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Exhibit 10(p)
DEPOSIT ESCROW AGREEMENT
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THIS AGREEMENT is made and entered into as of the 10th day of October,
1997, by and among REGENT COMMUNICATIONS, INC., a Delaware corporation
("Buyer"); REDWOOD BROADCASTING, INC. ("Seller"); and SECURITY TITLE & GUARANTY
AGENCY, INC., as escrow agent ("Escrow Agent").
WITNESSETH:
WHEREAS, Seller and Buyer have entered into a certain Agreement of
Merger, dated October 10, 1997 (the "Merger Agreement"), under which Alta
California Broadcasting, Inc. a wholly-owned subsidiary of Seller ("Alta"), will
be merged with and into Regent Acquisition Corp., a wholly-owned subsidiary of
Buyer, as a result of which Buyer will own all of the outstanding capital stock
of Alta; and
WHEREAS, Seller and Buyer desire Escrow Agent to serve as Escrow Agent
for certain monies to be held to secure Buyer's performance under the Merger
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 Upon the approval by Buyer of all Exhibits and related documents
required to be delivered by Alta under the Merger Agreement, Buyer shall deliver
to Escrow Agent an irrevocable, stand-by letter of credit in the amount of One
Hundred Seventy-Five Thousand Dollars ($175,000) (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 Merger 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 Merger Agreement,
and simultaneously with the performance by Buyer and Seller of their respective
obligations under the Merger Agreement, Buyer and Seller 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 Seller (with evidence of service of such notice on Buyer) that (a)
the Merger Agreement has been terminated pursuant to Section 29(a) of the Merger
Agreement solely because of Buyer's material breach of the Merger Agreement
which was not cured within 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)
("Seller's Notice"), Escrow Agent shall deliver the Escrow Fund to Seller;
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 Seller of its countervailing claim to the Escrow Fund or otherwise
claims that Seller is 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 Seller) that the
Merger 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 Seller, prior to the expiration of the aforesaid 15-day period,
has provided notice to Escrow Agent and Buyer of Seller's countervailing claim
to the Escrow Fund or otherwise claims that Buyer is not entitled to the Escrow
Fund for any reason ("Seller's Rebuttal Notice").
2.5 After timely receipt by Escrow Agent of Seller's 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 Seller 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 Seller's 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 Fund and any interest earned thereon with such court; and
thereupon, Escrow Agent shall be discharged from all further duties under this
Agreement.
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2.6 Notwithstanding any other provision of this Escrow Agreement,
Escrow Agent shall, upon receipt of written instructions signed jointly by
Seller and Buyer, deliver the Escrow Fund to the party or parties named in, or
otherwise act in accordance with such instructions.
2.7 In the event there has not been delivered to the Escrow Agent a
renewed and extended letter of credit within thirty (30) days of the expiration
date of the letter of credit then on deposit, the Escrow Agent is hereby
irrevocably authorized and directed without notice to or further action from
Buyer or Seller and without regard to any contrary instructions from either
Buyer or Seller to draw on said letter of credit in full and to accept and hold
the proceeds therefrom in escrow pursuant to the terms of this Agreement, in
which event the cash proceeds, and all interest earned thereon, shall be deemed
to be the Escrow Fund.
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 Seller: Redwood Broadcasting, Inc.
0000 Xxxxx Xxxx Xxxx
P. O. Box 3463
Carefree, Arizona 85377
Attention: Xxxx X. Power
Fax: (000) 000-0000
Copy to: Pepper & Xxxxxxxxx, L.L.P.
0000 X Xxxxxx, Xxxxxxxxx
Xxxxx 000
Xxxxxxxxxx, D. C. 20006
Attention: Xxxxx Xxxxxxx
Fax: (000) 000-0000
If to Buyer: Regent Communications, Inc.
00 Xxxx XxxxxXxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxx
Fax: (000) 000-0000
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Copy to: Xxxxxxx & Xxxx
2100 PNC Center
000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxx 00000
Attention: Xxxx X. Xxxxxx
Fax: (000) 000-0000
If to Escrow Agent: Security Title & Guaranty Agency, Inc.
2100 PNC Center
000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
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 Seller. 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 Seller, 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
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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 Seller,
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 Seller.
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) 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 Seller 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
Seller 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.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above set forth.
BUYER: ESCROW AGENT:
REGENT COMMUNICATIONS, INC. SECURITY TITLE & GUARANTY
AGENCY, INC.
By: ______________________________ By: ________________________________
Name: ____________________________ Name: ______________________________
Its:______________________________ Its:________________________________
SELLER:
REDWOOD BROADCASTING, INC.
By: ______________________________
Name: ____________________________
Its: _____________________________