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EXHIBIT 10.75
ESCROW AGREEMENT
ESCROW AGREEMENT dated as of October ____, 1993, by and
among WBA BROADCASTING, INC., a Georgia corporation with its principal mailing
address being One First National Plaza, Chicago, Illinois 60603 ("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 JORGENSON d/b/a JORGENSON BROADCAST BROKERAGE, an
individual whose office is located at 2700 West M.L. King Blvd., 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 and AM radio broadcast stations and of certain of the
assets and properties which comprise the stations known as WMOG-FM and WMOG-AM
(collectively 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 following 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, if any (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 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.
(c) If Seller and Partech or Partech's assignee mutually
agree to terminate this Escrow
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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 Seller 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 December 15, 1993;
or
(ii) Seller and Partech or Partech's assignee fail to
consummate the purchase transaction contemplated
hereunder by the Agreement on or before November 30,
1994 or as otherwise as may be 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.
(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 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 Deposits then held by
the Escrow Agent 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 Agreement and that 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 changed orally, but only by an instrument in writing
signed by the party against whom enforcement of such change is sought.
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(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:
Mr. Lee M. Mitchell, Receiver
Sidley & Austin
1 First National Plaza
Chicago, Illinois 60603
with a copy (which shall not constitute notice) to:
AT&T Commercial Finance Corporation
400 Perimeter Center Terrace
Atlanta, Georgia 30346
Attention: Mr. Samuel D. Bush
(404) 804-6403 Fax: (404) 804-6440
If to the Escrow Agent, to:
Mark Jorgenson
Jorgenson Broadcast Brokerage
2700 West M. I. King Blvd., Suite 400
Tampa, Florida 33607
(813) 877-3000 Fax: (813) 8774849
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.
PARTECH COMMUNICATIONS GROUP, INC.
By: __________________________________
Title: _______________________________
WBA BROADCASTING, INC.
By: __________________________________
Title: _______________________________
______________________________________
MARK JORGENSON Escrow Agent
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