EXHIBIT 10.2
PUT AND OPTION AGREEMENT
THIS PUT AND OPTION AGREEMENT (this "Agreement") dated as of March 28,
2002, is entered into by and among STC Broadcasting, Inc., a Delaware
corporation ("STC"), and STC License Company, a Delaware corporation and a
wholly-owned subsidiary of STC ("STC License Co." and together with STC,
"Seller"), Xxxxx Television of North Dakota, Inc., a Delaware corporation
("STND"), and Xxxxx Television of North Dakota License Holdings, Inc., a
Delaware corporation and a wholly-owned subsidiary of STND ("STLH" and together
with STND, "Buyer").
WHEREAS, concurrently herewith Seller and Buyer are entering into an
Amended and Restated Asset Purchase Agreement (as such agreement may be amended
from time to time (the "Asset Purchase Agreement"), pursuant to which Buyer has
agreed to acquire the Assets (as defined in the Asset Purchase Agreement),
including the FCC Assets (as described below);
WHEREAS, pursuant to the Asset Purchase Agreement, concurrently
herewith Buyer is acquiring from Seller the FCC Assets (as defined in the Asset
Purchase Agreement), including the FCC Licenses (as defined in the Asset
Purchase Agreement) relating to television broadcast stations KVLY-TV, Fargo,
North Dakota, KFYR-TV, Bismarck, North Dakota plus three satellite stations,
KMOT-TV, licensed to Minot, North Dakota, KUMV-TV licensed to Williston, North
Dakota and KQCD-TV licensed to Dickinson, North Dakota (the "Stations");
WHEREAS, in connection with the execution and delivery of the Asset
Purchase Agreement, it is contemplated that Sunrise Television Corp., the parent
corporation of STC ("Sunrise"), STC and STLH will enter into a Lease Agreement,
pursuant to which Sunrise and STC will lease the Station Assets (as defined
therein) to STLH (the "Lease Agreement"); and
WHEREAS, as an inducement and a condition to entering into the Asset
Purchase Agreement and in connection with the execution and delivery of the
Lease Agreement, Seller has required Buyer to enter into this Agreement.
NOW, THEREFORE, in consideration of the premises and mutual covenants
and agreements hereinafter contained and for other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged, the
parties hereto agree as follows:
1. Put Right. In the event that the Closing (as defined in the Asset
Purchase Agreement) has not occurred on or prior to the Drop Dead Date (as
defined in the Asset Purchase Agreement), then from and after the later to occur
of (a) the Drop Dead Date and (b) the consummation or the termination of the
transactions contemplated by the
Agreement and Plan of Merger dated as of February 19, 2002, between LIN TV Corp.
and Sunrise, as such agreement may be amended, subject to the terms and
conditions hereof, Buyer, or its permitted assignees, shall have the right to
require Seller to purchase the FCC Assets from Buyer for a purchase price of
$1,000,000 (the "Put Right").
2. Option Right. In the event of the termination of either the Asset
Purchase Agreement or the Lease Agreement, then from and after the date of such
termination, Seller, subject to the terms and conditions hereof, Seller, or its
permitted assignees, shall have the right to purchase the FCC Assets from Buyer
for a purchase price of $1,000,000 (the "Option Right").
3. Notice and Procedure. The Put Right may be exercised by Buyer, and
the Option Right may be exercised by Seller, by giving written notice (the
"Notice") to the other party, at any time following the Put/Option Date. The
Notice of the exercise of the Put Right or the Option Right, as the case may be,
shall be unconditional, except that such Notice may set forth as conditions
those items necessary to close the purchase and sale of the FCC Assets, which
are enumerated in Section 4 below.
4. Closing. Unless otherwise agreed to by the parties, the closing (the
"Put/Option Closing") of any sale of the FCC Assets to Seller pursuant to an
exercise of the Put Right or the Option Right shall occur at the offices of
Weil, Gotshal & Xxxxxx LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 on the
first business day immediately following the receipt of the FCC Consent (as
defined in Section 5). At or prior to the Put/Option Closing, (a) Buyer shall
have delivered the Assignment of FCC Licenses attached hereto as Exhibit A to
effectively convey the FCC Licenses to Seller, free and clear of all liens,
claims, charges, pledges or other encumbrances (collectively, "Liens"), and (b)
Seller shall pay the purchase price therefor in cash in immediately available
funds by wire transfer to an account to be designated by Buyer.
5. FCC Consent. Within three business days following Buyer's receipt or
delivery of the Notice, as applicable, Seller and Buyer shall jointly file an
application with the FCC (as defined in the Asset Purchase Agreement) requesting
the consent of the FCC to the transfer of the FCC Licenses to Seller (the "FCC
Consent"). Each of Buyer and Seller will diligently take, or fully cooperate in
the taking of, all necessary and proper steps, and provide any additional
information reasonably requested in order to obtain the FCC Consent as promptly
as practicable.
6. Representations and Warranties. Each of Buyer and Seller hereby
represents and warrants to the other that (a) this Agreement has been duly
executed and delivered by such party and constitutes a valid and binding
obligation of such party enforceable against such party in accordance with its
terms, except as may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting the enforcement of creditors' rights
in general and subject to general principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity or at law), (b) the
execution and delivery of this Agreement by such party does not, and the
performance by
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such party of the transactions contemplated hereby to performed by such party
will not, conflict with, or result in any violation of, or constitute a default
(with or without notice or lapse of time, or both) under, or give rise to a
right of termination, cancellation or acceleration of any obligation or to loss
of a benefit under, any contract, permit, order, judgment or decree to which
such person is a party or by which any such person's properties are bound, and
(c) the execution and delivery of this Agreement and the performance of the
transactions contemplated hereby by such party will not require any consent,
approval, authorization or other action by, or filing with or notification to
any person or entity, other than the FCC Consent.
7. Covenants. Seller covenants and agrees with Buyer as follows:
(a) Pending and prior to the Closing and the Put/Option
Closing, Buyer will not (i) sell, assign, lease, license, subject to any Lien,
or otherwise transfer or dispose of the FCC Assets or any interest therein, (ii)
enter into any marketing, management, operating or similar agreement with
respect to the Stations, or (iii) take any action, or fail to take any action,
that may jeopardize the validity or enforceability of or rights under the FCC
Licenses.
(b) Pending and prior to the Closing and the Put/Option
Closing, Buyer will maintain the validity of the FCC Licenses, and comply in all
material respects with all requirements of the FCC Licenses and the rules,
policies and regulations of the FCC and all other applicable laws and
regulations.
8. Further Assurances. Each of Buyer and Seller shall promptly perform,
whether before or after the Put/Option Closing, such additional acts (including,
without limitation, executing and delivering additional documents) as are
reasonably required by the other to consummate the transactions contemplated
hereby.
9. Successors and Assigns. The terms and conditions of this Agreement
shall be binding upon and shall inure to the benefit of the parties hereto and
their respective successors and permitted assigns and references herein to
"Buyer" or "Seller" shall be deemed to include any such successor or permitted
assignee. This Agreement may be assigned by Seller or Buyer to any of their
respective Affiliates (as defined in the Asset Purchase Agreement), provided
that Buyer may only assign this Agreement to an Affiliate that assumes the
obligations of Buyer to acquire the FCC Assets pursuant to the Asset Purchase
Agreement.
10. Notice. Any notices or other communications required or permitted
hereunder shall be in writing, and shall be sufficiently given if made in
accordance with the terms of the Asset Purchase Agreement.
11. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York without regard to principles
of conflicts of law.
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12. Counterparts. This Agreement may be executed in counterparts, each
of which will be deemed an original document, but all of which will constitute a
single document.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first set forth above.
SELLER
STC BROADCASTING, INC.
By: /s/ Xxxxx X. Xxxx
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Xxxxx X. Xxxx
Chief Financial Officer
STC LICENSE COMPANY
By: /s/ Xxxxx X. Xxxx
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Xxxxx X. Xxxx
Chief Financial Officer
BUYER
XXXXX TELEVISION OF NORTH DAKOTA, INC.
By: /s/ Xxxxxx X. Xxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxx
Title: President and Chief Executive
Officer
XXXXX TELEVISION OF NORTH
DAKOTA LICENSE HOLDINGS, INC.
By: /s/ Xxxxxx X. Xxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxx
Title: President and Chief Executive
Officer
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