EXHIBIT 10.60
EXHIBIT D
ESCROW AGREEMENT
THIS ESCROW AGREEMENT (this "Agreement") is made as of March 31, 1999, by
and among Aquis Communications Group, Inc. (the "Company"), the lenders
signatory hereto (each a "Lender" and together the "Lenders"), and Xxxxxxx
Xxxxxx & Green, P.C., (the "Escrow Agent"). Capitalized terms used but not
defined herein shall have the meanings set forth in the Loan Agreement referred
to in the first recital.
WITNESSETH:
WHEREAS, the Lenders will be lending the Company $2,000,000 for the
Convertible Debentures and the Lenders will receive Warrants to purchase shares
of Common Stock, at the purchase price set forth in the Loan Agreement (the
"Loan Agreement") dated the date hereof between the Lenders and the Company,
which will be issued as per the terms contained herein and in the Loan
Agreement; and
WHEREAS, the Company and the Lenders have requested that the Escrow Agent
hold the Purchase Price with respect to the Convertible Debentures in escrow
until the Escrow Agent has received the Convertible Debentures, the Warrants and
certain other closing documents specified herein;
NOW, THEREFORE, in consideration of the covenants and mutual promises
contained herein and other good and valuable consideration, the receipt and
legal sufficiency of which are hereby acknowledged and intending to be legally
bound hereby, the parties agree as follows:
ARTICLE 1
TERMS OF THE ESCROW
1.1. The parties hereby agree to establish an escrow account with the
Escrow Agent whereby the Escrow Agent shall hold the funds for the purchase of
$2,000,000 principal amount of Convertible Debentures and the Warrants at the
Closing as contemplated by the Loan Agreement.
1.2. (a) At the Closing, upon Escrow Agent's receipt of $2,000,000 Purchase
Price for the Convertible Debentures into its attorney trustee account from the
Lenders, together with executed counterparts of this Agreement, the Loan
Agreement and the Registration Rights Agreement, it shall telephonically advise
the Company, or the Company's designated attorney or agent, of the amount of
funds it has received into its account.
(b) Wire transfers to the Escrow Agent shall be made as follows:
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Xxxxxxx Xxxxxx & Green, P.C.
Master Escrow Account
Chase Manhattan Bank
0000 Xxxxxxxx Xxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
ABA No. 000000000
Account No. 000-0-000000
Attention: L. Borneo
1.3. The Company, upon receipt of said notice, shall deliver to the Escrow
Agent the Convertible Debentures and the Warrants to be issued to each Lender
together with:
(i) the original executed Registration Rights Agreement in the form of
Exhibit C to the Loan Agreement;
(ii) an original counterpart of this Escrow Agreement;
(iii) the original opinion of Xxxxxxxx Xxxxxxxxx Professional Corporation
in the form of Exhibit E to the Loan Agreement; and
(iv) the original executed instructions to transfer agent in the form of
Exhibit F to the Loan Agreement.
In the event that the foregoing items are not in the Escrow Agent's
possession within three (3) Trading Days of the Escrow Agent notifying the
Company that the Escrow Agent has custody of the Purchase Price, then each
Lender shall have the right to demand the return of said sum.
1.4. At the Closing, Escrow Agent shall insert the Closing Date and the
maternity date on the face of the certificates representing the Convertible
Debentures, calculate the number of Warrants to be issued and the exercise price
of the Warrants, and place the same on the face of each Warrant, and then, upon
receipt of a Release Notice in the form of Exhibit X hereto from the Company and
each Lender wire that amount of funds necessary to purchase the Convertible
Debentures and the Warrants per the written instructions of the Company net of
the Lenders' legal and escrow administrative costs of ten thousand dollars
($10,000) and the commissions of Ladenburg Xxxxxxxx & Co., Inc. by the Company
of five percent (5%) plus $10,000, as a non-accountable expense allowance, which
shall be paid as directed by Ladenburg Xxxxxxxx & Co. Inc.
Once the funds (as set forth above) have been sent per the Company's
instructions, the Escrow Agent shall then arrange to have the Convertible
Debentures, the Warrants and the Registration Rights Agreement delivered as per
instructions from the Lenders and the Escrow Agent shall deliver the
instructions to the transfer agent to the transfer agent.
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ARTICLE 2
MISCELLANEOUS
2.1. No waiver or any breach of any covenant or provision herein contained
shall be deemed a waiver of any preceding or succeeding breach thereof, or of
any other covenant or provision herein contained. No extension of time for
performance of any obligation or act shall be deemed any extension of the time
for performance of any other obligation or act.
2.2. All notices or other communications required or permitted
hereunder shall be in writing, and shall be sent as set forth in the Loan
Agreement. The addresses for such notices shall be:
If to the Company: Aquis Communications Group, Inc.
0000X Xxxxx 00, Xxxxx 000
Xxxxxxxxxx, XX 00000
Attention: Xxxx X. Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to (shall not
constitute notice): Xxxxxxxx Xxxxxxxxx
Eleven Penn Center, 14th Floor
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
if to the Lenders: As set forth on the signature
pages hereto
with a copy to:
(shall not constitute notice) Xxxxxx X. Xxxxx, Esq.
Xxxxxxx Xxxxxx & Green, P.C.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
2.3. This Escrow Agreement shall be binding upon and shall inure to the
benefit of the permitted successors and permitted assigns of the parties hereto.
2.4. This Escrow Agreement is the final expression of, and contains the
entire agreement between, the parties with respect to the subject matter hereof
and supersedes all prior understandings with respect thereto. This Escrow
Agreement may not be modified, changed. supplemented or terminated, nor may any
obligations hereunder be waived, except by written
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instrument signed by the parties to be charged or by its agent duly authorized
in writing or as otherwise expressly permitted herein
2.5. Whenever required by the context of this Escrow Agreement, the
singular shall include the plural and masculine shall include the feminine. This
Escrow Agreement shall not be construed as if it had been prepared by one of the
parties, but rather as if both parties had prepared the same. Unless otherwise
indicated, all references to Articles are to this Escrow Agreement.
2.6. The parties hereto expressly agree that this Escrow Agreement shall be
governed by, interpreted under and construed and enforced in accordance with the
laws of the State of New York. Any action to enforce, arising out of, or
relating in any way to, any provisions of this Escrow Agreement shall only be
brought in a state or Federal court sitting in New York City.
2.7 The Escrow Agent's duties hereunder may be altered, amended, modified
or revoked only by a writing signed by the Company, each Lender and the Escrow
Agent.
2.8. The Escrow Agent shall be obligated only for the performance of such
duties as are specifically set forth herein and may rely and shall be protected
in relying or refraining from acting on any instrument reasonably believed by
the Escrow Agent to be genuine and to have been signed or presented by the
proper party or parties. The Escrow Agent shall not be personally liable for any
act the Escrow Agent may do or omit to do hereunder as the Escrow Agent while
acting in good faith, and any act done or omitted by the Escrow Agent pursuant
to the advice of the Escrow Agent's attorneys-at-law shall be conclusive
evidence of such good faith.
2.9. The Escrow Agent is hereby expressly authorized to disregard any and
all warnings given by any of the parties hereto or by any other person or
corporation, excepting only orders or process of courts of law and is hereby
expressly authorized to comply with and obey orders, judgments or decrees of
any court. In case the Escrow Agent obeys or complies with any such order,
judgment or decree, the Escrow Agent shall not be liable to any of the parties
hereto or to any other person, firm or corporation by reason of such decree
being subsequently reversed, modified, annulled, set aside, vacated or found to
have been entered without jurisdiction.
2.10. The Escrow Agent shall not be liable in any respect on account of the
identity, authorization or fights of the parties executing or delivering or
purporting to execute or deliver the Loan Agreement or any documents or papers
deposited or called for thereunder
2.11. The Escrow Agent shall be entitled to employ such legal counsel and
other experts as the Escrow Agent may deem necessary properly to advise the
Escrow Agent in connection with the Escrow Agent's duties hereunder, may rely
upon the advice of such counsel, and may pay such counsel reasonable
compensation therefor. The Escrow Agent has acted as legal counsel for the
Lenders, and may continue to act as legal counsel for the Lenders, from time to
time, notwithstanding its duties as the Escrow Agent hereunder. The Company
consents to the Escrow Agent in such capacity as legal counsel for the Lenders
and waives any claim that such representation represents a conflict of interest
on the part
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of the Escrow Agent. The Company understands that the Lenders and the Escrow
Agent are relying explicitly on the foregoing provision in entering into this
Escrow Agreement.
2.12. The Escrow Agent's responsibilities as escrow agent hereunder shall
terminate if the Escrow Agent shall resign by written notice to the Company and
the Lenders. In the event of any such resignation, the Lenders and the Company
shall appoint a successor Escrow Agent.
2.13. If the Escrow Agent reasonably requires other or further instruments
in connection with this Escrow Agreement or obligations in respect hereto, the
necessary parties hereto shall join in furnishing such instruments.
2.14. It is understood and agreed that should any dispute arise with
respect to the delivery and/or ownership or right of possession of the documents
or the escrow funds held by the Escrow Agent hereunder, the Escrow Agent is
authorized and directed in the Escrow Agent's sole discretion (1) to retain in
the Escrow Agent's possession without liability to anyone all or any part of
said documents or the escrow funds until such disputes shall have been settled
either by mutual written agreement of the parties concerned by a final order,
decree or judgment or a court of competent jurisdiction after the time for
appeal has expired and no appeal has been perfected, but the Escrow Agent shall
be under no duty whatsoever to institute or defend any such proceedings or (2)
to deliver the escrow funds and any other property and documents held by the
Escrow Agent hereunder to a state or Federal court having competent subject
matter jurisdiction and located in the City of New York in accordance with the
applicable procedure therefor.
2.15. The Company and each Lender agree jointly and severally to indemnify
and hold harmless the Escrow Agent and its partners, employees, agents and
representatives from any and all claims, liabilities, costs or expenses in any
way arising from or relating to the duties or performance of the Escrow Agent
hereunder or the transactions contemplated hereby or by the Loan Agreement other
than any such claim, liability, cost or expense to the extent the same shall
have been determined by final, unappealable judgment of a court of competent
jurisdiction to have resulted from the gross negligence or willful misconduct of
the Escrow Agent.
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IN WITNESS WHEREOF, the parties hereto have executed this Escrow Agreement
as of the date set forth above.
AQUIS COMMUNICATIONS GROUP, INC.
By: /s/ D. Xxxxx Xxxxxxxx
----------------------------------------
D. Xxxxx Xxxxxxxx,
Chief Financial Officer
AMRO INTERNATIONAL, S.A.
Address:
X/x XxxxxXxxxxx XX
Xxxxxxxxxxxxx Xxxxx 0 By: /s/ X.X. Xxxxxxxx
Xxxxxx XX-0000 Xxxxxxxxxxx ----------------------------------------
Fax: 0ll-41l-262-5515 X.X. Xxxxxxxx, Director
ESCROW AGENT:
XXXXXXX XXXXXX & GREEN, P.C
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------------------
Xxxxxx X. Xxxxxxx
Authorized Signatory
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Exhibit X to
Escrow Agreement
RELEASE NOTICE
The UNDERSIGNED, pursuant to the Escrow Agreement, dated as of March 31,
2000 among Aquis Communications Group, Inc., the Lenders signatory thereto and
Xxxxxxx Xxxxxx & Green, P.C., as Escrow Agent (the "Escrow Agreement";
capitalized terms used herein and not defined shall have the meaning ascribed to
such terms in the Escrow Agreement), hereby notify the Escrow Agent that each of
the conditions precedent to the purchase and sale of the Convertible Debentures
and Warrants set forth in the Loan Agreement have been satisfied. The Company
and the undersigned Lender hereby confirm that all of their respective
representations and warranties contained in the Loan Agreement remain true and
correct and authorize the release by the Escrow Agent of the funds and documents
to be released at the Closing as described in the Escrow Agreement. This Release
Notice shall not be effective until executed by the Company and the Lender.
This Release Notice may be signed in one or more counterparts, each of
which shall be deemed an original.
IN WITNESS WHEREOF, the undersigned have caused this Release Notice to be
duly executed and delivered as of this __ day of March, 2000.
Aquis Communications Group, Inc.
By: /s/ D. Xxxxx Xxxxxxxx
----------------------------------------
D. Xxxxx Xxxxxxxx,
Chief Financial Officer
AMRO International, S.A.
By: /s/ X.X. Xxxxxxxx
----------------------------------------
X.X. Xxxxxxxx, Director
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