EXHIBIT 10.4
ESCROW AGREEMENT
THIS ESCROW AGREEMENT (the "Agreement") is entered into as of this 22nd
day of June, 1998, by and among WALB-TV, Inc., a Georgia corporation (the
"Company"), WALB Licensee Corp., a Delaware corporation (the "Subsidiary") (the
Company and the Subsidiary, collectively, "Sellers"), Cosmos Broadcasting
Corporation, a South Carolina corporation ("Buyer"), and NationsBank, N.A., a
national banking association (the "Escrow Agent").
WITNESSETH:
WHEREAS, Sellers and Buyer are parties to an Asset Purchase Agreement of
even date herewith pursuant to which Buyer is to deposit Three Million Nine
Hundred Thousand Dollars ($3,900,000) with the Escrow Agent related to the
purchase and sale of television station WALB-TV, Albany, Georgia.
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, Sellers, Buyer and
Escrow Agent hereby agree as follows:
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 Buyer has deposited, or simultaneously with the execution
hereof will deposit, Three Million Nine Hundred Thousand Dollars ($3,900,000).
Upon receipt thereof, the Escrow Agent shall provide Buyer and Sellers
confirmation thereof, and shall hold and disburse such deposit as set forth in
this Agreement. Such deposit shall be invested in the NationsBank Money Market
Account or one of the Nations Money Market Funds listed on Schedule A attached
hereto, as directed by Buyer. Such deposit, as increased or decreased based upon
such investment results, is referred to herein as the "Deposit."
2. Release of Deposit by Escrow Agent. The Escrow Agent shall promptly
release all or a portion of the Deposit to Buyer or Sellers, as the case may be,
upon the first to occur of the following circumstances:
(i) The Escrow Agent receives joint written instructions from
Sellers and Buyer directing the Escrow Agent to make such release; or
(ii) The Escrow Agent receives a final order of a court of competent
jurisdiction authorizing the Escrow Agent to make such release.
3. Reliance by Escrow Agent. The Escrow Agent shall be entitled to rely
upon and act in accordance with any of: (a) the joint written instructions of
Sellers and Buyer, and (b) a final order of a court of competent jurisdiction
authorizing the Escrow Agent to release the Deposit, or any portion thereof, to
Buyer or Sellers.
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 may await resolution of the controversy by joint
instructions from Sellers and Buyer or by appropriate legal proceedings.
5. Indemnification; Fees of Escrow Agent. Buyer and Sellers 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
Sellers and one-half by the Buyer.
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 Sellers and Buyer 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
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proceeding shall be paid one-half by the Sellers and one-half by the Buyer, or
(ii) continue to hold the Deposit until it receives an order from a court of
competent jurisdiction or joint written instructions of Sellers and Buyer
directing the Escrow Agent to release the Deposit.
7. Disputes. 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 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.
8. Notices. Any notice or other communication required or permitted
hereunder shall be deemed to have been sufficiently given when delivered
personally, by facsimile or by such other method (including recognized air
courier or registered or certified mail, return receipt requested), addressed as
follows:
(a) if to Sellers: c/o The Ward L. Quaal Company
401 N. Michigan Avenue, Suite 3140
Chicago, Illinois 60611
Attention: Ward L. Quaal
Facsimile No.: (312) 644-3733
with copies to: Gray Communications Systems, Inc.
1201 New York Avenue, N.W., Suite 1000
Washington, D.C. 20005
Attention: Robert A. Beizer
Facsimile No.: (202) 962-8300
(b) if to Buyer: Cosmos Broadcasting Corporation
2000 Wade Hampton
Greenville, South Carolina 29615
Attention: Martha G. Williams
Facsimile No.: (864) 609-3176
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with copies to: Dow, Lohnes & Albertson
1200 New Hampshire Avenue, N.W., Suite 800
Washington, D.C. 20036
Attention: Patricia A. Francis
Facsimile No.: (202) 776-2222
(c) if to Escrow Agent:NationsBank, N.A.
Private Client Group
DC1-701-03-08
1501 Pennsylvania Avenue, N.W.
Washington, D.C. 20005-1066
Attention: Susan B. Poliquin, Vice President
Facsimile No.: (202) 624-1086
or to such other address as may be specified by any party in a written notice
to the other parties.
9. Governing Law. This Agreement shall be construed under the laws of the
District of Columbia.
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.
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.
12. Counterparts. This Agreement may be executed in separate counterparts.
[SIGNATURE PAGE FOLLOWS]
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SIGNATURE PAGE TO WALB-TV 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.
BUYER:
COSMOS BROADCASTING CORPORATION
By:/s/ James M. Keelor
___________________________
James M. Keelor, President
SELLERS:
WALB-TV, INC.
By:/s/ Ward L. Quaal
_____________________________
Ward L. Quaal, President
WALB LICENSEE CORP.
By:/s/ Ward L. Quaal
_____________________________
Ward L. Quaal, President
ESCROW AGENT:
NATIONSBANK, N.A.
By:/s/ Susan B. Poliquin
__________________________________
Susan B. Poliquin, Vice President
SCHEDULE A TO ESCROW AGREEMENT
NATIONS MONEY MARKET FUNDS
1. Nations Prime Fund
2. Nations Government Money Market Fund
3. Nations Treasury Fund
4. Nations Tax Exempt Fund
ESCROW AGENT FEE
$1,500