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EXHIBIT 10.10
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ESCROW AGREEMENT
among
ANC RENTAL CORPORATION
and
XXXXXX BROTHERS INC.
and
XXXXXX COMMERCIAL PAPER INC. and
THE BANK OF NEW YORK
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dated as of June 30, 2000
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ESCROW AGREEMENT
Escrow Agreement (the "ESCROW AGREEMENT"), dated as of June
30, 2000, among ANC Rental Corporation, a Delaware corporation (the "COMPANY"),
Xxxxxx Brothers Inc., a New York corporation ("LBI"), Xxxxxx Commercial Paper
Inc., a New York corporation ("LCPI"), and The Bank of New York, a New York
banking corporation, as escrow agent (the "ESCROW AGENT").
RECITALS
WHEREAS, the Company, LCPI, as Administrative Agent (the
"ADMINISTRATIVE AGENT"), LBI, as Arranger (the "ARRANGER"), and the Lenders
party thereto (the "LENDERS") have entered into an Amended and Restated Senior
Loan Agreement dated as of June 30, 2000 (the "SENIOR LOAN AGREEMENT") pursuant
to which the Lenders have agreed, inter alia, to make loans to the Company, in
an aggregate principal amount not to exceed $225,000,000 (the "LOANS"), subject
to the terms and conditions set forth in the Senior Loan Agreement.
WHEREAS, pursuant to Section 4.2(k) of the Senior Loan
Agreement, it is a condition to each Lender's obligation to provide the Loans
that, prior to or contemporaneously therewith: (i) this Escrow Agreement shall
have been executed and delivered by each of the parties hereto, (ii) the
Indenture in the form attached as Exhibit B to the Senior Loan Agreement (the
"INDENTURE") among the Company, the Guarantors listed in Schedule 6 thereto and
from time to time parties thereto and The Bank of New York, as trustee (the
"TRUSTEE") shall have been executed by each of the parties thereto and delivered
to the Escrow Agent to be held pursuant to this Escrow Agreement, (iii) Exchange
Notes to be issued in accordance with the Senior Loan Agreement (the "EXCHANGE
NOTES") shall have been authorized pursuant to the Indenture and delivered to
the Escrow Agent to be held pursuant to this Escrow Agreement, (iv) a warrant
agreement in the form attached as Exhibit D to the Senior Loan Agreement (the
"WARRANT AGREEMENT") between the Company and The Bank of New York, as warrant
agent (the "WARRANT AGENT") shall have been executed by each of the parties
thereto and delivered to the Escrow Agent to be held pursuant to this Escrow
Agreement; (v) the Debt Registration Rights Agreement (the "DEBT REGISTRATION
RIGHTS AGREEMENT") between the Company and LCPI in the form attached as Exhibit
C-2 to the Senior Loan Agreement shall have been executed by each of the parties
thereto and delivered to the Escrow Agent to be held pursuant to this Escrow
Agreement; (vi) the Equity Registration Rights Agreement (the "EQUITY
REGISTRATION RIGHTS AGREEMENT") between the Company and LCPI in the form
attached as Exhibit C-1 to the Senior Loan Agreement shall have been executed by
each of the parties thereto and delivered to the Escrow Agent to be held
pursuant to this Escrow Agreement; and (vii) the Company shall have executed and
delivered to the Escrow Agent warrants (the "WARRANTS") to purchase 7.5% of the
fully-diluted capital stock (including all series of preferred and common stock
(other than Disqualified Stock (as defined in the Indenture)) and all other
outstanding warrants, options or other convertible securities) pursuant to the
Warrant Agreement in each case as of the Spin-off Date (as defined below) of the
Company (calculated after giving effect to the exercise of the Warrants and all
other outstanding warrants, options or other convertible securities), in each
case as of the Spin-off Date (as defined below) to be held pursuant to this
Escrow Agreement.
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AGREEMENT
NOW, THEREFORE, the parties hereto agree as follows:
1. Delivery of Escrow Securities and Agreements.
(a) At or prior to the date of making the Loans (the "SPIN-OFF
DATE") to the Company, the Company shall deliver, or cause to be delivered to
the Escrow Agent executed copies of: (i) the Indenture; (ii) the Warrant
Agreement; (iii) this Escrow Agreement; (iv) the Debt Registration Rights
Agreement; (v) the Equity Registration Rights Agreement; (vi) executed Exchange
Notes, undated and unregistered as to payee or registered in blank, together
with an executed authentication order required by Section 2.6 of the Indenture
and an executed Officer's Certificate, dated the date of delivery, required by
Section 11.4(a) of the Indenture, in each case for the issuance of the Exchange
Notes in accordance with the Senior Loan Agreement; and (vii) duly authorized
and executed certificates, undated and registered in blank (the "WARRANT
CERTIFICATES"), representing the Warrants, together with written instructions to
countersign the Warrants required by Section 4 of the Warrant Agreement for the
issuance of the Warrants in accordance with this Escrow Agreement, as
contemplated by the Senior Loan Agreement and the Warrant Agreement.
(b) The Exchange Notes and the Warrants (collectively, the
"ESCROW SECURITIES") delivered to the Escrow Agent pursuant to this Escrow
Agreement shall be held in escrow and released therefrom on the terms and
conditions set forth herein. In no event shall the aggregate principal amount of
Exchange Notes delivered under this Agreement exceed the amount required by the
Indenture and the Senior Loan Agreement.
2. Release of Escrow Securities.
(a) Release of the Exchange Notes from Escrow. If at any time
and from time to time on or after the "Initial Maturity Date" (as defined in the
Senior Loan Agreement) the Escrow Agent receives a notice (and the Company
receives a copy of the notice) in the form of Exhibit A hereto from the
Administrative Agent, the Escrow Agent shall deliver to the Trustee, for
authentication and delivery to the holders of Loans who elect to exchange Loans
for Exchange Notes, an executed authentication order and an Exchange Note or
Exchange Notes, registered in the name of such person or persons designated by
the Administrative Agent and dated the date of the delivery thereof, in an
aggregate principal amount equal to the aggregate principal amount of Loans so
exchanged, together with a copy of the executed Indenture. Concurrently with the
delivery of any Exchange Notes to the Trustee pursuant to this Escrow Agreement,
the Escrow Agent shall deliver, or cause to be delivered to the Company, all
outstanding Loans then so exchanged. If necessary, the Company or the
Administrative Agent will obtain new CUSIP numbers for such Exchange Notes. The
Company agrees to deliver or cause to be delivered to the Trustee, promptly upon
its request, any Officers' Certificate or
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Opinion of Counsel required by the Trustee pursuant to Section 11.4 of the
Indenture in connection with the issuance of the Exchange Notes.
(b) Release of Warrants from Escrow.
The Warrants described herein shall be released in whole or in
part only through the procedures described in this Section 2(b).
(i) Release of Warrants in connection with High Yield
Securities (as defined in the Fee Letter dated May 11, 2000
among LBI, LCPI and the Company (the "Fee Letter")). Any or
all of the Warrants then remaining in escrow will be released
from escrow to the Administrative Agent at the request of the
Administrative Agent substantially in the form of Exhibit B
if, and only if, it shall be determined by the Administrative
Agent (and the Administrative Agent shall have provided a
written certification to such effect, with a copy to the
Company) that it is necessary to sell the High Yield
Securities at the time set forth in the Fee Letter with an
equity component in order to refinance any Loans and whether
or not any such Warrants have been earned pursuant to the
following "earn-in" provisions.
(ii) "Earn-In" of Warrants. In accordance with the
provisions of this Section 2(b)(ii), over time, the
Administrative Agent is entitled to receive, upon request to
the Warrant Agent, Warrants then remaining in escrow. The
number of Warrants to which the Administrative Agent will be
entitled to receive is a percentage of the Warrants initially
held in escrow, such percentage to increase over time and be
equal to the percentage set forth in Column B below,
determined by reference to the period of time following the
Spin Off Date set forth in Column A below.
A B
DAYS AFTER SPIN-OFF DATE PERCENTAGE
------------------------ ----------
366 33 1/3%
395 66 2/3%
425 100%
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At the time when the Administrative Agent becomes
entitled to Warrants under this Section 2(b)(ii), it may
obtain release of those Warrants from escrow upon presentation
to the Warrant Agent of an executed countersignature order and
the receipt by the Escrow Agent of a written certification
substantially in the form of Exhibit C requesting the release
of up to the amounts permitted by this Section. Such written
certification may be presented on any date on or after such
release is permitted, so long as on such date any Loans and/or
Exchange Notes remain outstanding, and will entitle the
Administrative Agent to receive the number of Warrants subject
to release set forth above as of the date such written
certification is presented to the Warrant Agent.
(iii) Release Procedures. Upon receipt of a written
certification pursuant to Section 2(b)(i) or 2(b)(ii) from the
Administrative Agent, the Warrant Agent will present such
written certification to the Escrow Agent as contemplated by
the Escrow Agreement. Warrants released from escrow will be
registered in the name or names requested by the
Administrative Agent.
(iv) For purposes of clarity, the total number of
Warrants issued pursuant to Sections 2(b)(i) and 2(b)(ii)
collectively from time to time shall not exceed the amount
initially placed in escrow (subject to the anti-dilution
provisions as set forth in the Warrant Agreement).
(c) On the date (the "TERMINATION DATE") on which the Escrow
Agent receives a written notice in the form of Exhibit D hereto from the
Administrative Agent to the effect that all outstanding obligations with respect
to the Loans and Exchange Notes have been repaid in cash in their entirety, the
Escrow Agent shall return any Escrow Securities then held by it marked
"cancelled" as shall be specified in writing by the Administrative Agent and the
Company. The Administrative Agent agrees to deliver any such notice when all the
Loans and Exchange Notes have been so repaid.
(d) The Company will provide, or cause to be provided, to the
Escrow Agent and the Company all such information as the Escrow Agent may from
time to time reasonably request.
(e) The Arranger will provide, or cause to be provided, to the
Escrow Agent and the Company all information required to fill in the blanks on
the Exchange Notes and Warrants.
3. Responsibility of the Escrow Agent. The Company, the
Administrative Agent and each of the Lenders appoint and designate the Escrow
Agent as escrow agent for the purposes set forth herein, and the Escrow Agent
owes no duty to any other person or entity by
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reason of this Escrow Agreement. The Escrow Agent accepts the duties expressly
set forth in this Escrow Agreement and undertakes to perform only such duties
relating thereto as are specifically set forth herein. The Escrow Agent shall
have no duty to calculate or verify the calculation of any amounts, percentages
or ratios to be determined hereunder and shall be entitled to conclusively rely
on the amounts set forth in notices delivered to it hereunder. The parties
hereto agree that the following terms and conditions shall govern and control
with respect to the rights, duties, liabilities and immunities of the Escrow
Agent hereunder.
(a) The duties and obligations of the Escrow Agent shall be
determined solely by the express provisions of this Escrow Agreement, and no
implied covenants, duties or obligations (including, without limitation, any
duty to solicit the delivery of any Escrow Securities) shall be read into this
Escrow Agreement against the Escrow Agent, nor shall it have, or be deemed to
have, any duties or responsibilities under the provisions of any other
agreements (including without limitation the Senior Loan Agreement) between the
other parties hereto or any other Person.
(b) The Escrow Agent shall not be liable for any error of
judgment, or any action taken, suffered or omitted by it in good faith, or
mistake of fact or law, or for anything it may do or refrain from doing in
connection herewith or therewith, except its own gross negligence or willful
misconduct.
(c) The Escrow Agent may conclusively rely and shall be fully
authorized and protected in acting or refraining from acting in good faith in
reliance upon any written instruction, communication, notice, request,
resolution, direction, certificate, statement, approval, appraisal, promissory
note, share or warrant certificate or other paper or document (whether in its
original or facsimile form), not only as to its due execution and the validity
and effectiveness of its provision, but also as to the truth of any information
therein contained, which it in good faith believes to be genuine and to have
been presented by the proper party.
(d) The Escrow Agent may consult with counsel of its own
selection, auditors and other experts of its own choice and any opinion or
advice of counsel or of such auditors or other experts shall be full and
complete authorization and protection with respect to any action taken or
suffered or omitted by the Escrow Agent hereunder in good faith and in
accordance with such opinion or advice of counsel or of such auditors or other
experts within the area of their respective expertise.
(e) The Escrow Agent may execute any of its powers or
responsibilities hereunder and exercise any rights hereunder either directly or
by or through its agents or attorneys.
(f) The Escrow Agent shall not be responsible for and shall
not be under a duty to examine or pass upon, the validity, binding effect,
execution or sufficiency of this Escrow Agreement, the Escrow Securities or of
any agreement amendatory or supplemental hereto or
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thereto or the absence or presence of any liens or encumbrances on the property
held in escrow hereunder.
(g) The Escrow Agent shall be under no duty to prepare,
conduct or monitor any filing, recording or registration, re-filing,
re-recording or re-registration of this Escrow Agreement or of any agreement
amendatory hereof or of any instrument or assignment, conveyance or further
assurance, or to pay any taxes, fees or charges in connection therewith, or to
give any notice with respect thereto or to pay, inquire into or prepare, conduct
or monitor the payment of, or be under any duty in respect of or arising out of,
any tax or assessment or other governmental charge which may be levied or
assessed on the property held in escrow hereunder or any part thereof or any
confiscation of such property. No property held in escrow by the Escrow Agent
hereunder shall be subject to any set-off, counterclaim, recoupment or other
right which the Escrow Agent may have against any of the parties hereto (except
with respect to any payments to be made to the Escrow Agent hereunder) or
against any other Person for any reason whatsoever.
(h) If any controversy arises between the parties hereto or
with any third person with respect to the subject matter of the escrow described
herein, the Escrow Agent shall not be required to determine the outcome of same
or take any action in the premises, but may await the settlement of any such
controversy by final appropriate legal proceedings or otherwise as the Escrow
Agent may require, notwithstanding instructions to the contrary, and in such
event the Escrow Agent shall not be liable for interest or damages, except that
the Escrow Agent shall not deliver the Escrow Securities held in escrow
hereunder in any manner other than in accordance with Section 2 hereof, except
in accordance with a final unappealable order of a court of competent
jurisdiction.
(i) If the Escrow Agent shall be uncertain as to its duties or
rights hereunder or shall receive instructions, claims or demands from any party
hereto which, in its opinion, conflict with any of the provisions of this Escrow
Agreement, it shall be entitled to seek advice from outside counsel and may
conclusively rely on such advice and may refrain from taking any action and its
sole obligation shall be to keep safely all property held in escrow until it
shall be directed otherwise in writing by all of the other parties hereto or by
a final order or judgment of a court of competent jurisdiction.
(j) Without limiting and in furtherance of the foregoing, the
Escrow Agent shall not be liable or responsible for any of the provisions of the
Loans or the Escrow Securities except for those expressly referred to herein.
(k) This Agreement is for the exclusive benefit of the parties
hereto and their respective successors hereunder, and shall not be deemed to
give, either express or implied, any legal or equitable right, remedy, or claim
to any other entity or person whatsoever.
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(l) If at any time Escrow Agent is served with any judicial or
administrative order, judgment, decree, writ or other form of judicial or
administrative process which in any way affects Escrow Property (including but
not limited to orders of attachment or garnishment or other forms of levies or
injunctions or stays relating to the transfer of Escrow Property), Escrow Agent
is authorized to comply therewith in any manner as it or its legal counsel of
its own choosing deems appropriate; and if Escrow Agent complies with any such
judicial or administrative order, judgment, decree, writ or other form of
judicial or administrative process, Escrow Agent shall not be liable to any of
the parties hereto or to any other person or entity even though such order,
judgment, decree, writ or process may be subsequently modified or vacated or
otherwise determined to have been without legal force or effect.
(m) Escrow Agent shall not incur any liability for not
performing any act or fulfilling any duty, obligation or responsibility
hereunder by reason of any occurrence beyond the control of Escrow Agent
(including but not limited to any act or provision of any present or future law
or regulation or governmental authority, any act of God or war, or the
unavailability of the Federal Reserve Bank wire or telex or other wire or
communication facility).
(n) In the event of any dispute between or conflicting claims
by or among the Depositors and/or any other person or entity with respect to any
Escrow Securities, Escrow Agent shall be entitled, in its sole discretion, to
refuse to comply with any and all claims, demands or instructions with respect
to such Escrow Securities so long as such dispute or conflict shall continue,
and Escrow Agent shall not be or become liable in any way to the Depositors for
failure or refusal to comply with such conflicting claims, demands or
instructions. Escrow Agent shall be entitled to refuse to act until, in its sole
discretion, either (i) such conflicting or adverse claims or demands shall have
been determined by a final order, judgment or decree of a court of competent
jurisdiction, which order, judgment or decree is not subject to appeal, or
settled by agreement between the conflicting parties as evidenced in a writing
satisfactory to Escrow Agent or (ii) Escrow Agent shall have received security
or an indemnity satisfactory to it sufficient to hold it harmless from and
against any and all Losses which it may incur by reason of so acting. Escrow
Agent may, in addition, elect, in its sole discretion, to commence an
interpleader action or seek other judicial relief or orders as it may deem, in
its sole discretion, necessary. The costs and expenses (including reasonable
attorneys' fees and expenses) incurred in connection with such proceeding shall
be paid by, and shall be deemed a joint and several obligation of, the
Depositors.
(o) Each Depositor hereby represents and warrants (a) that
this Escrow Agreement has been duly authorized, executed and delivered on its
behalf and constitutes its legal, valid and binding obligation and (b) that the
execution, delivery and performance of this Escrow Agreement by Depositor do not
and will not violate any applicable law or regulation.
(p) The Escrow Agent does not have any interest in the Escrow
Securities Deposited hereunder but is serving as escrow holder only and having
only possession thereof. The Company shall pay or reimburse the Escrow Agent
upon request for any transfer taxes or
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other taxes relating to the Escrow Securities incurred in connection herewith
and shall indemnify and hold harmless the Escrow Agent any amounts that it is
obligated to pay in the way of such taxes. Any payments of income from this
Escrow Account shall be subject to withholding regulations then in force with
respect to United States taxes. The parties hereto will provide the Escrow Agent
with appropriate W-9 forms for tax I.D., number certifications, or W-8 forms for
non-resident alien certifications. It is understood that the Escrow Agent shall
be responsible for income reporting only with respect to income earned on
investment of funds, if any, which are held in escrow and is not responsible for
any other reporting. This Section 3(p) and Section 7 hereof shall survive
notwithstanding any termination of this Escrow Agreement or the resignation of
the Escrow Agent.
4. Qualifications. The Escrow Agent shall at all times be The
Bank of New York (and its successors and assigns), or a bank, trust company or
corporation in good standing organized and doing business under the laws of the
United States of America or a State of the United States, and having combined
capital and surplus of not less than fifty million dollars ($50,000,000). If the
Escrow Agent shall at any time cease to have the foregoing qualifications, the
Escrow Agent shall resign within 30 days thereafter, such resignation to become
effective as provided in Section 5 hereof.
5. Removal and Resignation. The Escrow Agent and any successor
Escrow Agent may at any time be removed at the written direction of the
Administrative Agent and the Company. The Escrow Agent or any successor Escrow
Agent may at any time resign and be discharged of its obligations hereunder by
giving written notice to the Company and the Administrative Agent specifying the
date upon which it desires that such resignation shall take effect. Such removal
or resignation shall take effect on the date specified in the notice of removal
or resignation, which date shall not be earlier than 30 days after the giving of
the notice of removal or resignation unless previously a successor Escrow Agent
shall have been appointed pursuant to Section 6 hereof and shall have accepted
such appointment, in which event such removal or resignation shall take effect
immediately upon the acceptance by such successor Escrow Agent. The
Administrative Agent and the Company agree to take prompt steps to have a
successor Escrow Agent appointed in the manner hereinafter provided.
6. Appointment of Successor Agent. If at any time the Escrow
Agent shall resign or be removed or otherwise become incapable of acting or if
at any time a vacancy shall occur in the office of the Escrow Agent for any
other cause, a successor Escrow Agent (duly qualified as provided in Section 4
hereof) shall be appointed by the Administrative Agent and the Company by an
instrument in writing delivered to the Escrow Agent within the time specified
below. Upon delivery of said instrument to and acceptance of said instrument by
the successor Escrow Agent, the resignation or removal of the Escrow Agent shall
become effective and such successor Escrow Agent shall become vested with all
the rights, powers, duties and obligations of its predecessor hereunder. If no
successor Escrow Agent shall have been appointed at the effective date of
resignation or within 30 days of a notice of removal, the Escrow Agent or any
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other party hereto may petition, at the expense of the Company, a court of
competent jurisdiction for the appointment of a successor.
7. Compensation, Reimbursement and Indemnification of Escrow
Agent. The Escrow Agent shall be entitled to compensation from the Company as
shall be agreed to in writing from time to time by the Company and the Escrow
Agent for all services rendered by it hereunder, as well as reimbursement from
the Company for all reasonable expenses, disbursements, advances and liabilities
incurred or made by the Escrow Agent hereunder (including the reasonable
compensation, expenses and disbursements of the Escrow Agent's agents and
counsel).
The Company agrees to indemnify the Escrow Agent (and any
predecessor Escrow Agent) for, and to hold it harmless from and against, any
loss, liability, claims, actions, damages or expenses (including reasonable
expenses and disbursements of its agents and counsel) incurred without gross
negligence or willful misconduct on the part of the Escrow Agent arising out of
or in connection with its entering into this Escrow Agreement and carrying out
its duties hereunder, including the costs and expenses of defending itself
against any claim or liability in the premises.
The provisions of this Section 7 shall survive the termination
of this Escrow Agreement.
8. Termination. This Escrow Agreement shall terminate on the
Termination Date.
9. Notices. Except as otherwise expressly provided herein, all
demands, notices, consents, requests and other documents authorized or required
to be given to any party to this Escrow Agreement shall be given in writing and
either personally served on an officer of such party or mailed by registered or
certified first class mail, postage prepaid, return receipt requested, or sent
by facsimile (with a copy sent by first class mail promptly thereafter),
addressed as follows:
if to the Escrow Agent:
The Bank of New York
000 Xxxxxxx Xxxxxx
00 Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention:
Facsimile No: (212)
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if to the Company:
ANC Rental Corporation
000 Xxxxx Xxxxxxx Xxxxxx
Xxxx Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxxx Xxxx
Facsimile No.: (000) 000-0000
with a copy to:
Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxx Jacob
Facsimile No.: (000) 000-0000
if to Xxxxxx Brothers Inc.:
3 World Financial Center
New York, New York 10285
Attention: Xxxxxx Xxxxx
Facsimile No.: (000) 000-0000
with a copy to:
Xxxxxxx Xxxxxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxx
Facsimile No.: (000) 000-0000
if to Xxxxxx Commercial Paper Inc.:
c/x Xxxxxx Brothers Inc.
3 World Financial Center
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxx
Facsimile No.: (000) 000-0000
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with a copy to:
Xxxxxxx Xxxxxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxx
Facsimile No.: (000) 000-0000
Any party may change its address by specifying in writing a
new address for such notices to each of the other parties hereto.
10. Successors and Assigns; Amendments and Modifications. This
Escrow Agreement shall inure to the benefit of and be binding upon the parties
hereto and their respective successors and assigns and shall not inure to the
benefit of any third party except for any holder of Loans who is not a party to
this Escrow Agreement. This Escrow Agreement may not be amended or modified in
any respect without the express written consent of the Company, the Escrow Agent
and the Administrative Agent.
11. Severability. In case any one or more provisions contained
in this Escrow Agreement shall be invalid, illegal or unenforceable in any
respect in any jurisdiction, the validity, legality and enforceability of the
remaining provisions contained herein shall not be in any way affected or
impaired thereby and such provision shall be ineffective in such Jurisdiction
only to the extent of such invalidity, illegality or unenforceability.
12. New York Law; Submission to Jurisdiction; Waiver of Jury
Trial. THIS ESCROW AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED
BY THE LAWS OF THE STATE OF NEW YORK. EACH PARTY HERETO HEREBY SUBMITS TO THE
NONEXCLUSIVE JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF NEW YORK AND OF ANY NEW YORK STATE COURT SITTING IN NEW YORK CITY
FOR PURPOSES OF ALL LEGAL PROCEEDINGS ARISING OUT OF OR RELATING TO THIS ESCROW
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY HERETO IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY NOW
OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH PROCEEDING BROUGHT IN
SUCH A COURT AND ANY CLAIM THAT ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT HAS
BEEN BROUGHT IN AN INCONVENIENT FORUM. EACH PARTY HERETO IRREVOCABLY WAIVES ANY
AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR
RELATING TO THIS ESCROW AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
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13. Counterparts. This Escrow Agreement may be executed in any
number of counterparts, each of which shall be an original, but such
counterparts shall together constitute but one and the same instrument.
14. No Waiver. No course of dealing, nor any delay on the part
of any party hereto in exercising any rights hereunder, or any failure to
exercise the same, shall operate as a waiver of such or any other rights.
15. Descriptive Headings. The descriptive headings of the
several sections of this Escrow Agreement are inserted for convenience only and
do not constitute a part of this Escrow Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Escrow
Agreement to be duly executed by their respective authorized officers, as of the
date first above written.
ANC RENTAL CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------------
Name:
Title:
XXXXXX BROTHERS INC.
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------------
Name:
Title:
XXXXXX COMMERCIAL PAPER INC.
By /s/ G. Xxxxxx Xxxxx
----------------------------------------
Name: G. Xxxxxx Xxxxx
Title: Authorized Signatory
THE BANK OF NEW YORK,
as Escrow Agent
By: Xxxxxxx Xxx
----------------------------------------
Name:
Title:
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Agreed:
Xxxxxx Commercial Paper, Inc.
-----------------------------,
as Administrative Agent
By: G. Xxxxxx Xxxxx
---------------------------
Name: G. Xxxxxx Xxxxx
Title: Authorized Signatory
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Exhibit A to the Escrow Agreement
XXXXXX COMMERCIAL PAPER INC.
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
[Date]
The Bank of New York
000 Xxxxxxx Xxxxxx
00 Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention:
Re: Escrow Agreement dated as of June 30, 2000
Ladies and Gentlemen:
Reference is hereby made to the Indenture and to Section 2(a)
of the Escrow Agreement dated as of June 30, 2000 (the "Escrow Agreement") among
ANC Rental Corporation, Xxxxxx Brothers Inc., Xxxxxx Commercial Paper Inc. and
The Bank of New York, as Escrow Agent. Capitalized terms used herein and not
defined shall have the meanings assigned to them in the Escrow Agreement.
The undersigned hereby notifies you that Loans remained
outstanding on the Initial Maturity Date. You are hereby requested to
authenticate the Exchange Notes, as Trustee, pursuant to the escrowed
authentication order and to deliver to the undersigned, for the benefit of each
holder of Loans designated on the schedule attached hereto, an Exchange Note or
Exchange Notes, in an amount or amounts, and registered in the name of such
person or persons, as designated in the schedule attached hereto, together with
a copy of the executed Indenture at the time of such presentation and exchange.
All Exchange Notes delivered by you to the undersigned shall be dated _______,
shall bear interest at the rate of ___% and shall accrue interest from the date
as set forth in Section 2.3 of the Indenture.
Sincerely yours,
XXXXXX COMMERCIAL PAPER INC.
By:
----------------------------------------
Name:
Title:
cc: ANC RENTAL CORPORATION
-15-
17
Schedule
--------------------------------------------------------------------------------
Loans Exchange Notes
--------------------------------------------------------------------------------
Principal Principal
Holder Amount Registered to Amount
--------------------------------------------------------------------------------
Tax
Identification
Name Address Number
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
-16-
18
Exhibit B to the Escrow Agreement
XXXXXX BROTHERS INC.
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
[Date]
The Bank of New York
000 Xxxxxxx Xxxxxx
00 Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention:
Re: Escrow Agreement dated as of June 30, 2000
Ladies and Gentlemen:
Reference is hereby made to the Warrant Agreement and to
Section 2(b) of the Escrow Agreement dated as of June 30, 2000 (the "Escrow
Agreement") among ANC Rental Corporation, Xxxxxx Brothers Inc. ("Xxxxxx"),
Xxxxxx Commercial Paper Inc. ("LCPI") and The Bank of New York, as Escrow Agent.
Capitalized terms used herein and not defined shall have the meanings assigned
to them in the Escrow Agreement.
In accordance with the release provisions of Section 2(b) of
the Escrow Agreement among Xxxxxx, LCPI and the Company, dated as of May 11,
2000, the undersigned hereby notifies you that Xxxxxx has determined that in
order to sell High Yield Securities it is necessary to countersign the Warrants,
as Warrant Agent, pursuant to the escrowed countersigning order and to deliver
to the purchasers thereof all or a portion of the Warrants originally placed in
escrow pursuant to the Escrow Agreement. You are hereby requested to release to
the undersigned ___ % of such Warrants, taking into effect anti-dilution
adjustments in the Warrant Agreement, originally placed in escrow pursuant to
the Escrow Agreement, registered in the name of such person or persons
designated in the schedule attached hereto. The undersigned certifies that the
number of such Warrants, taking into account other Warrants released from escrow
prior to the date hereof, does not exceed the number of Warrants authorized for
release under section 2(b)(iv) of the Warrant Agreement.
Sincerely yours,
XXXXXX BROTHERS INC.
By:
----------------------------------------
Name:
Title:
-17-
19
Exhibit C to the Escrow Agreement
XXXXXX BROTHERS INC.
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
[Date]
The Bank of New York
000 Xxxxxxx Xxxxxx
00 Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention:
Re: Escrow Agreement dated as of June 30, 2000
Ladies and Gentlemen:
Reference is hereby made to the Warrant Agreement and to
Section 2(b) of the Escrow Agreement dated as of June 30, 2000 the ("Escrow
Agreement") among ANC Rental Corporation, Xxxxxx Brothers Inc., Xxxxxx
Commercial Paper Inc. and The Bank of New York, as Escrow Agent. Capitalized
terms used herein and not defined shall have the meanings assigned to them in
the Escrow Agreement.
The undersigned hereby notifies you that __ days after the
Spin-Off Date Loans and/or Exchange Notes remained outstanding. You are hereby
requested to countersign the Warrants, as Warrant Agent, pursuant to the
escrowed countersigning order and to release to the undersigned ___% of the
Warrants originally placed in escrow (taking into effect anti-dilution
adjustments in the Warrant Agreement) pursuant to the Escrow Agreement,
registered in the name of such person or persons designated in the schedule
attached hereto. All Warrants delivered by you to the undersigned shall be dated
____________. The undersigned certifies that the number of such Warrants, taking
into account other Warrants released from escrow prior to the date hereof, does
not exceed the number of Warrants authorized for release under section 2(b)(iv)
of the Warrant Agreement.
Sincerely yours,
XXXXXX BROTHERS INC.
By:
----------------------------------------
Name:
Title:
-18-
20
Schedule
--------------------------------------------------------------------------------
Warrants
--------------------------------------------------------------------------------
Percent
of Warrants
Originally
Placed In
Registered to Escrow
--------------------------------------------------------------------------------
Tax
Identification
Name Address Number
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
-19-
21
Exhibit D to the Escrow Agreement
XXXXXX BROTHERS INC.
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
[Date]
The Bank of New York
000 Xxxxxxx Xxxxxx
00 Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention:
Re: Escrow Agreement dated as of June 30, 2000
Ladies and Gentlemen:
Reference is hereby made to Section 2(c) of the Escrow
Agreement dated as of June 30, 2000 (the "Escrow Agreement") among ANC Rental
Corporation, Xxxxxx Brothers Inc., Xxxxxx Commercial Paper Inc. and The Bank of
New York, as Escrow Agent. Capitalized terms used herein and not defined shall
have the meanings assigned to them in the Escrow Agreement.
The undersigned hereby notifies you that the Loans have been
paid in full prior to the Maturity Date. You are hereby requested to release the
Warrants and the Exchange Notes remaining in escrow to the Company, together
with the Warrant Agreement and the Indenture.
Sincerely yours,
XXXXXX BROTHERS INC.
By:
----------------------------------------
Name:
Title:
-20-
