ESCROW AGREEMENT
THIS ESCROW AGREEMENT, dated as of May 28, 1997 (the "Closing Date"),
among ACME TELEVISION LICENSES OF TENNESSEE, LLC, a Tennessee limited liability
company, and ACME TELEVISION OF TENNESSEE, LLC, a Tennessee limited liability
company (collectively "Buyer"); C.W. TV, INC. (the "General Partner"), a Florida
corporation; XXXXX X. XXXXXX; XXXXX X. XXXXXX; XXXXXXXX X. XXXXXXXX ;XXXX X.
XXXXXXXXXX, XXXXX X. X. XXXXXX; XXXXX X. XXXXXX, CUSTODIAN FOR XXXXXX X. XXXXXX,
A MINOR; XXX X. XXXXXX; THE XXXXX TRUST U/A DATED 10/18/95, XXXXXXX X. XXXX,
TRUSTEE; THE XXXXXX TRUST U/A DATED 10/18/95, XXXXXXX X. XXXX, TRUSTEE; XXXX
XXXXXX XXXXX IRREVOCABLE TRUST U/A DATED JANUARY 18, 1996, XXXXXX X. XXXXX,
TRUSTEE; XXXXXXXXX XXX XXXXX IRREVOCABLE TRUST U/A DATED JANUARY 18, 1996,
XXXXXX X. XXXXX, TRUSTEE; XXXXXXX X. XXXX IRREVOCABLE TRUST U/A DATED JANUARY
18, 1996, X. X. XXXX, TRUSTEE; AND XXXXXXX X. XXXX IRREVOCABLE TRUST U/A DATED
JANUARY 18, 1996, X. X. XXXX, TRUSTEE (collectively "Sellers"); CROSSVILLE TV
LIMITED PARTNERSHIP, a Florida limited partnership (the "Partnership"); and
NATIONSBANK, N.A. (SOUTH), a national banking association, as escrow agent
("Escrow Agent").
This is the Escrow Agreement referred to in Section 3.02 of the
Purchase Agreement dated May 28, 1997 (the "Purchase Agreement") among Buyer,
Sellers and the Partnership. Capitalized terms used in this agreement without
definition shall have the respective meanings given to them in the Purchase
Agreement.
The parties, intending to be legally bound, hereby agree as follows:
1. ESTABLISHMENT OF ESCROW
(a) In accordance with Section 3.03 of the Purchase Agreement,
Buyer is depositing with Escrow Agent an amount equal to $660,000 in immediately
available funds (the "Escrow Fund"). Escrow Agent acknowledges receipt thereof.
(b) Escrow Agent hereby agrees to act as escrow agent and to
hold, safeguard and disburse the Escrow Fund only pursuant to the terms and
conditions hereof.
2. INVESTMENT OF FUNDS
Except as Buyer and the General Partner, acting on behalf of Sellers,
may from time to time jointly instruct Escrow Agent in writing, the Escrow Fund
shall be invested in United States Treasury bills having a remaining maturity of
90 days or less and repurchase obligations secured by such United States
Treasury Bills, with any remainder being deposited and maintained in an
interest-bearing money market deposit account with Escrow Agent until
disbursement of the entire Escrow Fund. Escrow Agent is
authorized to liquidate in accordance with its customary procedures any portion
or all of the Escrow Fund consisting of investments to provide for payments
required to be made under this Agreement.
3. TERMINATION AND DISTRIBUTION OF ESCROW
(a) Notwithstanding anything herein to the contrary, Escrow
Agent may disburse all or a portion of the Escrow Fund to Sellers upon receipt
of a Promissory Note (a "Note") in the form of Exhibit A annexed hereto with the
original signatures of the General Partner and Buyer's Managing Member, in which
case the amount of the disbursement to Sellers will be equal to the amount
specified in the Note. Upon repayment, Escrow Agent shall xxxx any and all Notes
so received as "Paid in Full" and shall return such Notes to Sellers upon
repayment. If the Purchase Agreement or this Agreement is terminated prior to
the Closing, Escrow Agent shall, upon receipt of notice of such termination from
Buyer with service on Sellers, distribute and assign for collection any and all
Notes held in escrow.
(b) At the Closing and in accordance with Section 3.02 of the
Purchase Agreement, Buyer shall transfer to Escrow Agent the Purchase Price,
reduced by the Escrow Deposit and other adjustments provided for in the Purchase
Agreement. If the Escrow Fund contains less than $660,000 at the time of Closing
Buyer shall transfer into the Escrow Fund that amount necessary to restore the
Escrow Fund to $660,000. All accrued interest and any amount in the Escrow Fund
exceeding $660,000 at the Closing shall be distributed to Buyer to the Closing.
(c) At the Closing and in accordance with Section 3.05 of the
Purchase Agreement, Escrow Agent shall retain the sum of $2,000,000 as the
"Post-Closing Escrow Deposit." Escrow Agent shall disburse the Post-Closing
Escrow Deposit at the times and in such amounts as provided in Section 3.05 of
the Purchase Agreement, but only upon the receipt of (i) joint written
instructions of Buyer and Sellers, or (ii) a written decision by Purchase
Agreement, or (iii) a final non-appealable order of a court of competent
jurisdiction. Upon complete disbursement by Escrow Agent of The Escrow Fund,
this Escrow Agreement shall be deemed terminated and Escrow Agent shall be
relieved and discharged from any further obligations hereunder. In no event
shall Buyer be obligated to instruct the Escrow Agent to disburse all of the
Escrow Fund if, at the time such disbursement is otherwise due under the
Purchase Agreement, there are unresolved or unpaid claims for indemnification by
Buyer against Sellers under the Purchase Agreement.
(d) At the Closing, the Escrow Agent shall (i) disburse the
Purchase Price (reduced by the Post-Closing Escrow Deposit and
the adjustments specified in Section 3.02 of the Purchase Agreement) to Sellers
in accordance with Section 3.02 of the Agreement, and (ii) deliver the
assignments of the Partnership Interests to Buyer in accordance with Section
3.04 of the Agreement.
(e) If the Closing does not occur, Escrow Agent shall hold the
Escrow Fund and shall distribute the Escrow Fund only upon the receipt of (i)
joint written instructions of Buyer and Sellers, or (ii) a written decision by
an arbitration tribunal as described in Section 14.02 of the Purchase Agreement,
or (iii) a final non-appealable order of a court of competent jurisdiction. The
Escrow Agent shall have not duty to collect any Promissory Note. Such Promissory
Note, if due and payable, shall be assigned to Purchaser for collection.
4. DUTIES OF ESCROW AGENT
(a) Escrow Agent shall not be liable, except for its own gross
negligence or willful misconduct and, except with respect to claims based upon
such gross negligence or willful misconduct that are successfully asserted
against Escrow Agent, the other parties hereto shall jointly and severally
indemnify and hold against any and all losses, liabilities, claims, actions,
damages and expenses, including reasonable attorneys' fees and disbursements,
arising out of and in connection with this Agreement. Without limiting the
foregoing, Escrow Agent shall in no event be liable in connection with its
investment or accordance with the terms hereof, including, without limitation,
any liability for any delays (not resulting from its gross negligence or willful
misconduct) in the investment or reinvestment of the Escrow Fund, or any loss of
interest incident to any such delays.
(b) Escrow Agent shall be entitled to rely upon any order,
judgment, certification, demand, notice, instrument or other writing delivered
to it hereunder without being required to determine the authenticity or the
correctness of any fact stated therein or the propriety or validity of the
service thereof. Escrow Agent xxx act in reliance upon any instrument or
signature believed by it to be genuine and may assume that the person purporting
to give receipt or advice or make any statement or execute any document in
connection with the provisions hereof has been duly authorized to do so. Escrow
Agent may conclusively presume that the undesigned representative of any party
hereto which is an entity other than a natural person has full power and
authority to instruct Escrow Agent on behalf of that party unless written notice
to the contrary is delivered to Escrow Agent.
(c) Escrow Agent may act pursuant to the advice of counsel with
respect to any matter relating to this Agreement and shall not be liable for any
action taken or omitted by it in good faith in accordance with such advice.
(d) Escrow Agent does not have any interest in the Escrow Fund
deposited hereunder but is serving as escrow holder only and having only
possession thereof. The parties hereto will provide Escrow Agent with
appropriate Internal Revenue Service Forms W-9 for tax identification number
certification, or non-resident alien certifications. This Section 4(d) and
Section 4(a) shall survive notwithstanding any termination of this Agreement or
the resignation of Escrow Agent.
(e) Escrow Agent (and any successor Escrow Agent) may at any
time resign as such by delivering the Escrow Fund to any successor Escrow Agent
jointly designated by the other parties hereto in writing, or to any court of
competent jurisdiction pursuant to an interpleader complaint or other proceeding
initiated before such court, whereupon Escrow Agent shall be discharged of and
from any and all further obligations arising in connection with this Agreement.
The resignation of Escrow Agent will take effect on the earlier of (a) the
appointment of a successor (including a court of competent jurisdiction) or (b)
the day which is 30 days after the date of delivery of its written notice of
resignation to the other parties hereto. If at that time Escrow Agent has not
received a designation of a success Escrow Agent, Escrow Agent's sole
responsibility after that time shall be to retain and safeguard the Escrow Fund
until receipt of a designation of successor Escrow Agent or a joint written
disposition instruction by the other parties hereto or a final non-appealable
order of a court of competent jurisdiction.
(f) In the event of any disagreement between the other parties
hereto resulting in adverse claims or demands being made in connection with the
Escrow Fund, Escrow Agent shall retain the Escrow Fund until Escrow Agent shall
have received (i) a written decisions by an arbitration tribunal as described in
Section 14.02 of the Purchase Agreement, or (ii) a final non-appealable order of
a court of competent jurisdiction directing delivery of the Escrow Fund or (iii)
a written agreement executed by Buyer and Sellers directing delivery of the
Escrow Fund, in which event Escrow Agent shall disbursement the Escrow Fund in
accordance with such order or agreement.
(g) Buyer shall pay Escrow Agent compensation for the services
to be rendered by Escrow Agent hereunder as determined by mutual agreement of
the parties hereto. Buyer shall reimburse Escrow Agent for all reasonable
expenses, disbursements and advances incurred or made by Escrow Agent in
performance of its duties hereunder (including reasonable fees, expenses and
disbursements of its counsel).
5. LIMITED RESPONSIBILITY
This Agreement expressly sets forth all the duties of Escrow Agent
with respect to any and all matters pertinent hereto. No implied duties or
obligations shall be read into this agreement against Escrow Agent. Escrow Agent
shall not be bound by the provisions of any agreement among the other parties
hereto except this Agreement.
6. OWNERSHIP FOR TAX PURPOSES
(a) The parties agree that, for purposes of federal and other
taxes based on income, prior to the Closing Buyer will be treated as the owner
of the Escrow Fund, and that for such period Buyer will report all income, if
any, that is earned on, or derived from, the Escrow Fund as its income, in such
proportions, in the taxable year or years in which such income is properly
includible and pay any taxes attributable thereto.
(b) The parties agree that, for purposes of federal and other
taxes based on income, after the Closing Sellers will be treated as the owners
of the Escrow Fund, and that for such period Sellers will report all income, if
any, that is earned on, or derived from, the Escrow Fund as their income, in
such proportion, in the taxable year or years in which such income is properly
includible and pay any taxes attributable thereto.
7. NOTICES
All notices, consents, waivers and other communications required or
authorized under this Agreement must be in writing and will be deemed to have
been duly given when (a) delivered by telecopier (with written confirmation of
receipt), (b) sent by telecopier (with written confirmation of receipt) provided
that a copy is mailed by certified mail, return receipt requested and postage
prepaid, or (c) when received by the addressee, if sent by a nationally
recognized overnight delivery service (receipt requested and charges prepaid),
in each case to the appropriate addresses set forth in the Purchase Agreement
(or to such other addresses as a party may designate by notice to the other
parties).
8. ARBITRATION
If any dispute arises out of an interpretation of the Purchase
Agreement, any party may request arbitration as provided in Section 14.02 of the
Purchase Agreement and all parties agree that the dispute shall be settled by
arbitration in accordance with Section 14.02 of the Purchase Agreement. Process
in any action or proceeding referred to in the preceding sentence may be served
on any party anywhere in the world.
9. COUNTERPARTS
This Agreement may be executed in one or more counterparts, each of
which will be deemed to be an original and all of which, when taken together,
will be deemed to constitute one and the same.
10. SECTION HEADINGS
The headings of sections in this Agreement are provided for
convenience only and will not affect its construction or interpretation.
11. WAIVER
The rights and remedies of the parties to this Agreement are
cumulative and not alternative. Neither the failure nor any delay by any party
in exercising any right, power, or privilege under this Agreement or the
documents referred to in this Agreement will operate as a waiver of such right,
power, or privilege, and no single or partial exercise of any such right, power,
or privilege will preclude any other or further exercise of such right, power,
or privilege or the exercise of any other right, power, or privilege. To the
maximum extent permitted by applicable law, (a) no claim or right arising out of
this Agreement or the comments referred to in this Agreement can be discharged
by one party, in whole or in part, by a waiver or renunciation of the claim or
right unless in writing signed by the other party; (b) no waiver that may be
given by a party will be applicable except in the specific instance for which it
is given; and (c) no notice to or demand on one party will be deemed to be a
waiver of any obligation of such party or of the right of the party giving such
notice or demand to take further action without notice or demand as provided in
this Agreement or the documents referred to in this Agreement.
12. ENTIRE AGREEMENT AND MODIFICATION
This Agreement supersedes all prior and contemporaneous agreements
and understandings among the parties with respect to its subject matter and
constitutes (along with the documents referred to in this Agreement) a complete
and exclusive statement of the terms of the agreement between the parties with
respect to its subject matter. This Agreement may not be amended except by a
written agreement executed by the Buyer, the Sellers and the Escrow Agent.
13. GOVERNING LAW
This Agreement shall be governed by the laws of the State of Florida,
without regard to conflicts of law principles.
14. LITIGATION EXPENSES
If any arbitration or other litigation is instituted to enforce or
define a party's rights or obligations under this agreement, the prevailing
party shall be reimbursed by the other party for all reasonable expenses
incurred thereby, including reasonable attorneys' fees.
IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement as of the date first written above.
BUYER:
ACME TELEVISION LICENSES OF
TENNESSEE, LLC,
a Tennessee limited liability company
By: /s/Xxxxxxx X. Xxxxx
________________________________________
Xxxxxxx Xxxxx, Managing Member
ACME TELEVISION OF TENNESSEE, LLC,
a Tennessee limited liability company
By: /s/Xxxxxxx X. Xxxxx
________________________________________
Xxxxxxx Xxxxx, Managing Member
SELLERS:
C.W. TV, Inc.,
a Florida corporation
By: /s/Xxxxxxx X. Xxxxxx
________________________________________
Xxxxxxx X. Xxxxxx, President
/s/Xxxxx X. Xxxxxx
________________________________________
Xxxxx X. Xxxxxx
/s/Xxxxx X. Xxxxxx
________________________________________
Xxxxx X. Xxxxxx
{SIGNATURES CONTINUED}
/s/Xxxxxxxx X. Xxxxxxxx
________________________________________
Xxxxxxxx X. Xxxxxxxx
/s/Xxxx X. Xxxxxxxxxx
________________________________________
Xxxx X. Xxxxxxxxxx
/s/Gavin X. X. Xxxxxx
________________________________________
Gavin X. X. Xxxxxx
/s/Xxxxx X. Xxxxxx
________________________________________
Xxxxx X. Xxxxxx, Custodian
for Xxxxxx X. Xxxxxx, a minor
/s/Xxx X. Xxxxxx
________________________________________
Xxx X. Xxxxxx
THE XXXXX TRUST U/A DATED 10/13/95
By: /s/Xxxxxxx X. Xxxx
____________________________________
Xxxxxxx X. Xxxx, Trustee
THE XXXXXX TRUST U/A DATED 10/18/95
By: /s/Xxxxxxx X. Xxxx
____________________________________
Xxxxxxx X. Xxxx, Trustee
XXXX XXXXXX XXXXX IRREVOCABLE
TRUST U/A DATED JANUARY 18, 1996
By: /s/Xxxxxx X. Xxxxx
____________________________________
Xxxxxx X. Xxxxx, Trustee
XXXXXXXXX XXX XXXXX IRREVOCABLE
TRUST U/A DATED JANUARY 18, 1996
By: /s/Xxxxxx X. Xxxxx
____________________________________
Xxxxxx X. Xxxxx, Trustee
XXXXXXX X. XXXX IRREVOCABLE TRUST
U/A DATED JANUARY 18, 1996
By: /s/X. X. Xxxx
____________________________________
X. X. Xxxx, Trustee
{SIGNATURES CONTINUED}
XXXXXXX X. XXXX IRREVOCABLE TRUST
U/A DATED JANUARY 18, 1996
By: /s/X. X. Xxxx
____________________________________
X. X. Xxxx, Trustee
PARTNERSHIP:
CROSSVILLE TV LIMITED PARTNERSHIP
By: C.W. TV, INC., General Partner
By: /s/Xxxxxxx X. Xxxxxx
____________________________________
Xxxxxxx X. Xxxxxx, President
ESCROW AGENT:
NATIONSBANK, N.A. (SOUTH)
By: /s/Xxxxx X. Xxxxxxx
____________________________________
Title: Vice President
