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Exhibit 10.22
JOINT EXCHANGE AGREEMENT
This JOINT EXCHANGE AGREEMENT ("EXCHANGE AGREEMENT") is made as of this 2nd day
of July, 1998, by and among STC BROADCASTING, INC., a Delaware corporation ("STC
BROADCASTING"), STC BROADCASTING OF VERMONT, INC., a Delaware corporation and a
wholly-owned subsidiary of STC Broadcasting ("STCBV"), STC LICENSE COMPANY, a
Delaware corporation and wholly-owned subsidiary of STC Broadcasting ("STC
LICENSE COMPANY"), and STC BROADCASTING OF VERMONT SUBSIDIARY, INC., a Delaware
corporation and wholly-owned subsidiary of STCBV ("STCBV SUB"), XXXXX
ACQUISITION COMPANY (d/b/a WNAC-TV), a Delaware corporation ("SAC"), XXXXX
ACQUISITION LICENSE COMPANY, a Delaware corporation and wholly-owned subsidiary
of SAC ("SALC") (STC Broadcasting, STCBV, STC License Company, STCBV Sub, SAC
and SALC are collectively referred to herein as the "STC OWNERS"), HEARST-ARGYLE
STATIONS, INC., a Nevada corporation (the "HAT OWNER") and CHICAGO DEFERRED
EXCHANGE CORPORATION, 000 Xxxxx Xxxxx Xxxxxx, Xxxxx Xxxxx, Xxxxxxx, Xxxxxxxx
00000-0000 ("EXCHANGOR").
WITNESSETH:
WHEREAS, the HAT Owner and certain of the STC Owners are parties to
that certain Asset Exchange Agreement, dated as of February 18, 1998, as
amended (the "STC/HAT EXCHANGE AGREEMENT") pursuant to which the HAT Owner and
such STC Owners agreed to exchange certain television broadcast stations; and
WHEREAS, the HAT Owner and the STC Owners desire to retain the
Exchangor as provided for herein in order to facilitate the exchanges
contemplated by the STC/HAT Exchange Agreement so that (a) all of the exchanges
by HAT under the STC/HAT Exchange Agreement shall be exchanges for other
property of like-kind and qualifying use within the meaning of Section 1031 of
the Internal Revenue Code (the "Code") and the Treasury Regulations promulgated
thereunder (the "Regulations"), and (b) certain of the exchanges by STC under
the STC/HAT Exchange Agreement shall be exchanges for other property of
like-kind and qualifying use within the meaning of Section 1031 of the Code and
the Regulations; and
WHEREAS, the HAT Owner owns the property legally described in Exhibit A
attached hereto, referred to herein as the "HAT RELINQUISHED PROPERTY," and
desires to exchange the HAT Relinquished Property, for other property of
like-kind and qualifying use within the meaning of Section 1031 of the Code and
the Regulations; and
WHEREAS, Exchangor desires to acquire the HAT Relinquished Property in
exchange for the property legally described in Exhibit B attached hereto, of
like-kind and qualifying use within the
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meaning of Section 1031 of the Code and the Regulations, referred to herein as
the "HAT REPLACEMENT PROPERTY"; and
WHEREAS, it is the intention of the HAT Owner that Exchangor, subject
to the terms and provisions of this Agreement and acting as a qualified
intermediary, shall acquire the HAT Relinquished Property and transfer it to
the STC Owners (as directed by the STC Owners), and shall acquire the HAT
Replacement Property and transfer it to the HAT Owner, as provided in the
QUALIFIED INTERMEDIARY SAFE HARBOR Regulations Section 1.1031(k)-1(g)(4);
WHEREAS, the STC Owners own the property legally described in Exhibit C
attached hereto, referred to herein as the "STC RELINQUISHED PROPERTY" and
desire to exchange the STC Relinquished Property for other property of
like-kind and qualifying use within the meaning of Section 1031 of the Code and
the Regulations; and
WHEREAS, Exchangor desires to acquire the STC Relinquished Property in
exchange for the property legally described in Exhibit D attached hereto, of
like-kind and qualifying use within the meaning of Section 1031 of the Code and
the Regulations, referred to herein as the "STC REPLACEMENT PROPERTY"; and
WHEREAS, it is the intention of the STC Owners that Exchangor, subject
to the terms and provisions of this Agreement and acting as a qualified
intermediary, shall acquire the STC Relinquished Property and transfer it to
the HAT Owner (as directed by the HAT Owner), and shall acquire the STC
Replacement Property and transfer it to the STC Owners (as directed by the STC
Owners), as provided in the QUALIFIED INTERMEDIARY SAFE HARBOR Regulations
Section 1.1031(k)-1(g)(4).
NOW, THEREFORE, in consideration of the mutual promises herein
contained, Owner and Exchangor agree as follows:
ARTICLE ONE
A. DESCRIPTION OF PROPERTIES
The parties hereto acknowledge and agree that (a) the HAT Relinquished
Property is comprised of all of the STC Replacement Property and certain
additional assets of the HAT Owner as described in the STC/HAT Exchange
Agreement, and (b) the HAT Replacement Property is comprised of all of the STC
Relinquished Property and certain additional assets of the STC Owners as
described in the STC/HAT Exchange Agreement.
B. ASSIGNMENT OF STC/HAT EXCHANGE AGREEMENT FOR RELINQUISHED
PROPERTY
1. HAT Owner agrees to transfer (as permitted in Regulations Section
1.1031(k)-1(g)(4)(iii)) the HAT Relinquished Property to Exchangor and
Exchangor agrees to acquire (as permitted in Regulations Section
1.1031(k)-1(g)(4)(iii)) the HAT Relinquished Property upon the
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terms and conditions set forth in this Exchange Agreement. The HAT Relinquished
Property shall be transferred to Exchangor subject to the right of the STC
Owners to acquire the HAT Relinquished Property pursuant to the STC/HAT
Exchange Agreement. The STC/HAT Exchange Agreement is attached hereto as
Exhibit E and is incorporated herein by reference.
2. HAT Owner agrees to assign to Exchangor all of the HAT Owner's
rights (but not its obligations) in the STC/HAT Exchange Agreement which relate
to the HAT Relinquished Property, and Exchangor agrees to accept assignment
from HAT Owner of HAT Owner's rights (but not its obligations) in the STC/HAT
Exchange Agreement which relate to the HAT Relinquished Property.
3. STC Owners agree to transfer (as permitted in Regulations Section
1.1031(k)-1(g)(4)(iii)) the HAT Replacement Property (including the STC
Relinquished Property) to Exchangor and Exchangor agrees to acquire (as
permitted in Regulations Section 1.1031(k)-1(g)(4)(iii)) the HAT Replacement
Property (including the STC Relinquished Property) upon the terms and
conditions set forth in this Exchange Agreement. The HAT Replacement Property
(including the STC Relinquished Property) shall be transferred to Exchangor
subject to the right of the HAT Owner to acquire the HAT Replacement Property
(including the STC Relinquished Property) pursuant to the STC/HAT Exchange
Agreement.
4. STC Owners agree to assign to Exchangor, all of the STC Owners'
rights (but not their obligations) in the STC/HAT Exchange Agreement which
relate to the HAT Replacement Property (including the STC Relinquished
Property), and Exchangor agrees to accept assignment from the STC Owners of the
STC Owners' rights (but not their obligations) in the STC/HAT Exchange
Agreement which relate to the HAT Replacement Property (including the STC
Relinquished Property).
5. Anything to the contrary contained in this Agreement
notwithstanding, immediately after the Property Closing Date, Exchangor agrees
to re-assign to HAT Owner all of the HAT Owner's remaining rights in the
STC/HAT Exchange Agreement which have been assigned to the Exchangor by the HAT
Owner, and HAT Owner agrees to accept reassignment from Exchangor of HAT
Owner's remaining rights in the STC/HAT Exchange Agreement.
Anything to the contrary contained in this Agreement
notwithstanding, immediately after the Property Closing Date, Exchangor agrees
to re-assign to STC Owners all of the STC Owners' remaining rights in the
STC/HAT Exchange Agreement which have been assigned to the Exchangor by the STC
Owners, and STC Owners agree to accept re-assignment from Exchangor of the STC
Owners' remaining rights in the STC/HAT Exchange Agreement.
C. ACKNOWLEDGMENTS
Subject to Paragraph B(5) of Article One, the STC Owners acknowledge
and agree that the HAT Owner's rights in the STC/HAT Exchange Agreement which
relate to the HAT Relinquished Property have been assigned to Exchangor.
Subject to Paragraph B(5) of Article One, the HAT Owner acknowledges and agrees
that the STC Owners' rights in the STC/HAT Exchange Agreement which relate to
the HAT Replacement Property (including the STC Relinquished
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Property) have been assigned to Exchangor. The parties further acknowledge and
agree that the Cash Consideration (as defined in the STC/HAT Exchange
Agreement) (i) shall not be transferred to the Exchangor, (ii) shall not be
included in the HAT Relinquished Property and/or the STC Replacement Property,
and (iii) shall be transferred directly from HAT Owner to the STC Owner
pursuant to the terms of the STC/HAT Exchange Agreement and consistent with
Regulation Section 1.1031(k)-1(g)(4)(vii). No consideration that is not like
kind property and that is allocable to the STC Relinquished Property will be
received by the STC Owners from Exchangor prior to receipt of the STC
Replacement Property.
ARTICLE TWO
A. EXCHANGE CONSIDERATION
In consideration for the transfer of the HAT Relinquished Property to
Exchangor by HAT Owner, Exchangor shall acquire the HAT Replacement Property
and transfer it to HAT Owner within the time period specified in Regulations
Section 1.1031(k)-1(b)(2)(ii). In consideration for the transfer of the HAT
Replacement Property (including the STC Relinquished Property) to Exchangor by
the STC Owners, Exchangor shall acquire the HAT Relinquished Property
(including the STC Replacement Property) and transfer it to the STC Owners
within the time period specified in Regulations Section 1.1031(k)-1(b)(2)(ii).
B. IDENTIFICATION OF REPLACEMENT PROPERTY
Pursuant to the terms and conditions hereof, (1) HAT owner hereby
identifies the property legally described in Exhibit B attached hereto as the
HAT Replacement Property, and (2) the STC Owners hereby identify the property
legally described in Exhibit D attached hereto as the STC Replacement Property.
Exchangor acknowledges and agrees that pursuant to the preceding sentence and
the terms and conditions of this Exchange Agreement: (1) HAT Owner has
identified the HAT Replacement Property in a manner described by Regulations
Sections 1.1031(k)-1(c)(1) and (2), and (2) STC Owners have identified the STC
Replacement Property in a manner described by Regulations Sections
1.1031(k)-1(c)(1) and (2).
C. ASSIGNMENT OF STC/HAT EXCHANGE AGREEMENT FOR REPLACEMENT PROPERTY
1. Subject to Paragraph B(5) of Article One, HAT Owner agrees to assign
to Exchangor, all of the HAT Owner's rights (but not its obligations) in the
STC/HAT Exchange Agreement which relate to the HAT Replacement Property within
the time period specified in Regulations Section 1.1031(k)-1(b)(2)(ii). It is
understood and agreed by HAT Owner that Exchangor shall be under no obligation
to execute or take assignment of any contract, or to do any other act or thing
contemplated by this Agreement or the STC/HAT Exchange Agreement without, in
each case, receiving a written instrument from HAT Owner in form and substance
satisfactory to Exchangor, which written instrument shall contain such
directions, releases, representations, warranties and indemnities as Exchangor
shall reasonably require.
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2. Subject to Paragraph B(5) of Article One, STC Owners agree to assign
to Exchangor, all of the STC Owner's rights (but not their obligations) in the
STC/HAT Exchange Agreement which relate to the HAT Relinquished Property
(including the STC Replacement Property) within the time period specified in
Regulations Section 1.1031(k)-1(b)(2)(ii). It is understood and agreed by the
STC Owners that Exchangor shall be under no obligation to execute or take
assignment of any contract, or to do any other act or thing contemplated by
this Agreement or the STC/HAT Exchange Agreement without, in each case,
receiving a written instrument from the STC Owners in form and substance
satisfactory to Exchangor, which written instrument shall contain such
directions, releases, representations, warranties and indemnities as Exchangor
shall reasonably require.
3. Subject to Paragraph B(5) of Article One, the STC Owners acknowledge
and agree that the HAT Owner's rights in the STC/HAT Exchange Agreement which
relate to the HAT Replacement Property have been assigned to Exchangor. Subject
to Paragraph B(5) of Article One, the HAT Owner acknowledges and agrees that
the STC Owners' rights in the STC/HAT Exchange Agreement which relate to the
HAT Relinquished Property (including the STC Replacement Property) have been
assigned to Exchangor.
D. ADVANCED OR LOANED FUNDS
In no event shall Exchangor be required to advance sums to purchase or
transfer the HAT Replacement Property or the STC Replacement Property.
E. EXCHANGOR FEE
As additional consideration for Exchangor's acquisition and transfer of
any Relinquished Property or any Replacement Property, Exchangor shall receive
an amount equal to $18,000. Exchangor shall also receive reasonable
compensation for any special services which may be rendered by Exchangor. Such
fees, charges and other compensation shall be paid to the Exchangor one-half by
the HAT Owner and one-half by the STC Owners.
ARTICLE THREE
A. PROPERTY CLOSING DATE
The Relinquished Property Closing and the Replacement Property Closing
shall take place on or about the date hereof (the "PROPERTY CLOSING DATE").
B. PROPERTY PRORATIONS
With respect to the HAT Relinquished Property (including the STC
Replacement Property), the same apportionments and adjustments shall be made as
of the Property Closing Date between the HAT Owner and Exchangor as are made
between Exchangor and the STC Owners pursuant to the STC/HAT Exchange
Agreement. With respect to the HAT Replacement Property (including the STC
Relinquished Property), the same apportionments and adjustments shall be made
as of the
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Property Closing Date between the STC Owners and Exchangor as are made between
Exchangor and the HAT Owner pursuant to the STC/HAT Exchange Agreement.
C. CLOSING ADJUSTMENTS
All adjustments and payments shall be made between the HAT Owner, STC
Owners and Exchangor as of the Property Closing Date, as appropriate, by either
(i) good and sufficient certified check of Exchangor or Owner, as the case may
be, drawn on a bank or banks which are members of the New York Clearing House,
(ii) official check or checks of such bank(s), or a combination of any such
checks, or (iii) wire transfer of immediately available funds.
D. DIRECT DEEDING
For purposes of this Exchange Agreement, a conveyance by HAT Owner to
Exchangor, or by Exchangor to HAT Owner, includes, respectively, a direct
conveyance from the HAT Owner to the STC Owners of the HAT Relinquished
Property (including the STC Replacement Property), or from the STC Owners of
the HAT Replacement Property (including the STC Relinquished Property) to HAT
Owner, at the direction of, and in satisfaction of the obligations of Exchangor
under this Exchange Agreement. The Exchangor shall for purposes of this
Exchange Agreement be considered to have acquired the HAT Relinquished Property
(including the STC Replacement Property) and transferred it to the STC Owners
and to have acquired the HAT Replacement Property (including the STC
Relinquished Property) and transferred it to the HAT Owner as provided by
Regulations Sections 1.1031(k)-1(g)(4)(iii) and 1.1031(k)-1(g)(4)(iv).
E. ACQUISITION OF REPLACEMENT PROPERTY
1. Exchangor agrees to proceed to acquire the HAT Replacement Property
by closing the acquisition of the HAT Replacement Property as of the Property
Closing Date, subject, however, at all times to all the terms of this Exchange
Agreement and the STC/HAT Exchange Agreement. HAT Owner acknowledges that in
connection with Exchangor's acquisition of the HAT Replacement Property,
Exchangor shall have the right to disclose to the STC Owners that Exchangor is,
and is only acting as, HAT Owner's qualified intermediary within the meaning of
the Regulations. HAT Owner shall indemnify and hold Exchangor harmless from any
and all liability to the STC Owners, except for any matters relating to the
willful misconduct or gross negligence of Exchangor. Exchangor shall transfer
to HAT Owner all HAT Replacement Properties prior to the end of the Closing
Date by direct deed from the STC Owners to HAT Owner.
2. Exchangor agrees to proceed to acquire the HAT Relinquished Property
(including the STC Replacement Property) by closing the acquisition of the HAT
Relinquished Property (including the STC Replacement Property) as of the
Property Closing Date, subject, however, at all times to all the terms of this
Exchange Agreement and the STC/HAT Exchange Agreement. STC Owners acknowledge
that in connection with Exchangor's acquisition of the HAT Relinquished
Property (including the STC Replacement Property), Exchangor shall have the
right to disclose to HAT Owner that Exchangor is, and is only acting as, STC
Owners' qualified intermediary within the meaning of the Regulations. STC
Owners shall indemnify and hold Exchangor harmless from any and all liability
to HAT Owner, except for any matters relating to the willful misconduct or
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gross negligence of Exchangor. Exchangor shall transfer to STC Owner all HAT
Relinquished Property (including the STC Replacement Properties) prior to the
end of the Property Closing Date by direct deed from the HAT Owner.
F. PARTIES INTENTIONS REGARDING "LIKE KIND" TREATMENT
The HAT Owner and STC Owners intend that the following exchanges of
assets pursuant to this Agreement and the STC/HAT Exchange Agreement shall
qualify as like-kind and qualifying use under Section 1031 of the Code and the
Regulations: (i) for the STC Owners, the exchange by the STC Owners of the STC
Relinquished Property for the STC Replacement Property, and (ii) for the HAT
Owner, the exchange by the HAT Owner of the HAT Relinquished Property for the
HAT Replacement Property. The parties acknowledge and agree that the exchange
by the STC Owners pursuant to this Agreement and the STC/HAT Exchange Agreement
of any HAT Replacement Property other than the STC Relinquished Property, is
not intended to qualify for the STC Owners as like-kind and qualifying use
under Section 1031 of the Code.
ARTICLE FOUR
A. ADVANCES AND INDEMNITIES
If for any reason whatsoever Exchangor shall make any payments or
advances or incur any expenses pursuant to this Exchange Agreement or the
STC/HAT Exchange Agreement, or shall incur any expenses by reason of being a
party to any litigation in connection with or arising out of any of the terms
and provisions of this Exchange Agreement or the STC/HAT Exchange Agreement,
whether as a tax, or for breach of contract, injury to person or property, or
fines or penalties under any law including, without limitation, under any
federal, state or local law with respect to environmental matters or hazardous
wastes, or otherwise, the STC Owners shall pay to Exchangor on demand, with
interest at the Default Rate (as hereinafter defined), the amount of all such
payments, advances or expenses made or incurred by Exchangor, plus all of
Exchangor's out-of-pocket expenses and attorneys' fees. Exchangor shall not be
obligated to pay any money under this Exchange Agreement or the STC/HAT
Exchange Agreement to prosecute or defend any legal proceeding involving this
Exchange Agreement or the STC/HAT Exchange Agreement unless it is furnished
with sufficient funds or is indemnified by the HAT Owner and the STC Owners to
Exchangor's satisfaction.
B. NO PERSONAL LIABILITY
HAT Owner and STC Owners hereby agree that Exchangor shall not be
required to assume or bear any personal obligation or liability in dealing with
any Relinquished Property, any Replacement Property, the STC/HAT Exchange
Agreement or to make itself liable for any damages, costs, expenses, fines or
penalties relating or arising out of such properties or agreements. Exchangor
shall not be liable for any loss, liability, expense or damage to any
Replacement Property occasioned by its acts or omissions in good faith and in
any event Exchangor shall be liable only for its own willful misconduct or
gross negligence, but not for honest errors of
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judgment. All contracts, agreements or other instruments executed by Exchangor
pursuant to this Exchange Agreement or the STC/HAT Exchange Agreement shall, as
to HAT Owner and STC Owners and any person claiming by, through or under HAT
Owner and STC Owners, be deemed to include a provision exculpating Exchangor
from any personal liability thereunder (other than by reason of Exchangor's
willful misconduct or gross negligence). STC Owners hereby agree that Exchangor
shall be held harmless and fully indemnified by STC Owners for acting on behalf
of the HAT Owner or STC Owners pursuant to the terms of this Exchange Agreement
or the STC/HAT Exchange Agreement (other than by reason of Exchangor's willful
misconduct or gross negligence) and this indemnity shall survive the
termination of this Exchange Agreement. HAT Owner's and STC Owners' designation
of Exchangor to act on HAT Owner's and STC Owners' behalf pursuant to the terms
of this Exchange Agreement is intended to conform to, and shall be construed in
a manner consistent with, Section 1031 of the Code and the Regulations
thereunder. STC Owners shall transfer such additional funds to Exchangor as
shall be necessary to protect Exchangor from any of the aforesaid liabilities
or to enable the Exchangor to complete the conveyances of any Relinquished
Property and any Replacement Property.
C. FAILURE OF REPLACEMENT PROPERTY
1. Notwithstanding anything to the contrary contained herein, Exchangor
shall not be in default under this Agreement and shall not be liable for any
damages, losses or expenses incurred by HAT Owner, if (i) Exchangor fails to
take any steps to locate or negotiate for HAT Replacement Property or borrow or
locate funds to acquire HAT Replacement Property, (ii) any HAT Replacement
Property fails to qualify as "like-kind" property, or (iii) the transaction
otherwise fails, for any reason, to afford HAT Owner the benefits of Section
1031 of the Code.
2. Notwithstanding anything to the contrary contained herein, Exchangor
shall not be in default under this Agreement and shall not be liable for any
damages, losses or expenses incurred by STC Owners, if (i) Exchangor fails to
take any steps to locate or negotiate for the HAT Relinquished Property
(including the STC Replacement Property) or borrow or locate funds to acquire
the HAT Relinquished Property (including the STC Replacement Property), (ii)
any STC Replacement Property fails to qualify as "like-kind" property, or (iii)
the transaction otherwise fails, for any reason, to afford STC Owners the
benefits of Section 1031 of the Code for the STC Relinquished Property and the
STC Replacement Property.
D. AUTHORITY
HAT Owner represents and warrants to Exchangor that HAT Owner is duly
authorized to enter into this Exchange Agreement and to consummate the proposed
transactions contemplated hereunder. STC Owners represent and warrant to
Exchangor that the STC Owners are fully authorized to enter into this Exchange
Agreement and to consummate the proposed transactions contemplated hereunder.
E. OWNER'S DUE DILIGENCE
1. Exchangor makes no representation or warranty that the exchange
contemplated by this Exchange Agreement or the STC/HAT Exchange Agreement
qualifies, in whole or in part as a
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like-kind exchange within the meaning of Section 1031 of the Code. HAT Owner is
solely responsible for all tax consequences arising out of this Exchange
Agreement or the STC/HAT Exchange Agreement. HAT Owner hereby represents to
Exchangor that it has obtained independent professional advice from an attorney
(or other advisor), who has reviewed this Exchange Agreement and associated
documents regarding federal, state and local tax, legal and practical
consequences of the transactions contemplated by this Exchange Agreement and
the STC/HAT Exchange Agreement, and HAT Owner expressly acknowledges and agrees
that HAT Owner is not relying on any advice of Exchangor with respect to any of
the matters set forth in this Exchange Agreement or as described under Section
1031 of the Code and the Regulations.
2. Exchangor makes no representation or warranty that the exchange
contemplated by this Exchange Agreement or the STC/HAT Exchange Agreement
qualifies, in whole or in part as a like-kind exchange within the meaning of
Section 1031 of the Code. STC Owners are solely responsible for all tax
consequences arising out of this Exchange Agreement or the STC/HAT Exchange
Agreement. STC Owners hereby represent to Exchangor that they have obtained
independent professional advice from an attorney (or other advisor), who has
reviewed this Exchange Agreement and associated documents regarding federal,
state and local tax, legal and practical consequences of the transactions
contemplated by this Exchange Agreement and the STC/HAT Exchange Agreement, and
STC Owners expressly acknowledge and agree that STC Owners are not relying on
any advice of Exchangor with respect to any of the matters set forth in this
Exchange Agreement or as described under Section 1031 of the Code and the
Regulations.
ARTICLE FIVE
NOTICES
Any notice, designation, consent, approval or other communication
required or permitted to be given pursuant to the provisions of this Exchange
Agreement ("NOTICE") shall be given in writing and shall be sent by certified
or registered mail, Federal Express, overnight courier, or telecopier,
addressed as follows:
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If to STC Owners:
STC Broadcasting, Inc.
0000 0xx Xxxxxx Xxxxx, Xxxxx 000
Xx. Xxxxxxxxxx, Xxxxxxx 00000
Attn: Xxxxx Xxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
with a copy (which shall not constitute notice) to:
Xxxxx & Xxxxxxx L.L.P.
000 Xxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Attn: Xxxxxxx X. Xxxxxx, Xx., Esq.
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
and to:
Hicks, Muse, Xxxx & Xxxxx Incorporated
000 Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attn: Xxxxxxxx X. Xxxxxx, Xx.
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
If to HAT:
Hearst-Argyle Television, Inc.
000 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx X. Xxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
with a copy (which shall not constitute notice) to:
Xxxxxx & Xxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
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If to Exchangor:
Chicago Deferred Exchange Corporation
000 Xxxxx Xxxxx Xxxxxx, Xxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Attn: Xxxxxx Xxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
Either party may, by Notice given in accordance with the provisions of this
Article Six, designate any further or different address to which subsequent
Notices shall be sent pursuant to the provisions of this Exchange Agreement.
Any Notice shall be deemed to have been given on the date such Notice shall
have been delivered. If such delivery shall be made on a Saturday, Sunday or
holiday, said notice shall be deemed to have been given on the next succeeding
business day.
ARTICLE SIX
A. DEFAULT RATE
For purposes of this Exchange Agreement and where expressly set forth
herein, the term "Default Rate" shall mean the rate of interest then most
recently announced by First National Bank of Chicago, at Chicago, Illinois, as
its "prime rate" plus two percent (2%).
B. SUCCESSORS AND ASSIGNS; ENTIRE AGREEMENT
This Exchange Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their respective heirs, executors,
administrators, successors, and except as otherwise herein provided, their
assigns. This Exchange Agreement shall not be transferred or assigned by any
party hereto without the prior written consent of the other parties hereto and
any purported assignment in violation hereof shall be null and void. This
Exchange Agreement, including all exhibits attached hereto and documents to be
delivered pursuant hereto, shall constitute the entire agreement and
understanding of the parties and there are no other prior or contemporary
written or oral agreements, undertakings, promises, warranties or covenants not
contained herein.
C. GOVERNING LAW
This Exchange Agreement shall be governed by and construed under the
law of the State of Illinois. This Exchange Agreement shall not be recorded or
filed in the public records of the State of Illinois or any other government or
quasi-governmental body or office without prior written consent of Exchangor.
D. FIRPTA CERTIFICATION AND OTHER MATTERS
1. Owner hereby certifies under penalties of perjury that (i) HAT Owner
is not a "FOREIGN PERSON" as defined by Section 1445 of the Code and the
Regulations, (ii) HAT Owner's United States taxpayer identification number is
00-0000000, (iii) HAT Owner's address is
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0000 Xxxxxxxxx Xxxxx, Xxxxx 000, Xxxx, Xxxxxx, 00000, and (iv) HAT Owner is not
subject to backup withholding.
2. STC Owners hereby certify under penalties of perjury that (i) none
of the STC Owners is a "FOREIGN PERSON" as defined by Section 1445 of the Code
and the Regulations, (ii) each of the STC Owner's United States taxpayer
identification number is STC Broadcasting, Inc. - 00-0000000, STC License
Company - 00-0000000, Xxxxx Acquisition Company - 00-0000000, Xxxxx Acquisition
License Company - 00-0000000, (iii) each of the STC Owner's address is 0000 0xx
Xxxxxx Xxxxx, Xx. Xxxxxxxxxx, Xxxxxxx 00000 and (iv) each STC Owner is not
subject to backup withholding.
E. FURTHER ASSURANCES
Each of the parties hereto shall hereafter execute and deliver such
further instruments and do such further acts and things as may be required or
necessary to carry out the intent and purposes of this Exchange Agreement and
which are not otherwise inconsistent with any of the terms of this Exchange
Agreement.
F. RELATIONSHIP OF THE PARTIES
Nothing herein contained shall be construed or is intended to make
Exchangor, HAT Owner and STC Owners partners or joint venturers of or with one
another and this Exchange Agreement is not intended to and does not constitute
or result in a partnership agreement. This Exchange Agreement does not render
Exchangor liable for the debts or obligations of HAT Owner or STC Owners, and
Exchangor is acting solely on behalf of HAT Owner and STC Owners.
G. REMEDIES CUMULATIVE; WAIVER
All rights, remedies or privileges afforded the Exchangor shall be
deemed cumulative and not exclusive and the exercise of any one of such
remedies shall not be deemed to be a waiver of any other right, remedy or
privilege provided for herein or available at law or in equity. No failure by
Exchangor to exercise, or delay by Exchangor in exercising, any right, remedy
or privilege hereunder shall operate as a waiver thereof, nor shall any single
or partial exercise of any right, remedy or privilege hereunder preclude any
other or further exercise thereof, or the exercise of any other right, remedy
or privilege. No notice to or demand on HAT Owner or STC Owners shall, in
itself, entitle HAT Owner or STC Owners to any other or further notice or
demand in similar or other circumstances or constitute a waiver of the rights
of Exchangor under this Exchange Agreement.
H. THIRD PARTY BENEFICIARY
None of the provisions of this Exchange Agreement shall be for the
benefit of or enforceable by any creditor of the parties hereto or for the
benefit of or enforceable by any third party.
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I. SURVIVAL
The covenants and agreements contained in this Exchange Agreement,
including, without limitation, any indemnities contained herein shall survive
the termination of this Exchange Agreement and the consummation of the
transactions contemplated hereby. All representations, warranties, covenants
and agreements made herein or in any certificate or other document furnished to
a party hereto pursuant to or in anticipation of this Exchange Agreement shall
be deemed to have been relied upon by the party to whom such certificate or
other document is furnished notwithstanding any investigation heretofore or
hereafter made, and shall continue in full force and effect as long as there
remains unperformed any obligation hereunder.
J. ATTORNEY'S FEES
If Exchangor commences an action against or defends an action to
enforce any of the terms hereof or because of the purported breach of any of
the terms hereof, then Exchangor shall be entitled to receive from HAT Owner
and STC Owners full reimbursement of its attorneys' fees and other costs and
expenses incurred in connection with the prosecution or defense of such action.
K. LITIGATION AND OTHER DISPUTE RESOLUTION
The Circuit Court of Xxxx County, Illinois shall have non-exclusive
jurisdiction over any suit between the parties arising out of or in any way
relating to the subject matter of this Exchange Agreement. The parties hereby
consent to the jurisdiction of that court and waive any objection to venue in
that court. Moreover, the parties waive any right to trial by jury on any claim
or counterclaim with respect to any matter arising out of or in any way
relating to the subject matter of this Exchange Agreement.
L. FORCE MAJEURE
Exchangor shall not be liable to HAT Owner or STC Owners for any
failure or delay in performance if such failure or delay is occasioned by (i)
compliance with government regulation, request or order, or (ii) circumstances
beyond the reasonable control of Exchangor, including but not limited to, Act
of God, war, insurrection, fire, flood, earthquake, accident, strike or other
labor disturbance, interruption of or delay in transportation or power failure.
M. COUNTERPARTS
This Exchange Agreement may be executed in two or more identical
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto set their hand and seals as of
the day and year first above written.
STC BROADCASTING, INC.
By: /s/ Xxxxx X. Xxxx
--------------------------------
Xxxxx X. Xxxx
Chief Financial Officer
STC LICENSE COMPANY
By: /s/ Xxxxx X. Xxxx
--------------------------------
Xxxxx X. Xxxx
Chief Financial Officer
STC BROADCASTING OF VERMONT, INC.
By: /s/ Xxxxx X. Xxxx
--------------------------------
Xxxxx X. Xxxx
Chief Financial Officer
STC BROADCASTING OF VERMONT
SUBSIDIARY, INC.
By: /s/ Xxxxx X. Xxxx
--------------------------------
Xxxxx X. Xxxx
Chief Financial Officer
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15
XXXXX ACQUISITION COMPANY
(d/b/a WNAC-TV)
By: /s/ Xxxxx X. Xxxx
--------------------------------
Xxxxx X. Xxxx
Chief Financial Officer
XXXXX ACQUISITION LICENSE COMPANY
By: /s/ Xxxxx X. Xxxx
--------------------------------
Xxxxx X. Xxxx
Chief Financial Officer
HEARST-ARGYLE STATIONS, INC.
By: /s/ Xxxx X. Xxxxxx
--------------------------------
Name: Xxxx X. Xxxxxx
Title: Senior Vice President
CHICAGO DEFERRED EXCHANGE
CORPORATION
By: /s/ Xxxxxx Xxxxxx
--------------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President
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EXHIBIT A
HAT RELINQUISHED PROPERTY
HAT Assets (as defined in the STC/HAT Exchange Agreement)
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17
EXHIBIT B
HAT REPLACEMENT PROPERTY
STC Assets (as defined in the STC/HAT Exchange Agreement)
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18
EXHIBIT C
STC RELINQUISHED PROPERTY
KSBW (as defined in the STC/HAT Exchange Agreement)
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19
EXHIBIT D
STC REPLACEMENT PROPERTY
WDTN (as defined in the STC/HAT Exchange Agreement)
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