1
EXHIBIT 10.58
OPTION AGREEMENT
Option Agreement, dated as of January 31, 1996, between Xxxxxx
Communications Associates, L.L.C., a Colorado limited liability company
("Purchaser"), and ECP Holdings, Inc., an Oklahoma corporation ("Seller").
Seller is a partner of Halcyon Communications Partners, a general
partnership organized and existing under the laws of the State of Oklahoma (the
"Partnership"). Pursuant to a certain Agreement of Purchase and Sale of
Partnership Interest, dated as of the date hereof, among Seller, the other
partner of the Partnership and Purchaser (as the same may be amended from time
to time in accordance with its terms, the "Purchase Agreement"), as of the date
hereof Purchaser is purchasing from Seller a portion of Seller's partnership
interest in the Partnership. Purchaser desires to acquire from Seller an option
to purchase the balance of the partnership interest in the Partnership that
Seller will continue to own immediately after giving effect to such purchase,
and Seller has agreed to grant such an option to Purchaser on the terms and
subject to the conditions set forth herein.
Therefore, in consideration of the payment of $100 and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Grant of Option. Seller hereby grants to Purchaser an
irrevocable option (the "Option") to purchase all, but not less than all of the
Option Interest (as hereinafter defined). The exercise price of the Option (the
"Exercise Price") shall be an amount in cash equal to $1,200,000, without
interest. The Exercise Price will be payable by Purchaser at the Closing (as
hereinafter defined) by wire transfer or by certified or bank check in
immediately available funds.
2. Exercise Period; Exercise of the Option.
(a) The Option may be exercised, in whole but not in part, at any
time during the period (the "Exercise Period") commencing on the date hereof
and ending at 12:01 A.M., Denver, Colorado time, on the tenth anniversary of
the date hereof (the "Scheduled Expiration Date").
(b) Purchaser may exercise the Option by delivering written notice
thereof (an "Exercise Notice") to Seller at any time prior to the expiration of
the Exercise Period.
2
Subject to paragraph) hereof, and unless the parties otherwise agree, the
closing of the sale of the Option Interest (the "Closing") shall occur on the
tenth Business Day (as hereinafter defined) following delivery of the Exercise
Notice. The date the Closing occurs is hereinafter referred to as the "Closing
Date". At the Closing, Seller shall, against receipt of the Exercise Price as
provided in paragraph 1 hereof, convey and deliver the Option Interest to
Purchaser by the delivery to Purchaser by such Seller of a duly completed and
executed instrument of assignment reasonably satisfactory to both parties and
such other documents or instruments which may be necessary, or which Purchaser
may reasonably request, in order to effectively vest in Purchaser beneficial
ownership of the Option Interest.
(c) Prior to the sale of the Option Interest to Purchaser pursuant
to this Agreement, Seller shall, subject only to the express provisions of
paragraph 5(a) of this Agreement, retain all rights as the holder of the Option
Interest, including all voting and consent rights as a partner of the
Partnership, and may exercise or refrain from exercising such rights as Seller
may determine in its sole discretion, even if the result is a diminution in the
value of the Option Interest and this Option to Purchaser.
3. Conditions to Closing. The Closing of the purchase of the
Option Interest pursuant to the exercise of the Option shall be subject to the
satisfaction of all of the following conditions:
(a) Each of the representations of Purchaser made in this
Agreement, in the Purchase Agreement and in each Related Instrument
(as defined in the Purchase Agreement) shall be true and correct in
all material respects at and as of the time of the Closing and
Purchaser shall have performed in all material respects each and every
covenant of Purchaser contained in this Agreement, in the Purchase
Agreement and in each Related Instrument required to be performed by
the time of or at the Closing. If requested by Seller, Purchaser shall
execute a certificate by which Purchaser confirms the satisfaction of
the foregoing condition.
(b) No order, preliminary or permanent injunction,
temporary restraining order, stay, judgment, decree or other order of
any court or governmental or regulatory body preventing the sale of
the Option Interest by the Seller or the consummation of the other
transactions contemplated hereby.
(c) All consents, orders and approvals of any
governmental authority, any partner or partners of the Partnership and
of any other third party that either Purchaser or Seller reasonably
deems necessary or advisable shall have been obtained and shall be in
full force and effect and any waiting period under applicable law
shall have expired. Without limiting the generality of the foregoing,
all such consents and approvals necessary to permit the withdrawal of
Seller from the Partnership without further obligation or liability as
a partner thereof shall have been obtained and shall be in full force
and effect.
-2-
3
(d) Purchaser shall, by written instrument in form and
substance reasonably satisfactory to Seller, assume and agree to
indemnify Seller for all obligations and liabilities of Seller under
the Partnership Agreement with respect to the Option Interest of every
kind or nature, whether accrued or unaccrued, asserted or unasserted,
known or unknown, disclosed or undisclosed, absolute or contingent,
arising by law, contract or otherwise and including any liability or
obligation arising out of any event, fact or circumstance existing or
occurring as of or prior to the date hereof that, with the passage of
time or the giving of notice, or otherwise, which constitutes a
breach or violation of or default under any contract or law binding
upon or applicable to the Partnership.
(e) If required by Seller, Purchaser will be obligated to
buy from Seller at the Closing, all evidences of indebtedness of the
Partnership held directly or indirectly by Seller or any subsidiary of
Seller, and the purchase price for such evidences of indebtedness
shall be the outstanding principal amount thereof at the time of the
Closing plus accrued and unpaid interest thereon which, unless
otherwise agreed by Seller and Purchaser, shall be paid in cash.
(f) Purchaser and Seller shall each execute and deliver
such other instruments as either party or the Partnership reasonably
deems necessary or appropriate to effect, and as a condition to, the
exercise of the Option, including amendments to the Partnership
Agreement or any other instrument filed with any governmental agency
or official.
(g) Purchaser shall have exercised all options to acquire
partnership interests in Halcyon Communications Limited Partnership,
an Oklahoma limited partnership ("HCLP"), granted to Purchaser by
partners of HCLP who are affiliates of Seller simultaneously with the
exercise of this Option, and the closings of the sale of all such
partnership interests pursuant to the exercise of all such other
options shall occur simultaneously with the Closing under this Option
Agreement.
(h) If the exercise of the Option requires any consent,
approval, waiver, or authorization of any government department,
board, bureau, commission, agency or instrumentality or the expiration
of any waiting period imposed by applicable law, then the date fixed
for the Closing pursuant to paragraph 2(b) hereof shall be extended
for the period of time during which efforts to obtain each such
consent, approval, waiver, or authorization and the termination of
each such waiting period at the earliest reasonably practicable time
are diligently being made; provided, however, that, unless Seller and
Purchaser otherwise agree, the extension of such Closing date pursuant
to this paragraph may not exceed 180 days. Seller and Purchaser will,
and will use their commercially reasonable efforts to cause the
Partnership to, reasonably cooperate with each other in obtaining any
such consent, approval, waiver, or authorization and in obtaining the
termination of any such waiting period at the earliest practicable
time.
-3-
4
(i) If, in the opinion of legal counsel to Purchaser, the
immediate proposed transfer of the entire Option Interest would result
in the termination of the Partnership within the meaning of Section
708 of the Internal Revenue Code of 1986, as amended (or any successor
provision of law), but an immediate transfer of less than all of the
Option Interest would not have such a result, Purchaser shall be
entitled to elect, in its sole discretion, to either (i) exercise the
Option in full notwithstanding such termination or (ii) to (A) require
Seller to immediately transfer only that portion of the Option
Interest as may, in the opinion of such counsel, be transferred
without causing such a result and (B) extend the Exercise Period of
the Option with respect to the balance of the Option Interest until
the later of the Scheduled Expiration Date or the last day of the
period of thirteen months after the date of the closing of the
transfer referred to in subclause (ii)(A) of this sentence, in which
event, unless otherwise agreed by Seller and Purchaser, the Exercise
Price shall be allocated proportionately between the portion of the
Option Interest immediately transfer and the remainder of the Option
Interest as to which the Exercise Period of the Option shall have been
so extended.
4. Distributions After Exercise. Distributions declared or made
on or prior to the effective date of the exercise of the Option with respect to
the Option Interest shall be made to Seller, regardless of when such
distributions accrued on the books of the Partnership or the date fixed for
payment thereof.
5. Certain Covenants of Seller. Seller hereby covenants and
agrees with Purchaser as follows:
(a) During the Exercise Period, Seller shall not sell or
otherwise transfer or dispose of the Option Interest or any part
thereof or interest therein, other than a sale or transfer as to which
Seller gives Purchaser at least 14 days prior written notice and in
which the transferee agrees, pursuant to an instrument in form and
substance reasonably satisfactory to Purchaser, to be bound by the
terms of this Option Agreement with respect to such transferred
interest to the same extent as the transferor was so bound with
respect to such transferred interest.
(b) Upon the Closing, Seller shall convey to Purchaser
legal title to, and beneficial ownership of, the Option Interest, free
and clear of any lien, pledge, security interest, claim, or charge or
other encumbrance and free of any restriction on transfer voluntarily
created by Seller, other than as expressly set forth in the
Partnership Agreement or existing or arising under applicable law and
other than the possible lien of taxes not yet due and payable and
minor imperfections in title and encumbrances and other minor matters,
if any, which singly or in the aggregate are not substantial in an
amount, do not materially detract from the value of the Option
Interest.
-4-
5
6. Binding Effect; Assignment. Subject to the following provision
of this paragraph 6, this Option Agreement shall inure to the benefit of, and
be binding upon, the parties and their respective successors, heirs, legal
representatives and permitted assignees. Except as otherwise expressly
provided herein, this Option Agreement shall not be assigned by either party
hereto without the prior written consent of the other party. Purchaser may
assign this Option Agreement, in whole or in part, to any FCA Permitted
Transferee (as defined in the Partnership Agreement).
7. Notices. All notices and other communications required or
permitted by this Agreement shall be in writing and addressed to the intended
recipient at such person's address ispecified under its or his signature below
or at such other address as such person may designate in a written notice to
the other party hereto. All notices and other communications required or
permitted by this Agreement shall be deemed to have been duly given if
personally delivered to the intended recipient at the proper address determined
pursuant to this paragraph 7 or sent to such recipient at such address by
registered or certified mail, return receipt requested, Express Mail, Federal
Express or similar overnight delivery service for next Business Day delivery or
by telegram, telex or facsimile transmission and will be deemed given, unless
earlier received; (1) if sent by certified or registered mail, return receipt
requested, five calendar days after being deposited in the United States mail,
postage prepaid; if sent by Express Mail, Federal Express or similar overnight
delivery service for next Business Day deliverY, the next Business Day after
being entrusted to such service, with delivery charges prepaid or charged to
the sender's account; (3) if sent by telegram or telex or facsimile
transmission, on the date sent and (4) if delivered by hand, on the date of
delivery.
8. Definitions. As used in this Agreement, the following terms
have the meanings indicated:
"Agreement" or "Option Agreement" means this Option Agreement,
as the same may be amended from time to time in accordance with its terms.
"Business Day" means a day of the year on which banks are not
required or authorized to close in the State of Colorado.
"Option Interest" means the entire partnership interest of
Seller as a partner of the Partnership, including such partner's (i) right to a
share of the income, gain, losses and deductions of and distributions made by
the Partnership, (ii) right to a share of Partnership assets, (iii) rights with
respect to initial and additional capital contributions made to the Partnership
by such partner, including such partner's rights with respect to allocations of
income, gain losses and deductions of and distributions made by the Partnership
which are based upon or determined by reference to such capital contributions,
(iv) rights with respect to the management of the business and affairs of the
Partnership, (v) voting, consent and approval rights, (vi) rights to unpaid
interest under Section 6.8 or 7.2 of the Partnership
-5-
6
Agreement, whether accrued as of or accruing on or after the date hereof, (vii)
rights with respect to such partner's Capital Account (as defined in the
Partnership Agreement), (viii) rights, if any, under Articles X, XI and XII of
the Partnership Agreement, (ix) any and all other rights, interests and
benefits to which such partner is or may become entitled by reason of its
status as a partner of the Partnership, and (x) all liabilities and obligations
of such partner by reason of its status as a partner of the Partnership, in
each case as provided in the Partnership Agreement or the partnership laws of
the state of the Partnership's organization.
"Partnership Agreement" means the Partnership Agreement, dated
as of October 1, 1989, of the Partnership, as the same heretofore may have been
or hereafter may be amended or modified in accordance with its terms.
9. Terms Generally; Certain Rules of Construction. The
definitions in paragraph 8 and elsewhere in this Option Agreement shall apply
equally to both the singular and plural forms of the terms defined. Whenever
the context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words "include", "includes" and "including" shall
be deemed to be followed by the phrase "without limitation". The words
"herein", "hereof" and "hereunder" and words of similar import refer to this
Option Agreement in its entirety and not to any part hereof unless the context
shall otherwise require. All references herein to paragraphs shall be deemed
references to paragraphs of this Option Agreement unless the context shall
otherwise require. Any reference in this Agreement to a "day" or number of
"days" (without the explicit qualification of "Business") shall be interpreted
as a reference to a calendar day or number of calendar days. If any action or
notice is to be taken or given on or by a particular calendar day, and such
calendar day is not a Business Day, then such action or notice shall be
deferred until, or may be taken or given on, the next Business Day.
10. Governing Law. This Agreement shall be construed in accordance
with, and governed by, the internal laws of the State of Colorado without
regard to principles of conflict of laws, except to the extent that the laws of
the jurisdiction of organization of the Partnership shall be mandatorily
applicable.
11. Headings. The headings contained in this Option Agreement are
for reference purposes only and shall not affect in any way the meaning or
interpretation of this Option Agreement.
12. Waivers; Amendment. Any term or provision of this Option
Agreement may be waived at any time by an instrument in writing signed by the
party which is entitled to the benefit thereof. This Option Agreement may be
amended or supplemented at any time only by an instrument in writing signed by
the parties hereto.
-6-
7
13. Counterparts. This Option Agreement may be executed in any
number of counterparts, each of which shall be deemed to be an original, but
all of which together shall constitute one and the same agreement.
14. Expenses. Each party hereto will pay its own expenses in
connection with the negotiation and execution of this Option Agreement and the
consummation of the transactions contemplated hereby, including all fees and
disbursements of its legal counsel.
15. Further Actions After the Closing. If, subsequent to the
Closing, further documents are reasonably requested in order to carry out the
provisions and purposes of this Option Agreement, the parties hereto shall
execute and deliver such further documents.
16. Severability. In the event that any part or parts of this
Option Agreement shall be held to be unenforceable to its or their full extent,
then it is the intention of the parties hereto that such part or parts shall be
enforced to the full extent permitted under the laws, and in any event, that
all other parts of this Option Agreement shall remain valid and fully
enforceable as if the unenforceable part or parts had never been a part hereof.
17. Entire Agreement. The provisions of this Agreement, the
Purchase Agreement and the Related Instruments collectively set forth the
entire agreement and understanding between the parties hereto as to the subject
matter hereof and thereof and merge and supersede all prior discussions,
agreements and understandings, oral or written, of any and every nature between
them with respect to such subject matter. Except as and to the extent set forth
in this Agreement, the Purchase Agreement or a Related Instrument, neither
party makes any representation, warranty, covenant or agreement whatsoever and
each party disclaims all liability and responsibility for any representation,
warranty, covenant, agreement or statement made or information communicated
(orally or in writing) by any other Person. Purchaser expressly agrees and
acknowledges that, in purchasing this Option and making decisions regarding
whether or not to exercise this Option, Purchaser (i) is not and will not be
relying on the representations and warranties of Seller or any other Person,
(ii) has made and will make its own inquiry and investigation into, and based
thereon, has formed an independent judgment concerning, the Partnership and the
business conducted by it, (iii) has been furnished or given adequate access to
such information as it has requested concerning the Partnership and the
business conducted by it and (iv) will not assert any claim against Seller or
any of its affiliates, directors, officers, employees, agents, stockholders,
advisors, counsel or representatives, nor will seek to hold any of such other
Persons liable for any inaccuracies, misstatements or omissions with respect to
information concerning the Partnership and the business conducted by it,
provided that the foregoing shall not in any manner be construed or deemed to
limit the ability of Purchaser to make any claim it may otherwise have arising
out
-7-
8
of the breach of any express representation or warranty of Seller contained in
this Agreement, the Purchase Agreement or any Related Instrument.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first above written.
ECP HOLDINGS, INC.
By: /s/ XXXXXXX X. XXXXX
------------------------------
Name: Xxxxxxx X. Xxxxx
Title:
Terrace Tower II
0000 XXX Xxxxxxx
Xxxxxxxxx, Xxxxxxxx 00000-0000
Attention: General Counsel
XXXXXX COMMUNICATIONS
ASSOCIATES, L.L.C.
By: /s/ XXXXX X. XXXXXX
------------------------------
Xxxxx X. Xxxxxx, Member
0000 Xxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
2-12-96
-8-
