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Home My WebLink AboutECAT13-019 Supplement - Assignment7652 Narcoossee Rd. Orlando, FL 32822 Tel: 407- 203 -1204 Fax: 407- 816 -0857 AGREEMENT THIS AGREEMENT (this "Agreement ") is made effective as of February 10, 2014, by and between Frontier Rental, Inc. d /b /a Dollar Rent A Car and Thrifty Car Rental (the "Asst nec "), and Simply Wheelz LL,C d/b /a Advantage Rent A Car, a Delaware limited liability company (the "Asst nor "). , WITNESSEThI: WH ERT,AS, pursuant to the Order entered on February 10, 2014 by the United States Bankruptcy Court for the Southern District of Mississippi in Case No. 13- 0332 -cc, a copy of which is attached hereto as Exhibit A (the "Order "), Assignor is authorized to assume that certain Non - Exclusive Concession Agreement for Operation of Rental Car Services between Assignor and Eagle County Air Tenninal Corporation ( "Eagle County Airport Authority "), a copy of which is attached hereto as Exhibit B (the "Contract "); WHEREAS, as set forth in the Order, Assignor desires to assign to Assignee all of its right, title and interest in and to the Contract and the Assignee desires to accept the assignment of the Contract from the Assignor and agree to pay certain amounts in connection therewith, all as more particularly described herein; and NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound hereby, it is hereby agreed that: 1. Definitions. Unless otherwise defined herein, all capitalized terms used in this Agreement shall have the meanings set forth in the Order. 2. Assigtunent of Contract. Effective as of the Effective Date, the Assignor hereby conveys, transfers, assigns and delivers to the Assignee all of the Assignor's right, title and interest in, to and under the Contract, and the Assignee hereby accepts such conveyance, transfer, assignment and delivery from the Assignor. 3. Assumption of Liabilities. Effective as of the Effective Date, the Assignee hereby assumes, accepts and agrees to timely perform and discharge in accordance with respective terms any and all of the liabilities of the Assignor under the Contract. In addition, the Assignee shall make the following payments to the Eagle County Airport Authority which are necessary to cure existing defaults under the Contract as of the Effective Date, as required by Section 365(b) of the Bankruptcy Code: (a) $60,300 ($20,100 per month for December 2013 and January and February 2014) for Monthly Minimum Annual Guarantee ( "MAG ") payments; (b) $5,600 ($1,400 per month for November and December 2013 and January and February 2014) for rent for 40 parking stalls at $35 per stall per month; and (c) $3,417.60 ($854.40 per month for November and December 2013 and January and February 2014) for Counter Area Rent for 240 square feet at $3.56 per square foot per month. In addition, Frontier shall provide a performance bond in favor of the Eagle County Airport Authority in the principal amount of $100,500 (the equivalent of five months of MAG payments). 4. Reimbursement by the Assignor. No later than February 28, 2014, the Assignor will reimburse the Assignee for the cost of the November parking stall rent ($1,400), the cost of the November Counter Area Rent ($854.40) and its pro -rated portion of the February 2014 MAG payments, parking stall rent and Counter Area Rent (pro -rated on a daily basis of $798 per day from February 1 -9, 2014 ($7,182)), for a total reimbursement of $9,436.40. 5. Representations and Warranties. The Assignor makes no representations or warranties, express or implied, with respect to the Contract, and the Assignor expressly disclaims any implied warranties. 6. Counterparts. For the convenience of the parties, this Agreement may be executed (by facsimile or PDF signature) in any number of counterparts, each such counterpart being deemed to be an original instrument, and all such counterparts shaII together constitute the same agreement. 7. Amendments, Waiver. This Agreement may be amended, supplemented or changed, and any provision hereof may be waived, only by written instrument making specific reference to this Agreement signed by the party against whom enforcement of any such amendment, supplement, modification or waiver is sought. No action taken pursuant to this Agreement, including without limitation, any investigation by or on behalf of any party shall be deemed to constitute a waiver by the party taking such action of compliance with any representation, warranty, covenant or agreement contained herein. The waiver by any party hereto of a breach of any provision of this Agreement shall not operate or be construed as a further or continuing waiver of such breach or as a waiver of any other or subsequent breach. No failure on the part of any party to exercise, and no delay in exercising, any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of such right, power or remedy by such party preclude any other or further exercise thereof or the exercise of any other right, power or remedy. 8. Severability. If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced by any rule of law or public policy, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated hereby is not affected in a manner A -2 adverse to any party. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in an acceptable manner to the end that the transactions contemplated hereby are fulfilled to the fullest extent possible. SIGNATURE PAGES FOLLOW A -3 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their respective officers thereunto duly authorized as of the date first above written. Assignor: SIMPLY WHEELZ LLC DB /A ADVANT7 RiJNT A CAR By: Willi N. Plamondon III, President A -4: Assignee: FRONTIER RENTAL, INC. By: Name: Brad Ghent Title: President EXHIBIT A Order See attached. Case 13- 03332 -ee Doc 433 Filed 02/10/14 Entered 02/10/14 08:09:53 Desc Main Document Page 1 of 4 Judge Edward Ellington United States Bankruptcy Judge Date Signed: February 8, 2014 The Order of the Court is set forth below. The docket reflects the date entered. IN THE UNITED STATES BANKRUPTCY COURT FOR THE SOUTHERN DISTRICT OF MISSISSIPPI In re: ) SIMPLY WHEELZ LLC, D /B /A ) CASE NO. 13- 03332 -ee ADVANTAGE RENT -A -CAR ) Chapter 11 Debtor ) ORDER GRANTING MOTION OF DEBTOR PURSUANT TO SECTION 365 TO AUTHORIZE THE ASSUMPTION AND ASSIGNMENT OF A NON - EXCLUSIVE CONCESSION AGREEMENT WITH EAGLE COUNTY AIR TERMINAL CORPORATION FOR OPERATION OF RENTAL CAR SERVICES [DOCKET #420] This matter came before the Court on the Motion of Debtor Pursuant to Section 365 to Authorize the Assumption and Assignment of a Non - Exclusive Concession Agreement with Eagle County Air Terminal Corporation for Operation of Rental Car Services (the "Motion ") [Docket # 420] filed herein by Simply Wheelz LLC, d/b /a Advantage Rent -A -Car, the debtor and debtor -in- possession (the "Debtor "). The Court considered the Motion and the entire Record herein, and finds that notice was appropriate under the circumstances, that no objection or other response was timely filed to the Motion, and that the Motion is well -taken and should be granted, except as modified by this Order, good cause having been shown therefor. Case 13- 03332 -ee Doc 433 Filed 02/10/14 Entered 02/10/14 08:09:53 Desc Main Document Page 2 of 4 IT IS THEREFORE ORDERED that the Motion is granted as follows: 1. The Debtor is authorized to assume that certain Non - Exclusive Concession Agreement for Operation of Rental Car Services (the "Concession Agreement' ' or "Lease ") between the Debtor and Eagle County Air Terminal Corporation (the "Eagle County Airport Authority ") attached as Exhibit "A" to the Motion as being in the best interest of the Debtor and this bankruptcy estate. 2. Frontier Rental, Inc., d/b /a Dollar Rent A Car and Thrifty Car Rental ( "Frontier ") will pay the following amounts to the Eagle County Airport Authority which are necessary to cure existing defaults lender the Concession Agreement as of the Effective Date, as required by Section 365(b) of the Bankruptcy Code: (A) $60,300 ($20,100 per month for December 2013 and January and February 2014) for Monthly Minimum Annual Guarantee ( "MAG") payments; (B) $5,600 ($1,400 permonth forNovember and December 2013 and January and February 2014) for rent for 40 parking stalls at $35 per stall per month; (C) $3,417.60 ($854.40 per month for November and December 2013 and January and February 2014) for Counter Area Rent for 240 square feet at $3.56 per square foot per month; and (D) Frontier also will provide a performance bond in favor of the Eagle County Airport Authority in the principal amount of $100,500 (the equivalent of five months of MAG payments). 3. No later than February 28, 2014, the Debtor will reimburse Frontier for the cost of the November parking stall rent ($1,400), the cost of the November Counter Area Rent ($854.40) and its pro -rated portion of the February 2014 MAG payments, parking stall rent and Counter Area Rent (pro -rated on a daily basis of $798 per day from February 1 -9, 2014 ($7,182)), for a total, reimbursement of $9,436.40. ' Capitalized terms not otherwise defined herein shall have the meaning ascribed to them in the Motion. Case 13- 03332 -ee Doc 433 Filed 02/10/14 Entered 02/10/14 08:09:53 Desc Main Document Page 3 of 4 4. Cooley Mesa Leasing, LLC ( "Cooley "), an affiliate of Frontier, will grant the Debtor and Advantage Opco, LLC, as the Debtor's successor in interest, two options to lease and operate an off - airport rental car facility located at 216 Eldon Wilson Road, Gypsum, Colorado as follows: (A) Cooley will grant to the Debtor, or Advantage Opco, LLC, as the Debtor's successor in interest, the right to lease and operate an off - airport rental car facility, including the use of its car wash and fueling facilities beginning January 1, 2015, for which the Debtor or the Purchaser will pay to Cooley $12,500 on or before June 30, 2014; (B) Cooley will grant to the Debtor, or Advantage Opco, LLC, as the Debtor's successor in interest, the right to lease and operate an off - airport rental car facility, including the use of its car wash and fueling facilities beginning January 1, 2016, for which the Debtor or the Purchaser will pay to Cooley $12,500 on or before June 30, 2015; and (C) The Debtor, or Advantage Opco, LLC, as the Debtor's successor in interest, shall pay Cooley the two option payments of $12,500 each, regardless of whether the Debtor or Advantage Opco, LLC, as the Debtor's successor in interest, elects to exercise the options to lease and operate an off - airport rental car facility at 216 Eldon Wilson Road, Gypsum, Colorado. 5. The options granted by Cooley to the Debtor or Advantage Opco, LLC, as the Debtor's successor in interest, described in the preceding paragraph, are subject to review and approval by the Eagle County Airport Authority. 6. The assumption and assignment of the Concession Agreement shall be effective as of February 10, 2014 (the "Effective Date "). Because time is of the essence, as provided by Bankruptcy Rules 7062 and 9014, the terms and conditions of the relief granted by this Order are effective immediately upon entry of this Order and are not be subject to the stay provisions contained in Bankruptcy Rules 6004(h) and 6006(d). 7. The transactions described in paragraphs 1 -4 and 6 above (collectively, the "Transaction ") are hereby approved. # #END OF ORDER ## Case 13- 03332 -ee Doc 433 Filed 02/10/14 Entered 02/10/14 08:09:53 Desc Main Document Page 4 of 4 ORDER PREPARED AND SUBMITTED BY: Stephen W. Rosenblatt (MB # 5676) BUTLER SNOW LLP 1020 Highland Colony Parkway, Suite 1400 Ridgeland, MS 39157 Telephone: (601) 985 -4504 steve .rosenblatt(dbutlersnow.com ONE OF THE ATTORNEYS FOR THE DEBTOR Butler5now 19414686v2