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CONTINGENT VALUE RIGHT ESCROW AGREEMENT
This Contingent Value Right Escrow Agreement (this "Agreement") is made
this 18th day of September, 2000, by and between PRIMACOM AG, a company
organized under the laws of Germany (the "Company"), and CHASE MANHATTAN
INTERNATIONAL LIMITED, (the "CVR Escrow Agent").
SECTION 1. Deposit. Pursuant to the terms of the Contingent Value Right
Agreement dated as of the date hereof (the "Contingent Value Right Agreement")
between the Company and Chase Securities Inc. (the "CVR Agent"), delivered in
connection with the Senior Working Capital Credit Agreement, dated as of
September 18, 2000 (the "Credit Agreement"), among the Company, the Lenders
parties thereto, and Chase Manhattan International Limited, as Administrative
Agent thereunder, on the Closing Date the Company shall deliver all of the CVR
Certificates to the CVR Escrow Agent for deposit in a designated account (the
"CVR Escrow Account"). The CVR Escrow Agent hereby agrees that upon receipt
thereof, such CVR Certificates shall be released from escrow only in conformity
with, and upon the terms and conditions set forth in, this Agreement and the
Contingent Value Right Agreement, and the CVR Escrow Agent agrees to hold such
CVR Certificates until such release. Capitalized terms used and not defined
herein shall have the meanings assigned to such terms in the Contingent Value
Right Agreement.
SECTION 2. Release from Escrow.
(a) The CVR Certificates will only be released from escrow pursuant to the
CVR Escrow Agent's receipt of a written request from the CVR Agent (i) upon the
presentation to the CVR Agent by an Initial Lender of a Release Certificate of a
type provided for in either Section 4.2 or Section 4.3 of the Contingent Value
Right Agreement, (ii) upon the presentation to the CVR Agent by CSI of a
certificate conforming to the terms of Section 4.4 of the Contingent Value Right
Agreement or (iii) upon the presentation to the CVR Agent by CSI of a
certificate conforming to the terms of Section 4.5 of the Contingent Value Right
Agreement.
(b) The number of CVRs to be released shall be (i) in the case of a Release
For Sale or an Earn-In Release pursuant to the Contingent Value Right Agreement,
the number of CVRs calculated under the terms of Section 4.2 or Section 4.3 of
the Contingent Value Right Agreement, respectively, (ii) in the case of a
release to CSI pursuant to Section 4.4 of the Contingent Value Right Agreement,
the number of CVRs specified in the certificate of CSI or (iii) in the case of a
Retirement Release, all or the appropriate portion of the unearned CVRs then
held in escrow.
SECTION 3. Compensation and Reimbursement of CVR Escrow Agent. The Company
shall pay to the CVR Escrow Agent fees and expenses in accordance with the
letter agreement between them.
SECTION 4. Responsibilities of the CVR Escrow Agent.
(a) The CVR Escrow Agent shall be obligated to perform only such duties as
are expressly set forth in this Agreement. No implied covenants or obligations
shall be inferred from this Agreement against the CVR Escrow Agent, nor shall
the CVR Escrow
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Agent be bound by the provisions of any agreement of the Company beyond the
specific terms hereof.
(b) The CVR Escrow Agent shall not be liable hereunder except for its own
gross negligence, bad faith or willful misconduct and the Company agrees to
indemnify the CVR Escrow Agent for and hold it harmless as to any loss,
liability or expenses, including reasonable attorney fees, incurred without
gross negligence or willful misconduct on the part of the CVR Escrow Agent and
arising out of or in connection with the CVR Escrow Agent's duties under this
Agreement. In no event shall the CVR Escrow Agent be liable (i) for acting in
good faith in accordance with instructions from the CVR Agent, the Company or
any of its agents, (ii) for special or consequential damages, (iii) for the acts
or omissions of its nominees, correspondents, designees, sub-agents or
sub-custodians or (iv) for any amount in excess of the value of the CVRs.
(c) The CVR Escrow Agent shall (in the absence of bad faith) be entitled to
rely upon any order, judgment, certification, instruction, notice, opinion or
other writing delivered to it in compliance with the provisions of this
Agreement without being required to determine the authenticity or the
correctness of any fact stated therein or the propriety or validity of service
thereof. The CVR Escrow Agent may (in the absence of bad faith) act in reliance
upon any instrument in apparent conformity with the provisions of this Agreement
or the Contingent Value Right Agreement or signature believed by it to be
genuine and assume that any person purporting to give notice or receipt or
advice or make any statement or execute any document in connection with the
provisions hereof has been duly authorized to do so.
The CVR Escrow Agent may at any time in writing request written
instructions from the Company, and may at its option include in such request the
course of action it proposes to take, and the date on which it proposes to act,
regarding any matter arising in connection with its duties and obligations
hereunder. The CVR Escrow Agent shall not be liable for acting without the
consent of the Company in accordance with such a proposal on or after the date
specified therein, provided that the specified date shall be at least ten
business days after the Company receives the CVR Escrow Agent's request for
instructions and its proposed course of action, and provided further that, prior
to so acting, the CVR Escrow Agent has not received the written instructions
requested.
(d) The CVR Escrow Agent may act in accordance with advice of counsel
chosen by it with respect to any matter relating to this Agreement and shall not
be liable for any action taken or omitted to be taken in good faith in
accordance with such advice.
(e) The CVR Escrow Agent does not have any interest in the CVRs deposited
hereunder but is serving as escrow agent only and has only possession thereof.
(f) The CVR Escrow Agent makes no representation as to the validity, value,
genuineness or collectibility of any security or other document or instrument
held by or delivered to it by the Company or the CVR Agent.
(g) The CVR Escrow Agent shall not be called upon to advise any party as to
selling or retaining, or taking or refraining from taking any action with
respect to, any securities or other property deposited hereunder.
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(h) In the event of any ambiguity in the provisions of this Agreement or
any dispute between or conflicting claims by or between the undersigned or any
other person or entity with respect to any property deposited hereunder, the CVR
Escrow Agent shall be entitled, at its sole option, to refuse to comply with any
and all claims, demands or instructions with respect to such property so long as
such dispute or conflict shall continue, and the CVR Escrow Agent shall not be
or become liable in any way to the undersigned for its failure or refusal to
comply with such conflicting claims, demands or instructions. The CVR Escrow
Agent shall be entitled to refuse to act until, at its sole option, either such
conflicting or adverse claims or demands shall have been finally determined by a
court of competent jurisdiction or settled by agreement between the conflicting
parties as evidenced in writing, satisfactory to the CVR Escrow Agent or the CVR
Escrow Agent shall have received security or an indemnity satisfactory to the
CVR Escrow Agent sufficient to save the CVR Escrow Agent harmless from and
against any and all loss, liability or expense which the CVR Escrow Agent may
incur by reason of its acting. The CVR Escrow Agent may in addition elect in its
sole option to commence an interpleader action or seek other judicial relief or
orders as the CVR Escrow Agent may deem necessary.
(i) No provision of this Agreement shall require the CVR Escrow Agent to
expend or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder.
SECTION 5. Resignation or Removal of CVR Escrow Agent.
(a) The CVR Escrow Agent may resign at any time by giving at least 30 days'
written notice to the Company, the Administrative Agent, and the CVR Agent.
During such 30 days, the Company shall appoint a successor CVR Escrow Agent at
which time the CVR Escrow Agent, subject to the reasonable approval of the
Administrative Agent, shall hold such property or funds, pending distribution,
until all fees, costs and expenses or other obligations owed to the CVR Escrow
Agent are paid. If a successor CVR Escrow Agent has not been appointed or has
not accepted such appointment by the end of the 30-day period, the CVR Escrow
Agent may apply to a court of competent jurisdiction for the appointment of a
successor CVR Escrow Agent, or for other appropriate relief and the costs,
expenses and reasonable attorney's fees and expenses which the CVR Escrow Agent
incurs in connection with such a proceeding shall be paid by the Company.
(b) The Company may remove the CVR Escrow Agent upon 30 days written notice
to the CVR Escrow Agent. Such removal shall take effect upon delivery of the
CVRs to a successor CVR Escrow Agent designated in writing by the Company, and
the CVR Escrow Agent shall thereupon be discharged from all obligations under
this Agreement and shall have no further duties or responsibilities in
connection herewith. The CVR Escrow Agent shall deliver the CVR Certificates
without unreasonable delay after receiving notice from the Company of its
designation of a successor CVR Escrow Agent and upon receipt of all fees and
reimbursement for all costs and other expenses or other obligations owed to the
CVR Escrow Agent.
(c) If after 45 days from the date of delivery of its written notice of
intent to resign or of the Company's notice of removal the CVR Escrow Agent has
not received written designation of a successor CVR Escrow Agent, the CVR Escrow
Agent's sole
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responsibility shall be in its sole discretion either to retain custody of the
CVR Certificates until it receives such designation, or to apply to a court of
competent jurisdiction for appointment of a successor CVR Escrow Agent and after
such appointment to have no further duties or responsibilities in connection
herewith.
(d) The provisions of Sections 2, 3, 4, and 6 shall survive termination of
this Agreement and/or the resignation or removal of the CVR Escrow Agent.
SECTION 6. Choice of Law and Jurisdiction.
(a) THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK.
(b) The parties to this Agreement hereby agree that jurisdiction over such
parties and over the subject matter of any action or proceeding arising under
this Agreement may be exercised by a competent court of the State of New York or
by a United States Federal Court, in either case located in The Borough of
Manhattan, The City of New York. Each of the parties hereto hereby submits to
the personal jurisdiction of such courts, hereby waives personal service of
process upon it and consents that any such service of process may be made by
certified or registered mail, return receipt requested, directed to it at its
address last specified for notices hereunder, and service so made shall be
deemed completed five (5) days after the same shall have been so mailed, and
hereby waives the right to a trial by jury in any action or proceedings relating
to or arising from, directly or indirectly, this Agreement.
SECTION 7. Benefits and Assignment. Other than the terms of Section 8,
nothing in this Agreement, expressed or implied, shall give or be construed to
give any person, firm or corporation, other than the Administrative Agent and
the parties hereto and their successors and assigns, any legal claim under any
covenant, condition or provision hereof, all the covenants, conditions and
provisions contained in this Agreement being for the sole benefit of the
Administrative Agent and the parties hereto and their successors and assigns. No
party may assign any of its rights or obligations under this Agreement without
the written consent of all the other parties, which consent may be withheld in
the sole discretion of the party whose consent is sought.
SECTION 8. Third Party Beneficiaries. The CVR Escrow Agent agrees that the
representations, warranties and covenants of the CVR Escrow Agent and of the
Company contained herein are intended for the benefit of Holders (as defined in
the Contingent Value Right Agreement) and each shall be deemed to be a third
party beneficiary with respect thereto, entitled to enforce directly and in its
own name any rights or claims such Holders may have against the CVR Escrow Agent
and of the Company with respect thereto.
SECTION 9. Amendment and Waiver. This Agreement may be modified only by
written amendment signed by each of the parties hereto, and no waiver of any
provision hereof shall be effective unless expressed in a writing signed by the
party to be charged.
SECTION 10. Headings. The headings contained in this Agreement are for
convenience of reference only and shall have no effect on the interpretation or
operation thereof.
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SECTION 11. Notices. All notices, instructions, reports and other written
communications to be given or made under this Agreement shall be sufficiently
given or made if, unless otherwise indicated, delivered personally, by facsimile
(receipt confirmed by telephone) or sent by first class mail, postage prepaid:
(a) To the CVR Escrow Agent at:
Chase Manhattan International Limited
000 Xxxxxx Xxxx
Xxxxxx XX0X 0XX
(b) To the Company at:
PrimaCom AG
Xxxxxxxxxxx 00
00000 Xxxxx
Xxxxxxx
Attention: Corporate Counsel
(c) To the Administrative Agent at:
Chase Manhattan International Limited
000 Xxxxxx Xxxx
Xxxxxx XXX 0XX
Attention: Xxx X. Xxxxxx
Telecopy: x00 (0)000 000 0000
SECTION 12. Severability. The invalidity, illegality or unenforceability of
any provision of this Agreement shall in no way affect the validity, legality or
enforceability of any other provision; and if any provision is held to be
unenforceable as a matter of law, the other provisions shall not be affected
thereby and shall remain in full force and effect.
SECTION 13. Entire Agreement. This Agreement shall constitute the entire
agreement of the parties with respect to the subject matter and supersedes all
prior oral or written agreements in regard thereto.
SECTION 14. Rights and Remedies. The rights and remedies conferred upon the
parties hereto shall be cumulative, and the exercise or waiver of any such right
or remedy shall not preclude or inhibit the exercise of any additional rights or
remedies. The waiver of any right or remedy shall not preclude or inhibit the
subsequent exercise of such right or remedy.
SECTION 15. Representations and Warranties. (a) The Company hereby
represents and warrants that this Agreement has been duly authorized, executed
and delivered on its behalf and constitutes the legal, valid and binding
obligation of the Company. The execution, delivery and performance of this
Agreement by the Company does not violate any applicable law or regulation to
which the Company is subject and does not require the
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consent of any governmental or other regulatory body to which it is subject,
except for such consents and approvals as have been obtained and are in full
force and effect.
(a) The CVR Escrow Agent hereby represents and warrants that this Agreement
has been duly authorized, executed and delivered on its behalf and constitutes
the legal, valid and binding obligation of the CVR Escrow Agent. The execution,
delivery and performance of this Agreement by the CVR Escrow Agent does not
violate any applicable law or regulation to which it is subject and does not
require the consent of any governmental or other regulatory body to which it is
subject, except for such consents and approvals as have been obtained and are in
full force and effect.
SECTION 16. Counterparts. This Agreement may be executed by each of the
parties hereto in any number of counterparts, each of which counterparts, when
so executed and delivered, shall be deemed to be an original and all such
counterparts shall together constitute one and the same agreement.
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IN WITNESS WHEREOF, the parties have caused this Contingent Value Right
Escrow Agreement to be executed by duly authorized representatives as of the day
and year first written above.
PRIMACOM AG
By:____________________________
Name:
Title:
CHASE MANHATTAN INTERNATIONAL LIMITED,
as CVR Escrow Agent
By:____________________________
Name:
Title:
