ASSET EXCHANGE AGREEMENT
BY AND AMONG
PAXSON SALT LAKE CITY LICENSE, INC.,
PAXSON COMMUNICATIONS OF SALT LAKE CITY-30, INC.
AND
ROBERTS BROADCASTING OF SALT LAKE CITY, L.L.C.
X X X
APRIL 20, 1998
================================================================================
2
TABLE OF CONTENTS
Page
----
ARTICLE 1
DEFINITIONS 1.1 Definitions.................................................................1
ARTICLE 2
EXCHANGE AND ASSIGNMENT OF ASSETS 2.1 The Exchange................................................................7 2.2 Assumption of Obligations and Liabilities...................................8 2.3 Prorations and Adjustments.................................................10
ARTICLE 3
THE CLOSING 3.1 Time and Place of Closing..................................................11 3.2 Deliveries by Paxson.......................................................12 3.3 Deliveries by Roberts......................................................12
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF ROBERTS 4.1 Organization...............................................................13 4.2 Authority Relative to this Agreement.......................................13 4.3 Noncontravention; Consents and Approvals...................................13 4.4 Litigation.................................................................14 4.5 Taxes......................................................................14 4.6 Transmission Equipment.....................................................14 4.7 Compliance with Laws.......................................................15 4.8 FCC Licenses...............................................................15 4.9 Brokers and Finders........................................................16 4.10 Insurance..................................................................16 4.11 Employee Benefit Liabilities...............................................16 4.12 Contracts..................................................................16 4.13 Disclosure.................................................................16
ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF PAXSON 5.1 Organization...............................................................17 5.2 Authority Relative to this Agreement.......................................17 5.3 Noncontravention; Consents and Approvals...................................17 5.4 Litigation.................................................................18 5.5 Taxes......................................................................18 5.6 Transmitter Equipment......................................................18
3
- ii -
5.7 Compliance with Laws.......................................................18 5.8 FCC Licenses...............................................................19 5.9 Brokers and Finders........................................................19 5.10 Insurance..................................................................19 5.11 Employee Benefit Liabilities...............................................19 5.12 Contracts..................................................................20 5.13 Disclosure.................................................................20
ARTICLE 6
COVENANTS OF THE PARTIES 6.1 Conduct of Business........................................................20 6.2 Access to Information......................................................22 6.3 FCC Consent................................................................22 6.4 Control of the Stations....................................................23 6.5 Consummation of Agreement..................................................23 6.6 Public Announcements.......................................................23 6.7 Access to Books and Records................................................24 6.8 Confidentiality............................................................24 6.9 Insurance..................................................................24 6.10 Risk of Loss...............................................................24 6.11 HSR Act Filing.............................................................25 6.12 Sales Tax Filings..........................................................26 6.14 Roberts Environmental Audits...............................................26 6.15 Paxson Environmental Audits................................................26 6.16 Relocation.................................................................27 6.17 Call Signs.................................................................27 6.18 KUPX Tower Lease...........................................................27
ARTICLE 7
CONDITIONS TO THE OBLIGATIONS OF ROBERTS 7.1 Representations and Warranties.............................................28 7.2 Covenants..................................................................28 7.3 Certain Proceedings........................................................28 7.4 Opinion of Counsel.........................................................28 7.5 Document Delivery..........................................................28 7.6 No Material Adverse Change.................................................29 7.7 Consents...................................................................29 7.8 KUPX FCC Consent...........................................................29
4
- iii -
7.9 KUWB FCC Consent...........................................................29 7.12 Relocation.................................................................30 7.13 Retention of Digital Frequency.............................................30 7.14 KUPX Sublease .............................................................30
ARTICLE 8
CONDITIONS TO THE OBLIGATIONS OF PAXSON 8.1 Representations and Warranties.............................................30 8.2 Covenants..................................................................30 8.3 Certain Proceedings........................................................30 8.4 Opinion of Counsel.........................................................31 8.5 Document Delivery..........................................................31 8.6 No Material Adverse Change.................................................31 8.7 Consents...................................................................31 8.8 KUWB FCC Consent...........................................................31 8.9 KUPX FCC Consent...........................................................32 8.12 Relocation.................................................................32 8.13 Retention of Digital Frequency.............................................32 8.14 KUWB Transmitter Lease.....................................................32 8.15 KUPX Sublease..............................................................32
ARTICLE 9
INDEMNIFICATION 9.1 Survival...................................................................32 9.2 Indemnification............................................................33 9.3 Notice of Claims...........................................................34 9.4 Defense of Third Party Claims..............................................34 9.5 Exclusive Remedy...........................................................34
ARTICLE 10
MISCELLANEOUS PROVISIONS 10.1 Termination................................................................35 10.2 Expenses...................................................................36 10.3 Amendment and Modification.................................................37 10.4 Waiver of Compliance; Consents.............................................37 10.5 Notices....................................................................37 10.6 Assignment.................................................................38 10.7 Governing Law..............................................................38 10.8 Counterparts...............................................................38 10.9 Interpretation.............................................................39
5
- iv -
10.10 Entire Agreement...........................................................39 10.11 Severability...............................................................39 10.12 Further Assurance..........................................................39
6
- v -
Schedules and Exhibits
Schedule 4.3 KUWB Consents Schedule 4.4 KUWB Litigation Schedule 4.5 KUWB Taxes Schedule 4.6 KUWB Transmission Equipment Schedule 4.8 KUWB Licenses Schedule 4.10 KUWB Insurance Schedule 5.3 KUPX Consents Schedule 5.4 KUPX Litigation Schedule 5.5 KUPX Taxes Schedule 5.6 KUPX Transmission Equipment Schedule 5.8 KUPX Licenses Schedule 5.10 KUPX Insurance Schedule 6.1(a) KUWB Liens Schedule 6.1(b) KUPX Liens Schedule 7.4 Opinion of Paxson's Counsel Schedule 8.4 Opinion of Roberts's Counsel
Exhibit A KUPX Time Brokerage Agreement Exhibit B KUWB Time Brokerage Agreement
7
ASSET EXCHANGE AGREEMENT
THIS ASSET EXCHANGE AGREEMENT (this "Agreement") is entered into as of this ____ day of April, 1998, by and among PAXSON COMMUNICATIONS OF SALT LAKE CITY-30, INC., a Florida corporation ("Paxson-30"), PAXSON SALT LAKE CITY LICENSE, INC., a Florida corporation ("Paxson License" and collectively with Paxson-30, "Paxson"), and ROBERTS BROADCASTING OF SALT LAKE CITY, L.L.C., a Delaware limited liability company ("Roberts").
RECITALS
A. Paxson owns and operates and is the licensee of television station KUPX, Ogden, Utah ("KUPX").
B. Roberts owns and operates and is the licensee of television station KUWB, Provo, Utah ("KUWB").
C. On the terms, and subject to the conditions set forth herein, Paxson desires to transfer to Roberts certain assets of KUPX in exchange for certain assets of KUWB, and Roberts desires to transfer to Paxson certain assets of KUWB in exchange for certain assets of KUPX.
AGREEMENTS
In consideration of the mutual covenants and agreements set forth herein, and other good and valuable consideration, the receipt and legal sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
1.1 Definitions.
"ACME" means ACME Television of Utah, LLC, a Delaware limited liability company.
"Adjustment Time" means 12:01 a.m., local time, on the Closing Date.
"Affiliate" means, with respect to any Person, any other Person controlling, controlled by or under common control with such Person, with "control" for such purpose meaning the
8
- 2 -
possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities or voting interests, by contract or otherwise.
"Agreement" has the meaning specified in the Preamble.
"Assets" means the KUPX Assets in the case of Assets owned or held by Paxson and the KUWB Assets in the case of Assets owned or held by Roberts.
"Assumed KUPX Liabilities" has the meaning specified in Section 2.2(a).
"Assumed KUWB Liabilities" has the meaning specified in Section 2.2(c).
"Claims" means any and all debts, liabilities, obligations, losses, damages, deficiencies, assessments and penalties, together with all Legal Actions, pending or threatened, claims and judgments of whatever kind and nature relating thereto, and all fees, costs, expenses and disbursements (including without limitation reasonable attorneys' and other legal fees, costs and expenses) relating to any of the foregoing.
"Closing" has the meaning specified in Section 3.1.
"Closing Date" has the meaning specified in Section 3.1.
"Code" means the Internal Revenue Code of 1986, as amended.
"DOJ" means the Antitrust Division of the United States Department of Justice.
"Encumbrance" means any claim, liability, security interest, mortgage, lien, pledge, condition, charge or encumbrance of any nature whatsoever.
"ERISA" has the meaning specified in Section 4.11.
"Excluded KUPX Assets" has the meaning specified in Section 2.1(b).
"Excluded KUWB Assets" has the meaning specified in Section 2.1(c).
"FCC" means the Federal Communications Commission.
9
- 3 -
"FCC Consent" means actions by the FCC granting both the KUWB FCC Consent and the KUPX FCC Consent.
"Final Order" means an action or order by the FCC (a) that has not been reversed, stayed, enjoined, set aside, annulled or suspended, and (b) with respect to which (i) no requests have been filed for administrative or judicial review, reconsideration, appeal or stay and the FCC has not initiated a review of such action or order on its own motion and the periods provided by statute or FCC regulations for filing any such requests and for the FCC to set aside the action on its own motion have expired, or (ii) in the event of review, reconsideration or appeal, the period provided by statute or FCC regulations for further review, reconsideration or appeal has expired.
"Final Report" has the meaning specified in Section 2.3(d).
"FTC" means the United States Federal Trade Commission.
"Governmental Authority" means (i) the United States of America, (ii) any state or commonwealth of the United States of America and any political subdivision thereof (including counties, municipalities and the like) or (iii) any agency, authority or instrumentality of any of the foregoing, including any court, tribunal, department, bureau, commission or board.
"HSR Act" means the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended.
"Indemnified Party" has the meaning specified in Section 9.2.
"Indemnifying Party" has the meaning specified in Section 9.2.
"Indemnity Period" has the meaning specified in Section 9.1.
"KUPX" has the meaning specified in the Recitals.
"KUPX Assets" has the meaning specified in Section 2.1(b).
"KUPX FCC Consent" means action by the FCC granting its consent to the assignment of the KUPX FCC Licenses to Roberts.
"KUPX FCC Licenses" means all licenses, permits and authorizations issued by the FCC to Paxson for KUPX, except that any frequency allocations issued by the FCC with
10
- 4 -
respect to the transmission of advanced television, high definition or digital broadcasts shall be excluded from the definition of KUPX FCC Licenses.
"KUPX Intangibles" means (i) all proprietary information, technical information and data, machinery and equipment warranties relating to the KUPX Assets, (ii) all books and records in the possession of Paxson relating to the KUPX Assets (other than corporate and accounting records), (iii) all choses in action relating to the KUPX Assets, (iv) all records, logs and other information in the possession of Paxson that Paxson is required to maintain under the rules and policies of the FCC with respect to KUPX, and (v) all filings by Paxson with the FCC with respect to KUPX, together with any additions thereto between the date of this Agreement and the Closing Date, except that the definition of KUPX Intangibles shall not include the call letters "KUPX".
"KUPX Licenses" means all licenses, permits and other authorizations issued by any Governmental Authority, including, without limitation, the FCC and the Federal Aviation Administration, to Paxson in connection with the conduct of the business or operations of KUPX, together with any additions thereto between the date of this Agreement and the Closing Date, except that any frequency allocations issued by the FCC with respect to the transmission of advanced television, high definition or digital broadcasts shall be excluded from the definition of KUPX Licenses.
"KUPX Time Brokerage Agreement" means the Time Brokerage Agreement of even date herewith between Paxson and ACME attached hereto as Exhibit A.
"KUPX Transmission Equipment" means all equipment, spare parts and other tangible personal property that are set forth on Schedule 5.6 hereof.
"KUPX Transmitter Lease" means the Transmitter Site Sublease Agreement, dated June 27, 1997, by and between Skaggs Companies, Inc. and Paxson-30.
"KUWB" has the meaning specified in the Recitals.
"KUWB Assets" has the meaning specified in Section 2.1(c).
"KUWB FCC Consent" means action by the FCC granting its consent to the assignment of the KUWB FCC Licenses to Paxson.
"KUWB FCC Licenses" means those licenses, permits and authorizations issued by the FCC to Roberts for KUWB, except that any frequency allocations issued by the FCC with
11
- 5 -
respect to the transmission of advanced television, high definition or digital broadcasts shall be excluded from the definition of KUWB FCC Licenses.
"KUWB Intangibles" means (i) all proprietary information, technical information and data, machinery and equipment warranties relating to the KUWB Assets, (ii) all books and records in the possession of Roberts relating to the KUWB Assets (other than corporate and accounting records), (iii) all choses in action relating to the KUWB Assets, (iv) all records, logs and other information in the possession of Roberts that Roberts is required to maintain under the rules and policies of the FCC with respect to KUWB, and (v) all filings by Roberts with the FCC with respect to KUWB, together with any additions thereto between the date of this Agreement and the Closing Date, except that the definition of KUWB Intangibles shall not include the call letters "KUWB".
"KUWB Licenses" means all licenses, permits and other authorizations issued by any Governmental Authority, including, without limitation, the FCC and the Federal Aviation Administration, to Roberts in connection with the conduct of the business or operations of KUWB, together with any additions thereto between the date of this Agreement and the Closing Date, except that any frequency allocations issued by the FCC with respect to the transmission of advanced television, high definition or digital broadcasts shall be excluded from the definition of KUWB Licenses.
"KUWB Time Brokerage Agreement" means the Time Brokerage Agreement of even date herewith between Roberts and Paxson-30 attached hereto as Exhibit B.
"KUWB Transmission Equipment" means all equipment, spare parts and other tangible personal property that are set forth on Schedule 4.6 hereof.
"KUWB Transmitter Lease" means the Tower Lease Agreement dated as of August 22, 1997 and amended as of December 9, 1997 between Roberts Broadcasting Company of Utah, Inc. and Roberts.
"Legal Action" means, with respect to any Person, any and all litigation or legal or other actions, at law or in equity, arbitrations, counterclaims, investigations, proceedings, or requests for material information by or pursuant to the order of any Governmental Authority.
"Loss and Expense" has the meaning specified in Section 9.2.
"Paxson" has the meaning specified in the Preamble.
12
- 6 -
"Paxson-30" has the meaning specified in the Preamble.
"Paxson License" has the meaning specified in the Preamble.
"Paxson Material Consents" means those consents referenced in Schedule 5.3 that are designated with an asterisk.
"Permitted Encumbrances" means liens for taxes not yet due and payable and landlord's liens which are current and not in default.
"Person" means any natural person, corporation, partnership, trust, unincorporated organization, association, limited liability company, Governmental Authority or other entity.
"Preliminary Report" has the meaning specified in Section 2.3(c).
"Records" has the meaning specified in Section 6.7.
"Roberts" has the meaning specified in the Preamble.
"Roberts Material Consents" means those consents referenced in Schedule 4.3 that are designated with an asterisk.
"Tax" means any federal, state, local or foreign income, gross receipts, windfall profits, severance, property, production, sales, use, license, excise, franchise, capital, transfer, employment, withholding or other tax or governmental assessment, together with any interest, additions or penalties with respect thereto and any interest in respect of such additions or penalties, required to be paid with respect to the ownership or operation of KUWB or KUPX, respectively.
"Tax Returns" means, with respect to Roberts or Paxson, as the case may be, all federal, state and local tax returns, reports, statements, declarations of estimated tax and other similar filings required to be filed by Roberts or Paxson, as the case may be, with respect to the ownership or operation of KUWB or KUPX, respectively.
"Time Brokerage Agreements" means the KUPX Time Brokerage Agreement and the KUWB Time Brokerage Agreement.
"Transfer" has the meaning specified in Section 6.1(a).
13
- 7 -
"Transferee" refers equally to Roberts and Paxson insofar as the term refers to the party receiving assets from the other party.
"Transferor" refers equally to Roberts and Paxson insofar as the term refers to the party transferring assets to the other party.
ARTICLE 2
EXCHANGE AND ASSIGNMENT OF ASSETS
2.1 The Exchange.
(a) Upon the terms and subject to the conditions set forth in this Agreement, on the Closing Date, Paxson agrees to transfer, assign, convey and deliver to Roberts, and Roberts agrees to accept and acquire from Paxson, free and clear of all Encumbrances, except for Permitted Encumbrances, all of Paxson's rights, title and interest in and to the KUPX Assets, and Roberts agrees to transfer, assign, convey and deliver to Paxson, and Paxson agrees to accept and acquire from Roberts, free and clear of all Encumbrances, except for Permitted Encumbrances, all of Roberts's rights, title and interest in and to the KUWB Assets.
(b) "KUPX Assets" means (i) the KUPX Transmission Equipment, (ii) the KUPX Licenses, and (iii) the KUPX Intangibles. All other assets of Paxson are specifically excluded from the KUPX Assets, including, without limitation, the studio facilities and equipment used or useful in connection with the business and operations of KUPX, any frequency allocations issued by the FCC with respect to KUPX for the transmission of advanced television, high definition or digital broadcasts, the KUPX Transmitter Lease, the KUPX antenna and transmission line and the call letters "KUPX" (the "Excluded KUPX Assets").
(c) "KUWB Assets" means (i) the KUWB Transmission Equipment, (ii) the KUWB Licenses, (iii) the KUWB Transmitter Lease, and (iv) the KUWB Intangibles. All other assets of Roberts are specifically excluded from the KUWB Assets, including, without limitation, the studio facilities and equipment used or useful in connection with the business and operations of KUWB, any frequency allocations issued by the FCC with respect to KUWB for the transmission of advanced television, high definition or digital broadcasts and the call letters "KUWB" (the "Excluded KUWB Assets").
14
- 8 -
2.2 Assumption of Obligations and Liabilities.
(a) As of, and from and after, the Closing Date, Roberts shall assume, pay, discharge and perform only the following liabilities (the "Assumed KUPX Liabilities"):
(i) all obligations and liabilities of Paxson under the KUPX Assets, including but not limited to the KUPX Licenses, arising on or after the Closing; and
(ii) all obligations and liabilities of Paxson to the extent that any assignment or transfer is made thereof to Roberts pursuant to Section 2.3 hereof.
(b) The Assumed KUPX Liabilities shall only include the obligations and liabilities of Paxson described in subsection (a) of this Section, and Roberts shall not assume any of the following:
(i) any liabilities or obligations for federal, state or local income or franchise taxes of Paxson, including, without limitation, deferred taxes or those arising out of any of the transactions contemplated hereby;
(ii) any liabilities or obligations for any brokerage or finder's fees or similar compensation incurred by Paxson or its Affiliates with respect to any of the transactions contemplated by this Agreement;
(iii) any liabilities or obligations for any indebtedness for borrowed money of Paxson under any loan agreement, credit agreement, indenture, evidence of indebtedness or similar document or under any capital lease, financing agreement or other agreement constituting deferred purchase price for any of the KUPX Assets;
(iv) any liabilities or obligations attributable to Excluded KUPX Assets and any intercompany liabilities or payables of any nature whatsoever of Paxson or any of its Affiliates;
(v) any obligati ...
*End of Preview*
Click the 'Add to Cart' button to download the complete and formatted agreement.