1
EXHIBIT 10.52
2
EXHIBIT 10.52
OPTION AGREEMENT
THIS OPTION AGREEMENT (the "Option Agreement") is entered into as of
August 31, 1995 by and among XXXXXX COMMUNICATIONS OF DENVER-59, INC., a
Florida corporation ("Xxxxxx"); CHANNEL 59 OF DENVER, INC., a Florida
corporation ("CNI-59"); and UHF CHANNEL 59 CORP., a Colorado corporation
("UHF-59").
R E C I T A L S
A. UHF-59 is the licensee of Television Station KUBD-TV, Denver,
Colorado, and CNI-59 is the licensee of Low Power Television Station K54CQ,
Fort Xxxxxxx, Colorado (collectively, the "Station"), and CNI-59 and UHF-59
(collectively, the "Licensee") own or hold certain assets that are used or
useful in the business and operations of the Station (the "Assets"), including,
without limitation, licenses issued by the Federal Communications Commission
("FCC") for the Station (the "FCC Licenses").
X. Xxxxxx and CNI-59 have entered into a Loan Agreement of even
date herewith (the "Loan Agreement"), pursuant to which Xxxxxx has agreed to
make a loan or loans to CNI-59 to enable CNI-59 to purchase the Station and for
working capital and operating expenses relating to the Station (the "Loans").
X. Xxxxxx and UHF-59 have entered into a Time Brokerage Agreement
of even date herewith, pursuant to which Xxxxxx shall provide programming for
broadcast on the Station (the "Time Brokerage Agreement").
D. Licensee desires to grant to Xxxxxx an exclusive and
irrevocable option to purchase the Assets, including the FCC Licenses, on the
terms and conditions set forth herein.
NOW, THEREFORE, in consideration of these premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto, intending to be legally bound, agree as
follows:
1. Grant of Option. In consideration for the making of the
Loans, the receipt and sufficiency of which are hereby acknowledged, Licensee
hereby grants to Xxxxxx an exclusive and irrevocable option to acquire the
Assets, including the FCC Licenses (the "Option") for a purchase price of One
Hundred Thousand Dollars ($100,000) payable upon the closing of the Option
Purchase Agreement (as defined in Section 3 below) and the forgiveness of the
Loans upon the closing of the Option Purchase Agreement.
2. Notice of Exercise. Xxxxxx may deliver to Licensee written
notice of Xxxxxx'x intention to exercise the Option (the
3
"Option Notice") at any time following the date hereof and prior to the
termination of the Option as set forth in Section 4.
3. Option Purchase Agreement. Within three (3) business days
following Licensee's receipt of the Option Notice, Licensee and Xxxxxx shall
enter into an Asset Purchase Agreement that contains such terms and conditions
as are customarily included in such agreements and is in form and substance
reasonably acceptable to Xxxxxx and Licensee (the "Option Purchase Agreement"),
and thereafter Licensee and Xxxxxx shall perform their respective obligations
under the Option Purchase Agreement, including, without limitation, filing and
prosecuting an appropriate application for FCC consent to the assignment of the
FCC Licenses from Licensee to Xxxxxx (the "FCC Consent").
4. Termination of Option. The Option shall remain in full force
and effect until the tenth anniversary of the date hereof.
5. Representations and Warranties of Licensee. CNI-59 and UHF-59
represent and warrant to Xxxxxx as follows:
(a) CNI-59 is a corporation duly organized, validly
existing and in good standing under the laws of the State of Florida and is
duly qualified to conduct business as a foreign corporation in the State of
Colorado. UHF-59 is a corporation duly organized, validly existing and in
good standing under the laws of the State of Colorado. Licensee has full
corporate power and authority to execute and deliver this Option Agreement and
to consummate the transactions contemplated hereby. The execution and delivery
of this Option Agreement and the consummation of the transactions contemplated
hereby by Licensee has been duly and validly authorized by all necessary
corporate action on the part of Licensee. This Option Agreement has been duly
and validly executed and delivered by Licensee and constitutes a legal, valid
and binding agreement of Licensee enforceable against Licensee in accordance
with its terms, except as such enforceability may be affected by bankruptcy,
insolvency or similar laws affecting creditors' rights generally and by
judicial discretion in the enforcement of equitable remedies.
(b) Except for the FCC Consent, there is no requirement
applicable to Licensee to make any filing with, or to obtain any permit,
authorization, consent or approval of, any governmental or regulatory authority
or any other third party as a condition to the consummation by Licensee of the
transactions contemplated by this Option Agreement and the Option Purchase
Agreement.
-2-
4
(c) Subject to obtaining the FCC Consent, the execution,
delivery and performance of this Option Agreement and the Option Purchase
Agreement by Licensee will not (i) conflict with Licensee's organizational
documents, (ii) result in a default (or give rise to any right of termination,
cancellation or acceleration) under any of the terms, conditions or provisions
of any note, bond, mortgage, agreement, or lease to which Licensee is a party
or by which any of the FCC Licenses or the other Assets are bound, or (iii)
violate any statute, law, rule, regulation, order, writ, injunction or decree
applicable to Licensee, the FCC Licenses or the other Assets.
6. Representations and Warranties of Xxxxxx. Xxxxxx represents
and warrants to Licensee as follows:
(a) Xxxxxx has full corporate power and authority to
execute and deliver this Option Agreement and to consummate the transactions
contemplated hereby. The execution and delivery of this Option Agreement and
the consummation of the transactions contemplated hereby by Xxxxxx have been
duly and validly authorized by all necessary corporate action on the part of
Xxxxxx. This Option Agreement has been duly and validly executed and delivered
by Xxxxxx and constitutes a legal, valid and binding agreement of Xxxxxx
enforceable against Xxxxxx in accordance with its terms, except as such
enforceability may be limited by bankruptcy, insolvency or similar laws
affecting creditors' rights generally and by judicial discretion in the
enforcement of equitable remedies.
(b) Except for the FCC Consent, there is no requirement
applicable to Xxxxxx to make any filing with, or to obtain any permit,
authorization, consent or approval of, any governmental or regulatory authority
or any other third party as a condition to the consummation by Xxxxxx of the
transactions contemplated by this Option Agreement and the Option Purchase
Agreement.
(c) Subject to obtaining the FCC Consent, the execution,
delivery and performance of this Option Agreement and the Option Purchase
Agreement by Xxxxxx will not (i) conflict with Xxxxxx'x organizational
documents, (ii) result in a default (or give rise to any right of termination,
cancellation or acceleration) under any of the terms, conditions or provisions
of any note, bond, mortgage, agreement, or lease to which Xxxxxx is a party or
by which any of its assets are bound, or (iii) violate any statute, law, rule,
regulation, order, writ, injunction or decree applicable to Xxxxxx.
7. Covenants of Licensee. Licensee will not commit any act that
is inconsistent with the grant of the Option to Xxxxxx or the
- 3 -
5
transactions contemplated by this Option Agreement and the Option Purchase
Agreement.
8. Cooperation. Licensee and Xxxxxx shall cooperate fully with
each other and their respective counsel and accountants in connection with any
steps required to be taken as part of their respective obligations under this
Option Agreement and the Option Purchase Agreement and will each use their
respective best efforts to perform or fulfill all conditions and obligations to
be performed or fulfilled by them under this Option Agreement and the Option
Purchase Agreement so that the transactions contemplated hereby shall be
consummated.
9. Specific Performance. The parties recognize that if Licensee
breaches this Option Agreement and refuses to perform under the provisions of
this Option Agreement, monetary damages alone would not be adequate to
compensate Xxxxxx for its injury. Xxxxxx shall therefore be entitled, in
addition to any other remedies that may be available, including money damages,
to obtain specific performance of the terms of this Option Agreement. If any
action is brought by Xxxxxx to enforce this Option Agreement, Licensee shall
waive the defense that there is an adequate remedy at law.
10. Notices. All notices, demands, and requests required or
permitted to be given under the provisions of this Option Agreement shall be
(a) in writing, (b) delivered by personal delivery, or sent by commercial
delivery service or registered or certified mail, return receipt requested, (c)
deemed to have been given on the date of personal delivery or the date set
forth in the records of the delivery service or on the return receipt, and (d)
addressed as follows:
If to Licensee: Xxxxx X. Xxxx
The Christian Network, Inc.
00000 00xx Xxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000
If to Xxxxxx:
- 4 -
6
Xxxxxx X. Xxxxxx
Xxxxxx Communications Corporation
000 Xxxxxxxxxx Xxxx Xxxx
Xxxx Xxxx Xxxxx, Xxxxxxx 00000
or to any other or additional persons and addresses as the parties may from
time to time designate in a writing delivered in accordance with this Section
10.
11. Entire Agreement; Amendment. This Option Agreement and the
Option Purchase Agreement supersede all prior agreements and understandings of
the parties, oral and written, with respect to its subject matter. This Option
Agreement and the Option Purchase Agreement may be modified only by an
agreement in writing executed by all of the parties hereto. No waiver of
compliance with any provision of this Option Agreement or the Option Purchase
Agreement will be effective unless evidenced by an instrument evidenced in
writing and signed by the parties hereto.
12. Further Assurances. From time to time after the date of
execution hereof, the parties shall take such further action and execute such
further documents, assurances and certificates as either party reasonably may
request of the other to effectuate the purposes of this Option Agreement.
13. Counterparts. This Option Agreement may be executed in one or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument, and shall become
effective when each of the parties hereto shall have delivered to it this
Option Agreement duly executed by the other parties hereto.
14. Headings. The headings in this Option Agreement are for the
sole purpose of convenience of reference and shall not in any way limit or
affect the meaning or interpretation of any of the terms or provisions of this
Option Agreement.
15. Governing Law. This Option Agreement shall be construed under
and in accordance with the laws of the State of Florida, without giving effect
to the principles of conflicts of law.
16. Benefit and Binding Effect; Assignability. This Option
Agreement shall inure to the benefit of and be binding upon Licensee, Xxxxxx
and their respective successors and permitted assigns. No party hereto may
assign this Option Agreement without the prior written consent of the other
parties hereto, except that Xxxxxx at any time prior to the consummation of the
transactions
- 5 -
7
contemplated by this Option Agreement may assign its rights and obligations
under this Option Agreement without Licensee's consent to any entity controlled
by or under common control with Xxxxxx. Upon any permitted assignment by a
party in accordance with this Section 16, all references to "Xxxxxx" herein
shall be deemed to be references to Xxxxxx'x assignee and all references to
"Licensee" herein shall be deemed to be references to Licensee's assignee, as
the case may be. Notwithstanding the foregoing, Licensee and Xxxxxx may
collaterally assign their respective rights, benefits, duties or obligations
hereunder to their respective lenders.
17. Confidentiality. Except as necessary for the consummation of
the transaction contemplated by this Option Agreement, and except as and to the
extent required by law, each party will keep confidential any information
obtained from the other party in connection with the transactions contemplated
by this Option Agreement. If this Option Agreement is terminated, each party
will return to the other party all information obtained by the such party from
the other party in connection with the transactions contemplated by this Option
Agreement.
18. Press Release. No party shall publish any press release, make
any other public announcement or otherwise communicate with any news media
concerning this Option Agreement or the transactions contemplated hereby
without the prior written consent of the other party.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
- 6 -
8
IN WITNESS WHEREOF the parties hereto have executed this Option
Agreement as of the date first above written.
XXXXXX COMMUNICATIONS OF
DENVER-59, INC.
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------------
Xxxxxxx X. Xxxxxx
Secretary
CHANNEL 59 OF DENVER, INC.
By: /s/ Xxxxx X. Xxxx
---------------------------------------
Xxxxx X. Xxxx
Chairman
UHF CHANNEL 59 CORP.
By: /s/ Xxxxx X. Xxxx
---------------------------------------
Xxxxx X. Xxxx
Chairman
- 7 -
