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Exhibit 10(a)
ESCROW AGREEMENT
REGENT BROADCASTING OF VICTORVILLE, INC., REGENT LICENSEE OF
VICTORVILLE, INC., REGENT BROADCASTING OF PALMDALE, INC., REGENT
LICENSEE OF PALMDALE, INC., REGENT BROADCASTING OF MANSFIELD, INC.,
REGENT LICENSEE OF MANSFIELD, INC./CLEAR CHANNEL BROADCASTING, INC.,
CLEAR CHANNEL BROADCASTING LICENSES, INC., CAPSTAR RADIO OPERATING
COMPANY, CAPSTAR TX LIMITED PARTNERSHIP
$5,000,000.00
THIS ESCROW AGREEMENT (the "Agreement") is made as of March 12, 2000
among the company or companies designated as Clear Channel on the signature page
hereto (collectively, "Clear Channel"), the company or companies designated as
Exchange Party on the signature page hereto (collectively, "Exchange Party"),
and Bank of America, a national banking association ("Escrow Agent").
W I T N E S S E T H:
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WHEREAS, Clear Channel and Exchange Party are parties to an Asset
Exchange Agreement (the "Exchange Agreement") of even date herewith pursuant to
which Exchange Party is to deposit funds with the Escrow Agent in connection
with the exchange of certain radio broadcast stations.
NOW, THEREFORE, in consideration of the mutual covenants herein
contained and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, and intending to be legally bound, Clear
Channel, Exchange Party and Escrow Agent hereby agree as follows:
Section 1. Escrow Account and Deposit. The Escrow Agent has
established, or simultaneously with the execution hereof will establish, an
account (the "Escrow Account") into which Exchange Party has deposited, or
simultaneously with the execution hereof will deposit, FIVE MILLION DOLLARS
($5,000,000.00). Upon receipt thereof, the Escrow Agent shall provide Exchange
Party and Clear Channel confirmation thereof, and shall hold and disburse such
deposit as set forth in this Agreement. Such deposit shall be invested in the
Bank of America Business Investment Account or a money market fund investing
solely in securities issued by the United States, as directed by Exchange Party
and Clear Channel. Such deposit, as increased or decreased based upon such
investment results, is referred to herein as the "Deposit." For tax purposes,
interest and other income earned on the Deposit shall be reported as income of
Exchange Party, the Escrow Agent shall file a Form 1099 consistent with such
treatment, and Exchange Party shall provide Escrow Agent with executed Forms W-8
and W-9, as requested by Escrow Agent.
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Section 2. Release of Deposit by Escrow Agent. The Escrow Agent shall
promptly release all or a portion of the Deposit to Exchange Party or Clear
Channel, as the case may be, upon the first to occur of the following
circumstances:
(a) if the Escrow Agent receives written instructions from
Clear Channel stating that Clear Channel is entitled to the Deposit pursuant to
the Exchange Agreement and that Clear Channel has delivered to Exchange Party a
copy of such notice, and directing the Escrow Agent to disburse the Deposit,
then the Escrow Agent shall disburse the Deposit in accordance with such
instructions; provided, however, that prior to the release of any portion of the
Deposit in accordance with such written instructions from Clear Channel, Escrow
Agent shall send to Exchange Party a copy of Clear Channel's written
instructions and Escrow Agent shall not release the Deposit to Clear Channel if
Escrow Agent receives, within fifteen (15) days after it has delivered a copy of
Clear Channel's instructions to Exchange Party, written notice from Exchange
Party objecting to release of the Deposit to Clear Channel ("Exchange Party's
Rebuttal Notice"). After timely receipt by Escrow Agent of Exchange Party's
Rebuttal Notice, Escrow Agent shall not deliver the Deposit until such time as
Escrow Agent receives: (i) a written agreement signed by Clear Channel and
Exchange Party providing instructions as to the disposition of the Deposit, or
(ii) 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 or review by a court of competent jurisdiction) with respect to the
disposition of the Deposit, at which time Escrow Agent shall deliver the Deposit
(along with interest accrued thereon) in accordance with said agreement, order
or judgment. Notwithstanding the foregoing, after receipt by Escrow Agent of
Exchange Party's Rebuttal Notice, Escrow Agent may: (i) deposit the Deposit
(along with interest accrued thereon) with any court which has properly assumed
jurisdiction of any dispute hereunder, or (ii) commence an action in
interpleader in any court of competent jurisdiction in the District of Columbia
and deposit the Deposit (along with interest accrued thereon) with such court;
or
(b) if the Escrow Agent receives joint written instructions
from Clear Channel and Exchange Party directing the Escrow Agent to disburse the
Deposit, then the Escrow Agent shall disburse the Deposit in accordance with
such instructions.
Section 3. Reliance by Escrow Agent. The Escrow Agent shall be entitled
to rely upon and act in accordance with any of: (a) written notice of Clear
Channel pursuant to Section 2(a) hereof in the absence of an Exchange Party's
Rebuttal, (b) written notice of Exchange Party pursuant to Section 2(a) hereof,
(c) the joint written instructions of Clear Channel and Exchange Party, and (d)
a final order of an arbitrator or a court of competent jurisdiction authorizing
the Escrow Agent to release the Deposit, or any portion thereof, to Exchange
Party or Clear Channel.
Section 4. Conflicting Demands. If conflicting demands are made upon
the Escrow Agent, the Escrow Agent shall not be required to resolve such
controversy or take any action, but shall await resolution of the controversy by
joint instructions from Clear Channel and Exchange Party or by appropriate
judicial or arbitration proceedings..
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Section 5. Indemnification; Fees of Escrow Agent. Exchange Party and
Clear Channel shall jointly and severally pay, and hold the Escrow Agent
harmless against, all costs, charges, damages and attorneys' fees which the
Escrow Agent in good faith may incur or suffer in connection with or arising out
of this Agreement. The Escrow Agent shall be entitled to a fee for services it
renders hereunder in the amount set forth on Schedule A attached hereto, which
shall be paid one-half by the Clear Channel and one-half by Exchange Party.
Section 6. Rights and Duties of Escrow Agent.
(a) No assignment of the interest of any of the parties hereto
shall be binding upon the Escrow Agent unless and until written evidence of such
assignment in a form satisfactory to the Escrow Agent shall be filed with and
accepted by the Escrow Agent.
(b) The Escrow Agent may rely or act upon orders or directions
signed by the proper parties, or bearing a signature or signatures reasonably
believed by the Escrow Agent to be genuine.
(c) The Escrow Agent shall have no duties other than those
expressly imposed on it herein and shall not be liable for any act or omission
except for its own gross negligence or willful misconduct.
(d) In the event that the Deposit or any proceeds thereof
shall be attached, garnished, or levied upon by an order of any court, or the
delivery thereof shall be stayed or enjoined by an order of court, or any order,
judgment or decree shall be made or entered by any court affecting the property
deposited under this Agreement, or any part thereof, the Escrow Agent is hereby
expressly authorized in its sole discretion to obey and comply with all writs,
orders or decrees so entered or issued, which it is advised by legal counsel of
its own choosing is binding upon it, whether with or without jurisdiction, and
in case the Escrow Agent obeys or complies with any such writ, order or decree
it shall not be liable to any of the parties hereto or to any other person, firm
or corporation, by reason of such compliance notwithstanding that such writ,
order or decree be subsequently reversed, modified, annulled, set aside or
vacated.
(e) The Escrow Agent may resign by giving sixty (60) days
written notice of resignation, specifying the effective date thereof. Within
thirty (30) days after receiving the aforesaid notice, the Clear Channel and
Exchange Party agree to appoint a successor escrow agent to which the Escrow
Agent shall transfer the Deposit or any proceeds thereof then held in escrow
under this Agreement. If a successor escrow agent has not been appointed and/or
has not accepted such appointment by the end of the 30-day period, the Escrow
Agent may at its sole option: (i) apply to a court of competent jurisdiction for
the appointment of a successor escrow agent, and the costs, expenses and
reasonable attorneys' fees which are incurred in connection with such a
proceeding shall be paid one-half by the Clear Channel and one-half by Exchange
Party, or (ii) continue to hold the Deposit until it receives an order from a
court of competent jurisdiction or joint written instructions of Clear Channel
and Exchange Party directing the Escrow Agent to release the Deposit.
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Section 7. Disputes. Except as provided in Section 4, in the event of
any disagreement between any of the parties resulting in conflicting or adverse
claims or demands being made to the Deposit, the Escrow Agent shall be entitled,
at its sole option, to refuse to comply with or recognize any such claims or
demands as long as the disagreement shall continue, and in doing so, Escrow
Agent shall not become liable in any way to any person for failure or refusal to
comply with such conflicting or adverse claims or demands, and its duties
hereunder with regard to such disputed Deposit shall be suspended until the
rights of the claimants have been fully adjudicated or the differences adjusted
between the parties and the Escrow Agent shall have been notified thereof in
writing signed by all parties interested. In the event the differences between
the parties with regard to the disputed Deposit have not been adjusted, and the
Escrow Agent has been so notified, within ten (10) days following receipt of
notice by Escrow Agent of conflicting or adverse claims or demands, Escrow Agent
may, but shall not be obligated to, interplead the disputed Deposit in court,
and thereupon Escrow Agent shall be fully and completely discharged of its
duties as Escrow Agent with regard to the Deposit. The parties shall be jointly
and severally liable to Escrow Agent for all fees and expenses, including legal
fees, incurred by Escrow Agent in exercising its rights.
Section 8. Notices. Any notice or other communication required or
permitted hereunder shall be deemed to have been sufficiently given when
delivered personally, by facsimile, recognized air courier, or registered or
certified mail, return receipt requested, addressed as follows:
if to Clear Channel: c/o Clear Channel Broadcasting, Inc.
200 Concord Plaza, Suite 600
San Antonio, Texas 78216
Attention: President
Facsimile: (210) 822-2299
with a copy (which shall not
constitute notice) to: Wiley, Rein & Fielding
1776 K Street, N.W.
Washington, D.C. 20006
Attention: Richard J. Bodorff, Esq.
Facsimile: (202) 719-7049
if to Exchange Party: c/o Regent Communications, Inc.
50 East River Center Blvd., Suite 180
Covington, KY 41011
Attention: Terry S. Jacobs
Facsimile: (606) 292-0352
with a copy (which shall not
constitute notice) to:
Strauss & Troy
The Federal Reserve Building
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150 East Fourth Street
Cincinnati, Ohio 45202
Attention: Alan C. Rosser, Esq.
Facsimile: 513-241-8259
if to Escrow Agent: Bank of America
Private Banking
8300 Greensboro Drive
Third Floor
McLean, Virginia 22102
Attention: Susan B. Poliquin,
Vice President
Facsimile No.: (703) 761-9203
or to such other address as may be specified by any party in a written notice to
the other parties.
Section 9. Governing Law. This Agreement shall be construed under the
laws of the District of Columbia.
Section 10. Waiver. This Agreement may be amended or modified, and any
term may be waived, only if such amendment, modification or waiver is in writing
and signed by all parties.
Section 11. No Third Party Beneficiaries. This Agreement is a personal
one, the duty of the Escrow Agent being only to the parties hereto, their
successors or assigns, and to no other person whatsoever.
Section 12. Counterparts. This Agreement may be executed in separate
counterparts.
[SIGNATURE PAGE FOLLOWS]
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SIGNATURE PAGE TO ESCROW AGREEMENT
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed by their respective duly authorized officers all as of the day and year
first above written.
CLEAR CHANNEL: CLEAR CHANNEL BROADCASTING, INC.
By: /s/ Jerome L. Kersting
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Jerome L. Kersting, Senior Vice President
CLEAR CHANNEL BROADCASTING LICENSES, INC.
By: /s/ Jerome L. Kersting
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Jerome L. Kersting, Senior Vice President
CAPSTAR RADIO OPERATING COMPANY
By: /s/ William S. Banowsky, Jr.
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Name: William S. Banowsky, Jr.
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Title: Executive Vice President
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CAPSTAR TX LIMITED PARTNERSHIP
By: /s/ William S. Banowsky, Jr.
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Name: William S. Banowsky, Jr.
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Title: Executive Vice President
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EXCHANGE PARTY: REGENT BROADCASTING OF VICTORVILLE, INC.
By: /s/ Terry S. Jacobs
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Name: Terry S. Jacobs
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Title: Chairman
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REGENT LICENSEE OF VICTORVILLE, INC.
By: /s/ Terry S. Jacobs
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Name: Terry S. Jacobs
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Title: Chairman
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REGENT BROADCASTING OF PALMDALE, INC.
By: /s/ Terry S. Jacobs
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Name: Terry S. Jacobs
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Title: Chairman
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REGENT LICENSEE OF PALMDALE, INC.
By: /s/ Terry S. Jacobs
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Name: Terry S. Jacobs
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Title: Chairman
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REGENT BROADCASTING OF MANSFIELD, INC.
By: /s/ Terry S. Jacobs
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Name: Terry S. Jacobs
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Title: Chairman
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REGENT LICENSEE OF MANSFIELD, INC.
By: /s/ Terry S. Jacobs
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Name: Terry S. Jacobs
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Title: Chairman
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ESCROW AGENT: BANK OF AMERICA
By: /s/ Susan B. Poliquin
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Name: Susan B. Poliquin
Title: Vice President