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EXHIBIT 10.53.1
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OPTION AGREEMENT
THIS OPTION AGREEMENT (the "Option Agreement") is entered into as of
January 24, 1996 by and between XXXXXX COMMUNICATIONS OF PHOENIX-13, INC., a
Florida corporation ("Xxxxxx"), and CHANNEL 13 OF FLAGSTAFF, INC., a Florida
corporation ("CNI-13").
R E C I T A L S
A. CNI-13 has entered into an Asset Purchase Agreement dated as
of August 31, 1995, as amended, with Xxxxxxx X. Xxxxxxx, M.D., and Del Ray
Television Company, 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 KWBF-TV, Channel 13, Flagstaff,
Arizona (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
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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 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. 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 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
Arizona. 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 (i) conflict with CNI-13's
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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
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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 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
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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 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 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
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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.
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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
PHOENIX-13, INC.
By: /s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx
Secretary
CHANNEL 13 OF FLAGSTAFF, INC.
By: /s/ Xxxxx X. Xxxx
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Xxxxx X. Xxxx
Chairman
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