Back to top

OPTION AGREEMENT

Option Agreement

OPTION AGREEMENT | Document Parties: BARRINGTON BROADCASTING GROUP LLC | Barrington Traverse City LLC | Management Consulting LLC | Max Media | Traverse City LLC, MTC License LLC | Traverse City, Inc | Tucker Media You are currently viewing:
This Option Agreement involves

BARRINGTON BROADCASTING GROUP LLC | Barrington Traverse City LLC | Management Consulting LLC | Max Media | Traverse City LLC, MTC License LLC | Traverse City, Inc | Tucker Media

. RealDealDocs™ contains millions of easily searchable legal documents and clauses from top law firms. Search for free - click here.
Title: OPTION AGREEMENT
Governing Law: New York     Date: 11/13/2007
Law Firm: Covington Burling;Pillsbury Winthrop    

OPTION AGREEMENT, Parties: barrington broadcasting group llc , barrington traverse city llc , management consulting llc , max media , traverse city llc  mtc license llc , traverse city  inc , tucker media
50 of the Top 250 law firms use our Products every day

Exhibit 10.16

 

OPTION AGREEMENT

 

THIS OPTION AGREEMENT (this “ Agreement ”) is made and entered into as of August 31, 2007, by and among Barrington Traverse City LLC , a Delaware limited liability company (together with its successors and permitted assigns, “ Option Holder ”), Tucker Broadcasting of Traverse City, Inc. , a Delaware corporation (together with its successors and permitted assigns, the “ Company ”), and Tucker Media and Management Consulting L.L.C. , a Delaware limited liability company (together with its successors and permitted assigns, “ Grantor ”).

 

WITNESSETH

 

WHEREAS , Option Holder is a party to that certain Asset Purchase Agreement (the “ Station Purchase Agreement ”), dated as of the date hereof, by and among Max Media of Traverse City LLC, MTC License LLC (collectively, “ Sellers ”) and Option Holder, pursuant to which Option Holder has agreed to purchase certain assets of the Sellers related to the television broadcast stations WGTU, channel 29, Traverse City, Michigan (“ WGTU ”) and WGTQ, channel 8, Sault Ste. Marie, Michigan (“ WGTQ ” and together with WGTU, the “ Stations ”) each serving the Traverse City/Cadillac, Michigan market;

 

WHEREAS , Grantor owns 100% of the issued and outstanding common stock, par value $0.01 per share (the “ Common Stock ”), of the Company;

 

WHEREAS , Option Holder and the Company are parties to that certain Assignment and Assumption Agreement (the “ Assignment Agreement ”), dated as of the date hereof, pursuant to which Option Holder has assigned certain of its rights under the Station Purchase Agreement to the Company, including the right to purchase the Purchased Assets (as such term is defined in the Station Purchase Agreement);

 

WHEREAS, effective upon the closing of the transactions contemplated by the Station Purchase Agreement (the “ Station Closing ”), Grantor and the Company desire to grant Option Holder an option to purchase, at Option Holder’s election, (i) all of the Common Stock of the Company or (ii) all of the Company’s assets relating to the Stations, including the Purchased Assets, in either case on the terms and conditions set forth herein; and

 

WHEREAS, Option Holder desires to acquire from Grantor and the Company an option to purchase, at Option Holder’s election, (i) all of the Common Stock of the Company or (ii) all of the Company’s assets relating to the Stations, including the Purchased Assets, in either case on the terms and conditions set forth herein.

 

NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth, the parties, intending to be legally bound, agree as follows:

 

1.              Option Grant . Grantor hereby gives, grants, transfers and conveys to Option Holder, and its successors and assigns, the sole and exclusive right, privilege and option to purchase (the “ Option ”), on the terms and conditions hereinafter set forth and effective as of the Station Closing, at Option Holder’s election, (i) all of the Common Stock of the Company now held or hereinafter acquired by Grantor (collectively, the “ Subject Shares ”), or (ii) all of the tangible and intangible personal property, licenses, authorizations and leases, contracts and

 



 

agreements, owned or held by Grantor or the Company or in which Grantor or the Company holds an interest, relating to the operation of the Stations, including the property described below (and collectively referred to as the “ Assets ”):

 

(a)            All of the Purchased Assets;

 

(b)            All of the licenses, construction permits and other authorizations issued by the FCC for the operation of the Stations, including any renewals, extensions or modifications thereof and additions thereto between the date hereof and the Option Closing (collectively, the “ FCC Licenses ”);

 

(c)            All other licenses, permits, construction permits, approvals, concessions, franchises, certificates, consents, qualifications, registrations, privileges and other authorizations and other rights, from any governmental authority to Grantor or the Company used in connection with the Stations, including any renewals, extensions or modifications thereof and additions thereto between the Station Closing and the Option Closing (collectively, the “ Permits ”);

 

(d)            All of the tangible personal property owned by Grantor or the Company as of the Station Closing or thereafter acquired by Grantor or the Company and used or useful in the operation of the Stations;

 

(e)            All of the intangible personal property owned by Grantor or the Company relating to or used in connection with the operation of the Stations as of the Station Closing or thereafter acquired by Grantor or the Company and used or useful in the operation of the Stations, exclusive of all cash on-hand of Grantor or the Company and any payments due to the Company under the JSA;

 

(f)             Grantor’s and the Company’s rights and duties under the Station Purchase Agreement; and

 

(g)            All of the contracts, leases and other agreements relating to the ownership and operation of the Stations.

 

2.              Consideration for Option . This Option is granted for the Option Period (as the same may be extended pursuant to Section 3 hereof) in return for, among other consideration, the payment by Option Holder to Grantor of an amount equal to Five Thousand Five Hundred Dollars ($5,500.00), which shall be due and payable on the date of the Station Closing.

 

3.              Option Period . The Option shall be effective commencing on the date hereof (the “ Effective Date ”) and ending on the eighth anniversary of the Effective Date (the “ Option Period ”); provided , however , that the Option Period shall be extended automatically without any further action by Option Holder, Grantor or the Company if the Joint Sales Agreement (as the same may be amended from time to time, the “ JSA ”), dated as of the date hereof, by and between Option Holder and the Company, shall be renewed and, thereafter, the Option Period shall continue until the JSA is terminated in accordance with its terms. The Option may be exercised by Option Holder at any time during the Option Period.

 

2



 

4.              Exercise of Option; Withdrawal .

 

(a)            Option Holder may exercise the Option at any time during the Option Period by delivery of written notice thereof (the “ Exercise Notice ”) to Grantor, specifying whether Option Holder is exercising the Option with respect to the Subject Shares or the Assets. Upon exercise of the Option, Option Holder, Grantor and the Company shall be obligated to enter into the transactions to be consummated hereunder at the Option Closing, subject to the provisions of Sections 9 and 10 hereof, and Section 4(b) below.

 

(b)            Option Holder may withdraw any Exercise Notice prior to the Option Closing by written notice to Grantor of such withdrawal. No such withdrawal (and no withdrawal of any subsequent Exercise Notice) will affect Option Holder’s right subsequently to exercise the Option by delivering to Grantor during the Option Period one or more other Exercise Notices.

 

5.              Purchase of Subject Shares or Assets .

 

(a)            Purchase Price . At the Option Closing, and pursuant to the terms and subject to the conditions set forth in this Agreement, Option Holder shall pay to Grantor an amount equal to the Cash Purchase Price by federal wire transfer of same-day funds pursuant to wire instructions delivered to Option Holder by Grantor at least two business days prior to the Closing Date (or such other method of funds transfer as may be agreed upon by Option Holder and Grantor). The “ Cash Purchase Price ” shall be (i) in the event Option Holder exercises the Option with respect to the Assets, an amount equal to the sum of (x) the Base Value (as defined in Schedule 5(a) hereto) and (y) the Escalation Amount (as defined and calculated pursuant to Schedule 5(a) hereto), or (ii) in the event Option Holder exercises the Option with respect to the Subject Shares, an amount equal to (A) the sum of (x) the Base Value and (y) the Escalation Amount less (B) Outstanding Debt (as defined in Schedule 5(a) hereto).

 

(b)            Purchase of Subject Shares . Subject to Section 4(b), upon the exercise of the Option with respect to the Subject Shares, Grantor shall, on the Closing Date, deliver any and all stock certificates representing the Subject Shares, duly endorsed for transfer to Option Holder, together with appropriate stock powers duly endorsed for transfer to Option Holder.

 

(c)            Purchase of Assets .

 

(i)             Transfer of Assets . Subject to Section 4(b), upon the exercise of the Option with respect to the Assets, Grantor and the Company shall, on the Closing Date, sell, assign, transfer, convey and deliver to Option Holder all right, title and interest of Grantor and the Company in and to the Assets free and clear of liens, claims and encumbrances (“ Liens ”), except for Assumed Obligations, liens for taxes not yet due and payable and any other liens expressly identified and agreed to by the parties in writing (collectively, “ Permitted Liens ”).

 

(ii)            Excluded Assets . Except for those assets specifically identified in Section 1, the Assets shall not include any other assets, properties, interests or rights of any kind or description (the “ Excluded Assets ”). The Excluded Assets shall remain the property of Grantor or the Company, as the case may be.

 

3



 

(iii)           Assumption of Obligations . On the Closing Date, Option Holder shall assume and undertake to pay, discharge and perform all obligations of Grantor or the Company, as the case may be, as the holder of the Permits and the FCC Licenses, including all obligations to make all required FCC filings with respect thereto, and as the owner of the other Assets, including all leases and contracts included in such Assets, to the extent such obligations arise out of events occurring on or after the Closing Date (the “ Assumed Obligations ”).

 

(iv)           Excluded Obligations. Option Holder does not assume or agree to discharge or perform, and will not be deemed by reason of the execution and delivery of this Agreement or the consummation of the transactions contemplated hereby, to have assumed or to have agreed to discharge or perform, and Grantor and the Company shall remain liable for, any liabilities, obligations or commitments of Grantor and the Company arising from the business or operation of the Stations before the Closing Date and any other obligations or liabilities other than the Assumed Obligations.

 

(v)            Allocation . Option Holder, Grantor and the Company will allocate the Cash Purchase Price in accordance with the respective fair market values of the Assets and the goodwill being purchased and sold in accordance with the requirements of Section 1060 of the Internal Revenue Code of 1986, as amended. The allocation shall be determined by mutual agreement of the parties. Option Holder, Grantor and the Company agree to file their federal income tax returns and their other tax returns reflecting such allocation and to use such allocation for accounting and financial reporting purposes.

 

(d)            Closing . Upon the exercise of the Option, the consummation of the sale and purchase of the Subject Shares or the Assets, as the case may be, provided for in this Agreement (the “ Option Closing ”) shall take place no later than ten business days after the satisfaction or, to the extent permissible by law, the waiver (by the party for whose benefit the closing condition is imposed) of, the conditions specified in Sections 9 and 10 hereof. Alternatively, the Option Closing may take place at such other place, time or date as the parties may mutually agree upon in writing. The date on which the Option Closing is to occur is referred to herein as the “ Closing Date .”

 

6.              Representations and Warranties of Grantor and the Company . Grantor and the Company, jointly and severally, represent and warrant to Option Holder as follows; provided , however , that neither Grantor nor the Company make any representation or warranty as to any action, event, occurrence or circumstance that ( i ) was or shall be caused by Option Holder or that arose, or shall arise from any omission by Option Holder to perform its obligations under the JSA or the Shared Services Agreement (the “ SSA ”), dated as of the date hereof, by and between the Company and Option Holder, or ( ii ) constitutes a breach by Sellers of a representation or warranty of Sellers under the Station Purchase Agreement:

 

(a)            The Company was organized as a Delaware corporation on August 21, 2007. Prior to the date hereof, the Company has not engaged in any business and does not have any liabilities or obligations, except those liabilities and obligations incurred in connection with

 

4



 

its organization, the negotiation, execution, delivery and performance of this Agreement, the Station Purchase Agreement, the Assignment Agreement, the Letter Agreement (as hereinafter defined), the JSA and the SSA and the transactions contemplated hereby and thereby and incidental expenses incurred in connection therewith. The Company has no indebtedness for borrowed money, other than indebtedness incurred in connection with the performance of the Company’s obligations pursuant to the Station Purchase Agreement pursuant to a credit agreement or other financing arrangement contemplated by that certain Commitment Letter, dated as of August 31, 2007, from Banc of America Securities LLC, Wachovia Bank, National Association, Wachovia Capital Markets, LLC and CIT Lending Services Corporation in favor of Tucker Broadcasting of Traverse City, Inc., or any other financing arrangement provided by, or entered into with, Pilot Group L.P. or an Affiliate thereof (an “ Acquisition Financing Arrangement ”).

 

(b)            Each of Grantor and the Company has the power and authority and full legal capacity to enter into and to perform its obligations under this Agreement. The execution, delivery and performance of this Agreement by each of Grantor and the Company has been duly authorized and this Agreement constitutes a valid and binding obligation of each of Grantor and the Company enforceable against each of them in accordance with it terms, except as may be limited by bankruptcy, insolvency 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).

 

(c)            As of the Option Closing, Grantor owns 100% of the Subject Shares and Grantor has good and valid title to the Subject Shares free and clear of all liens. All of the Subject Shares have been duly authorized and are validly issued, fully paid and nonassessable. Other than the Subject Shares or pursuant to an Acquisition Financing Transaction, no class of interests in or equity interests of the Company is outstanding, and there are no outstanding subscriptions, warrants, options, calls, commitments or other rights to purchase or acquire, or securities convertible into or exchangeable for, any equity or debt interests of the Company or any obligation of the Company to issue or grant any thereof.

 

(d)            As of the Option Closing, the Company has good and marketable title to the Assets free and clear of all liens other than liens for taxes not yet due and payable and liens that will be discharged at or prior to the Option Closing.

 

(e)            As of the Closing Date, the Company is the holder of the FCC Licenses and such FCC Licenses are valid and in full force and effect.

 

(f)             As of the Closing Date, Grantor and the Company shall have filed all material returns, reports, and statements that Grantor or the Company, as the case may be, is required to file with the FCC and the Federal Aviation Administration. Except as set forth on Schedule 6(f) hereto, ( i ) there is no action, suit or proceeding pending or, to Grantor’s knowledge, threatened in writing against Grantor or the Company in respect of the Stations seeking to enjoin the transactions contemplated by this Agreement; and ( ii ) to Grantor’s knowledge, there are no governmental claims or investigations pending or threatened against Grantor or the Company in respect of the Stations (except those affecting the broadcasting industry generally).

 

5



 

(g)            No broker, finder or other person is entitled to a commission, brokerage fee or other similar payment in connection with this Agreement or the transactions contemplated hereby as a result of any agreement or action of Grantor or the Company or any other party acting on Grantor’s or the Company’s behalf.

 

The parties agree that Schedule 6(f) hereto may be updated by Grantor as of the Closing Date.

 

7.              Representations and Warranties of Option Holder . Option Holder represents and warrants to Grantor and the Company as follows:

 

(a)            Option Holder is a limited liability company duly formed, validly existing and in good standing under the laws of the State of Delaware.

 

(b)            Option Holder has the power and authority to enter into and perform its obligations under this Agreement.

 

(c)            The execution, delivery and performance of this Agreement by Option Holder has been duly authorized and this Agreement constitutes a valid and binding obligation of Option Holder enforceable against it in accordance with its terms, except as may be limited by bankruptcy, insolvency or other similar laws affecting 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).

 

(d)            No broker, finder or other person is entitled to a commission, brokerage fee or other similar payment in connection with this Agreement or the transactions contemplated hereby as a result of any agreement or action of Option Holder or any party acting on Option Holder’s behalf.

 

8.              Covenants of Grantor and the Company   During the Option Period, and subject to the JSA and SSA, and the performance by Option Holder of its obligations thereunder, Grantor and the Company, jointly and severally, covenant to:

 

(a)            Maintain insurance on the Assets and with respect to the operation of the Stations in such amounts and in such nature as in effect on the date hereof;

 

(b)            Operate the Stations in all material respects in accordance with the terms of the FCC Licenses, the Communications Act of 1934, as amended (the “ Communications Act ”), the rules and published policies of the FCC (“ FCC Rules ”) and all other statutes, ordinances, rules and regulations of governmental authorities;

 

(c)            Refrain from taking any action that would cause the FCC Licenses not to be in full force and effect or to be revoked, suspended, cancelled, rescinded, terminated or expired;

 

(d)            File all material returns, reports, and statements that Grantor or the Company, as the case may be, is required to file with the FCC and the Federal Aviation Administration;

 

6



 

(e)            Other than pursuant to an Acquisition Financing Arrangement, not mortgage, pledge, subject to any lien or otherwise encumber (or cause any of the foregoing to occur) any of the Assets or Subject Shares or any other outstanding equity interests or assets of Grantor or the Company;

 

(f)             Not sell, lease or otherwise dispose of any of the Assets in a manner that is inconsistent with this Agreement, except for properties and assets sold or replaced with others of like kind and value in the ordinary course of business; and

 

(g)            Not issue any subscription, warrant, option, calls, commitments or other rights to purchase or acquire any equity or debt interests, or any securities convertible into or exchangeable for any equity or debt interests, of Grantor or the Company (other than pursuant to an Acquisition Financing Arrangement).

 

Notwithstanding anything to the contrary contained herein, to the extent that the obligations of Grantor or the Company hereunder would require the incurrence of an Other Expense as defined in the JSA, such obligation or covenant shall be subject to the terms and conditions of the JSA.

 

9.              Grantor and the Company Closing Conditions.

 

Subject to the exercise of the Option pursuant to the terms and subject to the conditions of this Agreement, the obligations of Grantor and the Company hereunder are subject to satisfaction or waiver, at or prior to the Option Closing, of each of the following conditions:

 

(a)            Representations, Warranties and Covenants . The representations and warranties of Option Holder made in this Agreement shall be true and correct in all material respects at and as of the Closing Date except for changes permitted or contemplated by the terms of this Agreement, and the covenants and agreements to be complied with and performed by Option Holder at or prior to the Option Closing shall have been complied with or performed in all material respects. Grantor shall have received a certificate dated as of the Closing Date from Option Holder, executed by an authorized officer of Option Holder, to the effect that the conditions set forth in this Section 9(a) have been satisfied.

 

(b)            FCC Consent . The FCC Consent shall have been obtained and be in effect and no court or governmental order prohibiting the Option Closing shall be in effect.

 

(c)            No Prohibitions . No injunction, restraining order or decree of any nature of any governmental authority of competent jurisdiction shall be in effect that restrains or prohibits any party from consummating the transactions contemplated by this Agreement.

 

10.           Option Holder Closing Conditions.

 

Subject to the exercise of the Option pursuant the terms and subject to the conditions of this Agreement, the obligations of Option Holder hereunder are subject to satisfaction or waiver, at or prior to the Option Closing, of each of the following conditions:

 

(a)            Representations, Warranties and Covenants . The representations and warranties of Grantor and the Company made in this Agreement shall be true and correct in all

 

7



 

material respects at and as of the Closing Date except for changes permitted or contemplated by the terms of this Agreement, and the covenants and agreements to be complied with and performed by Grantor and the Company at or prior to the Option Closing shall have been complied with or performed in all material respects. Option Holder shall have received certificates dated as of the Closing Date from each of the Company and Grantor, executed by an authorized officer of each of the Company and Grantor to the effect that the conditions set forth in this Section 10(a) have been satisfied.

 

(b)            FCC Consent . The FCC Consent shall have been obtained and constitute a Final Order, and no court or governmental order prohibiting the Option Closing shall be in effect. For purposes hereof, “ Final Order ” shall mean an action by the FCC or other regulatory authority having jurisdiction ( i ) with respect to which action no timely request for stay, motion or petition for reconsideration or rehearing, application or request for review or notice of appeal or other judicial petition for review is pending and ( ii ) as to which the time for filing any such request, motion, petition, application, appeal or notice and for entry of orders staying, reconsidering or reviewing on the FCC’s or such other regulatory authority’s own motion has expired.

 

(c)            No Prohibitions . No injunction, restraining order or decree of any nature of any governmental authority of competent jurisdiction shall be in effect that restrains or prohibits any party from consummating the transactions contemplated by this Agreement.

 

11.           Closing Deliveries.

 

(a)            Purchase of Subject Shares .

 

(i)             Grantor Documents . Subject to the exercise of the Option with respect to the Subject Shares pursuant to the terms and subject to the conditions of this Agreement, at the Option Closing Grantor shall deliver or cause to be delivered to Option Holder:

 

(A)           certified copies of resolutions authorizing the execution, delivery and performance of this Agreement, including the consummation of the transactions contemplated hereby, by Grantor;

 

(B)            the certificates described in Section 10(a) hereof;

 

(C)            all stock certificates representing the Subject Shares, duly endorsed for transfer to Option Holder accompanied by appropriate stock powers duly endorsed for transfer to Option Holder;

 

(D)           a certificate from the Secretary of State of the State of Delaware as to the Company’s good standing and payment of all taxes in such jurisdiction dated within three days of the Closing Date; and

 

(E)            such other documents, certificates, payments, assignments, transfers and other deliveries as Option Holder may reasonably request

 

8



 

and as are customary to effect a closing of the matters herein contemplated.

 

(ii)            Option Holder Documents . Subject to the exercise of the Option with respect to the Subject Shares pursuant to the terms and subject to the conditions of this Agreement, at the Option Closing Option Holder shall deliver or cause to be delivered to Grantor:

 

(A)           the certificate described in Section 9(a) hereof;

 

(B)            the Cash Purchase Price; and

 

(C)            such other documents, certificates, payments, assignments, transfers and other deliveries as Grantor may reasonably request and as are customary to effect a closing of the matters herein contemplated.

 

(b)            Purchase of Assets .

 

(i)             Grantor Documents . Subject to the exercise of the Option with respect to the Assets pursuant to the terms and subject to the conditions of this Agreement, at the Option Closing Grantor and the Company shall deliver or cause to be delivered to Option Holder:

 

(A)           certified copies of resolutions authorizing the execution, delivery and performance of this Agreement, including the consummation of the transactions contemplated hereby, by Grantor and the Company;

 

(B)            the certificates described in Section 10(a) hereof

 

(C)            the Assignment and Assumption Agreement in the form attached hereto as Exhibit A ;

 

(D)           the Assignment and Assumption Agreement FCC Li















 
SITE SEARCH

AGREEMENTS / CONTRACTS

Document Title:

Entire Document: (optional)

Governing Law:(optional)


Try our advanced search >>
 

CLAUSES

Search Contract Clauses >>

Browse Contract Clause Library>>

Get Email Updates
Email:
This is only a partial view of this document. We have millions of legal documents and clauses drafted by top law firms. learn more search for free browse for free learn more