ESCROW AGREEMENT
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THIS ESCROW AGREEMENT (this "Agreement") is made as of October 13, 2005
among ▇▇▇▇ ▇. ▇▇▇▇▇▇, an individual residing in the State of Louisiana
("Seller"), Longfoot Communications Corp., a Delaware corporation ("Buyer") and
▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP ("Escrow Agent").
Recital
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Seller and Buyer are parties to a Construction Permits Purchase
Agreement (the "Purchase Agreement") of even date herewith. Pursuant to the
Purchase Agreement, Buyer is to deposit funds with the Escrow Agent in
connection with the purchase and sale of low power television stations K38IH
(Facility ID ▇▇. ▇▇▇▇▇▇), ▇▇▇▇▇▇▇, ▇▇; W51DP (Facility ID ▇▇. ▇▇▇▇▇▇),
▇▇▇▇▇▇▇▇▇, ▇▇; and K46IA (Facility ID No. 127477), Big Sky, MT. .
Agreement
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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, Seller,
Buyer and Escrow Agent hereby agree as follows:
Section 1. Escrow Account and Deposit. The Escrow Agent has an
established trust account (the "Escrow Account") into which, within three (3)
days of the date of this Agreement, Buyer will deposit the sum of Eight Thousand
Dollars ($7,000) (the "Deposit"). Upon receipt thereof, the Escrow Agent shall
provide Buyer and Seller confirmation thereof, and shall hold and disburse such
Deposit as set forth in this Agreement. For tax purposes, interest and other
income earned on the Deposit shall be reported as income of Buyer. The Escrow
Agent shall file a Form 1099 consistent with such treatment, and Buyer shall
provide Escrow Agent with executed Forms W-8 and W-9, as requested by Escrow
Agent.
Section 2. Release of Deposit by Escrow Agent. The Escrow Agent shall
promptly release all or a portion of the Deposit to Buyer or Seller, as the case
may be, upon the first to occur of the following circumstances:
(a) if the Escrow Agent receives written instructions from
Seller stating that Seller is entitled to the Deposit pursuant to the Purchase
Agreement and that Seller has delivered to Buyer and its representative a copy
of such notice, and directing the Escrow Agent to disburse the Deposit, then, if
the Escrow Agent receives no written objection to Seller's notice within ten
(10) business days after receipt thereof, Escrow Agent shall disburse the
Deposit in accordance with such instructions. Seller shall simultaneously send
to Buyer a copy of its notice to the Escrow Agent;
(b) if the Escrow Agent receives written instructions from
Buyer stating that Buyer is entitled to the Deposit pursuant to the Purchase
Agreement and that Buyer has delivered to Seller and his representative a copy
of such notice, and directing the Escrow Agent to disburse
1 Exhibit 10.5
the Deposit, then, if the Escrow Agent receives no written objection to Buyer's
notice within ten (10) business days after receipt thereof, Escrow Agent shall
disburse the Deposit in accordance with such instructions. Buyer shall
simultaneously send to Seller a copy of its notice to the Escrow Agent;
(c) if the Escrow Agent receives joint written instructions
from Seller and Buyer directing the Escrow Agent to disburse the Deposit, then
the Escrow Agent shall disburse the Deposit in accordance with such
instructions;
(d) if the Escrow Agent receives a final order of a court of
competent jurisdiction authorizing the Escrow Agent to disburse the Deposit,
then the Escrow Agent shall disburse the Deposit in accordance with such order;
and
(e) upon any disbursement of the Deposit, Escrow Agent shall
disburse the interest thereon to Buyer.
Section 3. Reliance by Escrow Agent. The Escrow Agent shall be entitled
to rely upon and act in accordance with any of: (a) written notice of Seller
pursuant to Section 2(a) hereof, (b) written notice of Buyer pursuant to Section
2(b) hereof, (c) the joint written instructions of Seller and Buyer, and (d) a
final order of a court of competent jurisdiction authorizing the Escrow Agent to
release the Deposit, or any portion thereof, to Buyer or Seller.
Section 4. Conflicting Demands. If conflicting demands are made upon
the Escrow Agent or if the Escrow Agent receives written objections to
instructions from Seller or Buyer, the Escrow Agent shall not be required to
resolve such controversy or take any action, but may await resolution of the
controversy by joint written instructions from Seller and Buyer or by
appropriate legal proceedings.
Section 5. Indemnification. Buyer and Seller 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.
Section 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. Seller and Buyer each
acknowledge and agree that the Escrow Agent is the attorney for Seller in
various legal matters and that such fact shall not disqualify the Escrow
2 Exhibit 10.5
Agent from continuing to represent Seller in any legal matter including any
dispute which may arise between the parties hereto.
(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, Seller 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 proceeding shall be paid one-half
by the Seller and one-half by Buyer, or (ii) continue to hold the Deposit until
it receives an order from a court of competent jurisdiction or joint written
instructions of Seller and Buyer directing the Escrow Agent to release the
Deposit.
Section 7. Disputes. Except as provided in Section 4, 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 to
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 adjudicated or
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.
Section 8. Notices. Any notice or other communication required or
permitted hereunder shall be deemed to have been sufficiently given when
delivered personally, by facsimile, recognized air courier, or registered or
certified mail, return receipt requested, addressed as follows:
3 Exhibit 10.5
if to Seller: ▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy (which shall not
constitute notice) to: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇ & Fielding LLP
▇▇▇▇ ▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
if to Buyer: Longfoot Communications Corp.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
with a copy (which shall not
constitute notice) to: ▇▇▇ ▇. ▇▇▇▇▇▇
The Law Office of ▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.: 703.243.8692
if to Escrow Agent: ▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇ & Fielding LLP
▇▇▇▇ ▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇/7207
or to such other address as may be specified by any party in a written notice to
the other parties.
Section 9. Governing Law. This Agreement shall be construed under the
laws of the District of Columbia.
Section 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.
Section 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.
Section 12. Counterparts. This Agreement may be executed in separate
counterparts.
SIGNATURE PAGE FOLLOWS
4 Exhibit 10.5
SIGNATURE PAGE TO ESCROW AGREEMENT
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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.
SELLER: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇ ▇. ▇▇▇▇▇▇, an individual
BUYER: LONGFOOT COMMUNICATIONS CORP.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: President
ESCROW AGENT: ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
5 Exhibit 10.5