EXHIBIT 17
EXECUTION COPY
ESCROW AGREEMENT
This ESCROW AGREEMENT (this "Agreement") is entered into as of November
7, 2005, by and among ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Second ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Limited
Partnership, a Nevada limited partnership, ▇▇▇▇▇▇ Enterprises, Inc., a Nevada
corporation (collectively, the "▇▇▇▇▇▇ Stockholders"), NBC Universal, Inc.
("NBCU" and, together with the ▇▇▇▇▇▇ Stockholders, the "Escrow Parties") and
The Bank of New York, as the Escrow Agent hereunder (together with any successor
in such capacity, the "Escrow Agent").
WHEREAS, the ▇▇▇▇▇▇ Stockholders and NBC Palm Beach Investment II,
Inc., a California corporation ("Palm Beach II"), have executed, among other
things, a Call Agreement, dated as of November 7, 2005 (as in effect from time
to time, the "Call Agreement"), pursuant to which Palm Beach II, or its
Permitted Transferee (as defined in the Call Agreement), has an irrevocable
right to purchase from the ▇▇▇▇▇▇ Stockholders all of the Call Shares (as
defined in the Call Agreement), including the Class A Shares (the "Call Right"),
subject to the conditions set forth in the Call Agreement;
WHEREAS, ▇▇▇▇▇▇ Communications Corporation, a Delaware corporation
("PCC"), NBCU and the ▇▇▇▇▇▇ Stockholders have executed, among other things, an
Amended and Restated Stockholder Agreement, dated as of November 7, 2005 (as in
effect from time to time, the "Stockholder Agreement"), pursuant to which NBCU
has agreed, among other things, in the event of an Investor Call Right
Termination, to pay to the ▇▇▇▇▇▇ Stockholders on behalf of PCC the Escrow
Deposit (as defined below), subject to the conditions set forth in the
Stockholder Agreement; and
WHEREAS, as security for the Escrow Parties' respective obligations
pursuant to Section 2.1(b) of the Call Agreement and Section 3.6 of the
Stockholder Agreement, (i) NBCU has deposited cash in the amount of
$3,863,765.50 (the "Escrow Deposit") with the Escrow Agent on the date hereof,
to be held, disbursed and otherwise acted upon as set forth in this Agreement,
(ii) the ▇▇▇▇▇▇ Stockholders have deposited the Class A Shares (the "Escrow
Shares") with the Escrow Agent on the date hereof, to be held, released and
otherwise acted upon as set forth in this Agreement and (iii) the Escrow Agent
has acknowledged receipt of the Escrow Deposit and Escrow Shares;
NOW, THEREFORE, in consideration of the above premises and of the
mutual covenants and agreements contained herein, the parties hereby agree as
follows:
1. Definitions. Each capitalized term used but not otherwise defined in
this Agreement has the meaning assigned to it in the Stockholder Agreement. As
used in this Agreement:
"Business Day" means any day, other than a Saturday or a Sunday,
upon which the Escrow Agent conducts business.
"Escrow Fund" at any time means the Escrow Deposit described in
the recitals hereto and all Escrow Income, in each case to the extent held by
the Escrow Agent at such time.
"Escrow Income" at any time means all interest or other income
directly or indirectly earned and paid to the Escrow Agent on the Escrow Fund
and held by the Escrow Agent, together with all interest and other income
accrued but unpaid on such funds as of such time and payable at a later time.
"Escrow Shares" means the 15,455,062 shares of Class A Common
Stock of the Company owned by the ▇▇▇▇▇▇ Stockholders, and any shares of common
stock of the Company or other securities that may be issued with respect to the
Escrow Shares (x) as a result of a stock dividend or distribution on, stock
split or reverse stock split of, or similar event with respect to the Escrow
Shares or (y) on account of the Escrow Shares in a merger, consolidation,
combination, reclassification, recapitalization or similar transaction involving
the Company.
"Person" means an individual, a partnership, a limited liability
company, a corporation, an association, a joint stock company, a trust, a joint
venture, an unincorporated organization or any Governmental Entity.
2. Appointment of the Escrow Agent. The Escrow Parties hereby designate
and appoint the Escrow Agent as joint escrow agent for the Escrow Parties
pursuant to the terms of this Agreement. The Escrow Agent agrees to (i) act as
the Escrow Agent, (ii) deposit and hold the Escrow Fund in an account maintained
by the Escrow Agent, and (iii) disburse the Escrow Fund, in each case in
accordance with the terms and conditions of this Agreement. Any fees and
expenses payable to the Escrow Agent in connection with the performance of its
obligations hereunder shall be paid by NBCU.
3. Investment of the Escrow Fund. The Escrow Agent will invest or
reinvest the Escrow Fund without distinction between principal and income in the
Fidelity U.S. Treasury III Money Market Fund or, as instructed in writing by
NBCU from time to time, in U.S. government obligations maturing not more than
ninety (90) days from the date of purchase or in a money market account invested
solely in U.S. government obligations (each, a "Permitted Investment"). All
Escrow Income received from the investment of the Escrow Fund will be paid by
the Escrow Agent to NBCU on a quarterly basis, by wire transfer of immediately
available funds, to NBCU's account listed immediately below, on the Business Day
following March 31, June 30, September 30 and December 31 of each year, provided
that no distribution shall be made that would reduce the Escrow Fund below the
amount of the Escrow Deposit.
Bank: ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
ABA: ▇▇▇▇▇▇▇▇▇
SWIFT: ▇▇▇▇▇▇▇▇
Account: 0381063114
Account Name: NBC Universal
Reference: Globe Quarterly Escrow Interest
The Escrow Agent will have no liability for any investment losses,
including any losses on any investment required to be liquidated prior to
maturity in order to make a payment required hereunder. Any loss incurred from
an investment made pursuant to this Section 3 or additional fees payable to the
Escrow Agent will be borne by NBCU and will be replenished by NBCU to keep the
Escrow Fund equal to the Escrow Deposit. For tax reporting purposes, all
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interest or other income earned from the investment of the Escrow Fund in any
tax year will be allocated to NBCU.
4. Release of the Escrow Deposit and Escrow Shares. The Escrow Agent
will disburse and pay over the Escrow Deposit and release the Escrow Shares, as
the case may be, as follows:
(a) Upon Exercise of Call Right. Upon the exercise of the Call
Right, the ▇▇▇▇▇▇ Stockholders and NBCU or its Permitted Transferee, as
applicable, shall deliver to the Escrow Agent a joint written notice in
accordance with Section 10(a) (a "Joint Demand") that states that the ▇▇▇▇▇▇
Stockholders are entitled to the Escrow Deposit and requests that the Escrow
Agent disburse such amount to the ▇▇▇▇▇▇ Stockholders or their designees in the
manner indicated in such Joint Demand. Upon receipt of such Joint Demand, the
Escrow Agent will, within three Business Days, disburse to the ▇▇▇▇▇▇
Stockholders or their designees the Escrow Deposit in the manner indicated in
such Joint Demand.
(b) Upon Investor Call Right Termination. Upon the occurrence of
an Investor Call Right Termination, the ▇▇▇▇▇▇ Stockholders may deliver to the
Escrow Agent and NBCU a written notice in accordance with Section 10(a) (a
"▇▇▇▇▇▇ Demand") that states that the ▇▇▇▇▇▇ Stockholders are entitled to the
Escrow Deposit and request that the Escrow Agent disburse such amount to the
▇▇▇▇▇▇ Stockholders in the manner indicated in such ▇▇▇▇▇▇ Demand. The ▇▇▇▇▇▇
Demand will be accompanied by a written certification that a copy of such ▇▇▇▇▇▇
Demand has been given to NBCU. Upon such delivery to the Escrow Agent, such
▇▇▇▇▇▇ Demand will remain pending until either payment of the amount claimed in
such ▇▇▇▇▇▇ Demand is made in accordance with Section 4(e) or a final award
pursuant to Section 7 has been delivered with respect to such ▇▇▇▇▇▇ Demand and
any disbursement from the Escrow Fund required by such final award has been
made. Upon the occurrence of an Investor Call Right Termination and the
disbursement of the Escrow Deposit to the ▇▇▇▇▇▇ Stockholders pursuant to this
Section 4(b), the Escrow Agent will release the Escrow Shares to PCC.
(c) Upon a Call Closing. Upon the occurrence of a Call Closing (as
defined in the Call Agreement), NBCU or its Permitted Transferee, as applicable,
may deliver to the Escrow Agent and the ▇▇▇▇▇▇ Stockholders a written notice in
accordance with Section 10(a) (a "Call Closing Notice") that states that NBCU or
its Permitted Transferee, as applicable, is entitled to the Escrow Shares and
request that the Escrow Agent release such shares to NBCU or its Permitted
Transferee, as applicable, in the manner indicated in such Call Closing Notice.
The Call Closing Notice will be accompanied by a written certification that a
copy of such Call Closing Notice has been given to the ▇▇▇▇▇▇ Stockholders. Upon
such delivery to the Escrow Agent, such Call Closing Notice will remain pending
until either the Escrow Shares are released in accordance with Section 4(e) or a
final award pursuant to Section 7 has been delivered with respect to such Call
Closing Notice and any release of Escrow Shares required by such final award has
been made.
(d) Dispute Notice. After receiving a copy of a ▇▇▇▇▇▇ Demand or a
Call Closing Notice, any of NBCU or its Permitted Transferee or the ▇▇▇▇▇▇
Stockholders, as the case may be, may, subject to Section 4(e), challenge the
propriety of the requested disbursement or release by giving the Escrow Agent
and the other parties hereto written notice in accordance with
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Section 10(a) setting forth the grounds for such challenge (a "Dispute Notice");
provided, however, that if there is no dispute between the Escrow Parties as to
whether the Investor Call Right Termination has occurred, the occurrence or
nonoccurrence of the Investor Call Right Termination cannot be the basis for
delivery of a Dispute Notice with respect to Section 4(b). Subject to Section
4(e), if the Escrow Agent receives a Dispute Notice, then the Escrow Agent will
not make the requested disbursement or permit the requested release unless and
until the Escrow Agent has received written instructions in accordance with
Section 10(a) in respect of such disbursement from the Escrow Parties, acting
jointly, or from an arbitrator or court of competent jurisdiction pursuant to
Section 7.
(e) Disbursement without Dispute. On the tenth Business Day after
it receives a ▇▇▇▇▇▇ Demand or a Call Closing Notice, as the case may be, the
Escrow Agent will (i) make the requested disbursement of the Escrow Deposit to
the ▇▇▇▇▇▇ Stockholders or (ii) release the Escrow Shares to NBCU or its
Permitted Transferee, as applicable, or PCC, as the case may be, in each case in
accordance with such ▇▇▇▇▇▇ Demand or a Call Closing Notice unless, prior to
such tenth Business Day, the Escrow Agent has received a Dispute Notice (in
which event, Section 7 will govern the resolution of any dispute and the related
disposition of the Escrow Fund or release of the Escrow Shares).
5. Treatment of Escrow Shares.
(a) Title of Escrow Account. All certificates representing the
Escrow Shares delivered to the Escrow Agent pursuant to this Agreement shall be
deposited by the Escrow Agent in an account designated substantially as follows:
"▇▇▇▇▇▇ Communications Corporation Stock Certificate Escrow Account" (the
"Escrow Account") duly endorsed in blank or accompanied by stock powers duly
executed in blank, with all necessary stock transfer stamps affixed thereto.
(b) Receipt of Distributions and Dividends. So long as the Escrow
Shares remain in the Escrow Account, if PCC issues any distributions, dividends,
rights or other property in respect of the Class A Shares, or in the event of a
share split, recapitalization, merger, acquisition, spinoff or other transaction
affecting the capitalization of PCC then, in such event, the ▇▇▇▇▇▇ Stockholders
shall send evidence of such distributions, dividends, rights, share certificates
or other property directly to the Escrow Agent, which is hereby authorized to
hold and retain possession of all such evidences of distributions, dividends,
rights or other property until release of the Escrow Shares in accordance with
Section 4. In the event the Escrow Shares are distributed to NBCU or its
Permitted Transferee pursuant to Section 4, then the Escrow Agent will
distribute evidences of such distributions, dividends, rights or other property
in the form the Escrow Agent received from the ▇▇▇▇▇▇ Stockholders. In the event
the Escrow Shares are not distributed to NBCU or its Permitted Transferee, the
Escrow Agent is hereby authorized, empowered and instructed to deliver all such
evidences of distributions, dividends, rights, Common Stock or other property to
PCC.
(c) Voting Rights. So long as the Escrow Shares are deposited in
the Escrow Account, the ▇▇▇▇▇▇ Stockholders shall have the right to vote the
Escrow Shares at any and all meetings of the stockholders of the Company without
restriction, subject to Section 3.3 of the Stockholder Agreement.
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6. Other Instructed Disbursements. In addition to the foregoing
disbursement and release methods, the Escrow Agent will make disbursements of or
from the Escrow Fund or release the Escrow Shares in accordance with any written
instructions received by the Escrow Agent that are jointly executed by the
▇▇▇▇▇▇ Stockholders and NBCU or its Permitted Transferee, as applicable, or that
are provided by the arbitrator or court pursuant to Section 7, upon receipt of
such instructions or at any later time specified in such instructions.
7. Dispute Resolution Procedures. It is understood and agreed that
should any dispute arise with respect to the delivery, ownership, right of
possession, and/or disposition of the Escrow Fund or the Escrow Shares, or
should any claim be made upon the Escrow Agent, the Escrow Fund or the Escrow
Shares by a third party, the Escrow Agent upon receipt of notice of such dispute
or claim is authorized and will be entitled (at its sole option and election) to
retain in its possession, without liability to anyone, all or any of the Escrow
Fund or the Escrow Shares until such dispute has been settled either by the
mutual written agreement of the Escrow Parties or by an arbitration award or by
a final order, decree or judgment of a court of competent jurisdiction in the
United States of America, the time for perfection of an appeal of such order,
decree or judgment having expired. The Escrow Agent may, but will be under no
duty whatsoever to, institute or defend any legal proceedings that relate to the
Escrow Fund or the Escrow Shares.
8. Termination. This Agreement will terminate upon the disbursement in
full of the Escrow Fund and the Escrow Shares, or on any earlier date agreed to
in a writing executed by NBCU and the ▇▇▇▇▇▇ Stockholders and delivered to the
Escrow Agent; provided that the provisions of Section 9 shall survive any such
termination.
9. Escrow Agent Terms and Conditions.
(a) 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 Escrow Parties or to which any Escrow Party
is a party, 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 Agreement) from any Escrow Party 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, subject to Section 9(d), otherwise incur any
financial liability in the performance of any of its duties hereunder.
(b) 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.
(c) 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 the Escrow Fund (including but
not limited to orders of attachment or garnishment or other forms of levies or
injunctions or stays relating to the transfer of the Escrow Fund), 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
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judicial or administrative order, judgment, decree, writ or other form of
judicial or 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, decree, writ or process may be subsequently modified or vacated or
otherwise determined to have been without legal force or effect.
(d) The Escrow Agent shall not be liable for any action taken or
omitted or for any loss or injury resulting from its actions or its performance
or lack of performance of its duties hereunder in the absence of gross
negligence or willful misconduct on its part. In no event shall the Escrow Agent
be liable (i) for acting as contemplated by this Agreement in accordance with or
relying upon any instruction, notice, demand, certificate or document from any
Escrow Party or any entity acting on behalf of any Escrow Party, (ii) for any
consequential, punitive or special damages, (iii) for the acts or omissions of
its nominees, correspondents, designees, subagents or subcustodians, or (iv) for
an amount in excess of the value of the Escrow Fund and the Escrow Shares,
valued as of the date of deposit.
(1) If any fees, expenses or costs incurred by, or any
obligations owed to, the Escrow Agent hereunder are not promptly paid when
due, the Escrow Agent may reimburse itself therefor from the Escrow Fund and
may sell, convey or otherwise dispose of any portion of the Escrow Fund for
such purpose.
(2) As security for the due and punctual performance of any
and all of the Escrow Parties' obligations to the Escrow Agent hereunder,
now or hereafter arising, the Escrow Parties, individually and collectively,
hereby pledge, assign and grant to the Escrow Agent a continuing security
interest in, and a lien on, the Escrow Fund and the Escrow Shares and all
additions thereto. The security interest of the Escrow Agent shall at all
times be valid, perfected and enforceable by the Escrow Agent against the
Escrow Parties and all third parties in accordance with the terms of this
Agreement.
(3) The Escrow Agent may consult with legal counsel at the
expense of the Escrow Parties as to any matter relating to this Agreement,
and the Escrow Agent shall not incur any liability in acting in good faith
in accordance with any advice from such counsel.
(4) 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 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).
(e) Unless otherwise specifically set forth herein, the Escrow
Agent shall proceed as soon as practicable to collect any checks or other
collection items at any time deposited hereunder. All such collections shall be
subject to the Escrow Agent's usual collection practices or terms regarding
items received by the Escrow Agent for deposit or collection. The Escrow Agent
shall not be required, or have any duty, to notify anyone of any payment or
maturity under the terms of any instrument deposited hereunder, nor to take any
legal action to
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enforce payment of any check, note or security deposited hereunder or to
exercise any right or privilege which may be afforded to the holder of any such
security.
(f) The Escrow Agent shall provide the Escrow Parties monthly
statements identifying transactions, transfers or holdings of the Escrow Fund
and each such statement shall be deemed to be correct and final upon receipt
thereof by the Escrow Parties unless the Escrow Agent is notified in writing to
the contrary within thirty (30) business days of the date of such statement.
(g) The Escrow Agent shall not be responsible in any respect for
the form, execution, validity, value or genuineness of documents or securities
deposited hereunder, or for any description therein, or for the identity,
authority or rights of persons executing or delivering or purporting to execute
or deliver any such document, security or endorsement.
(h) The Escrow Parties, jointly and severally, shall be liable for
and shall reimburse and indemnify the Escrow Agent and hold the Escrow Agent
harmless from and against any and all claims, losses, liabilities, costs,
damages or expenses (including reasonable attorneys' fees and expenses)
(collectively, "Losses") arising from or in connection with or related to this
Agreement or being the Escrow Agent hereunder (including but not limited to
Losses incurred by the Escrow Agent in connection with its successful defense,
in whole or in part, of any claim of gross negligence or willful misconduct on
its part), provided, however, that nothing contained herein shall require the
Escrow Agent to be indemnified for Losses caused by its gross negligence or
willful misconduct.
(1) The Escrow Parties may remove the Escrow Agent at any
time by giving to the Escrow Agent thirty (30) calendar days' prior notice
in writing signed by all the Escrow Parties. The Escrow Agent may resign at
any time by giving to the Escrow Parties fifteen (15) calendar days' prior
written notice thereof.
(2) Within ten (10) calendar days after giving the foregoing
notice of removal to the Escrow Agent or receiving the foregoing notice of
resignation from the Escrow Agent, all the Escrow Parties shall jointly
agree on and appoint a successor Escrow Agent. If a successor Escrow Agent
has not accepted such appointment by the end of such 10-day period, the
Escrow Agent may, in its sole discretion, apply to a court of competent
jurisdiction for the appointment of a successor Escrow Agent or for other
appropriate relief. The costs and expenses (including reasonable attorneys'
fees and expenses) incurred by the Escrow Agent in connection with such
proceeding shall be paid by, and be deemed a joint and several obligation
of, the Escrow Parties.
(3) Upon receipt of the identity of the successor Escrow
Agent, the Escrow Agent shall either deliver the Escrow Fund and the Escrow
Shares then held hereunder to the successor Escrow Agent, less the Escrow
Agent's fees, costs and expenses or other obligations owed to the Escrow
Agent, or hold such Escrow Fund or Escrow Shares, pending distribution,
until all such fees, costs and expenses or other obligations are paid.
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(4) Upon delivery of the Escrow Fund and the Escrow Shares to
the successor Escrow Agent, the Escrow Agent shall have no further duties,
responsibilities or obligations hereunder.
(i) In the event of any ambiguity or uncertainty hereunder or in
any notice, instruction or other communication received by the Escrow Agent
hereunder, the Escrow Agent may, in its sole discretion, refrain from taking any
action other than retain possession of the Escrow Fund and the Escrow Shares,
unless the Escrow Agent receives written instructions, signed by all the Escrow
Parties, which eliminates such ambiguity or uncertainty.
(j) In the event of any dispute between or conflicting claims by
or among the Escrow Parties and/or any other person or entity with respect to
the Escrow Fund and the Escrow Shares, the Escrow Agent shall be entitled, in
its sole discretion, to refuse to comply with any and all claims, demands or
instructions with respect to the Escrow Fund and the Escrow Shares so long as
such dispute or conflict shall continue, and the Escrow Agent shall not be or
become liable in any way to the Escrow Parties for failure or refusal to comply
with such conflicting claims, demands or instructions. The 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
arbitration or 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) the 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. The
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 Escrow
Parties.
(k) Each Escrow Party hereby represents and warrants (a) that this
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 Agreement by the Escrow Party do not and will
not violate any applicable law or regulation.
(l) No printed or other material in any language, including
prospectuses, notices, reports, and promotional material which mentions "The
Bank of New York" by name or the rights, powers, or duties of the Escrow Agent
under this Agreement shall be issued by any other parties hereto, or on such
party's behalf, without the prior written consent of the Escrow Agent.
(m) The Escrow Agent does not have any interest in the Escrow Fund
or the Escrow Shares deposited hereunder but is serving as escrow holder only
and having only possession thereof. NBCU shall pay or reimburse the Escrow Agent
upon request for any transfer taxes or other taxes relating to the Escrow Fund
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 hereunder shall be subject to withholding regulations then in
force with respect to United States taxes. The parties hereto will provide the
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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 which are a part of the Escrow Fund and is
not responsible for any other reporting.
10. Notices and Wiring Instructions.
(a) Any notice required or permitted to be given hereunder shall
be sufficient if in writing and (a) delivered in person or by express delivery
or courier service, (b) sent by facsimile, or (c) deposited in the mail
registered or certified first class, postage prepaid and return receipt
requested (provided that any notice given pursuant to clause (b) is also
confirmed by the means described in clause (a) or (c)) to such address or
facsimile of the party set forth below or to such other place or places as such
party from time to time may designate in writing in compliance with the terms
hereof. Each notice shall be deemed given when so delivered personally, or sent
by facsimile transmission, or, if sent by express delivery or courier service
one (1) Business Day after being sent, or if mailed, five (5) Business Days
after the date of deposit in the mail; provided that with respect to the Escrow
Agent, notices and other communications will be deemed to have been duly given
only upon the Escrow Agent's actual receipt thereof:
If to NBCU: NBC Universal, Inc.
▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
Tel: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
With a copy, which shall not
constitute notice, to: Shearman & Sterling LLP
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
Tel: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
If to the ▇▇▇▇▇▇ Stockholders: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Tel: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
with a copy to: Wiley, Rein & Fielding LLP
▇▇▇▇ ▇ ▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Tel: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
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If to Escrow Agent, to: The Bank of New York
Corporate Trust Administration
Division
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Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Assistant Vice President
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If to ▇▇▇▇▇▇ Communications
Corporation: ▇▇▇▇▇▇ Communications Corporation
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Attention: Chief Executive
Officer
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Fax: ▇▇▇-▇▇▇-▇▇▇▇
with copy to: Holland & Knight LLP
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Fax: ▇▇▇-▇▇▇-▇▇▇▇
and Dow, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, PLLC
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Fax: ▇▇▇-▇▇▇-▇▇▇▇
(b) Any funds to be deposited with the Escrow Agent hereunder will
be sent by wire transfer pursuant to the following instructions (or by such
method of payment and pursuant to such instruction as may have been given in
advance and in writing by the Escrow Agent, as the case may be, in accordance
with Section 10(a)):
Bank: The Bank of New York
ABA #: ▇▇▇▇▇▇▇▇▇
GLA/111565
For credit to Account No. 284185
11. Assignment. No party may assign any of its rights or delegate any
of its duties under this Agreement without the consent of the other parties;
provided that NBCU may assign its rights and delegate its duties to its
Permitted Transferee so long as such Permitted Transferee agrees in writing to
assume all of NBCU's obligations hereunder and the ▇▇▇▇▇▇ Stockholders may
assign their rights and delegate their duties to ▇▇▇▇▇▇ Estate Planning
Affiliates (as defined
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in the Call Agreement) so long as such ▇▇▇▇▇▇ Estate Planning Affiliates agree
in writing to assume all of the ▇▇▇▇▇▇ Stockholders' obligations hereunder.
12. Severability. Whenever possible, each provision of this Agreement
will be interpreted in such a manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be prohibited
by or invalid under applicable law, such provision will be ineffective only to
the extent of such prohibition or invalidity, without invalidating the remainder
of such provisions or the remaining provisions of this Agreement.
13. No Strict Construction. The language used in this Agreement will be
deemed to be the language chosen by the parties to express their mutual intent.
If an ambiguity or question of intent or interpretation arises, this Agreement
will be construed as if drafted jointly by the parties, and no presumption or
burden of proof will arise favoring or disfavoring any person or entity by
virtue of the authorship of any of the provisions of this Agreement.
14. Captions. The captions used in this Agreement are for convenience
of reference only and do not constitute a part of this Agreement and will not be
deemed to limit, characterize or in any way affect any provision of this
Agreement, and all provisions of this Agreement will be enforced and construed
as if no caption had been used in this Agreement.
15. Entire Agreement. This Agreement contains the entire agreement
among NBCU, the ▇▇▇▇▇▇ Stockholders and the Escrow Agent and supersedes any
prior understandings, agreements or representations by or between the parties,
written or oral, that may have related to the subject matter hereof in any way.
16. Counterparts. This Agreement may be executed in one or more
counterparts, each of which will be deemed an original but all of which taken
together will constitute one and the same instrument.
17. Governing Law. All questions concerning the construction, validity
and interpretation of this Agreement will be governed by and construed in
accordance with the internal laws of the State of New York without giving effect
to any choice of law or conflict of law provision (whether of the State of New
York or any other jurisdiction) that would cause the application of the laws of
any jurisdiction other than the State of New York. In furtherance of the
foregoing, the internal law of the State of New York will control the
interpretation and construction of this Agreement, even if under that
jurisdiction's choice of law or conflict of law analysis, the substantive law of
some other jurisdiction would ordinarily apply.
18. Parties in Interest. Nothing in this Agreement, express or implied,
is intended to confer on any Person other than the parties to this Agreement and
their respective successors and permitted assigns any rights or remedies under
or by virtue of this Agreement.
19. Waiver of Jury Trial. AS A SPECIFICALLY BARGAINED INDUCEMENT FOR
EACH OF THE PARTIES TO ENTER INTO THIS AGREEMENT (EACH PARTY HAVING HAD
OPPORTUNITY TO CONSULT COUNSEL), EACH PARTY EXPRESSLY WAIVES THE RIGHT TO TRIAL
BY JURY IN ANY LAWSUIT OR PROCEEDING RELATING TO OR ARISING IN ANY WAY FROM THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREIN.
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20. Other Definitional Provisions. The terms "hereof," "herein" and
"hereunder" and terms of similar import will refer to this Agreement as a whole
and not to any particular provision of this Agreement. Section and clause
references contained in this Agreement are references to Sections and clauses in
this Agreement, unless otherwise specified. Each defined term used in this
Agreement has a comparable meaning when used in its plural or singular form.
Each gender-specific term used in this Agreement has a comparable meaning
whether used in a masculine, feminine or gender-neutral form. Whenever the term
"including" is used in this Agreement (whether or not that term is followed by
the phrase "but not limited to" or "without limitation" or words of similar
effect) in connection with a listing of items within a particular
classification, that listing will be interpreted to be illustrative only and
will not be interpreted as a limitation on, or an exclusive listing of, the
items within that classification.
21. Modifications. This Agreement may not be altered or modified
without the express written consent of the parties hereto. No course of conduct
will constitute a waiver of any of the terms and conditions of this Agreement,
unless such waiver is specified in writing, and then only to the extent so
specified. A waiver of any of the terms and conditions of this Agreement on one
occasion will not constitute a waiver of the other terms of this Agreement, or
of such terms and conditions on any other occasion.
22. Binding Effect. This Agreement will be binding upon the respective
parties hereto and their heirs, executors, successors and assigns.
23. Miscertification. NBCU and the ▇▇▇▇▇▇ Stockholders will be liable
to one another for the consequences of any action taken by the Escrow Agent in
reliance upon any certification made by it pursuant to this Agreement that is
inaccurate in any respect.
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IN WITNESS WHEREOF, the parties hereto have executed this Escrow
Agreement on the day and year first above written.
NBC UNIVERSAL, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President and Chief Executive Officer
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇ ENTERPRISES, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
SECOND ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LIMITED PARTNERSHIP
By: ▇▇▇▇▇▇ Enterprises, Inc., its general partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
ESCROW AGENT: THE BANK OF NEW YORK
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Assistant Vice President
