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Exhibit 10(q)
DEPOSIT ESCROW AGREEMENT
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THIS AGREEMENT is made and entered into this 16th day of June, 1997, by
and among REGENT COMMUNICATIONS, INC., a Delaware corporation ("Buyer"); those
individuals or parties listed on the signature page(s) hereto as Sellers
(collectively, "Sellers"); and STAR MEDIA, as escrow agent ("Escrow Agent").
WITNESSETH:
WHEREAS, Sellers and Buyer have entered into a certain Stock Purchase
Agreement, dated June 16, 1997 (the "Purchase Agreement"), under which Sellers
will sell, assign and otherwise convey to Buyer all of the outstanding capital
stock of The Park Lane Group, a California corporation; and
WHEREAS, Sellers and Buyer desire Escrow Agent to serve as Escrow Agent
for certain monies to be held to secure Buyer's performance under the Purchase
Agreement, and Escrow Agent is willing to do so, all upon the terms and
conditions set forth in this Agreement.
NOW, THEREFORE, on the basis of the mutual promises and covenants set
forth herein, it is agreed as follows:
1. DELIVERY OF ESCROW FUND
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1.1 Simultaneously with the execution hereof, Buyer shall deliver to
Escrow Agent an irrevocable, stand-by letter of credit in the amount of One
Million One Hundred Seventy-Five Thousand Dollars ($1,175,000) (the "Escrow
Fund"). By execution of this Agreement, Escrow Agent hereby acknowledges receipt
of the Escrow Fund.
1.2 The Escrow Fund shall be held on the terms and subject to the
limitations set forth herein as a source of funds for the payment of liquidated
damages in the event that a Closing under the Purchase Agreement is not
consummated solely by reason of a material breach by Buyer, and shall be
released by the Escrow Agent in accordance with the terms and conditions
hereinafter set forth.
2. MAINTENANCE AND DISTRIBUTION OF ESCROW FUND
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2.1 Escrow Agent shall hold or promptly place the Escrow Fund, if
converted to cash, in such investment vehicle and financial institution as may
be designated by Buyer from time to time. In the event Escrow Agent receives no
such designation, Escrow Agent shall invest the cash Escrow Fund in
federally-insured savings accounts. Escrow Agent shall not be liable for the
investment results, or lack thereof, achieved by the investment vehicle chosen
by Buyer, nor
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shall Escrow Agent have any liability for loss of the Escrow Fund in the event
of the financial failure of the financial institution chosen by Buyer.
2.2 At the time and place of the Closing under the Purchase Agreement,
and simultaneously with the performance by Buyer and Sellers of their respective
obligations under the Purchase Agreement, Buyer and Sellers shall instruct the
Escrow Agent to deliver or pay the Escrow Fund to Buyer.
2.3 On the fifteenth (15th) day after Escrow Agent's receipt of written
notice from Sellers' Representative (with evidence of service of such notice on
Buyer) that (a) the Purchase Agreement has been terminated pursuant to Section
13.01(c) of the Purchase Agreement solely because of Buyer's material breach of
the Purchase Agreement which was not cured with any applicable cure period, and
(b) all other conditions to Closing are at such time satisfied or waived (other
than such conditions as can reasonably be expected to be satisfied by the
Closing) ("Sellers Notice"), Escrow Agent shall deliver the Escrow Fund to
Sellers, c/o Xxxxx X. Xxxx (Sellers' Representative), c/o Xxxxxx Xxxxxxx
Xxxxxxxx & Xxxxxx, 000 Xxxx Xxxx Xxxx, Xxxx Xxxx, XX 00000; provided, however,
that Escrow Agent shall make no such delivery if Buyer, prior to the expiration
of the aforesaid 15-day period, has provided notice to Escrow Agent and Sellers
of its countervailing claim to the Escrow Fund or otherwise claims that Sellers
are not entitled to the Escrow Fund for any reason ("Buyer's Rebuttal Notice").
2.4 On the fifteenth (15th) day after Escrow Agent's receipt of written
notice from Buyer (with evidence of service of such notice on Sellers) that the
Purchase Agreement has been terminated for any reason other than the
circumstances described in Section 2.3 above ("Buyer's Notice"), Escrow Agent
shall deliver the Escrow Fund to Buyer; provided, however, that Escrow Agent
shall make no such delivery if Sellers' Representative, prior to the expiration
of the aforesaid 15-day period, has provided notice to Escrow Agent and Buyer of
Sellers' countervailing claim to the Escrow Fund or otherwise claims that Buyer
is not entitled to the Escrow Fund for any reason ("Sellers' Rebuttal Notice").
2.5 After timely receipt by Escrow Agent of Sellers' Rebuttal Notice or
Buyer's Rebuttal Notice, Escrow Agent shall not deliver the Escrow Fund until
such time as Escrow Agent receives: (a) a written agreement signed by Sellers'
Representative and Buyer providing instructions as to the disposition of the
Escrow Fund, or (b) a certified copy of an order or judgment from an arbitrator
or court which has become final (meaning that the order or judgment is no longer
subject to appeal to or review by a court of competent jurisdiction) with
respect to the disposition of the Escrow Fund, at which time, Escrow Agent shall
deliver the Escrow Fund in accordance with said agreement, order or judgment.
Any interest earned on the Escrow Fund in all events shall be delivered to Buyer
at the termination of this Agreement. Notwithstanding the foregoing, after
receipt by Escrow Agent of Sellers' Rebuttal Notice or Buyer's Rebuttal Notice,
Escrow Agent may, but need not: (a) deposit the Escrow Fund with any court which
has properly assumed jurisdiction of any dispute hereunder, or (b) commence an
action in interpleader in any court of competent jurisdiction in Ohio and
deposit the Escrow
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Fund and any interest earned thereon with such court; and thereupon, Escrow
Agent shall be discharged from all further duties under this Agreement.
2.6 Notwithstanding any other provision of this Escrow Agreement,
Escrow Agent shall, upon receipt of written instructions signed jointly by
Sellers' Representative and Buyer, deliver the Escrow Fund to the party or
parties named in, or otherwise act in accordance with such instructions.
3. GENERAL PROVISIONS
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3.1 This Escrow Agreement shall become effective as of the date hereof
and shall continue in force until the final delivery of the Escrow Fund and any
interest earned thereon by Escrow Agent pursuant to the terms of this Escrow
Agreement. This Agreement shall then terminate and the Escrow Agent shall be
discharged of all responsibility hereunder.
3.2 All notices, demands or other communications required or permitted
by this Escrow Agreement shall be in writing and shall be: (a) delivered
personally, (b) sent, charges prepaid, by nationally recognized overnight
delivery service, or (c) by facsimile transmission, to all of the following
persons at the specified addresses or facsimile transmission phone number (or at
such other address or facsimile transmission phone number as any party may
designate in writing to the other parties):
To Sellers: Xxxxx X. Xxxx, Sellers' Representative
x/x Xxx Xxxx Xxxx Group
000 Xxxxx Xxx., Xxxxx 000
Xxxxx Xxxx, XX 00000
Fax: (000) 000-0000
Copy to: Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxxxxxxx
Fax: (000) 000-0000
If to Buyer: Regent Communications, Inc.
00 Xxxx XxxxxXxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxx
Fax: (000) 000-0000
and to: Xxxxxxx & Xxxx
2100 PNC Center
000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxx X. Xxxxxx
Fax: (000) 000-0000
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If to Escrow Agent: Star Media
0000 Xxxxxxxx Xxxxx, Xxxxx 000 Xxxx
Xxxxxx, Xxxxx 00000
Attn: Xxxxx Xxxxx
Fax: (000) 000-0000
A copy of any notice or communication given by any party to any other party
hereto shall be given at the same time to every party to this Escrow Agreement.
Each notice, demand or other communication which shall be delivered or sent in
the manner described above shall be deemed effective for all purposes at such
time it is actually delivered to the addressee (with the delivery receipt or the
affidavit of messenger or facsimile confirmation sheet being deemed conclusive
but not exclusive evidence of such delivery) or at such time as delivery is
refused by the addressee upon presentation.
3.3 In no event shall the Escrow Agent be liable for any act or failure
to act under the provisions of this Escrow Agreement, except where its acts are
the result of its own gross negligence or willful misconduct. The Escrow Agent
shall have no duties except those which are expressly set forth herein, and it
shall not be bound by any waiver, modification, amendment, termination or
rescission of this Escrow Agreement, unless in writing received by it and signed
by Buyer and Sellers' Representative. No right, duty or obligations of the
Escrow Agent hereunder shall be changed or modified without the Escrow Agent's
prior written consent.
3.4 The Escrow Agent shall be protected in acting upon any written
notice, request, waiver, consent, receipt or other paper or document furnished
to it in connection herewith, not only as to its due execution and the validity
and effectiveness of its provisions, but also as to the truth and acceptability
of any information therein contained, which it reasonably believes to be genuine
and what it purports to be.
3.5 In the event that the Escrow Agent shall find it necessary to
consult with counsel of its own choosing in connection with this Escrow
Agreement, the Escrow Agent shall not incur any liability for any action taken
in accordance with such advice. Buyer, on the one hand, and Sellers, on the
other hand, jointly and severally, shall indemnify and hold harmless the Escrow
Agent for any liability, loss, claim or damage incurred by the Escrow Agent in
connection with this Escrow Agreement, including any claims by third parties,
unless such liability, loss, claim or damage is a result of Escrow Agent's own
gross negligence or willful misconduct. This indemnification shall survive
termination of this Escrow Agreement.
3.6 The Escrow Agent may resign at any time by giving a minimum of
thirty (30) days prior written notice of resignation to both Buyer and Sellers,
such resignation to be effective on the date specified in such notice. Any
assets held by the Escrow Agent under the terms of this Escrow Agreement as of
the effective date of the resignation shall be delivered to a successor Escrow
Agent designated in writing by both Buyer and Sellers' Representative.
3.7 Escrow Agent is not a party to, and is not bound by, any agreement
relating to the Escrow Fund other than as expressly set forth herein. In the
event that any of the terms and provisions of any other agreement (excluding any
amendment to this Escrow Agreement)
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between any of the parties hereto, conflict or are inconsistent with any of the
provisions of this Escrow Agreement, the terms and provisions of this Escrow
Agreement shall govern and control in all respects.
3.8 The Escrow Agent shall serve hereunder without compensation. In the
event that Buyer or Sellers file a lawsuit or institute arbitration or other
formal legal action against the other (including any counterclaim to a lawsuit
filed by the other party) to enforce its right to the Escrow Fund under this
Agreement, the prevailing party shall be reimbursed by the other party (either
Sellers or Buyer, as the case may be) and the non-prevailing party shall
reimburse Escrow Agent for all expenses incurred therewith, including reasonable
attorneys' fees.
3.9 This Escrow Agreement shall be binding upon and inure to the
benefit of the parties, their successors and assigns.
3.10 The construction and performance of this Escrow Agreement shall be
governed by the laws of the State of California without giving effect to the
choice of law provisions thereof.
3.11 This Escrow Agreement may be executed in one or more counterparts,
each of which will be deemed an original and all of which together will
constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above set forth.
REGENT COMMUNICATIONS, INC. STAR MEDIA
By:____________________________ By:____________________________
Name:__________________________ Name:__________________________
Its:___________________________ Its:___________________________
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SELLERS:
___________________________________ ______________________________________
Xxxxxxx Xxxx Xxxx X. Xxxx, Co-Trustee of the Xxxx and
Address: Xxxxxx Xxxx Living Trust dated 4/21/92
___________________________________ Address:
___________________________________ ______________________________________
______________________________________
___________________________________
Xxxxx X. Xxxx, as Co-Trustee of Xxxxx ___________________________________
Levy and Xxxxxx Xxxx Community Xxxxxx X. Xxxx, co-Trustee of the Xxxx
Property Trust U/D/T Dated and Xxxxxx Xxxx Living Trust
May 2, 1986 dated 4/21/92
Address: Address:
___________________________________ ______________________________________
___________________________________ ______________________________________
___________________________________ ______________________________________
Xxxxxx Xxxxx Xxxx, as Co-Trustee of Xxxxx X. Xxxx
the Xxxxx Xxxx and Xxxxxx Xxxx Address:
Community ______________________________________
Property Trust U/D/T Dated May 2, 1986 ______________________________________
Address:
___________________________________ ______________________________________
___________________________________
Xxxxxxx X. Xxxxxxxx
___________________________________ Address:
Xxxxxx Xxxxxxxxxxxx
Address: ______________________________________
___________________________________ ______________________________________
___________________________________
BancBoston Ventures, Inc. ______________________________________
By:_________________________________ Xxxxxx X. Xxxx
Printed Name:_______________________ Address:
Title:______________________________ _______________________________________
Address: _______________________________________
____________________________________
____________________________________
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Trantek Traders Ltd.
By:___________________________________
Quest Ventures II, L.P. Printed Name:_________________________
By:___________________________________ Title:________________________________
Printed Name:__________________________ Address:
Title:__________________________________ ______________________________________
Address: ______________________________________
____________________________________
____________________________________
Nazem & Company III, L.P.
By:___________________________________
Quest Ventures International, L.P. Printed Name:_________________________
By:___________________________________ Title:________________________________
Printed Name:_________________________ Address:
Title:________________________________ ______________________________________
Address: ______________________________________
______________________________________
______________________________________ Xxxxxxx X. Xxxxxxx, Trustee, WSGR
Retirement Plan FBO Xxxxxx X.
______________________________________ Xxxxxxxxxxxx
Xxxxx Xxxxxxxxxx Address:
Address: ______________________________________
______________________________________ ______________________________________
______________________________________
______________________________________ ______________________________________
Xxxxx X. Xxxx, Trustee FBO the Xxxxx X. Xxxx Xxxxxx
Xxxx Separate Property Trust dated Address:
9/27/84 ______________________________________
Address: ______________________________________
______________________________________
______________________________________
______________________________________
______________________________________ Xxxxx Xxxxxx
Xxxx X. Xxxx Address:
Address: ______________________________________
______________________________________ ______________________________________
______________________________________
______________________________________ ______________________________________
Xxxxxx X. Xxxx Xxxx Xxxxx, Trustee of Nazem Inc.
Address: Defined Benefit Plan
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______________________________________ Address:
______________________________________ _______________________________________
_______________________________________
______________________________________ _______________________________________
Xxxxxx Xxxxxxxxx Xxxxxxx Xxxxxx
Address: Address:
______________________________________ _______________________________________
______________________________________ _______________________________________
Seabourne World Express Group PLC
By:___________________________________
Printed Name:_________________________
Title:________________________________
Address:
______________________________________
______________________________________
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FIRST AMENDMENT TO DEPOSIT ESCROW AGREEMENT
This First Amendment to Deposit Escrow Agreement (the "Amendment"),
dated February 2, 1998, is entered into by and among Regent Communications, Inc.
("Buyer"); all of the shareholders ("Sellers") of The Park Lane Group, executed
on behalf of Sellers by Xxxxx X. Xxxx pursuant to authority granted to him as
Sellers' Representative; and Star Media, as escrow agent.
WHEREAS, Buyer, Sellers, and Star Media are parties to a Deposit Escrow
Agreement, dated June 16, 1997 (the "Deposit Agreement") whereby Buyer has
deposited with Star Media a Letter of Credit in the amount of $1,175,000
pursuant to the terms of a Stock Purchase Agreement of even date therewith
between Sellers and Buyer (the "Purchase Agreement"); and
WHEREAS, the said Letter of Credit has an expiration date of June 30,
1998; and
WHEREAS, Buyer has agreed to extend the expiration date under certain
circumstances set forth in a First Amendment to the Purchase Agreement of even
date herewith; and
WHEREAS, the parties desire to amend the Deposit Agreement to provide
certain remedies to Sellers in the event the said Letter of Credit is not
renewed or converted to cash as required under the terms of the Purchase
Agreement, as amended;
NOW, THEREFORE, it is hereby agreed that the Deposit Agreement is
hereby amended as follows:
1. Section 2.3 of the Deposit Agreement is hereby amended in its
entirety to provide as follows:
"2.3 The Escrow Agent shall deliver the Escrow Fund
to Sellers according to the following procedures:
(a) On the fifth (5th) business day after
Escrow Agent's receipt of written notice from Sellers'
Representative (with evidence of service of such notice on
Buyer) that (i) the Purchase Agreement has been terminated
pursuant to Section 13.01(c) by reason of a failure of Buyer
to deliver the closing documents referred to in Section 9.04
or renew or convert the Letter of Credit to cash, which
failure was not cured within any applicable cure period, and
(ii) all other conditions to Closing are at such time
satisfied or waived (other than such conditions as can
reasonable be expected to be satisfied by the Closing)
("Sellers Notice"), Escrow Agent shall deliver the Escrow Fund
to Sellers, c/o Xxxxx X. Xxxx ("Sellers' Representative"), c/o
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, 000 Xxxx Xxxx Xxxx, Xxxx
Xxxx, Xxxxxxxxxx 00000; provided, however, that Escrow Agent
shall make no such
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delivery if Buyer, prior to the expiration of the aforesaid
five (5) business day period, has provided notice to Escrow
Agent and Sellers that Sellers are not entitled to the
Escrow Fund (a "Buyer's Rebuttal Notice").
(b) On the fifteenth (15th) day after Escrow
Agent's receipt of written notice from Sellers' Representative
(with evidence of service of such notice on Buyer) that (i)
the Purchase Agreement has been terminated pursuant to Section
13.01(c) solely because of Buyer's material breach (other than
as described in Section 2.3(a) above) of the Purchase
Agreement which was not cured within any applicable cure
period, and (ii) all other conditions to Closing are at such
time satisfied or waived (other than such conditions as can
reasonable be expected to be satisfied by the Closing)
("Sellers Notice"), Escrow Agent shall deliver the Escrow Fund
to Sellers, c/o Xxxxx X. Xxxx ("Sellers Representative"), c/o
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, 000 Xxxx Xxxx Xxxx, Xxxx
Xxxx, Xxxxxxxxxx 00000; provided, however, that Escrow Agent
shall make no such delivery if Buyer, prior to the expiration
of the aforesaid 15-day period, has provided notice to Escrow
Agent and Sellers of its countervailing claim to the Escrow
Fund or otherwise claims that Sellers are not entitled to the
Escrow Fund for any reason ("Buyer's Rebuttal Notice")."
This Amendment may be executed in one or more counterparts and by
facsimile, each of which will be deemed an original and all of which together
will constitute one and the same instrument. This Amendment and a
contemporaneous amendment to the Purchase Agreement and Time Brokerage Agreement
embody the entire agreement and understanding of the parties and supercede any
and all prior agreements and understandings relating to the matters specifically
covered herein. Except as amended hereby, the terms and conditions of the
Deposit Agreement remain in full force and effect.
This Amendment has been duly authorized, validly executed, and
delivered and constitutes the valid and binding agreement of the parties hereto.
All capitalized terms used herein and not otherwise defined have the meaning
ascribed to them in the agreement.
IN WITNESS WHEREOF, the parties have executed this Amendment as of the
date first written above.
REGENT COMMUNICATIONS, INC. SELLERS' REPRESENTATIVE
By: ________________________________ __________________________________
Xxxxx X. Xxxxxx Xxxxx X. Xxxx
Chairman and Chief Executive Officer
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STAR MEDIA
By:__________________________________________________
Name:________________________________________________
Its:_________________________________________________
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