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Exhibit 2.1
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.
)
AMENDED JOINT CHAPTER 11 LIQUIDATING PLAN OF
THE DEBTORS AND STATUTORY CREDITORS' COMMITTEE
Dated: Wilmington,
Delaware
April [ ], 2004
FOR THE DEBTORS:
BLANK ROME LLP
FRIED, FRANK, HARRIS SHRIVER & JACOBSON LLP
Bonnie Glantz Fatell
Janice Mac Avoy
1201 Market Street, Suite 800
One New York Plaza
Wilmington, Delaware 19801
New York, New York 10004-1980
Phone: (302) 425-6400
Phone: (212)
859-8000
Fax : (302) 425-6464
Fax:
(212) 859-4000
-and-
FOR THE STATUTORY CREDITORS' COMMITTEE:
YOUNG CONAWAY STARGATT & TAYLOR, LLP
WILMER CUTLER PICKERING LLP
Brendan L. Shannon
Andrew N. Goldman
The Brandywine Building
399 Park Avenue
1000 West Street, 17th Floor
New York, New York
10022
P.O. Box 391
Phone: (212) 230-8800
Wilmington, Delaware 19899-0391
Fax:
(212) 230-8888
Phone: (302) 571-6600
Fax: (302)
571-1253
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TABLE OF CONTENTS
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ARTICLE ONE
DEFINITIONS..........................................................................................
1
ARTICLE TWO TREATMENT OF ADMINISTRATIVE
EXPENSES.................................................................11
2.1.
Administrative
Expenses......................................................11
2.2.
Administrative Expense
Procedures............................................11
2.3.
Professional Fee
Procedures..................................................12
ARTICLE THREE TREATMENT OF PRIORITY TAX
CLAIMS...................................................................12
3.1.
Priority Tax
Claims..........................................................12
3.2.
Full
Settlement..............................................................12
ARTICLE FOUR CLASSIFICATION OF CLAIMS AND
INTERESTS..............................................................13
4.1.
Designation of Classes Pursuant to Sections 1122 and 1123(A)(1)
of the Bankruptcy
Code.......................................................13
4.2.
Claims.......................................................................13
4.3.
Interests....................................................................13
ARTICLE FIVE IDENTIFICATION OF CLASSES OF
CLAIMS AND INTERESTS IMPAIRED AND NOT IMPAIRED BY THIS
PLAN............13
5.1.
Classes of Claims and Interests Impaired by This Plan and Entitled
to Vote...13
5.2.
Classes of Claims Not Impaired by This Plan and Conclusively
Presumed
to Accept This
Plan..........................................................13
5.3. Classes of
Claims and Interests Impaired by This Plan and Deemed Not
to Have Accepted This
Plan...................................................13
ARTICLE SIX TREATMENT OF CLAIMS AND
INTERESTS....................................................................14
6.1.
Secured
Claims...............................................................14
6.2.
Other Priority Claims (Class
1)..............................................14
6.3.
General Unsecured Claims (Class
2)...........................................15
6.4.
Intercompany ANC Claims (Class
3)............................................15
6.5.
ANC Common Stock Interests (Class
4).........................................15
ARTICLE SEVEN ACCEPTANCE OR REJECTION OF
THIS PLAN; EFFECT OF REJECTION BY ONE OR MORE IMPAIRED
CLASSES OF CLAIMS OR
INTERESTS........................................................16
7.1.
Impaired Classes of Claims Entitled to
Vote..................................16
7.2.
Acceptance by an Impaired Class of
Creditors.................................16
7.3.
Classes of Claims and Interests Not Impaired by This Plan and
Conclusively Presumed to Accept This
Plan....................................16
7.4.
Classes of Claims and Interests Deemed Not to Have Accepted This
Plan........16
7.5.
Confirmation Pursuant to Section 1129(B) of the Bankruptcy
Code..............16
ARTICLE EIGHT UNEXPIRED LEASES AND
EXECUTORY
CONTRACTS...........................................................16
8.1.
Rejection of Executory Contracts and Unexpired
Leases........................16
8.2. Bar Date for
Rejection
Damages...............................................16
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ARTICLE NINE IMPLEMENTATION OF THIS
PLAN.........................................................................17
9.1.
the Liquidating
Trust........................................................17
9.2.
Initial Distribution of Assets and Creation of Reserves and
Accounts.........19
9.3.
Interim and Final Distributions to Priority Claimants and
General
Unsecured Creditors From the Liquidating
Trust...............................20
9.4.
De Minimis
Distributions.....................................................22
9.5.
Release of
Claims............................................................23
9.6.
Indemnification
Obligations..................................................23
9.7.
Substantive
Consolidation....................................................24
9.8.
Retention and Enforcement of Causes of Action and Debtor
Claims..............25
ARTICLE TEN PROVISIONS COVERING
DISTRIBUTIONS....................................................................25
10.1.
Timing of Distributions Under This
Plan......................................25
10.2.
Allocation of
Consideration..................................................25
10.3. Cash
Payments................................................................25
10.4.
Payment of Statutory
Fees....................................................25
10.5. No
Interest..................................................................25
10.6.
Withholding of
Taxes.........................................................26
ARTICLE ELEVEN PROCEDURES FOR RESOLVING
DISPUTED CLAIMS AND AVOIDANCE
ACTIONS....................................26
11.1.
Objections to
Claims.........................................................26
11.2.
Procedure....................................................................26
11.3.
Payments and Distributions With Respect to Disputed
Claims...................26
11.4.
Setoffs......................................................................27
11.5.
Avoidance
Actions............................................................27
ARTICLE TWELVE DISCHARGE, INJUNCTION,
RELEASES AND SETTLEMENTS OF
CLAIMS.........................................27
12.1.
Injunction and
Exculpation...................................................27
12.2.
Guaranties...................................................................28
12.3.
Liberty Mutual Insurance
Company.............................................28
12.4.
Autonation...................................................................28
ARTICLE THIRTEEN CONDITIONS PRECEDENT TO
CONFIRMATION ORDER AND
EFFECTIVE DATE..................................28
13.1.
Conditions Precedent to Entry of the Confirmation
Order......................28
13.2.
Conditions Precedent to the Effective
Date...................................29
13.3.
Waiver of
Conditions.........................................................30
ARTICLE FOURTEEN MISCELLANEOUS
PROVISIONS........................................................................30
14.1.
Bankruptcy Court to Retain
Jurisdiction......................................30
14.2.
Binding Effect of This
Plan..................................................31
14.3.
Authorization of Corporate
Action............................................31
14.4.
Effectuating Documents; Further
Transactions.................................31
14.5.
Transactions On Business
Days................................................31
14.6.
Cancellation of Existing Securities and
Agreements...........................31
14.7.
Withdrawal of This
Plan......................................................33
14.8.
Captions.....................................................................33
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14.9.
Method of
Notice.............................................................33
14.10.
Dissolution of
Committees....................................................34
14.11.
Amendments and Modifications to
Plan.........................................35
14.12. Section
1125(E) of the Bankruptcy
Code.......................................35
14.13.
Post-confirmation
Obligations................................................35
14.14. Deutsche
Bank Securities
Inc.................................................35
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ANC and its subsidiaries listed on Schedule I, as debtors and
debtors-in-possession (collectively, the
"Debtors"), together with its Statutory
Creditors' Committee (the "Committee"),
hereby propose the following amended
joint chapter 11 liquidating plan pursuant
to section 1121(a) of the Bankruptcy
Code. This Plan provides for the
distribution of the net proceeds realized from
the liquidation of the Debtors' assets and
from agreements reached with Vanguard
Car Rental USA Inc. (as more fully
described herein) in accordance with the
priorities established by the Bankruptcy
Code and the provisions of this Plan.
ARTICLE ONE
DEFINITIONS
Whenever from the context it appears appropriate, each term
stated in either the singular or the plural
shall include the singular and the
plural, and pronouns stated in the
masculine, feminine or neuter gender shall
include the masculine, the feminine and the
neuter. Unless the context requires
otherwise, the following words and phrases
shall have the meanings set forth
below:
ADMINISTRATIVE EXPENSE: Any right to payment consisting of a
cost or expense of administration of the
Chapter 11 Cases (including, without
limitation, professional fees and expenses)
under section 503(b) of the
Bankruptcy Code.
AD VALOREM TAX CLAIM: Any Secured Claim of a state or local
government arising out of unpaid ad valorem
tax liability.
AD VALOREM TAX CLAIM ESCROW: The escrow account established
pursuant to paragraph 8 of the Sale Order
"for the payment of ad valorem tax
liens", which escrow shall be controlled
and managed by the Liquidating Trustee.
AFFILIATE: As defined in section 101(2) of the Bankruptcy Code.
ALLOWED: With respect to Claims and Interests, (a) any Claim
against or Interest in a Debtor, proof of
which is timely filed, or by order of
the Bankruptcy Court is not or will not be
required to be filed, (b) any Claim
or Interest that has been or is hereafter
listed in the Schedules as neither
disputed, contingent or unliquidated, and
for which no timely proof of claim has
been filed, or (c) any Claim allowed
pursuant to this Plan or by prior Order of
the Bankruptcy Court; PROVIDED, HOWEVER,
that with respect to any Claim or
Interest described in clauses (a) or (b)
above, such Claim or Interest shall be
allowed only if (i) no objection to the
allowance thereof has been interposed
within the applicable period of time fixed
by this Plan, the Bankruptcy Code,
the Bankruptcy Rules or the Bankruptcy
Court or (ii) such an objection is so
interposed and the Claim or Interest shall
have been allowed by either (y) a
Final Order (but only to the extent allowed
by such Final Order and only if such
allowance was not solely for the purpose of
voting to accept or reject this
Plan) or (z) a schedule filed in the
Chapter 11 Cases by the Liquidating Trustee
of Allowed Claims based upon agreement with
the Holder of the Claim and the
Liquidating Trustee which may be filed from
time to time. Except as otherwise
specified in this
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Plan or a Final Order of the Bankruptcy
Court, the amount of an Allowed Claim
shall not include interest on such Claim
from and after the Filing Date.
ANC: ANC Rental Corporation, a Delaware corporation.
ANC COMMON
STOCK: The common stock of ANC, par value $.01 per
share, issued and outstanding as of the
Filing Date.
ANC COMMON STOCK INTEREST: Any Interest evidenced by ANC Common
Stock or any Claim, if any, relating to ANC
Common Stock that is subordinated
under section 510(b) of the Bankruptcy Code
and any other Interest other than
Subsidiary Common Stock Interests.
ASSET PURCHASE AGREEMENT: The Asset Purchase Agreement, dated
as
of June 12, 2003, as amended, by and among
ANC Rental Corporation and certain of
its subsidiaries, as Sellers, and Vanguard
Car Rental USA Inc. and/or any direct
or indirect subsidiaries of Cerberus
affiliates of Cerberus or any newly formed
entity affiliated with Cerberus, as
Cerberus may in its sole discretion
designate, as Purchaser, and Cerberus.
AUTONATION SETTLEMENT PROCEEDS: Pursuant to the order entered
by
the Bankruptcy Court on May 13, 2003
approving a settlement agreement among the
Debtors, AutoNation and the Committee,
AutoNation agreed, upon termination of
its guaranty or the additional credit
support that it agreed to provide, to make
payments to the Liquidating Trust, in an
amount equal to one-half of the
released credit support, less any payments
made by AutoNation on account of the
credit support, all as more fully described
in said settlement agreement.
AVIS/HERTZ CLAIMS: The Debtor Claims that may be asserted
against Avis and Hertz for their predatory
or anti-competitive actions in
connection with the Debtor's airport
consolidation program.
AVOIDANCE ACTIONS: All preference or other avoidance claims and
actions of any Debtor arising under
Sections 544 through 553, inclusive, of the
Bankruptcy Code or under related federal or
state statutes and common law,
including fraudulent transfer laws, that
are not specified in Section 2.1(ii) of
the Asset Purchase Agreement and that are
thus retained by the Debtors.
BALLOT: The form distributed, together with the Disclosure
Statement, to holders of Claims in classes
that are Impaired and entitled to
vote on this Plan for the purpose of
indicating acceptance or rejection of this
Plan.
BANKRUPTCY CODE: Title 11 of the United States Code, as amended
from time to time, as applicable to the
Chapter 11 Cases.
BANKRUPTCY COURT: The United States Bankruptcy Court for the
District of Delaware or such other court as
may have jurisdiction over these
Chapter 11 Cases.
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BANKRUPTCY RULES: The Federal Rules of Bankruptcy Procedure
promulgated under section 2075 of title 28
of the United States Code and the
Local Rules of the Bankruptcy Court, each
as amended from time to time, as
applicable to the Chapter 11 Cases.
BOARD: The board of directors of the Debtors, as it is
constituted on the Confirmation Date.
BUSINESS DAY: Any day other than a Saturday, Sunday or "legal
holiday" as such term is defined in
Bankruptcy Rule 9006(a).
BUSINESS INTERRUPTION INSURANCE CLAIM: The Debtor Claim
relating
to the September 11, 2001 terrorist attacks
arising under, but not limited to,
Lexington Insurance Policy #852-6825,
Continental Casualty Company Policy
#RMP1988000988, Allianz Insurance Company
Policy #CLP3001018, Royal Indemnity
Company Policy #RHD319588, Commonwealth
Insurance Company Policy #US3225,
Hartford Fire Insurance Company Policy
#GX00531, Caliber One Insurance Company
Policy # ZS100136602 and Essex Insurance
Company Policy # MSP6682.
BY-LAWS: The By-Laws of the Debtors in effect as of the Filing
Date.
CASH: United States currency, a certified check, a cashier's
check or a wire transfer of good funds from
any source, or a check drawn on a
domestic bank by the Debtors, the
Liquidating Trust or other Entity making any
distribution under this Plan.
CAUSE OF ACTION: Any and all actions, causes of action, suits,
accounts, controversies, agreements,
promises, rights to legal remedies, rights
to equitable remedies, rights to payment,
and claims, whether known or unknown,
reduced to judgment, not reduced to
judgment, liquidated, unliquidated, fixed,
contingent, matured, unmatured, disputed,
undisputed, secured, unsecured and
whether asserted or assertable directly or
derivatively, in law, equity or
otherwise.
CERBERUS: Cerberus Capital Management, L.P. or any Entity
utilized to purchase substantially all of
the Debtors' assets.
CERTIFICATE OF INCORPORATION: The certificate of incorporation
of ANC in effect as of the Filing Date.
CHAPTER 11 CASES: The cases under chapter 11 of the Bankruptcy
Code filed by the Debtors that were
commenced on the Filing Date, as case number
01-11200 (MFW).
CLAIM: Any right to (a) payment from a Debtor, whether or not
such right is reduced to judgment,
liquidated, unliquidated, fixed, contingent,
matured, unmatured, disputed, undisputed,
legal, equitable, secured or unsecured
or (b) an equitable remedy for breach of
performance if such breach gives rise
to a right to payment from a Debtor,
whether or not such right to an equitable
remedy is reduced to judgment, fixed,
contingent, matured, unmatured, disputed,
undisputed, secured or unsecured.
CLASS: A class of Claims or Interests designated pursuant to
this Plan.
CLASS 1 INTEREST: An uncertificated beneficial interest in the
Liquidating Trust representing the right of
the holder of the Class 1 Interest
to receive the distributions contemplated
by Sections 9.3(a), 9.3(c) and 9.3(d).
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CLASS 2 INTEREST: An uncertificated beneficial interest in the
Liquidating Trust representing the right of
the holder of the Class 2 Interest
to receive the distributions contemplated
by Sections 9.3(b), 9.3(c) and 9.3(d).
COLLATERAL: Any property or interests in property of the
Debtors
or the Debtors' estates that is subject to
a valid, binding, enforceable,
perfected and unavoidable lien to secure
the payment or performance of a Claim
of a creditor.
COMMITTEE: The statutory creditors' committee appointed in
these
Chapter 11 Cases pursuant to section
1102(a) of the Bankruptcy Code, as the same
may be constituted from time to time.
CONFIRMATION DATE: The date on which the Confirmation Order
shall be entered on the docket maintained
by the Clerk of the Bankruptcy Court
with respect to the Chapter 11 Cases.
CONFIRMATION HEARING: The hearing held by the Bankruptcy Court
pursuant to section 1128(a) of the
Bankruptcy Code regarding the confirmation of
this Plan pursuant to section 1129 of the
Bankruptcy Code.
CONFIRMATION ORDER: The order of the Bankruptcy Court
confirming
this Plan pursuant to section 1129 of the
Bankruptcy Code.
CREDITOR: Any Entity that is the holder of a Claim against a
Debtor that arose on or before the order
for relief in these Chapter 11 Cases or
a Claim against a Debtor's estate of the
kind specified in section 502(g),
502(h) or 502(i) of the Bankruptcy
Code.
D&O INDEMNIFICATION CLAIMS: The meaning ascribed to such term
in
Section 9.6 of this Plan.
D&O INSURANCE: The directors and officers insurance
policies
maintained by one or more of the Debtors
which covers the Debtors' present and
former officers, directors, and all such
other employees, agents, advisors,
representatives or other parties who would
be entitled to coverage thereunder.
DEBTORS: ANC and its subsidiaries listed on Schedule I, as
debtors and debtors-in-possession in the
Chapter 11 Cases.
DEBTOR CLAIMS. All Causes of Action and Avoidance Actions that
a
Debtor may have against any Person other
than against an affiliate of the Debtor
(including a Non-Debtor Affiliate) that
arise prior to the Effective Date and
that, as of the Effective Date, have not
been waived, settled, released or
denied by Final Order of the court having
jurisdiction over a proceeding in
which such Cause of Action or Avoidance
Action was asserted.
DEFICIENCY CLAIM: The amount by which the total Claim of a
holder of a Secured Claim exceeds the
amount of such Secured Claim.
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DISCLOSURE STATEMENT: The disclosure statement that relates to
this Plan and that has been approved by the
Bankruptcy Court as containing
adequate information as required by section
1125 of the Bankruptcy Code.
DISPUTED: With respect
to Claims, any Claim that is not
Allowed.
DISPUTED CLAIMS RESERVE TRUSTS: The Disputed General Unsecured
Claims Reserve Trust and Disputed Priority
Claims Reserve Trust.
DISPUTED GENERAL UNSECURED CLAIMS RESERVE TRUST: The trust
established on the Effective Date by the
Liquidating Trustee to provide for the
payment of Disputed General Unsecured
Claims that are Allowed after the
Effective Date.
DISPUTED PRIORITY CLAIMS RESERVE TRUST: The trust established
on
the Effective Date by the Liquidating
Trustee to provide for the payment of
Disputed Priority Claims that are Allowed
after the Effective Date.
DISTRIBUTION RESERVE ACCOUNT: The account to be established by
the Liquidating Trust as of the Effective
Date (or as soon as reasonably
practicable after the Liquidating Trust
receives sufficient funds) to hold Cash
reserved solely for the purpose of making
distributions in respect of Other
Secured Claims, Ad Valorem Tax Claims,
Allowed Priority Claims and Allowed
General Unsecured Claims (and to the
Disputed Claims Reserve Trusts in respect
of Disputed Priority Claims and Disputed
General Unsecured Claims) as provided
in this Plan.
EFFECTIVE DATE: The first Business Day following the day on
which (i) the Liquidating Trustee
determines that there is sufficient Cash on
hand to pay all Allowed Administrative,
Other Secured, Ad Valorem Tax and
Priority Claims; (ii) the Liquidating
Trustee determines that there is
sufficient Cash on hand to pay -- in his
reasonable prudent business judgment
upon advice of counsel -- the ultimate
Allowed amount of Disputed
Administrative, Other Secured, Ad Valorem
Tax and Priority Claims after such
Disputed Claims have been either
consensually resolved or liquidated by Final
Order of the Court, unless any Holder of
such Allowed Administrative, Other
Secured, Ad Valorem Tax or Priority Claim
expressly waives the requirement that
there be sufficient Cash on hand to pay
such Holder's claim; and (iii) all
actions have been taken with respect to the
dissolution or merger of Subsidiary
Debtors that the Liquidating Trustee (in
its sole and exclusive discretion)
determines to be necessary or appropriate
prior to the transfer of assets
pursuant Section 9.1(c) of this Plan;
PROVIDED that if, on or prior to such
date, all such conditions to the Effective
Date as set forth in Article Thirteen
have not been satisfied or waived, then the
Effective Date shall be the first
Business Day following the day on which all
such conditions to the Effective
Date as set forth in Article Thirteen have
been satisfied or waived or such
later date as the Debtors and Liquidating
Trustee may jointly determine;
PROVIDED FURTHER that the Effective Date
may not occur on a date greater than
360 days after the Confirmation Date unless
such 360 day period is extended by
agreement of both the Debtors and the
Liquidating Trustee.
ENTITY: Any individual, corporation, limited or general
partnership, limited liability company,
joint venture, association, joint stock
company, estate, entity, trust, trustee,
United
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States trustee, unincorporated
organization, government, governmental unit (as
defined in the Bankruptcy Code), agency or
political subdivision thereof.
EXCLUDED ASSETS: Assets of the Debtors, as defined in Section
2.2 of the Asset Purchase Agreement, which
are not being acquired by Cerberus.
EXPENSE RESERVE ACCOUNT: The account to be established by the
Liquidating Trust as of the Confirmation
Date (or as soon as reasonably
practicable thereafter) to hold Cash
reserved for the payment of costs and
expenses of the Liquidating Trust or the
Debtors, as the case may be.
EXTINGUISHED/EXTINGUISHMENT: A claim that is eliminated and
discharged by offset, distribution,
cancellation or contribution of such claim
or otherwise, as determined by the
Debtors.
FILING DATE: November 13, 2001, which was the date on which
each
of the Debtors filed a voluntary petition
for relief commencing the Chapter 11
Cases.
FINAL DECREE: A final decree closing the Chapter 11 Cases as
described in Bankruptcy Rule 3022.
FINAL DISTRIBUTION: The distribution of the Final Distribution
Assets on the Termination Date pursuant to
Section 9.3(d).
FINAL DISTRIBUTION ASSETS: All assets held by the Liquidating
Trust on the Termination Date other than
the Wind-Up Reserve.
FINAL ORDER: An order, ruling or judgment of the Bankruptcy
Court or any other court of competent
jurisdiction as to which the time to
appeal, petition for CERTIORARI, or move
for reargument or rehearing has expired
and as to which no appeal, petition for
CERTIORARI, or other proceedings for
reargument or rehearing shall then be
pending, or as to which any right to
appeal, petition for CERTIORARI, reargue,
or rehear shall have been waived in
writing in form and substance satisfactory
to the Debtors or, on and after the
Effective Date, the Liquidating Trust or,
in the event that an appeal, writ of
CERTIORARI, or reargument or rehearing
thereof has been sought, such order of
the Bankruptcy Court or other court of
competent jurisdiction shall have been
determined by the highest court to which
such order was appealed, or CERTIORARI,
reargument or rehearing shall have been
denied and the time to take any further
appeal, petition for CERTIORARI or move for
reargument or rehearing shall have
expired; PROVIDED, HOWEVER, that the
possibility that a motion under Rule 59 or
Rule 60 of the Federal Rules of Civil
Procedure, or any analogous rule under the
Bankruptcy Rules or applicable state court
rules of civil procedure, may be
filed with respect to such order shall not
cause such order not to be a Final
Order.
FIRST ADMINISTRATIVE EXPENSE BAR DATE: March 18, 2004, which
was
the deadline set by the First
Administrative Expense Bar Date Order for filing
requests for payment of Administrative
Expenses incurred from the Filing Date up
to and including January 30, 2004, except
for requests for payment of
Administrative Expenses incurred by former
employees of the Debtors. Such
deadline did not apply to applications for
allowance of compensation and the
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reimbursement of expenses pursuant to
sections 327, 328, 330, 331, or 503(b) of
the Bankruptcy Code filed by professional
persons for services rendered during
this time period.
FIRST ADMINISTRATIVE EXPENSE BAR DATE ORDER: The order of the
Bankruptcy Court dated January 30, 2004
which set the First Administrative
Expense Bar Date.
GENERAL UNSECURED CLAIMS: A Claim against any Debtor that is
not
a Secured Claim, Other Secured Claim, Ad
Valorem Tax Claim, Administrative
Claim, Priority Tax Claim, Other Priority
Claim, or Intercompany ANC Claim.
Without limiting the foregoing, General
Unsecured Claim shall include any
Deficiency Claim.
GERMAN DEBTORS: The following ANC subsidiaries which are in
insolvency proceedings in Germany: Republic
Industries Autovermietung GmbH,
Republic Industries Fuhrpark Leasing GmbH
and Republic Industries (German
Holdings) GmbH.
GERMAN INTERCOMPANY ANC CLAIMS: The claims, whether secured or
unsecured of a Debtor against a German
Debtor, net of any claims that a German
Debtor may hold against any of the
Debtors.
HOLDER: Any Entity that holds a Claim or Interest.
IMPAIRED: Any Class of Claims or Interests that is impaired
within the meaning of section 1124 of the
Bankruptcy Code.
INDEMNIFICATION CLAIMS: Any Claims arising out of obligations
or
rights of the Debtors to indemnify or
contribute to the losses, liabilities or
expenses of an Indemnitee pursuant to the
Debtors' certificate of incorporation,
bylaws, policy or other agreement which
provides employee indemnification, or
applicable state law or specific agreement
in respect of any claims, demands,
suits, causes of action or proceedings
against an Indemnitee based upon any act,
conduct or omission to act related to an
Indemnitee's service with, for or on
behalf of the Debtors.
INDEMNITEE: All present and former directors, officers,
employees, agents, advisors or
representatives of the Debtors who are entitled
to assert Indemnification Claims.
INITIAL DISTRIBUTION DATE: The date of the initial distribution
of assets to the holders of Allowed
Claims.
INTERCOMPANY ANC CLAIMS: Any claim, whether secured or
unsecured, of an ANC Affiliate against one
another, or against ANC (or that ANC
may hold against such Affiliate).
INSTRUMENT: Any share of stock, security, promissory note or
other "Instrument" within the meaning of
that term as defined in section
9-102(47) of the UCC.
INTERESTS: All equity interests in a Debtor, including, but not
limited to, shares of common stock and any
rights, options, warrants, calls,
subscriptions or other similar rights or
agreements, commitments or outstanding
securities obligating a Debtor to issue,
transfer or sell any shares of capital
stock of a Debtor.
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LCPI: Lehman Commercial Paper Inc., in its capacities as
administrative agent and lender under the
Supplemental Facility, and in its
capacities as syndication agent and lender
under the Senior Loan Agreement.
LEHMAN: Collectively,
Lehman Brothers and LCPI.
LEHMAN BROTHERS: Lehman Brothers Inc., in its capacities as
arranger and lender under the Senior Loan
Agreement.
LEHMAN SECURED CLAIM. Lehman's Allowed secured Claim of $180
million on account of the Senior Loan
Agreement that was approved by the
Bankruptcy Court on March 19, 2003 as part
of a settlement agreement between the
Debtors, Committee and Lehman.
LIQUIDATING TRUST: The trust described in Section 9 of the Plan
to be established under New York trust law
that will effectuate the wind down of
the Debtors, and make distributions to the
Holders of Other Secured Claims, Ad
Valorem Tax Claims, Allowed Priority Tax
Claims, Other Priority Claims and
General Unsecured Claims. With respect to
any action required or permitted to be
taken by the Liquidating Trust, the term
includes the Liquidating Trustee or any
other person authorized to take such action
in accordance with the Liquidating
Trust Agreement.
LIQUIDATING TRUST AGREEMENT: The agreement and declaration of
trust establishing the Liquidating Trust in
conformity with the provisions of
this Plan, which shall be approved in the
Confirmation Order and entered into by
the Debtors, on behalf of the
beneficiaries, and the Liquidating Trustee on the
Confirmation Date pursuant to the terms of
the Plan, annexed hereto as Exhibit
A.
LIQUIDATING TRUSTEE: A Person to be designated by the Committee
(in consultation with the Debtors) to serve
as the manager of the Liquidating
Trust, and any successor thereto.
MARKET RATE: The rate of interest per annum (rounded upward, if
necessary, to the nearest whole 1/100 of
1%) equal to the yield equivalent (as
determined by the Secretary of the
Treasury) of the average accepted auction
price for the last auction of one-year
United States Treasury bills settled at
least fifteen (15) days prior to the
Effective Date.
NON-ACQUIRED FOREIGN SUBSIDIARIES: The following foreign
subsidiaries that were not acquired by the
Purchaser: ANC Rental (Europe), Guy
Salmon USA, Inc., Republic Guy Salmon
Partner, Inc., Republic Industries (German
Holdings) GmbH, Alamo Rent-A-Car (Vienna)
GmbH, Republic Industries
Autovermietung GmbH, ANC Handeks GmbH &
Co. KG, Republic Industries Fuhrpark
Leasing GmbH, Alamo-CC Raule
Autovermietung-erwaltungs GmbH, National Car Rental
System (New Zealand) Limited, National Car
Rental System (Hong Kong) Limited,
National Car Rental System do Brasil
Empreendimentos Ltda. and Alamo Renta A Car
Locadora De Automoveis Ltda.
OTHER PRIORITY CLAIM: Any Claim, other than a Priority Tax
Claim
or an Administrative Expense, which is
entitled to priority of payment under
section 507(a) of the Bankruptcy Code.
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<PAGE>
OTHER SECURED CLAIM: Any Secured Claim other than an Ad Valorem
Tax Claim, Lehman Secured Claim, or Secured
Claim satisfied pursuant to the Sale
Order or Sale Transaction.
PERSON: An individual, corporation, partnership, joint venture,
association, joint stock company, limited
liability company, limited liability
partnership, trust, estate, unincorporated
organization, governmental unit or
other entity.
PLAN: This amended joint chapter 11 liquidating plan of the
Debtors and the Committee, together with
all exhibits hereto, as the same may be
amended and modified from time to time in
accordance with section 1127 of the
Bankruptcy Code.
POST-PETITION INDEMNIFICATION CLAIMS: The meaning given to such
term in Section 9.6.
PRE-PETITION INDEMNIFICATION CLAIMS: The meaning given to such
term in Section 9.6.
PRIORITY CLAIM: Claim that is a Priority Tax Claim or an Other
Priority Claim.
PRIORITY TAX CLAIM: Any Claim which is entitled to priority of
payment under section 507(a)(8) of the
Bankruptcy Code.
PRO RATA SHARE: A proportionate share, so that the ratio of the
amount of property distributed on account
of an Allowed Claim or a Disputed
Claim when a distribution is to be made to
a Disputed Claims Reserve Trust, as
the case may be, in a class is the same as
the ratio such Claim bears to the
total amount of all Claims (including
Disputed Claims until disallowed) in such
class.
REINSTATE: To leave unaltered the legal, equitable and
contractual rights to which a Claim
entitles the holder of such Claim, in
accordance with Section 1124 of the
Bankruptcy Code.
RELATED
DOCUMENTS: This Plan and all documents necessary to
consummate the transactions contemplated by
this Plan.
RELEASED CLAIMS: All preference or other avoidance claims or
actions of any Debtor arising out of
Sections 544 through 553, inclusive, of the
Bankruptcy Code (i) against the Acquired
Subsidiaries (as defined in the Asset
Purchase Agreement), (ii) against Purchaser
or its Affiliates or (iii) relating
to an Assigned Contract (as defined in the
Asset Purchase Agreement) or a
Current Asset (as defined in the Asset
Purchase Agreement) as of the closing of
the Sale Transaction.
SALE ORDER: The Order of the Bankruptcy Court dated September
3,
2003, which Order appears on the docket of
the Chapter 11 Cases as docket no.
5236.
SALE TRANSACTION: The sale of substantially all of the Debtors'
assets to Vanguard Car Rental USA Inc., a
wholly owned subsidiary of Cerberus.
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<PAGE>
SCHEDULES: The schedule of assets and liabilities filed by the
Debtors with the Bankruptcy Court on
January 16, 17 and 18, 2002 in accordance
with section 521(1) of the Bankruptcy Code,
and any supplements and amendments
thereto.
SECOND ADMINISTRATIVE EXPENSE BAR DATE: Forty-five (45) days
from the date of the mailing of the notice
of the Second Administrative Expense
Bar Date, which is the deadline described
in Article 2.2 of the Plan for filing
requests for payment of Administrative
Expenses incurred (i) from January 31,
2004 up to and including the Confirmation
Date, and (ii) by former employees of
the Debtors. Such deadline shall not apply
to 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, which
applications are treated in Article 2.3 of
the Plan.
SECURED CLAIM: Any Claim secured by a Lien on any Asset of the
Debtor, or right of setoff, which Lien or
right of setoff, as the case may be,
is valid, perfected and enforceable under
applicable law and is not subject to
avoidance under the Bankruptcy Code or
applicable non-bankruptcy law, but only
to the extent of the value, pursuant to
Section 506(a) of the Bankruptcy Code,
of any interest of the holder of the Claim
in property of the Estate(s) securing
such Claim.
SECURED CLAIMS ACCOUNT: The account established on the
Effective
Date by the Liquidating Trustee to provide
for the payment of Disputed Secured
Claims that are Allowed and unpaid after
the Effective Date.
SUBSIDIARY COMMON STOCK: Collectively, all common stock of the
Debtors (other than ANC) issued and
outstanding as of the Filing Date.
SUBSIDIARY COMMON STOCK INTEREST: Any Interest evidenced by
Subsidiary Common Stock.
SENIOR LOAN AGREEMENT: The Amended and Restated Senior Loan
Agreement, dated as of June 30, 2000, as
amended (the "Senior Loan Agreement"),
among ANC and Lehman in an aggregate
principal amount of $225 million.
SUBSIDIARY DEBTORS: All of the Debtors other than ANC.
TERMINATION DATE: The date upon which the Liquidating Trustee
has made the Final Distribution from the
Liquidating Trust pursuant to section
9.3(d) of the Plan and has filed all
appropriate documentation with the Court
and, if necessary, other relevant
governmental authorities.
TRANSFER: As a noun, any voluntary or involuntary transfer,
sale, pledge, hypothecation or other
disposition and, as a verb, voluntarily or
involuntarily to transfer, sell, pledge or
hypothecate or otherwise dispose of.
UCC: The Uniform Commercial Code in effect in the State of New
York as of the date hereof, as
applicable.
UNCLAIMED DISTRIBUTION: Distributions to holders of Allowed
Claims that are returned as
undeliverable.
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<PAGE>
UNCLAIMED DISTRIBUTIONS RESERVE: The reserve created with the
Unclaimed Distributions that are returned
as undeliverable, which may be claimed
after the Effective Date.
UNIMPAIRED: Any Class of Claims or Interests that is not
Impaired.
VOTING DEADLINE: The date established in the order of the
Bankruptcy Court approving the Disclosure
Statement as the deadline by which
votes to accept or reject this Plan must be
received.
WIND-UP RESERVE: As more fully described in the Liquidating
Trust Agreement, a Cash reserve to be
established by the Liquidating Trustee at
the time of making a final distribution to
creditors for purposes of paying the
expenses of such final distribution and
winding up the affairs of the
Liquidating Trust after such final
distribution, including the projected costs
of dissolving the Liquidating Trust,
preparing final tax returns, filing reports
or other documents in the Chapter 11 Cases
or under applicable non-bankruptcy
law, and storing or disposing of records
and any other property of the
Liquidating Trust.
ARTICLE TWO
TREATMENT OF ADMINISTRATIVE EXPENSES
2.1. ADMINISTRATIVE EXPENSES. Except to the extent that any
Entity entitled to payment of any Allowed
Administrative Expense Claim agrees to
a less favorable treatment, all
Administrative Expense Claims shall be
reconciled and all Allowed Administrative
Expense Claims shall receive Cash from
the Debtors or the Liquidating Trust, as
the case may be, in an amount equal to
the Allowed Administrative Expense Claim,
as soon as practicable as such Claims
are reconciled.
2.2. ADMINISTRATIVE EXPENSE PROCEDURES.
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
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<PAGE>
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 this Plan.
2.3. PROFESSIONAL FEE PROCEDURES. 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 Debtors and the Liquidating
Trust who perform services
post-Confirmation Date shall not be required to file
fee applications for payment of such
services. ARTICLE THREE
TREATMENT OF PRIORITY TAX CLAIMS
3.1. PRIORITY TAX CLAIMS. With respect to each Allowed Priority
Tax Claim, as soon as practicable after the
Effective Date as such Claims are
reconciled, each Holder of an Allowed
Priority Tax Claim shall be entitled to
receive from the Debtors or the Liquidating
Trust (as the case may be), Cash, in
an amount sufficient to render such Allowed
Priority Tax Claim Unimpaired under
section 1124 of the Bankruptcy Code or such
other treatment as to which the
Debtors, the Liquidating Trust and such
Holder shall have agreed upon in
writing. Notwithstanding the forgoing, and
to the extent that there are funds
available to the Liquidating Trust to make
distributions to Allowed Priority Tax
Claims on the Effective Date, the
Liquidating Trust may make in its discretion
interim distributions to Allowed Priority
Tax Claims pursuant to Section 9.3 of
this Plan.
3.2. FULL SETTLEMENT. The distributions provided for in Section
3.1 are in full settlement, release and
discharge of all Priority Tax Claims.
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<PAGE>
ARTICLE FOUR
CLASSIFICATION OF CLAIMS AND INTERESTS
4.1. DESIGNATION OF CLASSES PURSUANT TO SECTIONS 1122 AND
1123(A)(1) OF THE BANKRUPTCY CODE. Set
forth below is a designation of classes
of Claims and Interests. Administrative
Expenses and Priority Tax Claims of the
kinds specified in sections 507(a)(1) and
507(a)(8) of the Bankruptcy Code (set
forth in Articles Two and Three above) have
not been classified and are excluded
from the following classes in accordance
with section 1123(a)(l) of the
Bankruptcy Code.
4.2. CLAIMS.
SECURED CLAIMS. Secured Claims consists of Other
Secured Claims and Ad Valorem Tax Claims.
CLASS 1. Class 1 consists of all Other Priority
Claims.
CLASS 2. Class 2 consists of all General Unsecured
Claims.
CLASS 3. Class 3 consists of all Intercompany ANC
Claims.
4.3. INTERESTS.
CLASS 4. Class 4 consists of all ANC Common Stock
Interests.
ARTICLE FIVE
IDENTIFICATION OF CLASSES OF CLAIMS AND
INTERESTS IMPAIRED AND NOT IMPAIRED BY THIS PLAN
5.1. CLASSES OF CLAIMS AND INTERESTS IMPAIRED BY THIS PLAN AND
ENTITLED TO VOTE.
General Unsecured Claims (Class 2) are
Impaired by this Plan and the Holders of
Allowed Claims in such Class are entitled
to vote to accept or reject this Plan.
5.2. CLASSES OF CLAIMS NOT IMPAIRED BY THIS PLAN AND
CONCLUSIVELY PRESUMED TO ACCEPT THIS PLAN.
Other Secured Claims, Ad Valorem Tax
Claims and Other Priority Claims (Class 1)
are not Impaired by this Plan. Under
section 1126(f) of the Bankruptcy Code, the
Holders of such Claims are
conclusively presumed to accept this Plan,
and the acceptances of such Holders
will not be solicited.
5.3. CLASSES OF CLAIMS AND INTERESTS IMPAIRED BY THIS PLAN AND
DEEMED NOT TO HAVE ACCEPTED THIS PLAN.
Intercompany ANC Claims (Class 3) and ANC
Common Stock Interests (Class 4) are
Impaired by this Plan and do not receive or
retain any property under this Plan. Under
section 1126(g) of the Bankruptcy
Code, the Holders of Intercompany ANC
Claims and ANC Common Stock Interests are
deemed not to have accepted this Plan, and
the acceptance of such Holders will
not be solicited.
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<PAGE>
ARTICLE SIX
TREATMENT OF CLAIMS AND INTERESTS
6.1. SECURED CLAIMS.
(a) OTHER SECURED CLAIMS
(i) TREATMENT. As soon as practicable after such Other
Secured Claims are reconciled, at the sole
election of the Liquidating Trustee,
each Holder of an Allowed Other Secured
Claim shall be: (a) paid in full in Cash
in an amount equal to the Allowe
