EXHIBIT (B)(11)
ESCROW AGREEMENT
DATED AS OF
FEBRUARY 5, 1996
ESCROW AGENT: Xxxxxx Trust Company of New York
ESCROW AGENT'S
ADDRESS: 00 Xxxxx Xxxxxx
0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxxx
Telecopier No. (000) 000-0000
ADMINISTRATIVE
AGENT: NationsBank, N.A. (South), as Administrative Agent
for the Lenders, as hereinafter defined
ADMINISTRATIVE
AGENT'S
ADDRESS: 000 Xxxxxxxxx Xxxxxx, X.X.
00xx Xxxxx
Xxxxxxx, Xxxxxxx 00000-0000
Attention: Xxxxxxx X. Xxxxxxxx
Telecopier No. (000) 000-0000
BORROWER: Xxxxxxx Corporation
BORROWER'S
ADDRESS: 0 Xxxxxxxx Xxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxxx
Telecopier No. (000) 000-0000
ESCROW AGREEMENT
THIS ESCROW AGREEMENT (this "Agreement") is entered into as of the date
set forth on the cover page hereof (the "Cover Page"), which shall be deemed to
be an integral part of this Agreement, by and among the Escrow Agent, the
Administrative Agent and the Borrower. Terms used in this Agreement which are
defined on the Cover Page shall have the meanings ascribed to such terms on the
Cover Page.
R E C I T A L S:
The Administrative Agent and the Borrower are parties to that certain
Credit Agreement dated as of December 15, 1993 (as extended, renewed, amended,
modified or supplemented from time to time, the "Credit Agreement") by and among
the Administrative Agent, NationsBank, N.A. (South) (formerly known as
NationsBank of Georgia, N.A.) and The Chase Manhattan Bank, N.A., as managing
agents, and NationsBank, N.A. (South) (formerly known as NationsBank of Georgia,
N.A.), The Chase Manhattan Bank, N.A., The First National Bank of Boston, NBD
Bank, Xxxxxx Trust and Savings Bank, X.X. Xxxxxx Delaware, and SunTrust Bank,
Savannah, N.A. (formerly known as Trust Company of Georgia Bank of Savannah,
N.A.), as lenders (collectively with any other financial institutions which
hereafter become Lenders under the Credit Agreement, the "Lenders") wherein the
Lenders have agreed to make certain loans to the Borrower upon certain terms and
conditions.
The Borrower desires to borrow, and the Lenders have agreed to lend to
the Borrower, additional funds in an amount not to exceed $40,000,000 to
purchase certain shares of Communication Cable, Inc., a North Carolina
corporation, in connection with which the Escrow Agent is serving as depositary
for Xxxxxxx Acquisition Corp., a North Carolina corporation ("KAC"), a
wholly-owned subsidiary of the Borrower in a tender offer to purchase such
shares.
The Borrower, the Administrative Agent and the Lenders have agreed that
the funds to be so borrowed are to be placed in a restricted account maintained
with the Administrative Agent or the Escrow Agent and may not be disbursed from
such account except upon the satisfaction of certain conditions as set forth
herein.
The Borrower and the Administrative Agent have requested that the
Escrow Agent serve as escrow agent for them in order to facilitate the
consummation of the transactions contemplated in the Credit Agreement, and the
Escrow Agent is willing to do so on the terms and conditions hereinafter set
forth.
NOW, THEREFORE, for and in consideration of the foregoing
premises, the mutual covenants and agreements hereinafter set
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forth, and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto do hereby covenant and agree
as follows:
1. Escrow.
(a) The Administrative Agent may at any time or from time to
time during the term of this Agreement deposit with the Escrow Agent the cash
proceeds of loans made by the Lenders under the Credit Agreement. The foregoing
amounts are sometimes hereinafter referred to as the "Escrowed Funds".
(b) The Escrow Agent hereby agrees that it shall hold, invest
and distribute the Escrowed Funds and any earnings thereon subject to and in
accordance with the terms and provisions of this Agreement.
(c) The Escrow Agent shall invest the Escrowed Funds in an
interest-bearing money market restricted account maintained by the Escrow Agent
designated as Xxxxxx Brothers Institutional Funds Group Trust--Treasury
Instruments Money Market Fund II Account No. 23739 (the "Escrow Account").
Accrued interest on the Escrowed Funds shall be for the sole account of the
Borrower and shall be due and payable to the Borrower as hereinafter provided.
The parties acknowledge and agree that the Escrow Agent shall not be responsible
for any diminution in the Escrowed Funds due to losses resulting from
investments.
2. Disbursement of Escrowed Funds. Promptly upon the Escrow Agent's
receipt (by facsimile or otherwise) of (i) a duly executed certificate of an
officer of the Borrower and KAC in the form of Exhibit A attached hereto, and
(ii) a duly executed certificate of an authorized signatory of the
Administrative Agent in the form of Exhibit B attached hereto, the Escrow Agent
shall:
(a) send written notice by facsimile to each of the other
parties to this Agreement, confirming that the requirements of both
clauses (i) and (ii) of this Section have been met; and
(b) disburse the Escrowed Funds and all earnings thereon as
designated in, and in accordance with, the payment instructions set
forth in, the Borrower's certificate as described in clause (i) above.
3. Termination of Escrow. This Agreement shall terminate
upon the earliest to occur of (a) receipt by the Escrow Agent of
written notice signed by each other party hereto, expressly
terminating this Agreement (which notice shall specifically
direct the Escrow Agent with respect to the disposition of all
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Escrowed Funds and earnings thereon, if any, then remaining on deposit with the
Escrow Agent); (b) the disbursement of any Escrowed Funds in accordance with
this Agreement; or (c) 5:00 p.m., Eastern time, on December 31, 1996 or such
later date as the Borrower and the Administrative Agent may specify for such
purpose in written notice to the Escrow Agent.
4. Return of Escrowed Funds Upon Termination. Upon the termination of
this Agreement in accordance with Sections 3(a), 3(b) or 3(c) hereof, the Escrow
Agent shall (a) pay all remaining Escrowed Funds to the Administrative Agent in
accordance with the payment instructions set forth in Exhibit C for payments to
the Administrative Agent, (b) pay all accrued earnings on the Escrowed Funds to
the Borrower in accordance with payment instructions to be provided by the
Borrower, and (c) send written notice to each other party to this Agreement that
the Escrow Agent has performed the tasks described in clauses (a) and (b) of
this Section.
5. Notices. Any and all notices and other communications that may be
required or permitted hereunder shall be in writing and, unless otherwise
expressly provided herein to the contrary, either delivered in person; sent by
registered or certified mail, return receipt requested, postage prepaid; sent by
reputable national overnight delivery service, courier charges prepaid; or sent
by facsimile transmission (with hard copy promptly sent by registered or
certified mail, return receipt requested, postage prepaid, or by reputable
national overnight delivery service, with courier charges prepaid) to the
parties hereto at their respective addresses indicated below, or to such other
addresses as may be specified by written notice delivered to all parties in
accordance herewith:
If to the Administrative Agent, to it at the Administrative
Agent's Address;
If to the Borrower, to it at the Borrower's Address; and
If to the Escrow Agent, to it at the Escrow Agent's Address.
All notices and other communications given as provided herein shall be deemed
received (a) if personally delivered, then on the date of delivery; (b) if
mailed, then on the date of delivery indicated on the return receipt; (c) if
sent by overnight delivery service, then one (1) Business Day (as hereinafter
defined) after depositing such notice or communication with such overnight
delivery service; except that any notice to the Escrow Agent shall not be deemed
to have been delivered until actually received by the Escrow Agent; and (d) if
sent by telecopy, then on the date such notice or communication is telecopied.
The term "Business Day", as used herein, shall mean any day other than a
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Saturday, a Sunday or a day on which banking institutions in the city in which
the Escrow Agent's Address is located are authorized by law to be closed. Copies
of each notice or communication given or sent hereunder by any party hereto
shall also be sent to each other party.
6. Escrow Agent's Liability. In performing any of its duties hereunder,
the Escrow Agent shall not incur any liability for any damages, losses or
expenses whatsoever, except for its gross negligence or willful misconduct, and
it shall not incur any such liability with respect to any action taken or
omitted in good faith reliance upon any instrument, including, without
limitation, any written notice, acknowledgment or instruction expressly provided
for in this Agreement, not only to its due execution and the validity and
effectiveness of its provisions, but also as to the truth and accuracy of any
information contained therein, which the Escrow Agent shall in good faith
believe to be genuine, to have been signed or presented by a proper person or
persons, and to conform with the provisions of this Agreement.
The duties, responsibilities and obligations of the Escrow Agent shall
be limited to those expressly set forth herein and no duties, responsibilities
or obligations shall be inferred or implied. The Escrow Agent shall not be
subject to, nor required to comply with, any other agreement between or among
any or all of the parties hereto, including the Credit Agreement, even though
reference thereto may be made herein, or to comply with any direction or
instruction (other than those contained herein or delivered in accordance with
this Escrow Agreement) from any party hereto or any entity acting on its behalf.
The Escrow Agent shall not be required to, and shall not, expend or risk any of
its own funds or otherwise incur any financial liability in the performance of
any of its duties hereunder.
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.
If at any time the 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 any Escrowed Funds (including
but not limited to orders of attachment or garnishment or other forms of levies
or injunctions or stays relating to the transfer of any Escrowed Funds), the
Escrow Agent is authorized to comply therewith in any manner as it or its legal
counsel of its own choosing deems appropriate; and if the Escrow Agent complies
with any such judicial or administrative order, judgment, decree, writ or other
form of judicial or
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administrative process, the Escrow Agent shall not be liable to any of the
parties hereto or to any other person or entity even though such order,
judgment, decrees, writ or process may be subsequently modified or vacated or
otherwise determined to have been without legal force or effect.
The Escrow Agent may consult with legal counsel of its selection at the
expense of the Borrower as to any matter relating to this Escrow Agreement, and
the Escrow Agent shall not incur any liability in acting in good faith in
accordance with any advice from such counsel.
The 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 reasonable control of the 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).
7. Right to Request Further Instructions. If the Escrow Agent shall
reasonably be uncertain as to its duties or rights hereunder or shall receive
instructions, claims or demands from any of the parties hereto with respect to
the Escrowed Funds, which, in the opinion of its legal counsel, conflict with
any provision of this Agreement, the Escrow Agent shall promptly send a written
request to each affected party for clarification of such uncertainty or
conflict. The Escrow Agent shall be entitled to refrain from taking any action
(other than to hold the Escrowed Funds in accordance with the terms and
conditions hereof) until such uncertainty or conflict shall have been eliminated
in the reasonable opinion of the Escrow Agent or the Escrow Agent shall have
been directed otherwise in writing by all affected parties hereto or by a final
order or judgment of a court of competent jurisdiction, whichever occurs first.
8. Underlying Disputes Concerning Escrow. Without limiting the
generality of the foregoing, the Escrow Agent shall act, with respect to all
funds received by the Escrow Agent, as a stakeholder only and shall not be
liable for payment of any interest or any court cost in any action that may be
brought to recover the funds held in escrow, except as expressly provided
herein. Nothing herein contained shall be deemed to obligate the Escrow Agent to
deliver any funds unless the same shall have first been received by the Escrow
Agent pursuant to this Agreement. In the event of any dispute or other
circumstance sufficient in the sole discretion of the Escrow Agent to justify
its doing so, the Escrow Agent shall be entitled to tender the Escrowed Funds
and any earnings thereon, into the registry or custody of any court of competent
jurisdiction, together with
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such legal pleadings as it may deem appropriate, and thereupon be discharged
from all further duties and liabilities under this Agreement. Any such legal
action may be brought in such court as the Escrow Agent may determine to have
jurisdiction thereof.
9. Resignation, Removal and Replacement of Escrow Agent. Upon fifteen
(15) days' prior written notice to the other parties hereto, the Escrow Agent
may resign or be removed by the Borrower and the Administrative Agent, and in
each case be discharged from performing any future duties hereunder, and a
successor Escrow Agent may be appointed by the Borrower and the Administrative
Agent. No resignation or removal of the Escrow Agent shall become effective
until the appointment of a successor Escrow Agent hereunder and the acceptance
by such successor of the duties of the Escrow Agent hereunder.
10. Indemnity of Escrow Agent. The Borrower agrees to hold the Escrow
Agent harmless and agrees to indemnify the Escrow Agent from and against any
loss, liability, expense (including but not limited to reasonable attorney's
fees and expenses), claims, or demands arising out of or in connection with the
transactions contemplated hereby, except for the Escrow Agent's gross negligence
or willful misconduct. The foregoing indemnity shall survive the resignation or
removal of the Escrow Agent pursuant to this Agreement and the termination of
this Agreement. The costs and expenses of enforcing this right of
indemnification also shall be paid by the Borrower.
11. General.
(a) Time is of the essence in this Agreement.
(b) The section headings of this Agreement are for
convenience only and shall not limit or otherwise affect any of
the terms hereof.
(c) Neither this Agreement nor any term, condition, covenant,
or agreement hereof may be changed, waived, discharged, or terminated orally but
only by an instrument in writing signed by each party hereto. In no event shall
the Escrow Agent be required to join in any amendment hereto which adversely
affects the rights, duties, obligations, privileges, protections,
indemnifications or immunities hereunder.
(d) This Agreement, together with all documents referred to
herein, constitutes the entire agreement between the parties hereto with respect
to the subject matter hereof. Notwithstanding the immediately preceding
sentence, the Escrow Agent shall not be bound by the terms of any document to
which it is not a party.
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(e) THIS AGREEMENT SHALL BE GOVERNED BY THE LAWS OF
THE STATE OF NEW YORK, WITHOUT REGARD TO THE PRINCIPLES OF
CONFLICT OF LAWS THEREOF.
(f) If any paragraph or part hereof shall for any reason be
held or adjudged to be invalid, illegal, or unenforceable by any court of
competent jurisdiction, such paragraph or part thereof so adjudicated invalid,
illegal, or unenforceable shall be deemed separate, distinct, and independent,
and the remainder of this Agreement shall remain in full force and effect and
shall not be affected by such holding or adjudication.
(g) This Agreement may be executed in any number of
counterparts, each of which shall be an original, but such counterparts shall
constitute but one and the same instrument.
[THE REMAINDER OF THE PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, this Agreement has been executed, under seal, by
and on behalf of each party hereto, as of the day and year first above written.
ADMINISTRATIVE AGENT: NATIONSBANK, N.A. (SOUTH), as
Administrative Agent for the
Lenders
By: /s/ Xxxxxxx X. Xxxxxxxx
____________________________
Print Name: Xxxxxxx X. Xxxxxxxx
___________________
Title: SVP
________________________
BORROWER: XXXXXXX CORPORATION
By: /s/ Xxxxxx X. Xxxxxx, Xx.
_____________________________
Print Name: Xxxxxx X. Xxxxxx, Xx.
_____________________
Title: Chairman & CEO
__________________________
[CORPORATE SEAL]
ESCROW AGENT: XXXXXX TRUST COMPANY OF NEW YORK
By: /s/ Xxxx X. Xxxxxxx
___________________________
Print Name: Xxxx X. Xxxxxxx
___________________
Title: Assistant Vice President
________________________
EXHIBIT A TO ESCROW AGREEMENT
FORM OF CERTIFICATE OF BORROWER AND KAC
The undersigned, who is the ________________________________ of Xxxxxxx
Corporation, a Delaware corporation (the "Borrower"), and the
___________________ of Xxxxxxx Acquisition Corp., a North Carolina corporation
("KAC"), does hereby certify on behalf of the Borrower that he is the duly
elected and qualified ______________________ of the Borrower and an authorized
signatory of the Borrower and does hereby certify on behalf of KAC that he is
the duly elected and qualified _______________ of KAC and an authorized
signatory of KAC.
In connection with that certain Escrow Agreement dated as of February
__, 1996 (as amended from time to time, the "Escrow Agreement") among the
Borrower, NationsBank, N.A. (South), as Administrative Agent for certain Lenders
described therein (the "Administrative Agent") and Xxxxxx Trust Company of New
York (the "Escrow Agent"):
1. Xxxxxxx Acquisition Corp., a North Carolina corporation ("KAC"),
hereby requests that the Escrow Agent (in its capacity as depositary for KAC in
connection with KAC's tender offer for certain shares of Communication Cable,
Inc., a Delaware corporation), complete, execute and transmit to the
Administrative Agent by facsimile or, if for any reason facsimile transmission
is not available, by hand delivery or overnight courier in accordance with the
"Notices" section of the Escrow Agreement, a certificate in the form attached
hereto as Schedule 1.
2. The Borrower hereby requests that, upon the Escrow Agent's receipt
of a duly executed certificate of an officer of the Administrative Agent in the
form of Exhibit B to the Escrow Agreement, whether by facsimile or otherwise,
the Escrow Agent disburse the Escrowed Funds in accordance with the instructions
set forth on Schedule 2 attached hereto.
Capitalized terms used in this Certificate and not otherwise defined
are used as defined in the Escrow Agreement.
IN WITNESS WHEREOF, the Borrower and KAC, acting through authorized
signatories, have signed this Certificate, as of the ____ day of __________,
1996.
XXXXXXX CORPORATION, a Delaware corporation
By: _______________________________________
Its: ______________________________
XXXXXXX ACQUISITION CORP., a North Carolina
corporation
By: _______________________________________
Its: ______________________________
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SCHEDULE 1
FORM OF CERTIFICATE OF XXXXXX TRUST COMPANY OF NEW YORK
VIA FACSIMILE, HAND DELIVERY OR OVERNIGHT COURIER
TO: NationsBank, N.A. (South), as Administrative Agent
000 Xxxxxxxxx Xxxxxx, X.X.
00xx Xxxxx
Xxxxxxx, Xxxxxxx 00000-0000
Attention: Xxxxxxx X. Xxxxxxxx
Facsimile No.: (000) 000-0000
In connection with that certain Credit Agreement dated as of December
15, 1993 (as amended from time to time, the "Credit Agreement") among Xxxxxxx
Corporation, a Delaware corporation (the "Borrower"), NationsBank of Georgia,
N.A. (now known as NationsBank, N.A. (South)) and The Chase Manhattan Bank,
N.A., as managing agents (the "Managing Agents"), NationsBank of Georgia, N.A.
(now known as NationsBank, N.A. (South)), The Chase Manhattan Bank, N.A., The
First National Bank of Boston, NBD Bank, Xxxxxx Trust and Savings Bank, X.X.
Xxxxxx Delaware, and Trust Company of Georgia Bank of Savannah, N.A. (now known
as SunTrust Bank, Savannah, N.A.) (collectively with any assignees thereof, the
"Lenders"), and NationsBank of Georgia, N.A. (now known as NationsBank, N.A.
(South)), as administrative agent (the "Administrative Agent"), Xxxxxx Trust
Company of New York, in its capacity as depositary for Xxxxxxx Acquistion Corp.,
a North Carolina corporation ("KAC"), a wholly-owned subsidiary of the Borrower,
in connection with KAC's tender offer for certain shares of Communication Cable,
Inc., a North Carolina corporation ("CCI"), does hereby certify to the Lenders
and the Administrative Agent that the aggregate number of shares of the capital
stock of CCI which have been tendered for purchase by KAC by shareholders of CCI
is _______________ as of the date hereof.
IN WITNESS WHEREOF, Xxxxxx Trust Company of New York, acting through an
authorized signatory, has signed this Certificate, as of the ____ day of
__________, 1996.
XXXXXX TRUST COMPANY OF NEW YORK
By: _______________________________
Its: ______________________
SCHEDULE 2
DISBURSEMENT INSTRUCTIONS
Date of Disbursement: _____________
Payment Instructions: ______________________
______________________
EXHIBIT B TO ESCROW AGREEMENT
FORM OF CERTIFICATE OF ADMINISTRATIVE AGENT
The undersigned, who is a ________________________________ of
NationsBank, N.A. (South) (the "Administrative Agent"), does hereby certify on
behalf of the Administrative Agent, in its capicity as Administrative Agent for
the Lenders under the Credit Agreement described below that s/he is a duly
elected and qualified ______________________ of the Administrative Agent and an
authorized signatory of the Administrative Agent.
In connection with that certain Escrow Agreement dated as of February
__, 1996 (as amended from time to time, the "Escrow Agreement") among Xxxxxxx
Corporation, a Delaware corporation (the "Borrower"), the Administrative Agent,
as Administrative Agent for certain Lenders described therein and Xxxxxx Trust
Company of New York (the "Escrow Agent"), the Administrative Agent hereby
certifies that it has received: (1) a certificate of an authorized signatory of
the Borrower stating that either (a) the proceeds of Advances of the CCI Term
Loan and/or under the Revolving Loan Commitment (which cause the aggregate
principal amount outstanding under the Revolving Loan Commitment to exceed
$53,000,000) (as such terms are defined in the Credit Agreement) shall be
immediately applied to pay the cash purchase price for the Borrower's (or one of
its wholly-owned Subsidiaries', as such term is defined in the Credit Agreement)
acquisition of one (1) or more of the issued and outstanding shares of the
capital stock of Communication Cable, Inc., a North Carolina corporation ("CCI")
(exclusive of the shares of capital stock of CCI owned by the Borrower or any of
its wholly-owned Subsidiaries immediately prior to the consummation of such
acquisition) or (b) the Borrower or one of its wholly-owned Subsidiaries has
already acquired not less than a majority of the issued and outstanding shares
of the capital stock of Communication Cable, Inc., a North Carolina corporation
and such proceeds shall be used by the Borrower for working capital purposes;
and (2) a certificate of Xxxxxx Trust Company of New York, in its capacity as
depositary for Xxxxxxx Acquisition Corp. in such transaction, as to the
aggregate number of shares of the capital stock of CCI which have been tendered
for purchase by the Borrower or such Subsidiary by shareholders of CCI.
Capitalized terms used in this Certificate and not otherwise defined
are used as defined in the Escrow Agreement.
IN WITNESS WHEREOF, the Administrative Agent, acting through an
authorized signatory, has signed this Certificate, as of the ____ day of
__________, 1996.
NATIONSBANK, N.A. (SOUTH), as Administrative
Agent
By: ___________________________________
Its: __________________________
EXHIBIT C
Payment Instructions for the Administrative Agent
Wire transfer funds via the Federal Reserve Bank to the following
account:
ABA Routing number 0000-0000-0 of
NationsBank Dallas, Texas
for credit to account number 3750651913
of Xxxxxxx Corporation, Inc.
Please notify Xxxxxxx Xxxxxx, credit services representative,
Charlotte, (000) 000-0000, of incoming wire transfers.
