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EXHIBIT 10.73
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EXHIBIT 10.73
OPTION AGREEMENT
This OPTION AGREEMENT is executed this 1st day of April, 1994, by and
between CHANNEL 35 OF MIAMI, INC., a Florida corporation ["Seller"], and XXXXXX
COMMUNICATIONS OF MIAMI-35, INC., a Florida corporation ["Buyer"].
WHEREAS, Seller is the licensee and operator of Television Station
WCTD(TV), Channel 35, Miami, Florida ["the Station"], pursuant to
authorizations issued by the Federal Communications Commission ["FCC"];
WHEREAS, the parties have agreed that Seller will sell to Buyer an option
to purchase certain of the assets used and useful in the conduct of the
business and operation of the Station on the terms and conditions set forth
herein and subject to the FCC's rules, regulations and policies.
NOW THEREFORE, in consideration of the above and of the mutual promises
and covenants contained herein, and other good and valuable consideration, the
parties, intending to be legally bound, agree as follows:
SECTION 1 OPTION TO PURCHASE ASSETS
1.1 Option Price. In consideration of $100 and other good and valuable
consideration, the sufficiency of which is hereby acknowledged by Seller, the
Seller hereby sells and grants to Buyer an exclusive option [the "Option"] to
purchase the assets, real, personal and mixed, tangible and intangible, owned
and held by Seller, used or useful in the conduct of the business and
operations of the Station, exclusive only of cash on hand [the "Station
Assets"], free
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and clear of all material debts, liens, encumbrances or other liabilities,
subject to the terms and conditions set forth herein.
1.2 Buyer may freely assign this Option to any other party, but shall
provide Seller with five (5) days' written notice to Seller. The rights and
obligations pursuant to this Option Agreement of any assignee following such
assignment shall be the same as the rights and obligations of the Buyer.
1.3 The Option granted hereunder shall run for five (5) years and may
be renewed by Buyer for an additional term of five years. Notice of the
renewal of this option must be delivered to Seller no later than ninety (90)
days prior to expiration of the initial term hereof. Buyer shall provide five
(5) days written notice to Seller of its exercise of the Option. Buyer in its
sole discretion may exercise this Option at any time during the term of this
Option or during the renewal term.
1.4 In the event that the Option is exercised hereunder, the parties
shall, within ten days of Buyer's written notice thereof, execute an Asset
Purchase Agreement [the "Purchase Agreement"] substantially in the form
attached hereto as Exhibit A which shall provide a purchase price as specified
in Exhibit B. The form of Purchase Agreement specified in Exhibit A shall be
modified so that the covenants, representations and warranties contained
therein shall be consistent with the then existing status of the parties, their
properties and their operation; so that all representations and warranties will
be true and correct; and so that there shall exist no impossibility of
performance, either commercially or legally. Buyer and Seller agree that they
shall be bound by all the terms and conditions of the Purchase Agreement as
finally executed.
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Notwithstanding anything contained in this Agreement to the contrary,
Buyer may withdraw its notice of exercise of its Option at any time prior to
its execution of the Purchase Agreement without any liability to Seller.
SECTION 2 SPECIFIC PERFORMANCE
The parties agree that the FCC licenses and the broadcast business made
possible thereby are unique assets not readily available on the open market.
For this reason, Seller acknowledges that specific performance is an
appropriate remedy for Buyer in the event this Agreement is breached. The
parties agree that the rights afforded by the preceding sentence shall be in
addition to any and all rights Buyer may have at law or equity.
SECTION 3 REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to Buyer as follows:
3.1 Seller is a corporation duly incorporated, validly existing and
in good standing under the laws of the State of Florida.
3.2 Seller has and will have upon the exercise of the Option full
corporate power and authority to enter into this Option Agreement and the
Purchase Agreement to consummate the transactions contemplated hereby. This
Agreement constitutes, and any other instruments contemplated hereby when
executed will constitute, the legal, valid and binding obligations of Seller,
enforceable in accordance with their terms, except as may be affected by
bankruptcy and insolvency laws and court-applied equitable principles.
3.3 The execution and delivery of this Agreement, the consummation of
the transactions contemplated hereby, and the compliance with the terms,
conditions and provisions
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of this Agreement, with or without the giving of notice or the passage
of time, or both, will not: (i) contravene any provision of Seller's Articles
of Incorporation or By-Laws; (ii) conflict with or result in a breach of or
constitute a default under any of the terms, conditions or provisions of any
indenture, mortgage, loan or credit agreement or any other agreement or
instrument to which Seller is a party or by which it or any of the assets of
Seller may be bound or affected, or any decree, judgment or order of any court
or governmental department, commission, board, agency or instrumentality,
domestic or foreign, or any applicable law, ordinance, rule or regulation,
including but not limited to the Communications Act of 1934, as amended ["the
Act"], and the rules and regulations of the FCC promulgated thereunder.
3.4 No representations or warranty by Seller in this Agreement
contains or will contain any untrue statement of a material fact, or omits or
will omit to state a material fact necessary to make this statement or facts
contained herein or therein not misleading.
SECTION 4 COVENANTS OF SELLER
4.1 Seller will perform all acts necessary to carry out the
transactions contemplated by this Agreement and will not: (i) create, incur,
assume or guarantee any indebtedness, obligations or liability or make any
payments in respect thereto which would interfere with, or prevent, Seller
transferring the Assets to Buyer as provided in Section 1.1 hereof; (ii)
perform or suffer any acts within its control inconsistent with the grant of
the Option to Buyer or the actions contemplated by this Agreement; (iii) or
enter into any agreement or grant any person or entity a right to purchase all
or substantially all of the assets of the Seller, during the term of this
Agreement.
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4.2 Seller will notify Buyer promptly of the threat of, or
commencement against itself or its shareholder of any claim, suit, action,
arbitration, legal, administrative or other proceeding, or governmental
investigation or tax audit affecting the Station or Seller and will cooperate
fully with Buyer in taking any and all actions necessary or desirable to the
consummation of the transactions contemplated by this Agreement.
SECTION 5 MISCELLANEOUS
5.1 This Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their respective successors and assigns.
5.2 No amendment, waiver of compliance with any provision or
condition hereof, or consent pursuant to this Agreement will be effective
unless evidenced by an instrument in writing signed by the parties.
5.3 The headings are for convenience only and will not control or
affect the meaning or construction of the provisions of this Agreement.
5.4 The construction and performance of this Agreement will be
governed by the laws of the State of Florida.
5.5 Any notice, demand or request required or permitted to be given
under the provisions of this Agreement shall be in writing and shall be deemed
to have been duly delivered on the date of personal delivery or the date of
receipt if sent by a private air express service (postage prepaid) or mailed by
registered or certified mail, postage prepaid and return receipt requested, and
shall be deemed to have been received on the date of personal delivery or on
the date set forth on the return receipt, to the following addresses or to such
other address as any
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party may request, in the case of Seller, by notifying Buyer, and in
the case of Buyer, by notifying Seller:
To Seller: Xxxxx X. Xxxx
The Christian Network, Inc.
00000 00xx Xxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Telecopy: 813/530-0671
Telephone: 813/000-0000
To Buyer: Xxxxxx X. Xxxxxx
Xxxxxx Communications Corporation
00000 X.X. Xxxxxxx 00 Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Telecopy: 813/532-0208
Telephone: 813/000-0000
5.6 This Agreement may be executed in one or more counterparts, each
of which will be deemed an original but all of which together will constitute
one and the same instrument.
5.7 After the date hereof, Buyer shall be afforded reasonable
opportunity to inspect the Station and the books and records of the Seller upon
reasonable request. Buyer's obligations hereunder and under the Purchase
Agreement are contingent upon and subject to prior confirmation and
verification by Buyer of the financial and other information made available to
Buyer by Seller, review of further financial or other information relating to
the purchase of the Assets and operation of the Station as may be requested by
Buyer, inspection of the assets and technical facilities of the Station, and
review and approval of the schedules and exhibits (and all
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underlying documents) to be attached to the Purchase Agreement, all to the
satisfaction of Buyer in its sole discretion.
5.8 Buyer and Seller each agree that they will use their best efforts
to keep confidential (except for such disclosure to attorneys, bankers,
underwriters, investors, etc. as may be appropriate in the furtherance of this
transaction and except for such filings with the FCC as may be required) all
information of a confidential nature obtained in connection with the
transactions contemplated by this Agreement, and in the event that such
transactions are not consummated, each party will return to the other party
such documents and other material obtained from the other party in connection
therewith.
5.9 Buyer and Seller shall jointly prepare, and determine the timing
of, any press release or other announcement to the public relating to the
execution of this agreement. No party hereto will issue any press release or
make any other public announcement relating to the transactions contemplated
hereby without the prior consent of the other party hereto, except that any
party may make any disclosure required to be made by it under applicable law if
it determines in good faith that it is appropriate to do so and gives prior
notice to the other party.
5.10 Each party shall bear all costs incurred by it in connection
with the transactions contemplated by this Agreement.
5.11 Seller agrees that from the date hereof and during the time
period in which the Option is exercisable hereunder, or if the Option is
exercised, during the period
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prior to execution of the Purchase Agreement, it shall not offer or seek to
offer, or entertain or discuss any offer, to sell the Station or its Assets,
other than as contemplated under this Agreement, nor shall Seller permit its
shareholder to offer, to seek to offer, or entertain or discuss any offer to
sell any of the capital stock of Seller without the written consent of Buyer.
5.12 Prior to consummation of the Purchase Agreement and to obtaining
consent from the FCC, Buyer shall not, directly or indirectly, control,
supervise or direct or attempt to control, supervise or direct the operations
of the Station or Seller; such operations, including complete ultimate control
and supervision of all of the Station's programs, employees and policies, shall
remain the sole responsibility of Seller, as set forth in the rules and
policies of the FCC.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the day and year first written above.
CHANNEL 35 OF MIAMI, INC. XXXXXX COMMUNICATIONS OF (SELLER)
MIAMI-35, INC.
(BUYER)
By: /s/ Xxxxx X. Xxxx By: /s/ Xxxxxxx X. Xxxxxx
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Xxxxx X. Xxxx Xxxxxxx X. Xxxxxx
THE XXXXXXXXX NETWORK, INC.
(Parent)
By: /s/ Xxxxx X. Xxxx
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Xxxxx X. Xxxx
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EXHIBIT A
FORM OF ASSET PURCHASE AGREEMENT
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EXHIBIT B
PURCHASE PRICE
The Purchase Price for the Station shall be One Hundred Thousand
Dollars ($100,000), plus the amount, if any, outstanding on the Promissory Note
of The Christian Network, Inc. of April 21, 1994 held by New Miami Latino
Broadcasting Corporation.
