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EXHIBIT 10(f)
DEPOSIT ESCROW AGREEMENT
THIS DEPOSIT ESCROW AGREEMENT (this "Escrow Agreement") is made and
entered into this 28th day of December, 2000, by and among NEXTMEDIA GROUP II,
INC. ("Seller"); REGENT BROADCASTING OF ERIE, INC. and Regent Licensee OF ERIE,
Inc. (collectively, "Buyers"); and MEDIA VENTURE PARTNERS, as escrow agent
("Escrow Agent").
W I T N E S S E T H:
THAT, WHEREAS, Buyers, Seller and NextMedia Licensing, Inc. have
entered into a certain Asset Purchase Agreement, dated as of December 28, 2000
(the "Purchase Agreement"), pursuant to which Buyers will purchase certain
assets and assume certain obligations described in the Purchase Agreement; and
WHEREAS, Buyers and Seller desire Escrow Agent to serve as Escrow Agent
for certain monies to be held to secure Buyers' 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
1.1 Simultaneously with the execution hereof, Buyers will deliver to
Escrow Agent by wire transfer the sum of Two Hundred Fifty Thousand Dollars
($250,000.00) or an irrevocable, stand-by letter of credit (in substantially the
form of Attachment 1 hereto) in the aggregate amount of Two Hundred Fifty
Thousand Dollars ($250,000.00), which Escrow Agent will hold under the terms of
this Agreement (the deposit in cash and/or letter of credit being referred to
herein as 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 by reason of a material breach by Buyers, and shall be released by
the Escrow Agent in accordance with the terms and conditions hereinafter set
forth.
1.3 In the event the Escrow Fund is in the form of a letter of credit
and such letter of credit being held by Escrow Agent has not been renewed and
will expire within forty-five (45) days, upon written direction of Seller, and
regardless of any contrary instructions or notice that may be received by Escrow
Agent from or on behalf of Buyers, Escrow Agent shall forthwith draw on such
letter of credit in full and thereafter hold the cash proceeds in escrow as the
Escrow Fund in accordance with the terms and provisions of this Agreement.
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2. Maintenance and Distribution of Escrow Fund
2.1 Escrow Agent shall hold or promptly place such portion of the
Escrow Fund consisting of cash in such investment vehicle and financial
institution as may be designated by Buyers 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 Buyers, nor 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 Buyers. Any and all interest earned on the cash Escrow
Fund shall belong to Buyers and under no circumstances shall such interest be
distributed to Seller.
2.2 At the time and place of the Closing under the Purchase Agreement,
and simultaneously with the performance by Buyers and Seller of their respective
obligations under the Purchase Agreement, Buyers and Seller shall instruct the
Escrow Agent to deliver or pay the cash portion of the Escrow Fund to Seller to
be applied to the Purchase Price to be paid to Seller, the interest accrued
thereon shall be paid to Buyers, and the letter of credit shall be returned to
Buyers.
2.3 On the seventh (7th) day after Escrow Agent's receipt of written
notice from Seller (with evidence of service of such notice on Buyers) that (a)
the Purchase Agreement has been terminated pursuant to Section 16.1.3 of the
Purchase Agreement because of either Buyer's material breach of the Purchase
Agreement which was not cured within any applicable cure period, (b) Seller is
not in material default or breach of the Purchase Agreement, and (c) 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 Buyers,
prior to the expiration of the aforesaid 15-day period, have provided notice to
Escrow Agent and Seller of their countervailing claim to the Escrow Fund or
otherwise claims that Seller is not entitled to the Escrow Fund for any reason
("Buyers' Rebuttal Notice").
2.4 On the seventh (7th) day after Escrow Agent's receipt of written
notice from Buyers (with evidence of service of such notice on Seller) that the
Purchase Agreement has been terminated for any reason other than the
circumstances described in Section 2.3 above ("Buyers' Notice"), Escrow Agent
shall deliver the Escrow Fund to Buyers; provided, however, that Escrow Agent
shall make no such delivery if Seller, prior to the expiration of the aforesaid
15-day period, have provided notice to Escrow Agent and Buyers of Seller's
countervailing claim to the Escrow Fund or otherwise claims that Buyers are 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
Buyers' 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
Buyers 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.
Notwithstanding the foregoing, after receipt by Escrow Agent of Seller's
Rebuttal Notice or Buyer's
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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 Georgia 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.
2.6 Notwithstanding any other provision of this Escrow Agreement,
Escrow Agent shall, upon receipt of written instructions signed jointly by
Seller and Buyers, deliver the Escrow Fund to the party or parties named in, or
otherwise act in accordance with such instructions.
3. General Provisions
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: NextMedia Group II, Inc.
6312 South Fiddler's Green Circle
Suite 360-E
Englewood, CO 80111
Attention: Mr. Sean Stover
Fax: (310) 445-4606
Copy to: Leibowitz and Associates, P.A.
1 SE 3rd Avenue
Miami, FL 33131-1715
Attention: Matthew L. Leibowitz, Esq.
Fax: (305) 530-9417
If to Buyers: Regent Broadcasting of Erie, Inc.
c/o Regent Communications, Inc.
100 East RiverCenter Boulevard, 9th Floor
Covington, Kentucky 41011
Attention: Mr. Terry S. Jacobs
Fax: (606) 292-0352
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Copy to: Strauss & Troy
The Federal Reserve Building
150 East Fourth Street
Cincinnati, Ohio 45202-4018
Attention: Alan C. Rosser, Esq.
Fax: (513) 241-8259
If to Escrow Agent: Media Venture Partners
50 Francisco Street
Suite 450
San Francisco, CA 94133
Attention: Mr. Elliott Evers
Fax: (415) 391-4912
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 Buyers 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. Buyers, 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 damage is a result of Escrow Agent's own
gross negligence or willful misconduct. This indemnification shall survive
termination of this Escrow Agreement.
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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 Buyers 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 Buyers 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 be compensated for its services hereunder
according to its customary charges, to be paid one-half by Seller and one-half
by Buyers. In the event that Buyers 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 Buyers for costs and 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.
SELLER:
NEXTMEDIA GROUP II, INC.
By: /s/ Matthew L. Leibowitz
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Name: Matthew L. Leibowitz
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Its: Secretary
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BUYERS:
REGENT BROADCASTING OF ERIE, INC.
By: /s/ Terry S. Jacobs
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Name: Terry S. Jacobs
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Its: Chairman and Chief Executive Officer
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REGENT LICENSEE OF ERIE, INC.
By: /s/ Terry S. Jacobs
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Name: Terry S. Jacobs
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Its: Chairman and Chief Executive Officer
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ESCROW AGENT:
MEDIA VENTURE PARTNERS
By: /s/ Elliott B. Evers
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Name: Elliott B. Evers
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Its: Managing Director
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