ESCROW AGREEMENT
THIS ESCROW AGREEMENT ("Agreement") is made and entered into this
eighth day of September, 1997 among Koplar Communications, Inc. ("Koplar"), a
CORPORATION organized under the laws of Missouri, the shareholders of Koplar
(the "Selling Shareholders"), Acme Television Holdings, LLC ("ACME"), a limited
liability company organized under the laws of Delaware, Acme Television Licenses
of Missouri, Inc. ("ATLMI"), a corporation formed under the laws of Missouri
(ACME and ATLMI are collectively referred to herein as "Buyers" unless the
context requires otherwise), and NationsBank, N.A.
("Escrow Agent").
WITNESSETH:
WHEREAS, Koplar, the Selling Shareholders and Buyers have entered into
a certain Stock Purchase Agreement dated July 29, 1997 (the "Purchase
Agreement") under which and subject to the conditions contained therein (1) the
Selling Shareholders will assign and otherwise convey to Buyers all of the
outstanding stock in Koplar (other than stock redeemed by Selling Shareholders
in connection with the Excluded Assets and Excluded Liabilities as set forth in
Section 6.9 of the Purchase Agreement); (2) the Purchase Price will be paid to
the Selling Shareholders; and (3) Buyers will enter into certain ancillary
agreements specified therein; and
WHEREAS, Selling Shareholders and Buyers desire Escrow Agent to
establish and maintain an escrow account 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; and
WHEREAS, ACME intends to assign its obligations and rights under the
Purchase Agreement to ATLMI in accordance with and subject to Section 12.2 of
the Purchase Agreement; and
WHEREAS, this Agreement is the escrow agreement referred to in Section
9.4 of the Purchase Agreement.
NOW, THEREFORE, on the basis of the mutual promises and covenants set
forth herein, it is agreed as follows:
ARTICLE I. DELIVERY OF ESCROW FUNDS
1.1. (a) Subject to the conditions set forth in this Agreement, and
subject to the receipt of the designation of ACME as the Purchaser by Warner
Bros. under the Purchase Agreement, ATLMI will deliver to Escrow Agent by wire
transfer the amount of One Hundred Forty-Three Million Dollars ($143,000,000) on
or before September 30, 1997. The monies placed in escrow are hereinafter
referred to as the "Escrow Funds."
Escrow Agent shall have no liability to verify that Selling Shareholders are
entitled to request the amounts designated or that they are within the
limitation provided herein for the maximum amount to be disbursed. The amount of
the monies to be placed or maintained in escrow shall be (i) increased or
decreased, as the case may be, to the extent the Working Capital, as that term
is defined and determined in the Purchase Agreement and subject to the
provisions of this Agreement, exceeds or is less than Three Million Dollars
($3,000,000) on the date the Escrow Funds are placed in escrow; (ii) decreased
if and when and to the extent that Buyers pay all or any portion of the monies
which Koplar owes to NationsBank, N.A. (but without any reduction for any
penalty for prepayment or other charge or fine caused by the early termination
of any LIBOR loan arranged through NationsBank, N.A.); (iii) decreased if and
when and to the extent that Buyers pay all or any portion of the monies owed by
Koplar or its subsidiary to Warner Bros. (up to $2 million) pursuant to that
certain Promissory Note in the original amount of Two Million Dollars
($2,000,000) in accordance with Section 1.3(b)(vi) of the Purchase Agreement;
(iv) decreased by all amounts paid by Koplar to H. Xxx Xxxxxx XX ("Xxxxxx")
pursuant to paragraph 2.6(e) of the Executive Employment Agreement dated October
15, 1994 between Xxxxxx and Koplar (which amount shall be paid at the direction
of the Selling Shareholders from the Escrow Funds when the Escrow Funds are
distributed pursuant to Section 3.3(a) of this Agreement); (v) decreased, to the
extent applicable, in accordance with the adjustments set forth in Section
1.3(b)(iv) of the Purchase Agreement if and when the liabilities and expenses
set forth in such provisions are paid (which shall include the severance pay for
the termination of the Station's General Sales Manager in calculating the
adjustment under Section 1.3(b)(iv) of the Purchase Agreement notwithstanding
that such termination transpired prior to September 30, 1997, and such severance
pay shall be disregarded for purposes of determining the Working Capital
Adjustments); and (vi) decreased by Five Million Dollars ($5,000,000) if and
when Selling Shareholders decide to make the investment in ACME pursuant to
Section 7.1 of the Purchase Agreement: provided, that such decision must be
conveyed to Buyers by 5 p.m. on September 17, 1997, and, if no decision is
communicated to Buyers by that time, Section 7.1 of the Purchase Agreement shall
be deemed null and void, and Selling Shareholders shall have no right thereafter
to make any investment in ACME (unless ACME becomes publicly held), provided
further, that, on or before September 10, 1997, Buyers shall deliver true and
complete copies of all documents reasonably requested by Selling Shareholders to
make the decision with respect to such investment. Upon written notice to the
Escrow Agent executed by Buyers only, Escrow Agent shall issue a check or wire
monies from the Escrow Funds in such amount and made out to such party or
parties identified in or pursuant to clauses (ii), (iii), and (v) of this
subsection within two (2) business days of Escrow Agent's receipt of such
notice. Any increase or decrease in accordance with clauses (i) of this
subsection and, to the extent any decrease is to be made in the Escrow Funds
under clause (vi) of this subsection after the Escrow Funds are deposited with
Escrow Agent, shall be made pursuant to a written notice to the Escrow Agent
executed by Selling Shareholders and Buyers.
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(b) Upon written notice to Escrow Agent executed by Selling
Shareholders only, Escrow Agent shall disburse up to One Million Dollars
($1,000,000) of the Escrow Funds as instructed by Selling Shareholders for any
expenses of Selling Shareholders in connection with the transactions
contemplated by the Purchase Agreement. Such notice shall include the total of
any and all amounts previously instructed by Selling Shareholders to be
disbursed in connection with the expenses of Selling Shareholders and shall set
forth the balance available for distribution in connection therewith (based on
the maximum distribution of $1 million). Escrow Agent shall have no liability to
verify that Selling Shareholders are entitled to request the amounts designated
or that they are within the limitation provided herein for the maximum amount to
be disbursed.
(c) To the extent applicable and subject to Section 3.3(a) of this
Agreement, all Adjustments to the Purchase Price, including but not limited to
the Working Capital Adjustment, shall be determined as of the close of business
on September 30, 1997, and, to that end, the liability of Koplar for accrued
income tax (or the determination of any refund due Koplar for income taxes)
shall be determined as though the bonus payment to Xxxxxx provided for in
Section 1.3(b)(iii) of the Purchase Agreement and any amounts designated as
Designated Employee Bonuses provided for in Section 1.3(c) of the Purchase
Agreement had been paid as of September 30, 1997 and deductible as an expense by
Koplar for federal income tax purposes as of such date.
(d) Escrow Agent shall have no liability or responsibility for the
determination or verification of the increases, decreases or adjustments to the
Escrow Funds or the expenses of the Selling Shareholders set forth in this
section. Except as otherwise provided in this Agreement, (i) all such
determinations and verifications shall be made by Buyers and Selling
Shareholders as they may agree, and (ii) Buyers and Selling Shareholders shall
provide Escrow Agent with instructions regarding the same which are signed by
both Buyers and Selling Shareholders. Escrow Agent shall accept any amounts
deposited by Buyers after the date of this Agreement as increases to the Escrow
Funds and shall invest the same in accordance with Section 4.1 hereof. Each of
the Buyers and Selling Shareholders shall execute and provide all notices to
Escrow Agent as contemplated by this Agreement.
1.2. Any party may terminate this Agreement immediately upon notice to
the other parties if the Escrow Funds are not delivered to Escrow Agent by
September 30, 1997.
1.3. The Escrow Funds shall be held as security on the terms and
subject to the provisions set forth herein for the performance of Buyers'
obligations pursuant to the Purchase Agreement.
1.4. Buyers will cooperate and assist in facilitating a transfer
of the stock of Koplar in exchange for stock of another corporation so long
as such exchanged stock will
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be available for transfer to the Buyers pursuant to this Agreement or otherwise
facilitate other tax planning engaged in by Selling Shareholders so long as such
tax planning does not adversely affect the Buyers or impose any additional cost
on the Buyers.
ARTICLE II. OBLIGATIONS OF SELLING SHAREHOLDERS
2.1. Upon notice to the Selling Shareholders from Buyers that (i) the
purchase agreement between ACME and ACME Finance Corporation, on one hand, and
CIBC Wood Gundy Securities Corp. and Xxxxxxx Xxxxx & Co., on the other hand,
relating to One Hundred Fifteen Million Dollars ($115,000,000) gross proceeds of
Senior Discount Notes; and (ii) the purchase agreement between ACME Intermediate
Holdings, LLC and ACME Finance Inc., on the one hand, and CIBC Wood Gundy
Securities Corp., on the other hand, relating to Forty Million Dollars
($40,000,000) gross proceeds of Senior Discount Notes have both been executed
and delivered by the appropriate parties (and provided Warner Bros. has
designated ACME as the Purchaser under the Purchase Agreement), the Selling
Shareholders immediately shall execute and deliver to Selling Shareholders' FCC
counsel an executed Form 315 application to be filed with the Federal
Communications Commissions ("FCC") to request the FCC's approval of the transfer
of control of Koplar, whose subsidiary, Koplar Communications Television, L.L.C.
holds FCC licenses for KPLR-TV in St. Louis, Missouri (the "Station"), which
form shall be immediately filed with the FCC by Selling Shareholders' FCC
counsel or immediately delivered from him to counsel for the Buyers upon receipt
of the Escrow Funds by Escrow Agent pursuant to the terms hereof.
2.2. Upon the filing of the Form 315 application, the parties to the
Purchase Agreement shall, in accordance with the terms of the Purchase
Agreement, use their best efforts to secure a grant of the FCC application and a
consummation of the transactions contemplated by the Purchase Agreement at the
earliest practicable date, but in no event prior to January 2, 1998.
2.3. Escrow Agent shall have no liability with respect to the delivery
of the stock certificates to the appropriate party pursuant to the terms hereof,
except to the extent any such failure to properly deliver is a result of Escrow
Agent's gross negligence or willful misconduct.
ARTICLE III. MAINTENANCE AND DISTRIBUTION OF ESCROW FUNDS
3.1. Upon its receipt of the Escrow Funds, Escrow Agent shall promptly
place the monies in an interest-bearing account selected by Selling Shareholders
or other investments secured by the United States Treasury in the name of "KPLR
Escrow Account." Escrow Agent is hereby authorized and directed to release the
Escrow Funds, Stock and Closing Documents (as defined herein) in accordance with
written instructions from the appropriate parties, as set forth herein.
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3.2. Upon notice to Escrow Agent executed by the Selling Shareholders
and Buyers identifying the Closing Date of the Purchase Agreement, Escrow Agent
shall withdraw the Escrow Funds, and, unless Selling Shareholders have already
received those Escrow Funds to which they are entitled under Section 3.3(a) of
this Agreement, shall deliver such funds in accordance with written instructions
signed by the Selling Shareholders, which instructions shall set forth, at a
minimum, the manner of distribution with all details and relevant information
reasonably required by Escrow Agent to complete such transfer and when such
transfer should occur, allowing two (2) business days prior notice: Except as
otherwise specified herein, accrued interest shall at all times be paid to the
Selling Shareholders upon distribution of the Escrow Funds pursuant to this
Agreement.
3.3. (a) Upon at least 10 days prior written notice to Escrow Agent
executed only by Selling Shareholders (prior to Closing under the Purchase
Agreement) that they desire to acquire the Escrow Funds, Escrow Agent shall
deliver the Escrow Funds and all interest accrued thereon to Selling
Shareholders, less any adjustments required or payments to be made by Purchaser
on behalf of Selling Shareholders or the Company under this Agreement or the
Purchase Agreement at Closing (including but not limited to funds to be placed
in the Tax Escrow Agreement pursuant to Section 1.5(b) of the Purchase
Agreement). Such notice shall indicate the total amount of Escrow Funds to be
disbursed plus all interest earned thereon (less disbursements made prior to
such notice in accordance with the terms of this Agreement), the party to
receive the funds, the manner of distribution with all details and relevant
information reasonably required by Escrow Agent to complete such transfer and
when such disbursement should occur, allowing two (2) business days prior notice
for action to be taken by the Escrow Agent. Escrow Agent shall maintain true and
accurate records of all distributions made from the Escrow Funds, which records
shall constitute conclusive evidence of distributions made in the absence of
manifest error. Prior to the expiration of the ten (10) day period set forth
above, Selling Shareholders shall deliver to Escrow Agent (i) all of the Selling
Shareholders' stock in Koplar (other than stock redeemed by Selling Shareholders
in connection with Section 6.9 of the Purchase Agreement) (the "Stock") with
appropriate endorsements in blank along with any and all other documents
reasonably requested by Buyers which are executed by the Company and/or the
Selling Shareholders and are sufficient to transfer the Stock to Buyers (with
such Stock segregated to implement Section 7.1 of the Purchase Agreement if
Selling Shareholders make a timely decision to invest in ACME as required by
Section 1.1 of this Agreement, and with the understanding that parties will take
any and all other actions appropriate and necessary to implement that section),
and (ii) such other documents (the "Closing Documents") reasonably requested by
Buyers, executed by Koplar and/or the Selling Shareholders, sufficient to convey
the Stock from the Selling Shareholders to Buyers to effect a transfer of
control of Koplar and a consummation of the Purchase Agreement. Notwithstanding
anything herein to the contrary, (i) Selling Shareholders shall not be entitled
to obtain any Escrow Funds under this section prior to January 2, 1998, and (ii)
Selling Shareholders shall not request the Escrow Funds under this section
unless, as a result of the distribution of the Escrow Funds pursuant to this
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section, Koplar or Selling Shareholders, as appropriate, shall pay or cause to
be paid all expenses identified in Section 1.3(b)(vii) of the Purchase
Agreement, with Buyers having no responsibility for the payment of such
expenses. Upon the delivery of the Stock, the related documents, and the Closing
Documents pursuant to this section, Koplar, Selling Shareholders and Buyer shall
take any and all other actions required to consummate the Purchase Agreement,
including the execution of all ancillary documents identified therein. Nothing
contained in this paragraph shall be construed or intended to place liability or
responsibility upon the Escrow Agent to assure that the Selling Shareholders
deliver the appropriate Stock or Closing Documents or that the Stock is endorsed
as required by the parties or to verify that the Selling Shareholders are
entitled to request such funds when they are requested.
(b) If Selling Shareholders exercise the rights provided in this
section, the Escrow Agent shall subsequently inscribe ATLMI's name on the Stock
and deliver the Stock, related documents andthe Closing Documents delivered to
Escrow Agent to Buyers within two (2) business days of receipt of notice from
and executed only by Buyers that the FCC has issued an order approving the
transfer of the Stock to Buyers, and such transfer of control of Koplar shall
become effective on the date of Escrow Agent's delivery of the Stock and the
related documents along with the Closing Documents to Buyers.
(c) Notwithstanding anything to the contrary in the Purchase
Agreement, no party may terminate the Purchase Agreement prior to the
distribution of Escrow Funds to Selling Shareholders under this section. The
Escrow Funds and accrued interest thereon shall be distributed at the direction
of the Selling Shareholders in accordance with this Section 3.3 notwithstanding
any failure of any condition for Closing in the Purchase Agreement. If Selling
Shareholders exercise the rights provided in this section and the Escrow Funds
are distributed pursuant to this section, the Purchase Agreement can,
notwithstanding anything to the contrary in the Purchase Agreement, be
terminated only at the option of Buyers, which would provide ten (10) days
notice of such termination to the other parties: provided, that in no event will
any such termination require a refund of the Escrow Funds distributed to Selling
Shareholders.
3.4. At the request of Selling Shareholders, which may be made from
time to time upon written notice to the Escrow Agent executed only by Selling
Shareholders, Escrow Agent shall disburse to Xxxxxx X. Xxxxxx ("Xx. Xxxxxx") (or
to a person or company selected by him) from the Escrow Funds an aggregate
principal amount not to exceed $2,000,000. Such loan shall be made pursuant to a
promissory note, in a form reasonably acceptable to Xx. Xxxxxx and Buyers, which
shall provide that the interest rate on such amounts borrowed shall at all times
be equal to the interest rate earned on the Escrow Funds. Escrow Agent shall
have no responsibility to provide the promissory note
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or to verify its execution of the note. All principal borrowed pursuant thereto
and interest due thereon shall be deducted from the distribution to Selling
Shareholders of the Escrow Funds and accrued interest thereon, and the principal
and interest with respect to any such loans will be satisfied in full at the
time of such distribution. The principal and interest to be deducted from the
Escrow Funds shall be determined by Selling Shareholders and included in the
disbursement directions from Selling Shareholders to Escrow Agent.
ARTICLE IV. GENERAL PROVISIONS
4.1. This Escrow Agreement shall become effective as of the date
hereof and shall continue in force until the delivery of the Escrow Funds and
accrued interest by Escrow Agent pursuant to the terms of this Agreement.
4.2. All notices, demands or other communications required or
permitted by this Escrow Agreement shall be in writing, shall be served on all
other parties (with evidence of such service attached to such communication),
and shall be deemed effective (a) when delivered personally, (b) within five (5)
business days after being sent by certified mail, return receipt requested, (c)
by facsimile with confirmation of receipt, or (d) when delivered by a
nationally-recognized overnight delivery service which issues a receipt for
delivery, with charges prepaid, to all of the following persons at the specified
addresses (or at such other address as any party may designate in writing to the
other parties):
If to Koplar:
Koplar Communications, Inc.
0000 Xxxxxxx Xxxxxxxxx
Xx. Xxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx
Facsimile: (000) 000-0000
with a copy (but which shall not constitute notice) to:
Xxxxxx X. Xxxxxx, Esq.
Xxxxxxxxxxxx, Xxxxxx & Xxxx, P.C.
00 Xxxxx Xxxxxxxx, Xxxxx 0000
Xx. Xxxxx, XX 00000
Facsimile: (000) 000-0000
If to Selling Shareholders:
Xxxxxx X. Xxxxxx
000 Xxxxx Xxxxxx Xxxx
Xxxxx, XX 00000
Facsimile: (000) 000-0000
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with a copy (which shall not constitute notice) to:
Xxxxxx X. Xxxxxx, Esq.
Xxxxxxxxxxxx, Xxxxxx & Xxxx, P.C.
00 Xxxxx Xxxxxxxx, Xxxxx 0000
Xx. Xxxxx, XX 00000
Facsimile: (000) 000-0000
If to Buyers:
Xxxxxxx Xxxxx
Acme Television Holdings, L.L.C.
000 Xxxxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
and
Mr. Xxx Xxxxx
Acme Television Holdings, L.L.C.
Suite 850
000 Xxxx Xxxxxx Xxxxx
Xxxxx Xxxx, XX 00000
Facsimile: (000) 000-0000
with a copy (which shall not constitute notice) to:
Xxxxx X. Paper, Esq.
Xxxxxxxxx Xxxxxxx Xxxxx & Xxxxxxxx LLP
0000 X Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Facsimile: (000) 000-0000
If to Escrow Agent:
M01-800-12-20
NationsBank, N.A.
000 Xxxxxx Xxxxxx
Xx. Xxxxx, XX 00000
Facsimile: (000) 000-0000
A copy of any notice of communication given by any party to any other party
hereto shall be given at the same time to every party to this Escrow Agreement.
All notices provided to
8
Escrow Agent by any party shall indicate the provision hereof giving rise to
such notice. Escrow Agent may rely on said indication as conclusive proof of the
relevant section that the Escrow Agent shall refer to as guidance for
disbursement or actions to be taken by the Escrow Agent hereunder.
4.3. The parties agree to indemnify and hold Escrow Agent harmless
from and against any and all taxes, assessments, liabilities, claims, damages,
actions, suits or other charges incurred by or assessed against Escrow Agent for
anything done or omitted by Escrow Agent in the performance of Escrow Agent's
duties hereunder, except as a result of Escrow Agent's own gross negligence or
willful misconduct. Selling Shareholders and Buyers shall share equally in
paying any fee charged by or expense incurred by the Escrow Agent in the
discharge of its duties hereunder. This provision shall survive any termination
of Escrow Agent's duties hereunder.
4.4. The following terms and conditions shall govern and control with
respect to the rights, duties, liabilities and immunities of Escrow Agent:
(a) Escrow Agent is not a party to, and is not bound by, any
agreement which may be evidenced by, or arise out, the foregoing instructions,
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 Agreement)
between any of the parties hereto, conflict or are inconsistent with any of the
provisions of this Agreement, the terms and provisions of this Agreement shall
govern and control in all respects.
(b) Escrow Agent shall be protected in acting upon any written
notice, request, waiver, consent, receipt or other document which Escrow Agent
in good faith believes to be genuine and what it purports to be. The Escrow
Agent may rely upon the joint signatures of both Xxxxxx X. Xxxxxx acting as a
Selling Shareholder, as a Trustee of a Selling Shareholder, and signing on
behalf of Koplar, and Xxxxxx X. Xxxxxx acting as a Trustee of a Selling
Shareholder (or any of their successors) on behalf of the Selling Shareholders,
and upon the signature of Xxxxxxx Xxxxx or Xxxxxx Xxxxx (or any individual
succeeding them as an officer of Buyers) on behalf of Buyers.
(c) Escrow Agent shall not be bound by any modification of this
Escrow Agreement unless there is delivered to Escrow Agent a modification signed
by the parties. No such modification shall, without the written consent of
Escrow Agent, modify the provisions of Sections 4.3, 4.4, or 4.6 of this Escrow
Agreement.
(d) Escrow Agent shall have no duties or responsibilities except
those expressly set forth herein. Unless specifically directed to act with
respect to a duty or responsibliity hereunder, Escrow Agent shall have no
responsibility to verify the actions taken or to be taken by Buyers or Selling
Shareholders.
9
4.5. In the event that one party files a lawsuit or institutes other
formal legal action (including any counterclaim to a lawsuit filed by the other
party) to enforce its right to the Escrow Funds or accrued interest under this
Agreement, the prevailing party shall be reimbursed by the other party or
parties for all reasonable expenses incurred therewith, including reasonable
attorneys' fees.
4.6. This Escrow Agreement shall be binding upon and inure to
the benefit of the parties, their successors and assigns.
4.7. To reimburse Buyers for the loss of Escrow Funds distributed to
Selling Shareholders under Section 3.3 in the event the Purchase Agreement is
terminated after the Selling Shareholders acquire the Escrow Funds pursuant to
Section 3.3 of this Agreement or the FCC does not provide the requisite approval
of the transfer of control of Koplar by September 30, 1998, the Selling
Shareholders shall, at Buyers' request and at no cost to Selling Shareholders,
immediately initiate efforts, including the retention of CEA, Inc. as broker (at
no cost to Selling Shareholders), to sell to a third party, subject to the prior
approval of the FCC, all the Stock, Station, with all proceeds therefrom (less
Selling Shareholders' expenses) to be paid to Buyers: provided, that in no event
shall Selling Shareholders be responsible for or obligated to reimburse Buyers
for any deficiency, loss, expense or damage with respect thereto: and provided
further, that Selling Shareholders shall retain the Excluded Assets and Excluded
Liabilities identified in Section 6.9 of the Purchase Agreement. Such sale shall
be made with no representations and warranties by Selling Shareholders, and
Selling Shareholders shall be indemnified in a manner reasonably acceptable to
Selling Shareholders. Koplar and Selling Shareholders shall cooperate, at
Buyers's expense, to effectuate any such transfer of control: provided, that
unless and until a consummation of any such transaction (with the prior approval
of the FCC), Selling Shareholders shall, as provided in the Time Brokerage
Agreement being executed this same day by the same parties, retain control over
Station operations. Upon consummation of any such transaction, the Escrow Agent
shall deliver the Stock as provided by Section 3.3 in accordance with written
instructions to Escrow Agent executed by Buyers only, which shall include, at a
minimum, the address to which the Stock should be forwarded. Escrow Agent shall
forward the Stock by means of any delivery service used by Escrow Agent in the
operation of its day-to-day business unless specifically instructed otherwise by
Buyers. Any third party acquiring the Stock pursuant to this section shall be
required to abide by all applicable provisions of the Purchase Agreement,
including but not limited to the execution of any ancillary agreements specified
therein.
4.8. This Escrow Agreement sets forth the entire agreement between
parties and supersedes any and all prior and contemporaneous agreements and
understandings with respect to the escrow of funds under the Purchase Agreement.
This Agreement shall be enforced under the laws of the State of Missouri.
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4.9. This Escrow Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, and all of which shall
collectively be deemed one and the same document.
4.10. To the extent there is any conflict between the provisions of
this Escrow Agreement and the Purchase Agreement, the provisions of this Escrow
Agreement shall govern.
4.11. Capitalized terms not otherwise defined in this agreement
shall be defined as provided for in the Purchase Agreement.
4.12. In the event of any disagreement of the parties to this Escrow
Agreement, or between any of them and any other person, resulting in adverse
claims or demands being made in connection with the matters contained in this
Escrow Agreement, or in the event that Escrow Agent, in good faith, shall be in
reasonable doubt as to what action it should take hereunder, Escrow Agent may,
at its option, refuse to comply with any claims or demands on it, or refuse to
take any other action hereunder, so long as such disagreement continues or such
reasonable doubt exists, and in any such event, Escrow Agent shall not be or
become liable in any way or to any person for its failure or refusal to act
(except to the extent that such disagreement or doubt arises from Escrow Agent's
gross negligence or willful misconduct): provided, that, in the event such
dispute or doubt exists and is not resolved by the written agreement of Buyers
and Selling Shareholders within thirty days (30) of the occurrence of such
disagreement or doubt, then Escrow Agent may deposit the Escrow Funds and the
accrued interest thereon with a court of competent jurisdiction for such court's
resolution of the disagreement. Prior to such time Escrow Agent shall be
entitled to continue to refrain from acting until (i) the rights of Buyers and
Selling Shareholders shall have been fully and finally adjudicated by a court of
competent jurisdiction or by binding arbitration or mediation; (ii) all
differences shall have been resolved by the Buyers and Selling Shareholders, and
Escrow Agent shall have been notified thereof in writing signed by all such
persons or (iii) until Escrow Agent has deposited the Escrow Funds with a court
of competent jurisdiction. All liability of Escrow Agent (except for that
liability arising as a result of Escrow Agent's gross negligence or willful
misconduct) shall terminate upon such deposit being made. Notwithstanding the
foregoing, Escrow Agent may in its discretion obey the order, judgment decree or
levy of any court of competent jurisdiction, and Escrow Agent is hereby
authorized in its sole discretion to comply with and obey (and shall have no
liability to any person for so doing, except for any liability arising as a
result of its gross negligence or willful misconduct) any such orders,
judgments, decrees or levies which Escrow Agent is advised by legal counsel of
its own choosing is binding upon it. The rights of Escrow Agent hereunder are in
addition to all other rights which it may have by law or otherwise.
4.13. Escrow Agent shall have no liability for any loss arising from
any cause beyond its control, including (but not limited to) the following: (a)
any delay, error, omission or default of any mail, telegraph, cable, or wireless
agency or operator provided
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Escrow Agent has complied with the terms of the instructions given to it by
Buyers and/or Selling Shareholders, as appropriate; or (b) the acts or edicts of
any government or governmental agency or other group or entity exercising
governmental powers.
4.14. Except as otherwise provided in this Escrow Agreement, Escrow
Agent shall be under no duty or obligation to give any notice or to do or to
omit the doing of any action or anything with respect to the Escrow Funds, Stock
or Closing Documents, except to receive, invest, hold and deliver the same in
accordance with the terms of this Escrow Agreement. Escrow Agent shall not be
liable for any error in judgment, any act or omission, any mistake of law or
fact, or for anything it may do or refrain from doing in connection herewith,
except for its own willful misconduct or gross negligence.
4.15. Upon execution of this Escrow Agreement, Selling Shareholders
and Buyers shall pay to Escrow Agent a fee of $5,000.00 as compensation for
Escrow Agent's services hereunder for the first year of this Escrow Agreement.
Selling Shareholders and Buyers shall pay to Escrow Agent a fee of $5,000.00 on
each anniversary date of this Escrow Agreement. Additional compensation shall be
paid to the Escrow Agent for any unusual or extraordinary services it may be
required to perform hereunder. Selling Shareholders and Buyers shall also
reimburse Escrow Agent upon demand for all costs, expenses and reasonable
attorneys' fees incurred by Escrow Agent in connection with the performance of
its duties hereunder or in the event that Escrow Agent reasonably deems it
necessary to retain legal counsel in connection with any dispute arising in
connection with this Escrow Agreement. In the event that any fees, costs or
expenses attributable to Selling Shareholders and Buyers are not paid by Selling
Shareholders and Buyers within five (5) business days after demand by Escrow
Agent, Escrow Agent shall have the right to offset against the Escrow Funds for
said reimbursement to the extent of Selling Shareholders' and Buyers'
obligations with respect thereto. All amounts payable hereunder shall be shared
equally by Selling Shareholders (considered collectively as one) and Buyers.
4.16. As used in Sections 3.2 and 3.3 of this Agreement, "business"
day shall mean a day other than a Saturday or Sunday when Escrow Agent is open
for business in the State of Missouri.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above set forth.
SELLING SHAREHOLDERS:
/s/ Xxxxxx X. Xxxxxx
_______________________________
Xxxxxx X. Xxxxxx
TRUSTEES OF THE XXXXXX XXXXXX
IRREVOCABLE TRUST, FOR THE
BENEFIT OF THE CHILDREN OF
XXXXXX X. XXXXXX
/s/Xxxxxx X. Xxxxxx
_______________________________
Xxxxxx X. Xxxxxx, Trustee
/s/ Xxxxxx X. Xxxxxx
_______________________________
Xxxxxx X. Xxxxxx, Trustee
KOPLAR COMMUNICATIONS, INC., a
Missouri corporation
By: /s/ Xxxxxx X. Xxxxxx
____________________________
Xxxxxx X. Xxxxxx
President
ACME TELEVISION HOLDINGS, LLC
a Delaware limited liability company
By: /s/ Xxxxxxx X. Xxxxx
____________________________
Xxxxxxx Xxxxx
President
ACME TELEVISION LICENSES OF MISSOURI, INC.
a Missouri corporation
By: /s/ Xxxxxxx X. Xxxxx
____________________________
Xxxxxxx Xxxxx
President
NATIONSBANK, N.A.
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By: /s/ Xxxx X. Xxxxxxx
____________________________
Name: Xxxx X. Xxxxxxx
Title: Vice President
14
