether currently under prosecution by the
Debtors or by the Committee qua Debtors pursuant to stipulations entered into
among the Debtors and Committee).
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S. As required by section 1129(a)(2), the Debtors have complied with
all of the applicable provisions of the Bankruptcy Code, including, without
limitation, the disclosure and solicitation requirements of sections 1125 and
1126 of the Bankruptcy Code. The Debtors transmitted solicitation materials
including Ballots to the Holders of Claims in Class 2 entitled to vote on the
Plan, and non-voting materials to the Holders of Claims in Class 1, Class 3 and
Class 4, and to the Holders of Ad Valorem Tax Claims and Other Secured Claims
only after the Bankruptcy Court approved the Disclosure Statement as containing
adequate information. Such materials were distributed in compliance with the
requirements of the Solicitation Procedures Order, the Bankruptcy Code and the
Bankruptcy Rules.
T. As required by section 1129(a)(3), the Plan has been proposed in
good faith and not by any means forbidden by law. The Debtors' and Committee's
objectives in proposing the Plan were for the valid business purpose of
resolving disputes and satisfying, to the extent possible, the obligations of
the Debtors.
U. As required by section 1129(a)(4) of the Bankruptcy Code, any
payment made or to be made by the Debtors for services or for costs and expenses
in connection with these Chapter 11 Cases, or in connection with the Plan, other
than those incurred in the ordinary course of business, has been approved by
this Bankruptcy Court or is subject to the approval by this Bankruptcy Court as
being reasonable, or both.
V. In accordance with section 1129(a)(5) of the Bankruptcy Code, the
Debtors have disclosed the identity of Denis O'Connor, as the proposed
Liquidating Trustee and as the person deemed to have all corporate governance
power over the Debtors in connection with all post-confirmation activities.
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W. Section 1129(a)(6) of the Bankruptcy Code is inapplicable because
there is no governmental regulatory commission with jurisdiction over any rates
charged by the Debtors.
X. As required by section 1129(a)(7) of the Bankruptcy Code, with
respect to each Impaired Class of Claims, and each Impaired Class of Interests,
each Holder of a Claim or Interest of such Class has either accepted the Plan or
will receive or retain under the Plan on account of such Claim or Interest
property of a value, as of the Effective Date, that is not less than the amount
such Holder would receive or retain if the Debtors were liquidated on the
Effective Date under Chapter 7 of the Bankruptcy Code. Y. The requirements of
section 1129(a)(8) of the Bankruptcy Code are satisfied with respect to Class 2,
which has accepted the Plan. Because Classes 3 and 4 will receive no
distribution and retain no interest under the Plan, they are deemed to have
rejected the Plan. Because the requirements of section 1129(a)(8) are not
satisfied with respect to Classes 3 and 4, the Debtors have requested that the
Court confirm the Plan under section 1129(b) as to those Classes.
Z. Class 3 consists of ANC Intercompany Claims. The Plan is fair and
equitable with respect to these Claims because no Class junior to Class 3 under
the Plan will receive or retain any property under the Plan on account of such
junior Interest. The Plan does not discriminate unfairly with respect to Holders
of Class 3 Claims because it provides for substantive consolidation of the
Debtors' estates.
AA. The Plan is fair and equitable with respect to the Holders of Class
4 ANC Common Stock Interests as no Class junior to Class 4 under the Plan will
receive or retain any
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property under the Plan on account of such junior Interest. In addition, the
Plan does not discriminate unfairly with respect to Holders of Class 4
Interests.
BB. The Plan provides for the treatment of Allowed Administrative
Expenses and Allowed Priority Claims pursuant to sections 507(a)(1), (a)(3),
(a)(4) and (a)(8) of the Bankruptcy Code, in accordance with section 1129(a)(9)
of the Bankruptcy Code, except to the extent that the Holder of a particular
Claim has agreed in writing to a different treatment.
CC. As required by section 1129(a)(10) of the Bankruptcy Code, and as
demonstrated by the Plan Vote Certification, at least one impaired Class of
Claims has accepted the Plan, determined without including any acceptance of the
Plan by any insider.
DD. The Plan is feasible. The Debtors have demonstrated that, on and
after the Effective Date, they will have the ability to meet their financial
obligations under the Plan and liquidate their remaining assets in the ordinary
course. As required by section 1129(a)(11) of the Bankruptcy Code, confirmation
of the Plan is not likely to be followed by the liquidation or the need for
further financial reorganization of the Debtors, except as contemplated by the
Plan.
EE. As required by section 1129(a)(12) of the Bankruptcy Code, all fees
payable pursuant to 28 U.S.C.ss.1930 as determined by the Bankruptcy Court at
the Confirmation Hearing shall be paid by the Debtors or the Liquidating Trust
on or before the Effective Date.
FF. Section 1129(a)(13) is not applicable to these Chapter 11 Cases.
GG. Based on the record of the Confirmation Hearing and these Chapter
11 Cases, the ANC Common Stock has no value.
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HH. The substantive consolidation of the Debtors' estates for purposes
of distribution, confirmed and consummated as provided for by section 9.7 of the
Plan, will facilitate the consummation and implementation of the Plan, is
integral to the treatment provided to Creditors under the Plan, will not
prejudice any Creditor of the estates and is appropriate under the
circumstances.
II. The Plan is the only plan of reorganization for the Debtors pending
before this or any other court.
JJ. The primary purpose of the Plan is not the avoidance of taxes or
the avoidance of the application of section 5 of the Securities Act of 1933, as
amended (15 U.S.C.ss.77e).
KK. The Debtors and Committee have stated that they believe that
conditions precedent to the Effective Date of the Plan, as set forth in section
13.2 of the Plan, will occur or be duly waived pursuant to section 13.3 of the
Plan.
LL. The modifications to the Plan proposed by the Debtors and the
Committee prior to, at or in connection with the Confirmation Hearing (the "Plan
Modifications") have been reviewed by and are not objected to by any party in
interest, or else any such objections have been withdrawn or overruled. The Plan
Modifications do not adversely change the treatment of the Holders of Claims
against, or Interests in, the Debtors.
Finding that the Plan is confirmable based upon, INTER ALIA, all of the
foregoing Findings of Fact and Conclusions of Law, the Bankruptcy Court HEREBY
ORDERS AND DIRECTS that:
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CONFIRMATION OF PLAN
1. The Plan and each of its provisions are hereby confirmed in
accordance with sections 1129(a) and (b) of the Bankruptcy Code.
2. In accordance with section 1127 of the Bankruptcy Code and
Bankruptcy Rule 3019, the Plan as amended by the Plan Modifications is deemed
accepted by each Holder of a Claim against the Debtors that voted to accept the
Plan, without the need to re-solicit the votes of such Creditors on the Plan as
amended, and is deemed accepted by each Holder of an Unimpaired Claim deemed to
have accepted the Plan in accordance with section 1126(f) of the Bankruptcy
Code.
SUBSTANTIVE CONSOLIDATION
3. The substantive consolidation of the Chapter 11 Cases into a single
case for purposes of distribution, confirmation and consummation of the Plan is
hereby approved in accordance with section 105(a) of the Bankruptcy Code, and on
the Confirmation Date, for the purposes of the Plan and these Chapter 11 Cases
and the distributions and transactions contemplated hereby: (i) all assets and
liabilities of the Debtors shall be treated as though they were merged; (ii) all
pre-Filing Date cross-corporate guarantees of the Debtors shall be eliminated;
(iii) any obligation of any Debtor and all guarantees thereof executed by one or
more of the Debtors shall be deemed to be one obligation of the consolidated
Debtors; (iv) any Claims filed or to be filed in connection with any such
obligation and such guarantees shall be deemed one Claim against the
consolidated Debtors; (v) each and every Claim filed in the individual Chapter
11 Case of any of the Debtors shall be deemed filed against the consolidated
Debtors in the consolidated Chapter 11 Case of ANC and shall be deemed a single
obligation of all of the
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Debtors under the Plan on and after the Confirmation Date; (vi) all duplicative
claims (identical in both amount and subject matter) filed against more than one
of the Debtors will be automatically expunged so that only one Claim survives
against the consolidated Debtors but in no way shall such claim be deemed
Allowed by reason of Section 9.7 of the Plan; and (vii) the consolidated Debtors
will be deemed, for purposes of determining the availability of the right of
set-off under section 553 of the Bankruptcy Code, to be one entity, so that,
subject to other provisions of section 553 of the Bankruptcy Code, the debts due
to a particular Debtor may be offset against claims against such Debtor or
another Debtor. On the Confirmation Date, and in accordance with the terms of
the Plan and the consolidation of the assets and liabilities of the Debtors, all
Claims based upon guarantees of collection, payment or performance made by the
Debtors as to the obligations of another Debtor or of any other Person shall be
discharged, released and of no further force and effect; PROVIDED, HOWEVER, that
nothing herein shall affect the obligations of each of the Debtors under the
Plan; and PROVIDED FURTHER, that for the avoidance of doubt, Intercompany ANC
Claims shall remain in effect on the Confirmation Date.
4. Pursuant to Bankruptcy Rule 9019 and any applicable state law and as
consideration for the distributions and other benefits provided under the Plan,
the provisions of section 9.7(a) of the Plan shall constitute a good faith
compromise and settlement of any Causes of Action or disputes that could be
brought by a Holder of a Claim or Interest asserting that such Claim or Interest
would have received more favorable treatment had substantive consolidation not
been effected. This compromise and settlement is in the best interests of
Holders of Claims and Interests and is fair, equitable and reasonable. The Plan
shall be approved by the Bankruptcy Court as a settlement of all such Causes of
Action and disputes. Entry of this Confirmation Order shall constitute the
Bankruptcy Court's approval of this settlement pursuant to Bankruptcy
12
Rule 9019 and its finding that this is a good faith settlement pursuant to any
applicable state laws, given and made after due notice and opportunity for
hearing, and shall bar any such Cause of Action by any Holder of a Claim or
Interest with respect to the matters described in section 9.7(a) of the Plan.
IMPLEMENTATION OF THE PLAN
5. The Debtors, the Committee, the Liquidating Trust, the Liquidating
Trustee, their respective members, directors, officers, representatives and
agents are hereby authorized to enter into, execute, deliver, file and/or
implement any documents and instruments substantially consistent with or
incidental to the Plan, and any amendments, supplements or modifications thereto
as may be appropriate, and to take such other steps and perform such other acts
as may be necessary, useful or appropriate to implement and effectuate the Plan
and all other related instruments and documents and this Confirmation Order, and
to satisfy all other conditions precedent to the implementation and
effectiveness of the Plan. The Liquidating Trustee is hereby authorized to make
distributions and other payments in accordance with the Plan and the Liquidating
Trust Agreement. The signature of the Liquidating Trustee on any check issued by
the Debtors or the Liquidating Trust in payment of distributions or other
amounts contemplated by the Plan shall be sufficient authorization for the
drawee bank to honor such check, and no other signature shall be required.
6. The Plan, the Liquidating Trust Agreement, all other agreements
provided for under the Plan, and all transactions, documents, instruments and
agreements referred to therein, contemplated thereunder or executed and
delivered in connection therewith, and any amendments or modifications thereto
in substantial conformity therewith are hereby approved,
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and the Debtors are authorized and directed to enter into and to perform such
agreements according to their terms.
7. On the Confirmation Date, Denis O'Connor shall be appointed as the
Liquidating Trustee. The appointment of Denis O'Connor is consistent with the
interests of Holders of Claims against, and Interests in, the Debtors, and with
public policy.
8. Pursuant to section 1141(a) of the Bankruptcy Code, except as
provided in section 1141(d)(3), from and after the Confirmation Date, the Plan
shall be binding upon the Debtors, all Holders of Claims against, and Interests
in, the Debtors and any other party-in-interest in these Chapter 11 Cases and
their respective successors and assigns, regardless of whether the Claims or
Interests of such Holders or obligations of any party-in-interest (i) are in a
Class that is Impaired under the Plan, (ii) have accepted the Plan, or (ii) have
filed a proof of claim in the Chapter 11 Cases. Pursuant to section 1141(d)(3)
of the Bankruptcy Code, the confirmation of the Plan shall not effect a
discharge of the Debtors of their debts pursuant to section 1141(d)(1) of the
Code, and for the avoidance of doubt, there shall be no such discharge of the
Debtors on the Confirmation Date.
9. Except as otherwise provided in the Plan, on the Effective Date, or
as soon as reasonably practicable thereafter, the Debtors will transfer and
assign to the Liquidating Trust all property and assets of the Debtors that have
neither been abandoned nor sold under the Asset Purchase Agreement, including
without limitation, all Cash and Cash equivalents, the AutoNation Settlement
Proceeds, all Debtor Claims not assigned under the Asset Purchase Agreement to
Vanguard Car Rental USA Inc., all rights of the Debtors to their portion of the
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Avis/Hertz Claims, all rights of the Debtors to the Business Interruption
Insurance Claim(3) and any other remaining assets of the Debtors, with the
exception of any assets specifically designated by the Debtors. If the Effective
Date does not occur within the time provided for in the Plan (as may be
extended), the Expense Reserve Account shall be transferred to the Debtors.
Subject to paragraph 11 of this Confirmation Order, on and after the
Confirmation Date, the Liquidating Trustee shall have discretion for the timing
of the transfer of assets and/or the extinguishments of any stock of any
non-debtor subsidiaries. Additionally, any checks of the Debtors that remain
uncashed six (6) months after the Confirmation Date shall revert to the Debtors
or the Liquidating Trust, as the case may be. The Liquidating Trust will hold
and administer the following assets: (i) the Expense Reserve Account; (ii) the
Distribution Reserve Account; (iii) all Debtor Claims, if any; and (iv) any
other Assets of the Debtors that are neither abandoned nor distributed on the
Effective Date. The Liquidating Trust will also hold and administer the
Unclaimed Distributions Reserve, and the Liquidating Trustee shall administer
the Disputed Claims Reserve Trusts. Any remaining office equipment, supplies,
leases, etc., of the Liquidating Trust shall be sold by the Debtors or the
Liquidating Trustee, as the case may be, for Cash or cash equivalents.
10. All Transfers of property by the Debtors (A) to the Liquidating
Trust (1) are or shall be legal, valid, and effective Transfers of property, (2)
vest or shall vest the Liquidating Trust with good title to such property free
and clear of all liens, charges, claims, encumbrances or interests, except as
expressly provided in the Plan or this Confirmation Order, (3) do not and shall
not constitute avoidable Transfers under the Bankruptcy Code or under applicable
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(3) Notwithstanding anything contained herein to the contrary, this
provision shall not be read to cause or create an assignment of any
insurance policy to the Liquidating Trust to the extent that such
assignment would cause abrogation of any insurance coverage rights
thereunder.
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nonbankruptcy law, (4) shall be exempt from any Transfer, sales, stamp or other
similar tax (which exemption shall also apply to transfers by the Liquidating
Trust), and (5) do not and shall not subject the Liquidating Trustee or holders
of Claims, Interests or property to any liability by reason of such transfer
under the Bankruptcy Code or under applicable nonbankruptcy law, including,
without limitation, any laws affecting successor or transferee liability, and
(B) to Holders of Claims and Interests under the Plan are for good consideration
and value.
11. From and after the Confirmation Date, the Debtors shall continue to
exist as corporations solely for the purpose of implementing the provisions of
the Plan, including without limitation carrying out any post-confirmation
obligations the Debtors may have with respect to the transition agreement, dated
as of October 2003, by and among the Debtors and Vanguard Rental USA Inc.,
collections, prosecution of any lawsuits before such prosecution is taken over
by the Liquidating Trust on the Effective Date; provided, however, that the
Debtors (and then the Liquidating Trustee or an appropriate person directed by
him) shall hereby have discretion and authority, without further order of the
Bankruptcy Court, to dissolve each of the Debtors or take such other actions
consistent with applicable non-bankruptcy law as may be necessary or advisable
in order to wind up the affairs and reduce expenses of the Debtors and the
Liquidating Trust. The Debtors or the Liquidating Trustee, as the case may be,
are authorized, without further order of the Bankruptcy Court, to abandon
pursuant to section 554 of the Bankruptcy Code, or otherwise, and to cancel to
the fullest extent permitted by applicable law, any or all of the stock of the
Non-Acquired Foreign Subsidiaries at any time on or after the Confirmation Date;
PROVIDED, HOWEVER, that the Liquidating Trustee shall give Liberty 60 days prior
written notice of such proposed act with respect to any of the stock of the
Non-Acquired Foreign Subsidiaries that the Debtors or Liquidating Trustee intend
to abandon (the "Liberty Notice
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Period") at the following address: Torre Lentz Gamell Gary & Rittmaster, LLP,
100 Jericho Quadrangle, Suite 309, Jericho, NY 11753-2702, Attn: Mark S. Gamell,
Esq., fax (516) 240-8950 with a copy to Angel & Frankel, P.C., 460 Park Avenue,
8th Floor, New York, NY 10022, Attn: John H. Drucker, Esq., fax (212) 752-8393.
From the time at which the Liberty Notice Period commences until it expires, and
whether or not a default otherwise exists for which the stock of the
Non-Acquired Foreign Subsidiaries serves as collateral, Liberty may, by written
facsimile notice (the "Liberty Notice") to the Liquidating Trustee (Denis
O'Connor, 622 3rd Avenue, 31st Floor, New York, NY 10017 (facsimile - (212)
841-9350)), elect (the "Liberty Election"): (a) to foreclose on the stock of one
or more of the Non-Acquired Foreign Subsidiaries and/or (b) otherwise to pursue
its rights and remedies with respect to such stock of the Non-Acquired Foreign
Subsidiaries to the extent not inconsistent with the provisions of the Plan. In
the event Liberty does not give such notice of such election before the
expiration of the Liberty Notice Period: (i) the stock of the Non-Acquired
Foreign Subsidiaries shall be deemed abandoned and cancelled as provided above
effective on the next day following the expiration of the Liberty Notice Period;
and (ii) the Debtors, the estates of the Debtors, the Liquidating Trust, the
Liquidating Trustee, Liberty, and any successors and /or assigns of the
foregoing, shall have no further liens, claims, causes of action, interests or
rights in or to the stock of such Non-Acquired Foreign Subsidiaries. Except as
provided in subparagraph (y) below, upon the expiration of the Liberty Notice
Period, whether or not Liberty makes the Liberty Election, Liberty shall have no
further liens, claims, causes of action and rights in and against the Debtors,
the Liquidating Trust, the Liquidating Trustee, any of the Debtors' or
Liquidating Trust's property, except the right to enforce the provisions of this
Confirmation Order. In the event Liberty makes the Liberty Election, then not
more than 30 days following the date upon which
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Liberty notified the Liquidating Trustee of said election, the Liquidating
Trustee shall deliver into possession of Liberty, or its designated
representative, stock certificates or other equivalent indicia of ownership
under applicable law, bearing no legends, representing all the stock of the
German Debtors for which Liberty made such election. From and after the time
Liberty makes the Liberty Election, the Debtors and Liquidating Trustee shall
take no action which would result in a dissolution or extinguishment of the
stock of the Non-Acquired Foreign Subsidiaries. Notwithstanding anything in the
Plan or this Confirmation Order to the contrary: (x) no provision of the Plan or
of this Confirmation Order authorizing the dissolution of any corporation or the
extinguishment of the stock thereof shall permit any such action to be taken
with respect to any of the Non-Acquired Foreign Subsidiaries prior to the
expiration of the Liberty Notice Period; and (y) if the Effective Date does not
occur for any reason within the time permitted under the Plan, if a dissolution
by the Debtors, their estates or the Liquidating Trustee of one or more of the
Non-Acquired Foreign Subsidiaries, or a cancellation, abandonment, or other
extinguishment by the Debtors, their estates or the Liquidating Trustee of the
stock any of the Non-Acquired Foreign Subsidiaries described in the Plan or in
this Confirmation Order (including without limitation the German Debtors) does
not occur, is not effective or is reversed for any reason, or if notwithstanding
such dissolution, or such cancellation, abandonment or other extinguishment of
such stock, the Debtors or the Liquidating Trust retain an interest in such
stock or there is an issuance of new stock with respect to the entity that is or
was as of the Confirmation Date a Non-Acquired Foreign Subsidiary ( a "Successor
Non-Acquired Foreign Subsidiary"), the pledges, liens and security interests,
and the priority and perfection thereof, of Liberty in the stock of such
Non-Acquired Foreign Subsidiary or Successor Non-Acquired Foreign Subsidiary, as
the case may be, shall be deemed to be in full force and effect or reinstated
without interruption from the
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dates first granted, in each case automatically and without the necessity of any
further filing or action, by or on behalf of Liberty or any other person,
including this Court. Nothing contained herein or in the Plan shall abridge
Liberty's rights and remedies with respect to the stock of the Non-Acquired
Foreign Subsidiaries.
12. The satisfaction and release pursuant to sections 12.1 and 12.2 of
the Plan, shall act as an injunction against any Entity commencing or continuing
any action, employment of process, or act to collect, offset or recover any
Claim or Cause of Action satisfied or released under the Plan. The injunction
and releases described in sections 12.1 and 12.2 of the Plan shall apply
regardless of whether or not a proof of Claim or Interest based on any Claim,
debt, liability or Interest is filed or whether or not a Claim or Interest based
on such Claim, debt, liability or Interest is Allowed, or whether or not such
Entity voted to accept or reject the Plan. Without in any way limiting the
foregoing, all injunctions or stays entered in these Chapter 11 Cases and
existing immediately prior to the Confirmation Date shall remain in full force
and effect until the Effective Date; PROVIDED, HOWEVER, that notwithstanding
anything contained in the Plan to the contrary, nothing in the Plan shall be
deemed to release or affect any Avoidance Action commenced as of the
Confirmation Date (or any amendments to complaints filed in those actions as
appropriate under the Bankruptcy Rules).
13. In consideration of the distributions under this Plan, upon the
Effective Date, each Holder of a Claim or Interest will be deemed to have
released the Debtors, the Committee, the members of the Committee in their
capacity as such, and each of the foregoing parties' directors, officers,
agents, attorneys, independent accountants, advisors, financial advisors,
investment bankers and employees (as applicable) employed by the Debtors from
and after the Filing Date from any and all Causes of Action (other than the
right to enforce the Debtors' obligations under
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this Plan) arising out of actions or omissions in connection with, related to,
or arising out of, the Chapter 11 Cases, the pursuit of confirmation of the
Plan, consummation of the Plan or the administration of the Plan, except for
willful misconduct or gross negligence. Notwithstanding anything contained in
this Plan to the contrary, nothing in this Plan shall be deemed to release or
affect any Avoidance Action commenced as of the Confirmation Date (or any
amendments to complaints filed in those actions as appropriate under the
Bankruptcy Rules).
14. Nothing contained in the Plan or in this Confirmation Order shall
be construed to effect a waiver of the rights of any party under section 1125(e)
of the Bankruptcy Code or the waiver of the rights of any party to
indemnification, subject to the estate's right to challenge any such claims, and
to the extent expressly provided for herein and in the Plan.
15. Pursuant to section 1146(c) of the Bankruptcy Code, neither (i) the
issuance, Transfer or exchange of any security under the Plan, nor the making or
delivery of any Instrument of Transfer, (ii) the revesting, Transfer or sale of
any real or personal property of the Debtors, whether by the Debtors or
subsequently by or to the Liquidating Trust, nor (iii) the making, delivery,
creation, assignment, amendment or recording of any note or other obligation for
the payment of money, any deed or other Instrument of Transfer, in connection
with, or in furtherance of, the Plan shall be subject to any document recording
tax, stamp tax, or other similar tax or governmental assessment. Each and every
recorder of deeds or similar official for any county, city or governmental unit
in which any instrument under, in furtherance of, or in connection with the
Plan, is to be recorded, is directed to accept for filing or recording this
Confirmation Order and any and all such Instruments, without requiring the
payment of any documentary stamp tax, deed stamps, stamp tax, transfer tax,
intangible tax or other similar tax.
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16. Distributions required to be made to the Holders of Allowed Claims
against the Debtors shall be made to the Entities entitled thereto as provided
in the Plan. The record date for determining which Holders of Allowed Claims are
entitled to receive distributions under the Plan shall be the Effective Date of
the Plan (the "Distribution Record Date").
EXECUTORY CONTRACTS
17. Pursuant to section 8.1 of the Plan, any executory contracts or
unexpired leases which have not expired by their own terms on or prior to the
Confirmation Date, which have not been previously assumed, assumed and assigned,
or rejected with the approval of the Bankruptcy Court, or which the Debtors have
obtained Bankruptcy Court authority to reject but have not rejected as of the
Confirmation Date, or which are not the subject of a motion to assume the same
pending as of the Confirmation Date, shall be deemed rejected by the Debtors as
of the Confirmation Date, and the entry of this Confirmation Order by the
Bankruptcy Court shall constitute approval of such rejections pursuant to
sections 365(a) and 1123(b)(2) of the Bankruptcy Code.
18. Pursuant to section 8.2 of the Plan, unless otherwise provided by
an order of the Bankruptcy Court entered prior to the Confirmation Date, a proof
of claim with respect to any Claim against the Debtors arising from the
rejection of any executory contract or unexpired lease pursuant to an order of
the Bankruptcy Court or to this Confirmation Order must be filed with the
Bankruptcy Court within (a) the time period established by the Bankruptcy Court
in an order of the Bankruptcy Court approving such rejection, or (b) if no such
time period is or was established, thirty (30) days from the date of entry of
such order of the Bankruptcy Court approving such rejection, or from this
Confirmation Order, as applicable. Any Entity that fails to
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file a proof of claim with respect to its Claim arising from such a rejection
within the periods set forth above shall be forever barred from asserting a
Claim against the Debtors or the property or interests in property of the
Debtors or the Liquidating Trust without further order of the Bankruptcy Court.
All Allowed Claims arising from the rejection of executory contracts or
unexpired leases shall be classified as General Unsecured Claims (Class 2) under
the Plan, as appropriate.
ADMINISTRATIVE CLAIMS; COMPENSATION OF PROFESSIONAL PERSONS
19. All applications for a final allowance of compensation and the
reimbursement of expenses pursuant to sections 327, 328, 330, 331, or 503(b) of
the Bankruptcy Code filed by professional persons for services rendered through
and including the Confirmation Date (each a "Final Compensation Application")
shall be filed with the Bankruptcy Court and served on the Debtors, the
Committee, the Liquidating Trustee and the United States Trustee no later than
forty-five days after the Confirmation Date. A hearing on the Final Compensation
Applications shall be held before the Honorable Mary F. Walrath, United States
Bankruptcy Judge for the District of Delaware. Objections to Final Compensation
Applications shall be filed with the Bankruptcy Court and served on the
professional person seeking compensation to whom the objection is directed so as
to be actually received by the date set for such purpose. The Debtors and
Committee may seek to adjourn the hearing upon the consent of those parties
having filed Final Compensation Applications, or with respect to a particular
Final Compensation Application upon the consent of that particular applicant.
Professionals employed by the Liquidating Trust who perform services
post-Confirmation Date shall not be required to file fee applications for
payment of such services.
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20. All requests for payment of Administrative Expenses incurred from
the Filing Date up to and including January 30, 2004 were required, pursuant to
the First Administrative Expense Bar Date Order, to be filed by the First
Administrative Expense Bar Date. All requests for payment of Administrative
Expenses incurred from January 31, 2004 up to and including the Confirmation
Date must be filed within forty-five (45) days of the mailing of the notice of
the Second Administrative Expense Bar Date. The Debtors shall mail notices of
the Second Administrative Expense Bar Date to persons who may have
Administrative Expense Claims subject to the Second Administrative Expense Bar
Date within forty-five (45) days of the Confirmation Date by first class mail.
All Holders of Administrative Expenses Claims incurred from January 31, 2004 up
to and including the Confirmation Date, and former employees of the Debtors,
that do not file a request for payment pursuant to the Confirmation Order by
this Second Administrative Expense Bar Date will forever be barred and enjoined
from seeking any payment on account of their Administrative Expense Claim;
PROVIDED, HOWEVER, that all applications for a final allowance of compensation
and the reimbursement of expenses pursuant to sections 327, 328, 330, 331, or
503(b) of the Bankruptcy Code filed by professional persons for services
rendered through and including the Confirmation Date need not be filed by the
Second Administrative Expense Bar Date. Such applications are treated in Article
2.3 of the Plan.
RETENTION OF JURISDICTION; STANDING; PRESERVATION OF CLAIMS
21. Notwithstanding the entry of this Confirmation Order, the
occurrence of the Effective Date or substantial consummation of the Plan, the
business and assets of the Debtors shall remain subject to the jurisdiction of
the Bankruptcy Court until the Effective Date. From and after the Effective
Date, the Bankruptcy Court shall retain and have exclusive jurisdiction of
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all matters arising out of and related to the Chapter 11 Cases, the Liquidating
Trust, the Liquidating Trust Agreement or the Plan pursuant to, and for purposes
of, subsection 105(a) and section 1142 of the Bankruptcy Code and for, among
other things, the following purposes: (a) to determine any and all disputes
relating to Claims and Interests and the allowance and amount thereof; (b) to
determine any and all disputes among Creditors with respect to their Claims; (c)
to hear and determine any and all Causes of Action and/or Debtor Claims
(including Avoidance Actions); (d) to consider and allow any and all Final
Compensation Applications; (e) to determine any and all applications, motions,
adversary proceedings and contested or litigated matters pending on the
Effective Date and arising in or related to the Chapter 11 Cases or the Plan;
(f) to remedy any defect or omission or reconcile any inconsistency in this
Confirmation Order; (g) to enforce the provisions of the Plan relating to the
distributions to be made hereunder; (h) to issue such orders, consistent with
section 1142 of the Bankruptcy Code, as may be necessary to effectuate the
consummation and full and complete implementation of the Plan; (i) to enforce
and interpret any provisions of the Plan; (j) to determine such other matters as
may be set forth in this Confirmation Order or that may arise in connection with
the implementation of the Plan; (k) to determine the amounts allowable as
compensation or reimbursement of expenses pursuant to section 503(b) of the
Bankruptcy Code; (l) to hear and determine disputes arising in connection with
the interpretation, implementation, or enforcement of the Plan and the Related
Documents; (m) to hear and determine any issue for which the Plan or any Related
Document requires a Final Order of the Bankruptcy Court; (n) to hear and
determine matters concerning state, local, and federal taxes in accordance with
sections 346, 505, and 1146 of the Bankruptcy Code; (o) to hear any other matter
not inconsistent with the Bankruptcy Code; (p) to hear and determine any
disputes with Vanguard Car Rental USA Inc. arising under the Asset
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Purchase Agreement or its amendments to the extent provided for under said
documents; and (q) to enter a Final Order closing the Chapter 11 Cases;
PROVIDED, HOWEVER, that the confirmation of the Plan shall not be construed as a
waiver of the right of the Palm Beach County Tax Collector to assert the defense
of sovereign immunity to any and all motions, claim objections or adversary
proceedings that may be filed in this case against the Palm Beach County Tax
Collector, and the Debtors and Liquidating Trust shall reserve all of their
rights, defenses and arguments regarding the assertion of the sovereign immunity
defense by the Palm Beach County Tax Collector.
22. On the Confirmation Date, any committees appointed in the Chapter
11 Cases pursuant to section 1102 of the Bankruptcy Code shall cease to exist
and its members and employees or agents (including, without limitation,
attorneys, investment bankers, financial advisors, accountants and other
professionals) shall be released and discharged from further duties,
responsibilities and obligations relating to and arising from and in connection
with these Chapter 11 Cases; PROVIDED, HOWEVER, that following the Confirmation
Date, the responsibilities of any such committees and its members and employees
or agents shall be limited to the preparation of their respective fee
applications, if any.
23. Pursuant to section 1123(b)(3) of the Bankruptcy Code, the
Liquidating Trust shall retain and shall have the exclusive right, in its
discretion, to enforce against any Entity any and all Causes of Action of the
Debtors or Debtor Claims, including, without limitation, all Avoidance Actions.
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GENERAL PROVISIONS
24. Notwithstanding anything to the contrary contained in the Plan, any
amendments to the Plan or in this Confirmation Order, the terms and provisions
of paragraph 15 of the Sale Order, including the rights and protections afforded
to Liberty Mutual Insurance Company thereunder, are incorporated into the Plan
and into this Confirmation Order in full, with such terms and provisions to
prevail in the event of any conflict or inconsistency with any term or provision
of the Plan, any amendment to the Plan or this Confirmation Order.
25. Notwithstanding anything to the contrary contained in the Plan, any
amendments to the Plan or in this Confirmation Order, the terms and provisions
of the Debtors' and the Committee's settlement agreement with AutoNation dated
April 15, 2003, which has been approved by the Bankruptcy Court, including any
rights and protections afforded AutoNation thereunder, are incorporated into the
Plan in full, with such terms and provisions to prevail in the event of any
conflict or inconsistency with any term or provision of the Plan, any amendment
to the Plan or this Confirmation Order.
26. All compromises and settlements made prior to the Effective Date
are hereby confirmed and ratified, and such compromises and settlements are and
shall continue to be binding on the Liquidating Trustee and all parties in
interest on and after the Effective Date.
27. The Plan is incorporated in full herein. Failure specifically to
include or refer to particular sections or provisions of the Plan or any related
agreement in this Confirmation Order shall not diminish or impair the
effectiveness of such sections or provisions, it being the intent of the
Bankruptcy Court that the Plan be confirmed and such related agreements be
approved in their entirety.
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28. The Bankruptcy Court's Order Establishing Procedures Governing All
Adversary Proceedings Brought Pursuant to 11 U.S.C. ss. 547, which is being
entered contemporaneously with this Confirmation Order, is incorporated in full
herein and shall continue to be in force following confirmation of the Plan.
After the Confirmation Date, the Debtors shall be authorized to settle or
otherwise resolve any Avoidance Actions without any further notice to or
authorization by the Bankruptcy Court. Additionally, after the Effective Date,
the Liquidating Trustee shall be authorized to settle or otherwise resolve any
Avoidance Actions without any further notice to or authorization by the
Bankruptcy Court.
29. The provisions of this Confirmation Order are non-severable and
mutually dependent.
30. Notwithstanding anything in this Plan to the contrary, in the event
that the Bankruptcy Court determines, following consideration of the Debtors'
and Statutory Creditors' Committee's Joint Objection to Allowance of the
Administrative Claim Filed by Deutsche Bank Securities, Inc., dated February 19,
2004 (docket no. 6965), that the amended and restated letter agreement dated as
of March 29, 2002, between ANC and Deutsche Bank Securities Inc. (the "Letter
Agreement") is not terminated, nothing in the Plan shall be deemed to terminate
or reject the Letter Agreement.
31. Notwithstanding anything in the Plan or the Confirmation Order, no
distribution shall be made on account of Class 1 or Class 2 Claims until the
Debtors or the Liquidating Trustee, as the case may be, either pay in full all
Allowed Secured, Ad Valorem, or Administrative Claims or reserve in full for any
such Disputed Claims; PROVIDED, HOWEVER, as the court ruled on April 6, 2004,
the Liquidating Trustee is not required to reserve for any portion of
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a Secured, Ad Valorem, or Administrative Claim that is disallowed by previous
order of the Bankruptcy Court.
32. To the extent of any inconsistency between the terms of the Plan
and this Confirmation Order, the terms of this Confirmation Order shall govern.
Dated: Wilmington, Delaware
April __, 2004
/s/ Mary F. Walrath
-----------------------------------------
Honorable Mary F. Walrath
Chief United States Bankruptcy Judge
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