ESCROW AND SECURITY AGREEMENT
ESCROW AND SECURITY AGREEMENT ("Agreement") dated February 3,
1993 among On Site Media, Inc., a Delaware corporation ("On Site"), Site-based Media,
Inc., a Delaware corporation ("Site-based"), and Citibank, N.A., as Escrowee of On Site
(the "Escrowee").
WHEREAS, Site-based has subscribed for certain shares of On Site pursuant to
Subscription Agreements between Site-based and On Site dated December 31, 1992 and
February 3, 1993 (together, the "Subscription Agreement");
WHEREAS, pursuant to the terms of the Stockholders' Agreement by and
between On Site, Site-based and certain other stockholders of On Site of even date
herewith (the "Stockholders' Agreement"), Site-based has made certain representations
and warranties to On Site, and has undertaken to indemnify On Site for losses and
liabilities incurred by On Site resulting from the breach or alleged breach by Site-based
of such representations and warranties;
WHEREAS, the Stockholders' Agreement contemplates that the shares of
common stock of On Site received by Site-based pursuant to the Subscription Agreement
will be delivered to and held by the Escrowee subject to the terms and conditions of this
Escrow and Security Agreement, as security for the payment by Site-based of its
indemnification obligations undertaken thereunder in connection with the representation
and warranty of Site-based contained in Section 9.01 of the Stockholders' Agreement;
NOW, THEREFORE, the parties hereto agree as follows:
1. Delivery of Shares; Security for Special Indemnity Obligation. (a)
Promptly following the execution hereof, Site-based shall deliver four thousand ten
(4,010) shares of unclassified common stock, $.01 par value per share, of On Site (the
"On Site Shares") to the Escrowee. The On Site Shares so delivered to the Escrowee
shall be represented by a certificate or certificates duly endorsed in blank, or
accompanied by stock powers in form and substance satisfactory to On Site, duly
endorsed in blank. Promptly upon receipt of the On Site Shares, the Escrowee shall
deliver to both On Site and Site-based a written acknowledgment of receipt thereof
indicating the number of shares so received.(b) In consideration of the covenants contained herein and other good and
valuable consideration and in order to provide security for the obligation of Site-based to
indemnify On Site under Article Eleven of the Stockholders' Agreement for all losses
and liabilities arising out of or relating to a breach by Site-based of (or, in the case of the
obligation of Site-based to indemnify On Site currently for all legal or other expenses
reasonably incurred by On Site in connection with its investigation of or defense against
claims, arising out of or relating to an alleged breach by Site-based of) the representation
and warranty set forth in Section 9.01 of the Stockholders' Agreement (the "Special
Indemnity Obligation"), Site-based hereby grants to On Site a security interest in and
hereby pledges, transfers, assigns and delivers, free and clear of any liens, encumbrances,
claims or demands whatsoever, except as otherwise set forth in Sections 8.04 and 8.05 of
the Disclosure Schedules to the Stockholders' Agreement, to the Escrowee as agent for
On Site: (i) the On Site Shares evidenced by the certificates delivered pursuant to Section
l(a), and (ii) all distributions of common stock of On Site, other securities or property
made with respect to such On Site Shares by reason of any stock dividend, stock split,
spin-off, merger, reclassification or other reorganization or receivable on account thereof
in partial or complete liquidation therefor and all cash substituted for or received as the
proceeds thereof (other than cash dividends which shall be payable to Site-based as
provided in Section 7(a)); all of which are hereby pledged, transferred and assigned to
the Escrowee by Site-based (all such On Site Shares, On Site common stock, securities,
property or cash described in clauses (i) and (ii) above being referred to herein
collectively as the "Collateral"). Any On Site common stock, securities, property and
cash referred to in the preceding sentence shall be delivered to the Escrowee to be held
hereunder and, any such common stock or other securities shall be delivered duly
endorsed in blank or accompanied by stock powers in form and substance satisfactory to
On Site, duly endorsed in blank. Site-based agrees to deliver to the Escrowee any such
On Site common stock, securities, property or cash as shall come into its possession or
control.2. Default; Unpaid Liabilities. The failure of Site-based at any time to
make payment of all amounts then payable to On Site by Site-based as payment of the
Special Indemnity Obligation (all such unpaid amounts, "Unpaid Liabilities"), as and
when evidenced to Escrowee by its receipt of (i) an order of a court of competent
jurisdiction, or (ii) a written notice jointly executed by On Site and Site-based, in either
case stating that such a failure to make payment has occurred and setting forth the
amount of the Unpaid Liability in respect of such failure (such a court order, a "Court
Order", and such a notice, a "Joint Notice"), shall constitute a default ("Default") by
Site-based under this Agreement. At and after the time of a Default, On Site shall have
the right to satisfy out of the Collateral any Unpaid Liability described in a Court Order
or Joint Notice in accordance with the following provisions.
3. Duties of the Escrowee.
(a) The Escrowee is hereby authorized and directed to hold the
Collateral as agent for On Site and deliver the same in accordance with the provisions of
this Agreement. Any Collateral consisting of cash (other than cash dividends or interest)
shall be invested and reinvested by the Escrowee to the extent practicable in sixty (60)
day U.S. Treasury Bills or in money market-type funds investing exclusively in U.S.
Treasury obligations.
(b) From and after a Default the Escrowee shall take such actions
with respect to the Collateral, or any part of it, on behalf of and for the benefit of On Site
as On Site may direct in written instructions provided in accordance with subsection (c),
below ("Instructions"). Instructions shall be in writing, addressed to the Escrowee as
such under this Agreement, dated currently and signed on behalf of On Site by an officer
thereof.
(c) From and after the time of a Default, On Site may, at its
option, upon not less than five (5) days prior written notice to Site-based of the exercise
of its rights under this Agreement and delivery to Escrowee of evidence of the delivery
of such written notice to Site-based, give Instructions to Escrowee to exercise any one or
more of the following remedies on behalf of On Site:
(i) In addition to all other rights and remedies granted to On
Site by law or by this Agreement or in any other instrument or
agreement securing, evidencing or relating to the Special Indemnity
Obligation, On Site shall have, and may instruct Escrowee as its
agent so as to give effect to, all of the rights and remedies with
respect to the Collateral of a secured party under the Uniform
Commercial Code ("Code") in effect in the State of New York at that
time.
(ii) Without limiting the generality of the foregoing, at its
option, On Site may instruct the Escrowee to transfer or register any
part of the Collateral (to the extent not previously so transferred or
registered) on the books of On Site into the name of On Site or On
Site's nominee(s), with or without any indication that such Collateral
is subject to the security interest hereunder, for purposes of arranging
for the sale of Collateral hereunder. Site-based hereby appoints
Escrowee as its attorney-in-fact to arrange at On Site's option for such
transfer. In addition, with respect to any Collateral which shall then be
in or shall thereafter come into the possession or custody of the
Escrowee, On Site may instruct the Escrowee to sell or cause the same
to be sold at any broker's board or at public or private sale, in one or
more sales or lots, at such price or prices as On Site may deem best,
for cash or on credit or for future delivery, without assumption of any
credit risk. The purchaser of any or all Collateral so sold shall
thereafter hold the same absolutely, free from any claim, encumbrance
or right of any kind whatsoever. Unless any of the Collateral threatens
to decline speedily in value or is or becomes of a type sold on a
recognized market, Escrowee will give Site-based reasonable notice of
the time and place of any public sale thereof, or of the time after
which any private sale or other intended disposition is to be made.
Any sale of the Collateral conducted in conformity with reasonable
commercial practices of banks, insurance companies, commercial
finance companies, or other financial institutions disposing of
property similar to the Collateral shall be deemed to be commercially
reasonable. Any requirements of reasonable notice shall be met if such
notice is mailed to Site-based as provided in Section 17 below, at least
ten (10) days before the time of the sale or disposition. Any other
requirement of notice, demand or advertisement for sale is, to the
extent permitted by law, waived. On Site may, in its own name or in
the name of a designee or nominee, buy any of the Collateral at any
public sale and, if permitted by applicable law, at any private sale.
Site-based shall be liable for all expenses (including court costs and
reasonable attorneys' fees and expenses) of, or incident to, the
enforcement of any of the provisions hereof, and all such expenses
shall constitute additional Unpaid Liabilities and shall be recoverable
from the proceeds of the sale or other disposition of the Collateral. In
view of the fact that federal and state securities laws may impose
certain restrictions on the method by which a sale of the Collateral
may be effected, Site-based agrees that Escrowee may, from time to
time, attempt to sell all or any part of the Collateral by means of a
private placement, restricting the prospective purchasers to one or
more who will represent and agree that they are purchasing for
investment only and not for distribution. Site-based further
acknowledges and confirms that any private sale undertaken in
conformity with these provisions may result in prices or other terms
less favorable to the seller than if such sale were a public sale and,
notwithstanding such circumstances, agrees that any private sale
undertaken in conformity with these provisions shall be deemed to
have been made in a commercially reasonable manner, and neither On
Site nor the Escrowee shall be under any obligation to take any steps
in order to permit the Collateral to be sold at a public sale.(iii) On Site may apply the proceeds of the disposition of
Collateral against any Unpaid Liabilities in such order and manner as
On Site may elect in its sole discretion. If the proceeds from any
disposition of the Collateral pursuant to this Agreement exceed the
amount of the Unpaid Liabilities, such excess shall be part of, and
included in, the Collateral for purposes of this Agreement.
(iv) On any sale of the Collateral, On Site is hereby
authorized to instruct Escrowee to comply with any limitation or
restriction, compliance with which is necessary, in view of On Site's
counsel, in order to avoid any violation of applicable law or in order to
obtain any required approval of the purchaser or purchasers by any
applicable governmental authority.
(d) No delay in exercising, or failure to exercise, any
remedy or right accruing in respect of any Default shall impair such remedy
or right, or shall be construed to be a waiver of any such Default, or
acquiescence therein, nor shall it affect any subsequent Default.
4. Release of Collateral. (a) Forthwith upon the later of (i) two
(2) years after the date hereof, or (ii) the final disposition of any claim by On
Site of the existence of any Unpaid Liability in respect of a failure by Site-
based to make payment to On Site of all amounts then payable by Site-based
as a Special Indemnity Obligation for which On Site shall have given written
notice to Site-based and the Escrowee prior to the expiration of said two-year
period, On Site shall deliver Instructions to the Escrowee stating that the
applicable condition has occurred and directing the Escrowee to deliver the
Collateral then held by it to Site-based. Unless otherwise agreed by On Site
and Site-based, the failure of On Site to commence legal action with respect
to any claim which is the subject of a notice of the type described in clause
(ii), above, within sixty (60) days following the second anniversary of the
date hereof, shall be deemed the final disposition of such claim. If On Site
fails to deliver Instructions as required in accordance with this Section 4, Site-
based shall have the right to deliver written instructions to the Escrowee
instructing the Escrowee promptly to release the Collateral (the "Site-based
Release Instructions"). Escrowee shall within three (3) days after its receipt of
the Site-based Release Instructions deliver written notice to On Site of such
receipt. Fifteen (15) business days after Escrowee's delivery of such notice to
On Site, Escrowee shall release the Collateral to Site-based unless, prior to
such time, On Site shall, by notice to Escrowee, object to such release on the
basis that there exists one or more claims of the type described in subclause
(ii) of clause (a), above, for which there has been no final disposition. In the
event the Escrowee receives such a notice from On Site, it shall only release
the Collateral (but then promptly) upon its receipt of an order of a court of
competent jurisdiction or written instructions jointly signed by Site-based and
On Site, in either case directing release of the Collateral then held by it.(b) In the event that there exist any claims by On Site
of the existence of any Unpaid Liabilities after the date two years from the
date hereof, the Escrowee shall release to Site-based the shares of On Site
stock held as Collateral, upon Site-based's substitution of cash for such stock
as Collateral, provided that such cash is in an amount that On Site certifies, by
Instructions to Escrowee, is adequate to pay all Unpaid Liabilities that On
Site determines, in its sole discretion, may arise out of such claims.
(c) Notwithstanding any other provisions hereof to the
contrary, the Escrowee shall at any time release all or a portion of the
Collateral to (i) (x) Site-based or (y) otherwise in accordance with Site-
based's instructions, if Instructions authorizing the release of all or such
portion of Collateral on such basis are received by Escrowee from On Site,
which Instructions are duly accepted in writing by NBC Sub or, (ii) to Site-
based, if Instructions authorizing such release are received by Escrowee from
On Site, which Instructions are duly accepted in writing by NBC Sub.
5. Supplemental Instructions. In the event that the Escrowee is
in doubt with respect to any Instructions delivered to it hereunder, the
Escrowee may apply for supplemental instructions ("Supplemental
Instructions") to On Site, and On Site shall endeavor to furnish the Escrowee
with such Supplemental Instructions. The Escrowee may apply for advice to
counsel of its choice, and may rely upon such advice; or it may act or refrain
from acting in accordance with its best judgment and shall not, as a result
thereof, be answerable to any other party hereto except for gross negligence
or willful misconduct.6. Termination. This Agreement shall terminate upon delivery
of all Collateral in accordance with the provisions hereof, and payment in full
of all amounts owing the Escrowee hereunder. The termination of this
Agreement or the insufficiency of the Collateral to satisfy any Unpaid
Liability hereunder, shall not be deemed to terminate, limit or otherwise alter
any Special Indemnity Obligation or any other obligations or liabilities of
Site-based under the Stockholders' Agreement.7. Voting of Shares, Dividends, Distributions, etc. (a)
Provided that there shall not have occurred and be continuing a Default, so
long as the Collateral shall remain subject to this Agreement, Site-based shall: (i) Have the right to vote, and to give consents and
waivers, with respect to all shares of On Site common stock
or other securities pledged, transferred, and assigned and
delivered hereunder by Site-based to the Escrowee, all as
though such Collateral were not subject to this Agreement,
and the Escrowee shall deliver to Site-based suitable
proxies, consents and waivers for such purpose in respect of
such Collateral; and (ii) Be entitled to collect and receive for its own
use, and the Escrowee shall deliver to Site-based suitable
assignments and orders for the payment to Site-based of, all
cash dividends and interest payable on or with respect to
such Collateral.
(b) After the occurrence and during the continuance of
a Default, On Site shall be entitled to instruct the Escrowee to, and the
Escrowee thereafter shall, exercise all voting powers pertaining to the
Collateral and give, exclusively, consents, ratifications and waivers with
respect thereto for all purposes, pursuant to Instructions received from On
Site.
(c) All dividends and distributions (other than cash
dividends or interest referred to in Section 7(a)(ii), but only provided that
there shall not have occurred and be continuing a Default) of any character on
or with respect to the Collateral shall be paid or delivered to the Escrowee to
be held pursuant to the terms hereof. Without limiting the generality of the
foregoing, in the event of a capital reorganization or reclassification of the On
Site common stock or a consolidation or merger of On Site with or into
another corporation or a voluntary or involuntary dissolution, liquidation or
winding up of On Site, the Escrowee shall, upon receipt of Instructions from
On Site (unless given timely notice by Site-based that it has elected to
exercise appraisal or similar rights), exchange the Collateral for the cash,
securities or other property deliverable in such event, and shall hold such
securities or property (and any cash, securities or other property received by
reason of election of appraisal or similar rights) upon the terms of this
Agreement.8. Responsibility of Escrowee. Escrowee shall be fully
justified in failing or refusing to take any action under this Agreement unless
it shall be indemnified to its satisfaction against any and all liability and
expense which may be incurred by it by reason of taking or continuing to take
any such action. Except as required by the specific terms of this Agreement,
Escrowee shall have no duty to exercise any right, power, remedy or privilege
granted to it hereby or to take any affirmative action hereunder unless
directed to do so by On Site pursuant to Instructions, Supplemental
Instructions or otherwise as provided hereunder.
9. Representations and Warranties. Subject to obtaining
Transaction Approval, as that term is defined in the Stockholders' Agreement,
and to the provision for mandatory surrender of the On Site Shares to On Site
under the terms of the Stockholders' Agreement, and except as otherwise set
forth in Sections 8.04 and 8.05 of the Disclosure Schedules to the
Stockholders' Agreement, Site-based represents and warrants to On Site that: (a)Site-based owns, and with respect to Collateral acquired
after the date hereof, Site-based will own, beneficially, the Collateral free and
clear of any lien, security interest, pledge, claim or other encumbrance or any
right or option on the part of any third person to purchase or otherwise
acquire the Collateral or any part thereof, except for the security interest
granted hereunder. Site-based has the unrestricted right to pledge the
Collateral as contemplated hereby. All of the Collateral has been duly and
validly issued and is fully paid and nonassessable.
(b) Site-based has all requisite authority and ability to
execute and deliver this Agreement, and there is no restriction on or
prohibition of Site-based's pledge of the Collateral as provided herein.
(c) This Agreement creates in favor of On Site a first
lien security interest in the Collateral, and the delivery of the Collateral to the
Escrowee creates a perfected security interest in the Collateral.
(d) The execution, delivery and performance of this
Agreement will not violate (i) any provision of law or any order of any court
or other agency or instrumentality of government or (ii) any indenture,
agreement or other instrument to which Site-based is a party or by which any
of the property or assets of Site-based is bound, or be in conflict with, result
in a breach of or constitute (with due notice or lapse of time or both) a default
under any such indenture, agreement or other instrument or result in the
creation or imposition of any lien, charge or encumbrance of any nature
whatsoever upon any of the property or assets of Site-based other than the
Collateral.
10. Covenants. Site-based covenants and agrees with On Site
that, until the termination of this Agreement: (a) Site-based shall not create, permit or suffer to exist,
and shall defend the Collateral against, any lien, security interest or other
encumbrance on the Collateral, except the pledge and security interest of On
Site hereunder, and shall defend On Site's rights in the Collateral and On
Site's security interest in the Collateral against the claims of all persons and
entities.
(b) Site-based shall not attempt to sell, assign or
otherwise dispose of the Collateral or any part thereof.
11. Further Assurances. (a) At any time and from time to time,
upon the request of On Site, and at the sole expense of Site-based, Site-based
shall promptly execute and deliver all such further instruments and documents
and take such further action as On Site may deem necessary or desirable to
preserve and perfect its security interest in the Collateral and carry out the
provisions and purposes of this Agreement. (b) Without limiting the generality of the foregoing,
Site-based agrees that it will (i) execute and file such financing statements as
On Site may require, and (ii) instruct each "financial intermediary" (as
defined in the Uniform Commercial Code of the State of New York) with
whom Site-based maintains an account to note On Site's security interest in
the Collateral. A carbon, photographic or other reproduction of this
Agreement or of any financing statement covering the Collateral or any part
thereof shall be sufficient as a financing statement and may be filed as a
financing statement.
12. Registration. (a) In the event that, at or after such time as
Site-based is entitled to request the registration of the On Site Shares under
the Securities Act of 1933 pursuant to Section 6.01 of the Stockholders
Agreement (such a time, the "Incidental Registration Request Time") On Site
determines that it is advisable for Site-based to register the On Site Shares,
Site-based will request such registration and use its best efforts to cause such
registration to be effectively made, at no expense to On Site (other than such
expenses as are to be borne by On Site under Section 6.01 of the
Stockholders' Agreement, as issuer of the On Site Shares).(b) In the event that, at or after the Incidental
Registration Request Time, there shall not at such time be existing a Default
in respect of which any Unpaid Liability remains, Site-based shall be
permitted to exercise its right to request registration of any Registrable
Securities (as defined in the Stockholders' Agreement) which are held as part
of the Collateral, provided that all of the proceeds realized upon any sales of
any such shares pursuant to such registration shall be payable directly to
Escrowee to be held by Escrowee as Collateral upon the terms of this
Agreement.
13. Rights of NBC Sub. (a) Each of Site-based and On
Site agree, that, for the purpose of inducing NBC Site Media, Inc., a Delaware
corporation ("NBC Sub"), to enter into the Stockholders' Agreement, NBC
Sub shall be an intended third party beneficiary of all of the rights granted to
On Site under this Agreement.
(b) On Site hereby irrevocably constitutes and appoints
NBC Sub, and any officer or agent thereof, with full power of substitution, as
its true and lawful attorney-in-fact with full irrevocable power and authority
from time to time in NBC Sub's discretion to take any action permitted to be
taken by On Site hereunder, in the place and stead and in the name of On Site
or in its own name, in the event of On Site's failure to exercise any such right
promptly and in any event within two (2) days after the date on which On Site
first is entitled to exercise such right; provided, however, that if NBC Sub
exercises its power and authority as such attorney-in-fact to take action in the
name and stead of On Site or in its name, which subjects On Site to expense,
loss or liability, NBC Sub shall indemnify and hold harmless On Site from
and against any claim asserting such expense, loss or liability and shall
reimburse On Site for all costs in investigating or defending such loss,
liability or claim.
14. Concerning the Escrowee. To induce the Escrowee to act
hereunder, it is further agreed that:(a) The Escrowee shall not be under any duty to give
the Collateral held by it hereunder any greater degree of care than it gives its
own similar property and shall not be required to invest any funds held
hereunder except as directed in this Escrow and Security Agreement.
Uninvested funds held hereunder shall not earn or accrue interest.
(b) This Escrow and Security Agreement expressly sets
forth all the duties of the Escrowee with respect to any and all matters
pertinent hereto. No implied duties or obligations shall be read into this
agreement against the Escrowee. The Escrowee shall not be bound by the
provisions of any agreement among the other parties hereto except this
Escrow and Security Agreement.
(c) The Escrowee shall not be liable, except for its own
gross negligence or willful misconduct and, except with respect to claims
based upon such gross negligence or willful misconduct that are successfully
asserted against the Escrowee, the other parties hereto shall jointly and
several indemnify and hold harmless the Escrowee (and any successor
Escrowee) from and against any and all losses, liabilities, claims, actions,
damages and expenses, including reasonable attorneys' fees and
disbursements arising out of and in connection with this Escrow and Security
Agreement. Without limiting the foregoing, the Escrowee shall in no event be
liable in connection with its investment or reinvestment of any cash held by it
hereunder in good faith, in accordance with the terms hereof, including
without limitation any liability for any delays (not resulting from its gross
negligence or willful misconduct) in the investment or reinvestment of the
Collateral, or any loss of interest incident to any such delays.
(d) The Escrowee shall be entitled to rely upon any
order, judgment, certification, demand, notice, instrument or other writing
delivered to it hereunder without being required to determine the authenticity
or the correctness of any fact stated therein or the proprietary or validity or
the service thereof. The Escrowee may act in reliance upon any instrument or
signature believed by it to be genuine and may assume that any person
purporting to give receipt or advice or make any statement or execute any
document in connection with the provisions hereof has been duly authorized
to do so.
(e) The Escrowee may act pursuant to the advice of
counsel with respect to any matter relating to this Escrow and Security
Agreement and shall not be liable for any action taken or omitted in
accordance with such advice.
(f) The Escrowee does not have any interest in the
Collateral pledged hereunder, but is serving as agent of On Site only and
having only possession of the Collateral. Site-based shall pay or reimburse the
Escrowee upon request for any transfer taxes or other taxes relating to the
Collateral incurred in connection herewith and shall indemnify and hold
harmless the Escrowee from any amounts that it is obligated to pay in the way
of such taxes. Any payments of income from the Collateral shall be subject to
withholding regulations then in force with respect to United States taxes. The
parties hereto will provide the escrowee 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 Escrowee shall be responsible for income reporting
only with respect to income earned on investment of funds which are a part of
the Collateral and is not responsible for any other reporting. This paragraph
and paragraph (c) shall survive notwithstanding any termination of this
Escrow and Security Agreement or the resignation of the Escrowee.
(g) The Escrowee makes no representation as to the
validity, value, genuineness or the collectability of any security or other
document or instrument held by or delivered to it. (h) The Escrowee shall not be called upon to advise
any party as to the wisdom in selling or retaining or taking or refraining from
any action with respect to any securities or other property deposited
hereunder.
(i) The Escrowee (and any successor Escrowee) may
at any time resign as such by delivering the Collateral to any successor
Escrowee designated by On Site, subject to the consent of Site-based (which
consent shall not be unreasonably withheld), or to any court of competent
jurisdiction, whereupon the Escrowee shall be discharged of and from any
and all further obligations arising in connection with this Escrow and Security
Agreement. The resignation of the Escrowee will take effect on the earlier of
(a) the appointment of a successor (including a court of competent
jurisdiction) or (b) the day which is thirty (30) days after the date of delivery
of its written notice of resignation to the other parties hereto. If at that time
the Escrowee has not received a designation of a successor Escrowee, the
Escrowee's sole responsibility after that time shall be to safekeep the
Collateral until receipt of a designation of a successor Escrowee designated
either by On Site, as provided in the first sentence of this clause (i), or by an
order of a court of competent jurisdiction.(j) The other parties hereto hereby irrevocably submit
to the jurisdiction of any New York State or federal court sitting in New York
City in any action or proceeding arising out of or relating to this Escrow and
Security Agreement, and the parties hereby irrevocably agree that all claims
in respect of such action or proceeding shall be heard and determined in such
a New York State or federal court. The other parties hereby consent to and
grant to any such court jurisdiction over the persons of such parties and over
the subject matter of any such dispute and agree that delivery or mailing of
any process or other papers in the manner provided herein above, or in such
other manner as may be permitted by law, shall be valid and sufficient service
thereof.
(k) No printed or other matter in any language
(including without limitation prospectuses, notices, reports and promotional
material) which mentions the Escrowee's name or the rights, powers, or duties
of the Escrowee shall be issued by the other parties hereto or on such parties'
behalf unless the Escrowee shall first have given its specific written consent
thereto.
(1) This Escrow and Security Agreement shall be
binding upon and inure solely to the benefit of the parties hereto and their
respective successors and assigns, heirs, administrators and representatives
and shall not be unforeseeable by or inure to the benefit of any third party
except as provided in clause (i) of this Section with respect to a resignation by
the Escrowee, and as provided in Section 13. No party may assign any of its
rights or obligations under this Escrow and Security Agreement without the
written consent of the other parties.
(m) The other parties hereto authorize the Escrowee, for
any securities held hereunder, to use the services of any United States central
securities depository it deems appropriate, including, but not limited to, the
Depositary Trust Company and the Federal Reserve Book Entry System.
15. Amendments. This Agreement may be amended by a
document in writing, executed by On Site, Site-based and the Escrowee, and
approved in writing by NBC Sub prior to the effectiveness of such
amendment, but not otherwise. No such amendment shall be effective to alter
or enlarge the Escrowee's rights, obligations and duties hereunder without its
prior written consent.16. Expenses. (a) All initial startup fees and annual fees of the
Escrowee under this Agreement, consisting of a $1,000 start-up fee and an
annual fee of $5,000 per year (payable in advance of each year), shall be
borne by On Site. On-Site agrees to make payment to Escrowee of Six
Thousand Dollars ($6,000) promptly after the execution hereof, in full
payment of the initial start-up fees and the first year of the annual fee. (b) All other expenses, disbursements and advances
incurred or made by Escrowee in the performance of its duties hereunder
(including reasonable fees, expenses and disbursements of its counsel) shall
be payable by Site-based, including all costs incurred by Escrowee in
enforcing On Site's rights hereunder. Notwithstanding anything to the
contrary in the foregoing, any fees or expenses of the Escrowee or its counsel
which are not paid as provided herein may be taken from any Collateral held
by Escrowee hereunder.
17. Notices. Any notices, communications, Instructions or
Supplemental Instructions required or permitted hereunder shall be in writing
and shall be sufficiently given or delivered if sent by registered or certified
mail, postage prepaid, or delivered by hand, if to Site-based, addressed to it
at: Site-based Media, Inc., 369 Lexington Avenue, New York, New York,
Attention: Eugene Detroyer, with a copy to Steven Wasserman, Brandeis,
Bernstein & Wasserman, 950 Third Avenue, New York, New York, 10022,
Attention: Hartley T. Bernstein, Esq.; if to On Site addressed to On-Site
Media, Inc. 369 Lexington Avenue, New York, New York 10017, Attention:
Eugene Cafiero/Nancy Shalek, with a copy to: Proskauer, Rose, Goetz &
Mendelsohn, 1585 Broadway, New York, New York, 10030, Attention:
Arnold J. Levine; if to Escrowee addressed to Citibank, N.A., Corporate Trust
Department, 120 Wall Street, 13th Floor, New York, New York, 10043,
Attention: William O. Gauger, Facsimile No.: (212) 480-1614, Telephone
No.: (212) 412-6253; if to NBC Sub addressed to NBC Site Media, Inc., c/o
National Broadcasting Company, Inc., 30 Rockefeller Plaza, New York, New
York, 10112, Facsmile No.: (212) 664-6572, Telephone No.: 212-664-7195,
Attention: Thomas S. Rogers with a copy to Stephen F. Stander, Senior Vice
President, Law; or in each case to such other address as may be specified in
writing to each of the parties hereto.18. Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of the parties hereto and the successors or
assigns of the Escrowee, On Site, Site-based and NBC Sub. This Agreement
shall not be assignable by Site-based. Nothing contained in this Agreement,
express or implied, is intended to confer upon any person other than the
parties hereto and their respective heirs, executors, administrators, legal
representatives, successors and assigns as aforesaid, any rights or remedies
under or by reason of this Agreement.
19. Controlling Law. This Agreement shall be construed and
enforced in accordance with the laws of New York.20: Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original agreement but
all of which shall be considered one and the same instrument.21. Interpretation. Titles and headings to paragraphs herein are
inserted for convenience or reference only and are not intended to be a part of
or to affect the meaning or interpretation of this Agreement.
ON SITE MEDIA, INC.
By______________________________
SITE-BASED MEDIA, INC.
By______________________________
CITIBANK, N. A.,
AS ESCROWEE
By______________________________NILLIAM O. GAUGERVice President
