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EXHIBIT 10.65.2
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EXHIBIT 10.65.2
OPTION AGREEMENT
THIS OPTION AGREEMENT (the "Option Agreement") is entered into as of
January 26, 1996 by and between XXXXXX COMMUNICATIONS OF ST. LOUIS-13, INC., a
Florida corporation ("Xxxxxx"), and CHANNEL 00 XX XX. XXXXX, XXX., a Florida
corporation ("CNI-13").
RECITALS
A. CNI-13 has entered into an Asset Purchase Agreement dated as of August
25, 1995, with XxXxxxx Broadcasting, Inc., pursuant to which CNI-13 has agreed
to acquire substantially all of the assets (the "Assets") that are used or
useful in the business and operations of Television Station WCEE-TV, Channel 13,
Mt. Xxxxxx, Illinois (the "Station"), including, without limitation, the
licenses issued by the Federal Communications Commission ("FCC") for the Station
(the "FCC Licenses").
X. Xxxxxx and CNI-13 have entered into a Loan Agreement of even date
herewith, pursuant to which Xxxxxx has agreed to make a loan or loans to CNI-13
to enable CNI-13 to purchase the Station and for working capital and operating
expenses relating to the Station (the "Loans").
X. Xxxxxx and CNI-13 have entered into a Time Brokerage Agreement of even
date herewith, pursuant to which Xxxxxx shall provide programming for broadcast
on the Station.
D. CNI-13 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, CNI-13 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 CNI-13 written notice of
Xxxxxx'x intention to exercise the Option (the "Option Notice") at any time
following the date hereof and prior to the tenth anniversary of the date hereof
(the "Termination Date").
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3. Option Purchase Agreement. Within three (3) business days following
CNI-13's receipt of the Option Notice, CNI-13 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 CNI-13 (the "Option Purchase Agreement"), and
thereafter CNI-13 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 CNI-13 to Xxxxxx (the "FCC Consent").
4. Control of the Station. Prior to the closing of the transactions
contemplated by the Option Purchase Agreement, Xxxxxx shall not, directly or
indirectly, control, supervise, direct, or attempt to control, supervise, or
direct, the operations of the Station, such operations, including complete
control and supervision of all of the Station programs, employees, and policies,
shall be the sole responsibility of CNI-13 until the closing of the transactions
contemplated by the Option Purchase Agreement.
5. Representations and Warranties of CNI-13. CNI-13 represents and
warrants to Xxxxxx as follows:
(a) CNI-13 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 Illinois. CNI-13 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 CNI-13 have been duly and validly authorized by all
necessary corporate action on the part of CNI-13. This Option Agreement has
been duly and validly executed and delivered by CNI-13 and constitutes a
legal, valid and binding agreement of CNI-13 enforceable against CNI-13 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
CNI-13 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 CNI-13 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
CNI-13 will not
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(i) conflict with CNI-13'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 CNI-13 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
CNI-13, the FCC Licenses or the other Assets.
6. Representations and Warranties of Xxxxxx. Xxxxxx represents and
warrants to CNI-13 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 CNI-13. CNI-13 will not commit any act that is
inconsistent with the grant of the Option to Xxxxxx or the transactions
contemplated by this Option Agreement and the Option Purchase Agreement.
8. Cooperation. CNI-13 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
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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 CNI-13 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, CNI-13 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 CNI-13: Xxxxx X. Xxxx
The Christian Network, Inc.
00000 00xx Xxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000
If to Xxxxxx: 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
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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 CNI-13, 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
contemplated by this Option Agreement may assign its rights and obligations
under this Option Agreement without CNI-13'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 "CNI-13"
herein shall be deemed to be references to CNI-13's assignee, as the case may
be. Notwithstanding the foregoing, CNI-13 and Xxxxxx may assign their respective
rights, benefits, duties or obligations hereunder to their respective lenders as
collateral security for the respective obligations of CNI-13 and Xxxxxx to such
lenders.
17. Confidentiality. Except as necessary for the consummation of the
transaction contemplated by this Option Agreement, and except as 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
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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.
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IN WITNESS WHEREOF the parties hereto have executed this Option Agreement
as of the date first above written.
XXXXXX COMMUNICATIONS OF
ST. LOUIS-13, INC.
By: /s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx
Secretary
CHANNEL 13 OF ST. LOUIS, INC.
By: /s/ Xxxxx X. Xxxx
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Xxxxx X. Xxxx
Chairman
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