ESCROW AGREEMENT
This Escrow Agreement is made in and entered into this ____ day of
August, 1998, by and among Saga Communications of Iowa, Inc. ("Saga"),
Triathlon Broadcasting Company of Omaha, Inc. ("Triathlon"), and Xxxxx X.
Xxxxxxxxx, Esquire ("Escrow Agent").
WITNESSETH:
WHEREAS, Saga has executed a Station Reimbursement and Compensation
Agreement ("Reimbursement Agreement") of even date wherein Saga and Triathlon
have agreed to file with the Federal Communications Commission ("FCC") a joint
petition for rule making requesting amendment of Title 47 C.F.R. ss.73.202(b)
to allot a lesser-class channel, but no lower than Channel 227C1 to Des Moines,
Iowa, and reduce the class of radio station KIOA(FM), Des Moines, from Channel
227C to a channel (but no lower than Channel 227C1) that will permit
Triathlon's station at Bennington, Nebraska, KTNP, to operate on Channel 227C3;
WHEREAS, the capitalized terms herein shall have the same meaning
ascribed to them in the Reimbursement Agreement; and
WHEREAS, Triathlon has agreed to reimburse and compensate Saga in
connection with Saga's Channel Downgrade; and
WHEREAS, the Reimbursement Agreement provides for the simultaneous
execution and delivery of this Escrow Agreement;
NOW, THEREFORE, in consideration of the mutual promises and covenants
herein contained, the parties intending to be legally bound, hereby agree as
follows:
1. Pursuant to wire transfer instructions provided by the Escrow
Agent, Triathlon shall deposit Five Hundred Thousand ($500,000.00) Dollars
("Escrow Fund") with the Escrow Agent on the dates and in the manner required
under Section 2 of the Reimbursement Agreement, which Escrow Agent shall hold
in an insured interest-bearing account or accounts.
2. The Escrow Agent shall hold the Escrow Fund, and dispose of it as
follows:
a. The Escrow Agent, without further authorization from any
party, shall deliver to Saga the Escrow Fund, including all interest accrued
thereon, upon the Effective Date ("Payment Date") of Saga's Channel Downgrade
as described in Section 3 of the Reimbursement Agreement.
b. Should Saga default under the terms of the Reimbursement
Agreement, upon written notice of such default, the Escrow Agent shall deliver
the Escrow Fund, and all interest accrued thereon, to Triathlon, unless Saga
objects in writing to the delivery of the Escrow Fund to Triathlon, in which
case the Escrow Agent shall proceed under Section 10 hereof.
3. If the FCC shall refuse to approve the Channel Downgrade, Escrow
Agent shall deliver the Escrow Fund to Triathlon within 5 days after (i) the
FCC's order refusing to downgrade KIOA(FM) shall become a final order, or (ii)
receipt of written notice from Saga that it will not contest such FCC refusal.
If Saga contests such FCC refusal and such refusal is upheld on appeal, Escrow
Agent shall deliver the Escrow Fund to Triathlon within 5 days after the
issuance of the order denying Saga's appeal.
4. The Escrow Agent may act relative hereto upon advice of counsel in
reference to any matter connected herewith, and shall not be liable for any
mistake of fact or error of judgment,
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or for any acts or omissions of any kind unless caused by his willful
misconduct or gross negligence.
5. This Escrow Agreement sets forth exclusively the duties of the
Escrow Agent with respect to any and all matters pertinent hereto and no
implied duties or obligations shall be read into this Escrow Agreement against
the Escrow Agent.
6. The Escrow Agent makes no representations as to the validity,
value, genuineness or the collectability of any security or document, or
instrument or property held or delivered to them.
7. Saga and Triathlon agree to divide the costs of the reasonable
charges of the Escrow Agent who shall charge $200.00 per hour for his services.
In the event of a dispute regarding disposition of the Escrow Fund, Saga and
Triathlon each agree to pay the Escrow Agent all of the charges for his
services hereunder and agree to reimburse the Escrow Agent for all reasonable
expenses, disbursements and advances incurred or made by the Escrow Agent in
performance of such duties hereunder, including reasonable fees, expenses and
disbursements of his counsel. The prevailing party's share of the Escrow
Agent's expenses incurred in connection with resolution of any such dispute,
and the prevailing party's own reasonable legal fees and expenses, shall be
reimbursed by the non-prevailing party immediately upon the conclusion of any
litigation to determine the disposition of the Escrow Fund. This section
survives despite any termination of this Escrow Agreement.
8. The Escrow Agent does not have and will not have any interest in
the Escrow Fund, but is serving only as escrow holder and having only
possession thereof.
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9. Any cash received by the Escrow Agent shall be invested and
reinvested by the Escrow Agent in an interest-bearing federally insured money
market account under the exclusive control of the Escrow Agent. Saga and
Triathlon acknowledge that the Federal Deposit Insurance Corporation ("FDIC")
insurance may not apply to accounts to the extend they exceed One Hundred
Thousand ($100,000. 00) Dollars and agree that Escrow Agent is not required or
expected to keep or invest the escrowed funds which exceed this amount in
accounts or instruments that insured by the FDIC.
10. In the event the Escrow Agent receives or becomes aware of
conflicting demands or claims with respect to this escrow or the rights of any
of the parties hereto, or any funds, securities, property or documents
deposited herein or affected hereby, the Escrow Agent shall have the right to
discontinue any or all further acts on his part until such conflict is resolved
to his satisfaction. The Escrow Agent shall have the further right, but not the
obligation, to commence or defend any action or proceedings for the
determination of such conflict including, but without limiting the generality
of the foregoing, a suit in interpleader brought by the Escrow Agent. In the
event the Escrow Agent files a suit in interpleader, and delivers to the court
all funds, securities, property or documents then in deposit hereunder, he
shall thereupon be fully released and discharged from all further obligations
to perform any and all duties or obligations imposed upon him by this Escrow
Agreement.
11. The Escrow Agent shall not be liable for any error of judgment or
for any act done or omitted by him in good faith, or for anything which he may
in good faith do or refrain from doing in connection herewith; nor for any
negligence other than gross negligence; nor shall the Escrow Agent be liable
if, in the event of any dispute or question as to his duties or obligations
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hereunder, he acts in accordance with written opinion of legal counsel. The
Escrow Agent is authorized to act upon any document believed by him to be
genuine and to be signed by the proper party or parties, and will incur no
liability in so acting.
12. All notices, demands and requests required or permitted to be
given under the provisions of this Agreement shall be in writing and shall be
deemed duly given on the date they are received by hand delivery or delivery by
overnight courier service, or delivery by registered mail, postage prepaid, and
addressed to the party as follows:
TO SAGA: Xx. Xxxxxx Xxxxxx
Saga Communications of Iowa, Inc,.
0000 Xxxxxx Xxxxxx
Xxx Xxxxxx, XX 00000
with a copy (which shall
not constitute notice) to: Xxxx X. Xxxxxxxxx, Esq.
Xxxxxxxxx & Belendiuk, P.C.
0000 X Xxxxxx, X.X.
Xxxxx 000
Xxxxxxxxxx, X.X. 00000
TO TRIATHLON: Xx. Xxxxxx Xxxxx
Symphony Towers
000 "X" Xxxxxx - Xxxxx 0000
Xxx Xxxxx, XX 00000
with a copy (which shall
not constitute notice) to: Xxxxxx X. Leader, Esq.
Xxxxxx Xxxxxxx Xxxxxx Leader &
Xxxxxxxx, L.L.P.
0000 Xxxxxxxxxxxx Xxx., X.X., Xxxxx 000
Xxxxxxxxxx, X.X. 00000-0000
TO ESCROW AGENT: Xxxxx X. Xxxxxxxxx, Esq.
0000 X Xxxxxx, X.X.
Xxxxx 000
Xxxxxxxxxx, XX 00000
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13. This Escrow Agreement shall terminate on the date the Escrow Agent
no longer holds any property or funds hereunder.
14. This Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and assigns. Upon payment to
Saga of all sums due under the Reimbursement agreement, neither Saga nor
Triathlon shall have any further rights or claims under this Agreement. In the
event of the incapacity the Escrow Agent, Saga and Triathlon may designate a
substitute Escrow Agent or Escrow Agents. If Saga and Triathlon cannot agree on
the selection of an Escrow Agent or Escrow Agents, the matter shall be
submitted to arbitration with the costs being divided equally between the
parties.
15. This Agreement shall be construed and interpreted in accordance
with the laws of the State of Iowa.
16. This Agreement may be executed in counterparts, each of which
shall be deemed an original.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed on the day and year first above written.
ESCROW AGENT SAGA COMMUNICATIONS OF IOWA, INC.
By: /s/ Xxxxx X. Xxxxxxxxx By: /s/ Xxxxxx Xxxxxx
--------------------------- --------------------------------
Xxxxx X. Xxxxxxxxx Xxxxxx Xxxxxx
President
TRIATHLON BROADCASTING
COMPANY OF OMAHA, INC.
By: /s/ Xxxxxx Xxxxx
--------------------------------
Xxxxxx Xxxxx
President
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