Exhibit 10.17
KLAK-FM OPTION AGREEMENT
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This Option Agreement, dated as of October ___, 2000, is by and between
FIRST BROADCASTING COMPANY, L.P., a Delaware limited partnership (the
"Purchaser"), and NEXTMEDIA LICENSING, INC., a Delaware corporation and
NEXTMEDIA OPERATING , INC., a Delaware corporation ("Operating" and together
with "Licensing" the "Seller").
PRELIMINARY STATEMENTS
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A. Seller currently owns Radio Station KLAK-FM, Durant, Oklahoma (the
"Station").
B. Purchaser desires to obtain and Seller is willing to provide now and
further an option to acquire the Broadcasting Assets as defined in the Purchase
Agreement including but not limited to the license for the Station but excluding
any auxiliary remote pick-up, studio transmitter or satellite licenses (the
"Station License"). The sale of the Broadcasting Assets of the Company shall
occur on the terms and conditions set forth in a Purchase and Sale Agreement in
the form and substance of Exhibit A hereto (the "Purchase Agreement").
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C. Purchaser intends to file a rule making proposal or counterproposal for
changes in the FM Table of Allotments (collectively, the "Rulemaking Proposal")
for submission to the Federal Communications Commission (the "FCC"). Pursuant
to this filing, the Station would, among other things, be granted Class C status
and relocate its transmitter site located at the following coordinates: 33E 26'
13" north latitude and 97E 29' 5" west longitude (the "Proposed KLAK Tower")
(the "KLAK Upgrade"). Such changes will involve changes to other radio stations
and agreement by the owners of such stations to consent to such proposal and to
make such changes (the "Change Agreements"). To maximize the Station's coverage
area, Purchaser has agreed to reserve space on the Proposed KLAK Tower.
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D. Prior to the sale of the Station to Purchaser, Seller shall exercise its
option to purchase Station KMAD-FM, Whitesboro, Texas (the "Replacement
Station"); purchase the Replacement Station; construct the Replacement Station
at the present site of the Station's facilities; and transfer the Station's
present call sign, format and business to the Replacement Station.
E. Capitalized terms used herein shall have the meanings ascribed to them in
this Option Agreement or, if not defined herein, the meanings ascribed to them
in Appendix I of the Purchase Agreement.
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NOW THEREFORE, in consideration of the foregoing and of the mutual
covenants, agreements, and conditions hereafter set forth, the parties hereto,
intending to be legally bound hereby, agree as follows:
STATEMENT OF AGREEMENT
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1. Options.
1.1 Purchase Option. Seller hereby grants to Purchaser, for a period
ending at 5:00 p.m. Central Time, October 15, 2002 (the "Option Period") the
right to purchase the Broadcasting Assets for the Purchase Price and upon the
other terms and conditions set forth in the Purchase Agreement (the "Purchase
Option").
1.2 Conditions Precedent to Purchase Option. The Purchase Option may not
be exercised by Purchaser until each of the following conditions has been
fulfilled:
(i) The Rulemaking Proposal has been granted by the FCC;
(ii) Seller has been granted FCC authority to acquire the license of
the Replacement Station; and
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(iii) The FCC actions described in subsections (i) and (ii) above,
have become Final Orders.
1.3 Purchase Option Exercise. Prior to the expiration of the Purchase
Option, Purchaser may exercise the Purchase Option at its sole discretion. To
exercise its right to purchase the Station, Purchaser shall give written notice
to Seller prior to the expiration of the Purchase Option Period, and within five
(5) business days thereafter, the Purchase Agreement shall be executed by the
parties thereto.
1.4 Put Option. Purchaser hereby grants to Seller during the Option
Period the right to sell the Broadcast Assets for the Purchase Price and upon
the other terms and conditions set forth in the Purchase Agreement ("the "Put
Option").
1.5 Conditions Precedent to Put Option. The Put Option may not be
exercised by Seller until each of the following conditions has been fulfilled:
(i) The Rulemaking Proposal has been granted;
(ii) Seller has been granted FCC authority to acquire the license of
the Replacement Station; and
(iii) The FCC actions described in subsections (i) and (ii) above,
have become Final Orders.
1.6 Put Option Exercise. Prior to the expiration of the Put Option,
Seller may exercise the Put Option at its sole discretion. To exercise its
right to sell the Station, Seller shall give written notice to Purchaser prior
to the expiration of the Option Period, and within five (5) business days
thereafter, the Purchase Agreement shall be executed by the parties thereto.
2. Actions During the Option Period
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2.1 Rulemaking Proposal. No later than October 6, 2000, Purchaser shall
supply Seller with a petition for rulemaking or appropriate rulemaking counter
proposal advocating the Rulemaking Proposal (the "Petition"). The Petition
shall conform to all FCC procedural requirements for advocating the Rulemaking
Proposal and shall be accompanied by a competent engineering showing
demonstrating the feasibility of the Rulemaking Proposal. Seller shall promptly
file the Rulemaking Proposal with the FCC. Seller shall, at Purchaser's
expense, take all reasonable steps in connection with the prosecution of the
Rulemaking Proposal. Such steps may include consent to a change in the
Station's (i) transmitter site, (ii) community of license or (iii) frequency.
Seller shall, at Purchasers expense, use its best efforts to support prompt
grant of the Rulemaking Proposal, including, without limitation, participation
in meetings with the FCC staff and provision of any additional information
reasonably requested by the FCC. Each party agrees it will interpose no
objection to the Rulemaking Proposal and shall cooperate with the requests of
the other party to coordinate the submission of applications or related filings
with the FCC.
2.2 FCC Consent to Assignment. Within ten (10) business days after
exercise of either the Purchase Option or the Put Option, Purchaser and Seller
will file with the FCC an application requesting the consent of the FCC to the
assignment of the Station License from Seller to Purchaser.
2.3 Transfer Restrictions. From the date hereof until the termination of
the Option Period, Seller shall not, without the prior written consent of
Purchaser, assign or transfer the Station License or any of the Broadcasting
Assets except that Seller shall have the right to replace the Station equipment
in the ordinary course of business with equipment serving the same function and
of equal or greater value. Nothing herein shall limit Seller's ability to
transfer the Station License or Broadcasting Assets to a third party provided
such third party agrees to be bound by the terms of this
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Agreement. Further, nothing herein shall limit Seller's ability to pledge or
hypothecate the Station's License (to the extent permitted by law) or the
Broadcasting Assets to institutional lenders of Seller or of Seller's
Affiliates.
2.4 Change Agreements. Purchaser shall have the right to negotiate any
agreements with owners of stations affected by the Rulemaking Proposal (the
"Change Agreements") on such terms as Purchaser, in its sole discretion subject
to the limitation contained in this section, determines to be appropriate.
Seller shall have a reasonable right to review and comment on such Change
Agreements before final versions of such agreements are executed. Purchaser
shall be responsible for any payments to be made pursuant to the Change
Agreements and Seller shall not be required to assume any liability to any third
party in connection therewith. Purchaser agrees not to enter into any Change
Agreements that may have a material adverse effect on the Station License, the
Broadcasting Assets, the Replacement Station, or Seller's business generally or
which overall would adversely affect the public interest generally.
3. Asset Purchase.
3.1 Purchase Price. The purchase price (the "Purchase Price") to be paid
for the Broadcasting Assets shall be $9,300,000.00, to be divided as follows:
(i) $5,300,000.00 payable to Next Media Licensing, Inc., and (ii) $4,000,000.00
payable to H.S. Lake Broadcasting L.P. The Purchase Price will be payable in
cash at Closing, which shall occur in accordance with the Purchase Agreement.
3.2 Broadcasting Assets; Excluded Assets. The Broadcasting Assets, shall
include the Station License and transmitter, transmission line and antenna and
any equipment located at the tower site used in connection with the Station and
the other items described in the definition of
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Broadcasting License contained in the Purchase Agreement. The Broadcasting
Assets shall exclude all other assets, including without limitation, all real
estate, towers, cash, cash equivalents, accounts receivable, the call sign KLAK,
Seller's business records, customer lists and contracts, software and studio
equipment.
3.3 Delivery Free of Encumbrances. The Broadcasting Assets shall be
delivered free and clear of debts, liens and encumbrances of any kind whatsoever
except those credited by the Purchase Agreement.
3.4 Assignment of Licenses. At Closing, Seller will assign all
Broadcasting Assets to Purchaser. The sale of the Broadcasting Assets shall
occur on the terms and conditions set forth in the Purchase Agreement.
3.5 No Assumption of Obligations. Purchaser will not assume any
obligations of Seller, including but not limited to office or studio leases,
employment or personal services contracts, and union contracts.
3.6 [INTENTIONALLY OMITTED]
3.7 Conditions to Closing. The Closing and assignment of the Station
License and transfer of the other Broadcasting Assets will be subject to the
conditions set forth in the Purchase Agreement.
3.8 Relocation Permit. Immediately, and in any event no later than seven
(7) days following the Final Order for Rulemaking Proposal, Seller agrees to
file for a permit for the relocation of the Station's antenna to the proposed
KLAK Tower or other alternative, mutually agreeable location.
3.9 Expenses.
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i. Except as otherwise provided herein, each party will be
responsible for and bear all of its own costs and expenses (including any
broker's or finder's fees and the expenses of its representatives) incurred at
any time in connection with pursuing or consummating the transactions
contemplated hereby.
ii. Purchaser will reimburse Seller for all of its legal expenses
relating to this Agreement, including those relating to (a) negotiating and
drafting this Agreement, (b) reviewing, filing and prosecuting the Rulemaking
Proposal, (c) preparing, filing and prosecuting the application to modify the
Station, (d) preparing, filing and prosecuting the application to assign the
Station License to Purchaser, (e) preparing, filing and prosecuting the
application to assign the Replacement Station's license to Seller, (f) closing
on the sale of the Station License to Purchaser and (g) closing on the sale of
the Replacement Station's license to Seller.
iii. In addition, Purchaser agrees to pay all other expenses related
to the Rulemaking Proposal, the filing of the application to modify the Station,
the application for consent to change in ownership, and the filing for a
construction permit to relocate the Station.
iv. Purchaser agrees to pay additional expenses in the sum of
$211,536.00 for technical expenditures as set forth in Schedule 1 to this
Agreement. Purchaser further agrees to pay a mutually agreed upon and
reasonable amount for retuning the CUE paging subcarrier subscriber equipment.
Purchaser also agrees to pay the costs described in Section 17.2 of the Purchase
Agreement.
v. The payment of all sales, use, transfer or similar Taxes,
documentation stamps, or other charges imposed by any and all governmental
authorities (excluding any income or
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gain taxes) with respect to the transfer of title to the Broadcasting Assets and
the other transactions anticipated hereby shall be borne equally by Seller and
Purchaser.
vi. All recording costs and fees incurred in connection with the
clearing and removing of any liens and encumbrances not assumed by Purchaser to
which the Broadcasting Assets may be subject, so as to permit Seller to convey
good and marketable title to the Broadcasting Assets free and clear of all
Encumbrances, shall be the responsibility of Seller.
vii. With respect to each expense set out in subsections (ii) and
(iii) above, Purchaser shall reimburse Seller within thirty (30) days after
Seller provides Purchaser written notice that Seller has incurred the expense
accompanied by invoices, receipts or similar proof of the nature and amount of
the expense. Purchaser shall pay Seller the expenses set out in subsection
(iv), above, at Closing on Purchaser's acquisition of the Station. The expenses
set out in subsections (v) and (vi), above shall be paid or prorated at Closing
on Purchaser's acquisition of the Station.
3.10 Review of Application Process. Seller shall have a reasonable right
of review of the application process by its attorneys and engineers to assure
that the Station License is not adversely affected by the Rulemaking Proposal.
3.11 Change Agreements. Purchaser will negotiate any agreements with
owners of stations affected by the KLAK Upgrade (the "Change Agreements") on
such terms as Purchaser determines to be appropriate. Seller shall have a
reasonable right to review and comment on such Change Agreements before final
Change Agreements are executed. All payments required under such Change
Agreements be contingent upon an FCC grant of the Rulemaking Proposal becoming a
Final Order. Purchaser shall be solely responsible for such payments and will
indemnify and hold Seller
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harmless for any loss, costs or liabilities incurred in connection with the
Change Agreements. Seller shall not be required to assume any liability to any
third party.
3.12 Xxxx-Xxxxx-Xxxxxx. The parties acknowledge that the consummation of
this transaction may include obtaining required consents and the expiration or
termination of the waiting period under the Xxxx-Xxxxx-Xxxxxx Antitrust
Improvements Act of 1976, as amended ("HSR Act"). Any expenses associated with
a filing under the HSR Act shall be born by Purchaser.
4. Representations and Warranties of Seller. Seller hereby represents and
warrants to Purchaser as follows:
4.1 Organization and Standing; Power and Authority. Seller is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Delaware and has the right to conduct business in the State of
Oklahoma. Seller has the power and authority to own the Broadcasting Assets,
and to enter into and perform the terms of this Option Agreement and of the
documents and instruments called for herein and to consummate the transactions
contemplated hereby.
4.2 Authorization; Binding Obligation; Consent. The execution, delivery
and performance by Seller of this Option Agreement and of the documents and
instruments called for herein, and the consummation of the transactions
contemplated hereby, have been duly and validly authorized by Seller. This
Option Agreement constitutes a valid and binding agreement and an obligation of
Seller, enforceable in accordance with its terms. Except as contemplated by the
Purchase Agreement and Section 3.12 hereof, the execution, delivery and
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performance by Seller of this Option Agreement and the agreements and
instruments called for hereunder will not require the consent, approval and
authorization of any person, entity or governmental authority.
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4.3 No Contravention. The execution, delivery and performance of this
Option Agreement and the other documents to be executed in connection herewith,
the consummation of the transactions contemplated by the Purchase Agreement and
the compliance with the provisions thereof by Seller do not and will not, after
the giving of notice or the lapse of time or otherwise: (i) conflict with or
violate any provision of the charter documents or bylaws of Seller, (ii) result
in the breach of, constitute a default under, conflict with or result in the
termination or alteration of, the provisions of any agreement or other
instrument to which Seller is a party or by which the property of Seller is
bound or affected, or result in the creation of any Encumbrance upon any of the
Broadcasting Assets including the Station License, or (iii) violate or conflict
with any material laws, regulations, orders, writs, injunctions, decrees or
judgements, including the Communications Act, applicable to Seller, or any of
the Broadcasting Assets, including the Station License.
4.4 Licenses. The Station License is valid and in full force and effect.
Seller is not aware of any investigation, notice of investigation, violation,
order, complaint, action or other proceeding pending or, to the knowledge of
Seller, threatened before the FCC or any other Governmental Authority to vacate,
revoke, refuse to renew or modify such Station License. No event has occurred
which permits or after notice or lapse of time would permit, the revocation or
termination of the Station License other than FCC proceedings concerned with the
broadcast industry generally.
5. Representations and Warranties of Purchaser. Purchaser hereby
represents and warrants to Seller as follows:
5.1 Organization and Standing; Power and Authority. Purchaser is a
limited partnership duly organized, validly existing and in good standing under
the laws of the State of Delaware and is qualified to do business in the State
of Texas. Purchaser has the full power and authority to own,
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lease and operate its assets, to carry on its business as currently conducted,
and to enter into and perform the terms of this Option Agreement and of the
documents and instruments called for herein and to consummate the transactions
contemplated hereby and thereby.
5.2 Authorization; Binding Obligation; Consents. The execution, delivery
and performance by Purchaser of this Option Agreement and of the documents and
instruments called for herein, and the consummation of the transactions
contemplated hereby, have been duly and validly authorized by all necessary
partnership action on the part of Purchaser. This Option Agreement constitutes
a valid and binding agreement and obligation of Purchaser enforceable in
accordance with its terms. Except as contemplated by the Purchase Agreement or
Section 3.12 hereof, the execution, delivery and performance by Purchaser of
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this Option Agreement and the agreements and instruments called for hereunder
will not require the consent, approval or authorization of any person, entity or
governmental authority.
5.3 No Contravention. The execution, delivery and performance of this
Option Agreement and the other documents to be executed in connection herewith,
the consummation of the transactions contemplated by the Purchase Agreement and
the compliance with the provisions thereof by Purchaser do not and will not,
after the giving of notice or the lapse of time or otherwise: (a) conflict with
or violate any provisions of the partnership agreement of Purchaser or the
charter documents or bylaws of any partner of Purchaser, (b) result in the
breach of, constitute a default under, conflict with or result in the
termination or alteration of, the provisions of any agreement or other
instrument to which Purchaser is a party or by which the property of Purchaser
is bound or affected, or (c) violate or conflict with any material laws,
regulations, order, writs, injunctions, decrees or judgments, including the
Communications Act, applicable to Purchaser.
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5.4 Qualifications. Purchaser is legally, financially, and otherwise
qualified to become the FCC licensee of the Station.
6. Covenants.
6.1 Specific Performance. In the event of breach by a party of its
obligations under this Option Agreement, the other party shall have the right to
seek injunctive relief and/or specific performance. Such right is cumulative
and not alternative to the right of such party to seek damages at law. Each
party agrees to waive any defense as to the adequacy of the other party's
remedies at law and to interpose no opposition to the propriety of injunctive
relief or specific performance as a remedy.
6.2 Cessation of Discussions. Seller agrees that during the Option
Period, neither Seller not its officers, directors, employees, consultants,
advisors or affiliates ("Representatives") will engage in, initiate, continue,
or permit to occur any contact or discussion of any kind whatsoever with any
third party for the direct or indirect purchase or sale of the Station or any
portion of the Broadcasting Assets to any third party provided however that
Seller may negotiate a sale of the Station to a third party if that third party
agrees in writing to be bound by the terms of this Agreement.
7. Miscellaneous.
7.1 Additional Actions and Documents. Each of the parties hereto hereby
agrees to use commercially reasonable efforts to take or cause to be taken such
further actions to execute, deliver and file such further documents and
instruments, and to obtain such consents as may be necessary in order to fully
effectuate the purposes, terms and conditions of this Option Agreement. The
parties shall refrain from actions inconsistent with the transactions
contemplated herein.
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7.2 Notice of Proceedings. Purchaser or Seller, as the case may be, will
promptly, and in any event within five (5) business days, notify the other in
writing upon becoming aware of any order or decree or any complaint praying for
an order or decree restraining or enjoining the consummation of this Option
Agreement or the transactions contemplated hereunder, or upon receiving any
notice from any governmental department, court, agency or commission of its
intention to institute an investigation into, or institute a suit or proceeding
to restrain or enjoin the consummation of the Option Agreement or such
transactions contemplated hereby, or to nullify or render ineffective this
Option Agreement.
7.3 Notices. Any notice, request, demand or consent required or permitted
to be given under this Option Agreement shall be in writing (including facsimile
transmissions and similar writings) and shall be effective when transmitted and
confirmation of receipt is obtained for facsimile transmissions and similar
writings, when delivered personally, one (1) business day after sent by
recognized overnight courier, and five (5) days after sent by mail, first-class,
postage prepaid, registered mail, return receipt requested, in each case to the
following address or facsimile number, as applicable:
If to Purchaser: c/o First Broadcasting Management, LLC
000 Xxxxx Xx. Xxxx, Xxxxx Xxxxx
Xxxxxx, Xxxxx 00000
Attn: Xxxxx X. Xxxxxxxx, Xx., President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With copies to: Xxxx X. Xxxxxxxx
Xxxx, Gump, Strauss, Xxxxx & Xxxx, L.L.P.
0000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Telephone: (000) 000-0000
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Facsimile: (000) 000-0000
If to the Company: NextMedia Group, Inc.
0000 X. Xxxxxxx'x Xxxxx Xxxxxx, Xxxxx 000-X
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With copies to: Xxxxxxxxx & Associates, P.A.
0 X.X. Xxxxx Xxxxxx, Xxxxx 0000
Xxxxx, Xxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
or at such other address as either party shall specify by notice to the other.
7.4 Headings and Entire Agreement. The section and subsection headings do
not constitute any part of this Option Agreement and are inserted herein for
convenience of reference only. This Option Agreement embodies the entire
agreement between the parties with respect to the subject matter hereof and
supersedes all prior oral and written agreements, understandings,
representations and warranties, and courses of conduct and dealing between the
parties on the subject matter hereof. It may not be amended, modified or
changed orally, but only in writing signed by the party against whom enforcement
of any amendment, modification, change, waiver, extension or discharge is
sought.
7.5 Waiver. No waiver of a breach of, or default under, any provision of
this Option Agreement shall be deemed a waiver of such provision or of any
subsequent breach or default of the same or similar nature or of any other
provision or condition of this Option Agreement.
7.6 Binding Effect and Assignment. This Option Agreement shall be binding
upon and shall inure to the benefit of the parties and their successors and
their permitted assigns. Neither this
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Option Agreement nor any obligation hereunder shall be assignable except with
the prior written consent of the other party; provided, however, that Purchaser
or Seller may assign this Option Agreement, in whole or in part, to any
Affiliate, provided that in the case of Seller, such subsidiary or affiliate
actually owns all right and title to the Broadcasting Assets. No such assignment
shall relieve Purchaser or Seller of its obligations hereunder.
7.7 Counterparts. This Option Agreement may be executed in counterparts,
each of which shall be deemed an original, but which taken together shall
constitute one agreement.
7.8 Governing Law. This Option Agreement, and the rights and obligations
of Purchaser, and Seller hereunder, shall be governed by and construed in
accordance with the laws of the State of Texas applicable to contracts made and
to be performed therein.
7.9 Severability. If any provision of this Option Agreement or the
application thereof to any person or circumstance, is held invalid, such
invalidity shall not affect any other provision which can be given effect
without the invalid provision or application, and to this end the provisions
hereof shall be severable. Any such invalid provision shall be given effect to
the extent possible or shall be reformed so as to make it enforceable and valid
while preserving the original intent of the parties.
7.10 Third Party Rights. Neither Purchaser nor Seller assumes any duty
hereunder to any other person or entity, and this Option Agreement shall operate
exclusively for the benefit of the parties hereto and their respective
affiliates and not for the benefit of any other person or entity.
7.11 Time of the Essence. Time is of the essence in the performance of
this Option Agreement.
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7.12 Costs of Litigation. If any party institutes an action at law or
equity seeking relief for a default under this Agreement, the prevailing party
shall be entitled to its costs, including the cost of appeals and its reasonable
attorneys fees.
7.13 Termination Options.
(i) Within fourteen (14) days of executing this Agreement, Seller
shall exercise its option to acquire the Replacement Station and use its best
efforts to apply for and obtain FCC consent to Seller's acquisition of the
Replacement Station's FCC licenses. Nothing in this subsection shall require
Seller to expend in excess of Twenty Thousand Dollars ($20,000.00) in preparing,
filing and prosecuting the application for FCC consent to Seller's acquisition
of the Replacement Station. In the event that Seller has expended Twenty
Thousand Dollars ($20,000.00) pursuant to this Section 7.13(i), Purchaser shall
have the option, exercisable in its sole discretion, to expend such additional
amounts necessary to obtain FCC consent to Seller's acquisition of the
Replacement Station. If a petition to deny or informal objection is filed
against Seller's FCC application to acquire the Replacement Station, Seller
shall have the right, but not the obligation, to terminate this Agreement.
(ii) If the FCC's public notice of acceptance for filing of Seller's
FCC application to acquire the Replacement Station subjects that FCC application
to special scrutiny on issues of ownership concentration or competition, then
Seller shall have the right, but not the obligation to terminate this Agreement.
(iii) If the FCC has not acted to grant its consent to Seller's
acquisition of the Replacement Station's FCC licenses on or before February 28,
2001 (or such later date as may be
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specified in subsections (vii) or (viii), below), Seller shall have the right,
but not the obligation, to terminate this Agreement.
(iv) If a petition for reconsideration or an application for review
is filed against any FCC action granting Seller's application to acquire the FCC
licenses of the Replacement Station, Seller shall have the right, but not the
obligation, to terminate this Agreement.
(v) Any termination of this Agreement under the provisions of this
Section 7.13 shall be effectuated by Seller giving written notice to Purchaser
on or before June 20, 2001 (or such later date as may be specified in
subsections (vii) or (viii), below).
(vi) If Xxxxxx Xxxxxxx wrongfully refuses to close on the purchase
and sale of the Replacement Station to Seller, Seller shall have the right, but
not the obligation, to terminate this Agreement.
(vii) Prior to terminating this Agreement under the provision of
subsections (iii) or (iv) above, Seller and Purchaser shall confer with respect
to the risk of harm to Seller from an imminent FCC action on the Rulemaking
Proposal. If the parties agree that this risk of harm is sufficiently small,
they shall postpone the dates in subsections (iii) and (v) by an agreed upon
amount.
(viii) If the FCC issues its public notice of the Rulemaking
Proposal (the "Public Notice") after December 4, 2000, then (a) the date
specified in subparagraph (iii), above, shall be the date sixty (60) days after
issuance of the Public Notice; and (b) the date specified in subparagraph (v),
above, shall be the date 160 days after issuance of the Public Notice.
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(ix) If Seller terminates this Agreement for any reason prior to FCC
action on the Rulemaking Proposal, Seller and Purchaser shall cooperate to
promptly withdraw the Rulemaking Proposal from FCC consideration.
(x) Seller may not terminate this Agreement under any of the
provisions of this Section 7.13 after the FCC has granted the Rulemaking
Proposal.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, each party has caused this Option Agreement to be duly
executed and delivered in its name and on its behalf, all as of the date and
year first written above.
PURCHASER: FIRST BROADCASTING COMPANY, L.P.
By: FIRST BROADCASTING MANAGEMENT, LLC
its general partner
By: _______________________________
Xxx Xxxxxxxx
President & COO
Station Development Division
SELLER: NEXTMEDIA LICENSING, INC.
By: _______________________________
Xxxxxxx X. Xxxxxxxxx
Secretary
NEXTMEDIA OPERATING, INC.
By: _______________________________
Xxxxxxx X. Xxxxxxxxx
Secretary
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