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EXHIBIT 10.70
ESCROW AGREEMENT
ESCROW AGREEMENT dated as of August ____, 1993, by and among
ED WINTON, whose principal mailing address is 1401 Maclay Commerce Drive,
Tallahassee, Florida 32312 ("Seller"), PARTECH COMMUNICATIONS GROUP, INC., a
Nevada corporation with its principal executive offices located at 3366
Riverside Drive, Suite 200, Columbus, Ohio 43221 ("Partech"), and Mark T.
Jorgenson d/b/a Jorgenson Broadcast Brokerage, an individual whose office is
located at 2700 West M.L. King Boulevard, Suite 400, Tampa, Florida 33607
(the "Escrow Agent").
W I T N E S S E T H :
WHEREAS, Seller and Partech have agreed to enter into an agreement (the
"Agreement") concerning the acquisition by Partech or Partech's assignee from
Seller of operating FM radio broadcast station and of certain of the assets and
properties which comprise the station known as WMLO-FM (referred to hereafter
as the "Station"); and
WHEREAS, as an indication of Partech's good faith, Partech has agreed to
deposit Ten Thousand Dollars ($10,000.00) (the "Initial Deposit") with the
Escrow Agent upon the parties' complete execution of a Letter of Intent for the
purchase of the Station, and to deposit an additional Forty-Six Thousand
Dollars ($46,000.00) (the "Additional Deposit") with the Escrow Agent upon the
filing of an application for transfer of the Station's license with the FCC,
all such deposits to be held in escrow pursuant to the terms and conditions set
forth in this Escrow Agreement and, if applicable, the Agreement; and
WHEREAS, it is the intention of Seller and Partech that the Escrow Agent
shall receive and hold under the terms of this Escrow Agreement all funds which
the parties may agree to be held under the terms of this Escrow Agreement and
the Agreement (all such funds hereinafter collectively referred to as the
"Deposits").
NOW, THEREFORE, in consideration of the mutual promises of the other.
The parties hereto do hereby agree as follows:
1. DEPOSITS IN ESCROW.
(a) Partech hereby deposits in escrow, and the Escrow Agent
hereby acknowledges receipt of, the Initial Deposit in the amount of Ten
Thousand Dollars ($10,000.00).
(b) The Escrow Agent agrees to accept any Additional Deposit in
accordance with the terms and conditions of this Escrow Agreement and, if
applicable, the Agreement, and agrees to execute and deliver such other
agreements or documents as may be required by the parties.
2. RIGHTS RESPECTING THE DEPOSITS.
(a) Unless and until an Event of Default (as defined herein)
shall occur, the Escrow Agent shall at all times maintain the Deposits in
account number ____________ at ____________ , a national bank, with this
account insured by the Federal Deposit Insurance Corporation.
(b) In the event of the occurrence of a Termination Event,
pursuant to paragraph 3 hereof, then within three (3) days thereafter the
Escrow Agent shall deliver to Partech the Deposits with interest earned thereon
in good funds.
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(c) If Seller and Partech or Partech's assignee mutually agree
to terminate this Escrow Agreement or the undertaking contemplated hereby, then
each shall notify the Escrow Agent and within three (3) days thereafter the
Escrow Agent shall deliver to Partech the Deposits with interest earned thereon
in good funds.
(d) In the event Seller and Partech or Partech's assignee
consummate the purchase contemplated hereby under the Agreement, then upon
closing of that transaction, in accordance with the terms of the Agreement, the
Escrow Agent shall deliver to Seller the Deposits with interest earned thereon
in good funds, which shall be applied in full against the portion of the
purchase price due at closing thereof.
(e) In the event of the occurrence of an Event of Default,
pursuant to paragraph 4 hereof, then as soon as possible after the
determination of the Event of Default the Escrow Agent shall deliver to the
non-defaulting party the Deposits with interest earned thereon in good funds,
in the case of Partech as a return of funds deposited hereunder, and in the
case of the Station as liquidated damages hereunder.
(f) In the event a dispute between Partech and Seller is
submitted to a court of competent jurisdiction for final determination, the
final determination of such court with respect to any dispute so submitted,
after all appeals have been taken or the time to appeal shall have expired,
shall be conclusive and binding upon the Escrow Agent, and the Escrow Agent
shall comply with the instructions of such court.
3. TERMINATION EVENTS; TERMINATION OF ESCROW AGREEMENT.
(a) This Escrow shall terminate in the event of the occurrence
of any of the following events (the "Termination Events"):
(i) Seller and Partech or Partech's assignee fail to
execute the Agreement on or before September 30,
1993; or
(ii) Seller and Partech or Partech's assignee fail to
consummate the purchase transaction contemplated
hereunder by the Agreement on or before September
30, 1994, or as may be otherwise
provided; or
(iii) The Agreement terminates pursuant to its terms other
than by reason of breach or default by Partech or
Partech's assignee.
(b) This Escrow Agreement shall terminate and be of no further
force and effect, and the Escrow Agent shall have no further duties hereunder
and shall be released from any further obligations or liabilities hereunder,
when Section 2 hereof is complied with and all of the Deposits and interest
thereon shall have been released in compliance therewith.
4. EVENTS OF DEFAULT.
Any event which is considered an Event of Default under the Agreement
shall in turn be considered an event of default hereunder. To the extent
required by law, the parties hereto incorporate herein those terms of the
Agreement which define or describe Events of Default; otherwise, this Escrow
Agreement makes reference to those terms solely for the purpose of identifying
those events which give rise to an obligation by Escrow Agent hereunder to
deliver the Deposits and interest earned thereon.
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5. RIGHTS AND DUTIES OF THE ESCROW AGENT.
(i) REIMBURSEMENT OF EXPENSES. The Escrow Agent shall be
reimbursed by Seller for any and all fees, expenses and out-of-pocket expenses
incurred by him, if any, in performing his duties under this Escrow Agreement
and all interest earned on the Deposit(s) shall be for the account of Partech.
(ii) DUTIES OF THE ESCROW AGENT. The Escrow Agent shall have no
duties or responsibilities under this Escrow Agreement other than those
specifically set forth in Sections 1 and 2 hereof or in this Section 4. The
Escrow Agent shall have no duty or responsibility (i) to enforce or cause to be
enforced any of the terms and conditions in the Purchase Agreement, the
Employment Agreement or in any of the documents referred to therein or (ii) to
verify the accuracy or sufficiency of any directions or other document received
by him. The Escrow Agent shall be protected in acting upon any directions or
other document believed by him to be given and containing what purports to be
the signature of any authorized officer of Partech and/or Seller.
(iii) LIABILITY OF ESCROW AGENT. The Escrow Agent shall not be
liable for any act or failure to act, other than for willful misconduct or
gross negligence.
(iv) INDEMNITY. Partech and Seller agree to and hereby jointly
and severally indemnify and hold harmless the Escrow Agent and its partners,
employees, attorneys and agents (the "Indemnitees") against and in respect of
all claims, suits, actions, proceedings (formal or informal), investigations,
judgments, deficiencies, damages, settlements, liabilities, losses and legal
and other expenses (including reasonable fees and expenses of attorneys chosen
by the Indemnitees hereunder) as and when incurred, arising out of or based
upon any act or failure to act (other than by reason of willful misconduct or
gross negligence) on the part of the Escrow Agent in connection with any of the
duties required to be performed by the Escrow Agent hereunder.
(v) RESIGNATION. The Escrow Agent may notify Partech and Seller
of his desire to be relieved of any further obligations hereunder. Partech and
Seller shall thereupon agree upon a successor to act as escrow agent hereunder
and, in such event, the Escrow Agent shall deliver the Partech Shares then held
by the Escrow Agent and the accompanying Stock Powers, to such successor escrow
agent.
6. SCOPE OF THIS ESCROW AGREEMENT.
This Escrow Agreement shall serve to govern and shall be
applicable only to the subject matter hereof. No implication, inference or
conclusion shall be drawn from the execution and delivery of this Escrow
Agreement and Partech and Seller understand and agree that upon the termination
of this Escrow Agreement, the rights and obligations of the parties shall be
governed only by the Purchase Agreement and the Employment Agreement and this
Escrow Agreement shall have no effect whatsoever. Nothing contained herein,
however, shall prevent this Escrow Agreement from being solely used for
purposes of enforcing the rights and obligations of the parties hereto with
respect to the escrow provided hereunder and this Escrow Agreement only, and
for no other purpose.
7. MISCELLANEOUS.
(i) ENTIRE AGREEMENT. This Escrow Agreement embodies the entire
agreement and understanding among the parties relating to the subject matter
hereof and may not be
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changed orally, but only by an instrument in writing signed by the party
against whom enforcement of such change is sought.
(ii) NOTICES. All notices, directions and other communications
hereunder shall be in writing and shall be deemed to have been given when
actually received or, with respect to notices, when mailed by certified or
registered United States mail, return receipt requested, as follows:
If to Partech, to:
Partech Communications Group, Inc.
3366 Riverside Drive
Suite 200
Columbus, Ohio 43221
Attention: Mr. John E. Rayl
(614) 538-0660 Fax: (614) 538-0670
If to Seller, to:
WMLO-FM
1401 Maclay Commerce Drive
Tallahassee, Florida 32312
Attention: Mr. Ed Winton, President
(904) 668-6600 Fax: (904) 671-2341
If to the Escrow Agent, to:
Mark Jorgenson
Jorgenson Broadcast Brokerage
2700 West M.L. King Boulevard, Suite 400
Tampa, Florida 33607
(813) 877-3000 Fax: (813) 877-4849
Any party may change its address for notices hereunder by giving
notice of such change to the other parties in accordance with the provisions of
this Section 7(ii).
(iii) HEADINGS. The headings of the sections of this Escrow
Agreement have been inserted for convenience and shall not modify, define,
limit or expand the express provisions of this Escrow Agreement.
(iv) GOVERNING LAW. This Escrow Agreement shall be governed by
and construed in accordance with the laws of the State of Ohio for contracts
made and to be performed in such state without giving effect to the principles
relating to the conflict of law.
(v) BINDING NATURE. This Escrow Agreement shall be binding upon
the parties hereto and their respective successors and assigns.
(vi) COUNTERPARTS. This Escrow Agreement may be executed in any
number of counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same Escrow Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Escrow
Agreement as of the date first above written.
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Ed Winton, Seller
PARTECH COMMUNICATIONS GROUP, INC.
By: __________________________________
Title
______________________________________
MARK JORGENSON, Escrow Agent
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