Exhibit 10.29
OPTION AGREEMENT
This OPTION AGREEMENT, dated as of October 31, 1997, is made
and entered into by and between Lotus Oxnard Corp., a California corporation
("Seller"), and Radio Unica Corp., a Delaware corporation ("Buyer").
WHEREAS, Seller is the owner and operator of radio station
KVCA, 670 kHz, licensed to Simi Valley, California (the "Station");
WHEREAS, Seller and Buyer have entered into a Time Brokerage
Agreement ("TBA"), dated as of October 31, 1997, whereby Seller has made
available to Buyer substantial broadcasting time on the Station; and
WHEREAS, in connection with the TBA the parties have agreed
that Seller will grant to Buyer an option to purchase the assets used in the
conduct of the business and ownership and operation of the Station on the terms
and conditions set forth herein and subject to the rules, regulations and
policies of the Federal Communications Commission ("FCC").
NOW THEREFORE, in consideration of the foregoing and of the
mutual promises and covenants contained herein, and other good and valuable
consideration, the parties, intending to be legally bound, hereby agree as
follows:
SECTION 1. OPTION TO PURCHASE ASSETS
1.1 In consideration of Buyer entering into the TBA with
Seller upon the terms and conditions set forth therein, Seller hereby grants to
Buyer an exclusive, irrevocable option (the "Option") to purchase the assets,
real, personal and mixed, tangible and intangible, owned and held by Seller,
including the real property set forth in Exhibit 1 (the "Real Property") to be
acquired by Seller, that are used in the conduct of the business and operations
of the Station (the "Station Assets"), free and clear of all material debts,
liens, encumbrances or other liabili ties, subject to the terms and conditions
set forth herein.
1.2 The Option granted hereunder shall be exercisable at any
time from June 24, 2001 through and including September 30, 2001; provided, how
ever, that upon a Lotus Material Adverse Event pursuant to the terms of the
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TBA, the Option shall become immediately exercisable and shall remain
exercisable for a period of ninety (90) days from the date of such Lotus
Material Adverse Event and, if not exercised within such 90-day period, shall
thereafter terminate and, provided, further, that upon a Unica Material Adverse
Event pursuant to the terms of the TBA, the Option shall not be exercisable and
shall thereafter terminate.
1.3 In the event that Buyer wishes to exercise the Option,
Buyer shall give written notice (the date of such notice being referred to as
the "Exercise Date") to Seller and the giving of such notice shall be deemed to
exercise the Option. In the event that the Option is exercised, the parties
shall, within ten (10) days of the Exercise Date, execute an Asset Purchase
Agreement (the "Purchase Agreement") in the form attached hereto as Exhibit A,
it being understood that (i) the asset purchase price shall be determined
pursuant to Section 1.4 of this Agreement and (ii) the only changes to such
form shall be changes, if any, in the information contained in the schedules
thereto and the addition, if any, of schedules thereto that are reasonably
required to reflect events occurring after the date hereof; provided, however,
that Buyer shall not be required to accept any such change that could reasonably
be expected to cause an adverse change in, or have an adverse effect on, the
assets to be conveyed to Buyer pursuant to the Purchase Agreement or the ability
of Seller to consummate the transactions contemplated by the Purchase Agreement,
and thereafter Buyer and Seller shall perform their respective obligations under
the Purchase Agreement, including, without limitation, filing and prosecuting
an appropriate application for FCC consent to the assignment of the FCC licenses
for the Station from Seller to Buyer. Notwithstanding anything contained in
this Agreement to the contrary, Buyer may withdraw its notice of exercise of
its Option at any time prior to its execution of the Purchase Agreement without
any liability to Seller.
1.4 Determined as of the Exercise Date, the purchase price
for the Station Assets shall be as follows: (i) in the event the Phase I
Upgrade (as defined below) has been completed, $ *; (ii) in the event both
the Phase I Upgrade and the Phase II Upgrade (as defined below) have been
completed, $ *, plus reimbursement of actual and reasonable out-of-pocket
expenses (including professional fees and disbursements) incurred in
connection with the Phase II Upgrade, minus any Phase
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(*) The purchase price has been omitted pursuant to a request for
confidential treatment and has been filed separately with the Securities
and Exchange Commission.
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II Credits (as defined below); or (iii) $ *. For purposes of this Agreement,
the term "Phase I Upgrade" shall mean the actual implementation of the
increase in authorized Station power from 1 KW nighttime to 3 KW nighttime,
pursuant to FCC construction permit BP960117AB, and that KBOI-AM, in Boise,
Idaho, shall have reduced interference with the Station essentially as
contemplated in FCC application BP970415AE; the term "Phase II Upgrade" shall
mean the actual implementation of the increase in authorized Station power to
between 30 KW and 50 KW daytime/nighttime; and the term "Phase II Credits"
shall mean the aggregate proceeds received by Seller from the sale of any
Station Assets that are no longer useful in the operations of the Station as
a result of the Phase II Upgrade.
SECTION 2. SPECIFIC PERFORMANCE
The parties agree that the FCC licenses and the broadcast
business of the Station made possible thereby are unique assets not readily
available on the open market. For this reason, Seller acknowledges that monetary
damages alone would not be adequate to compensate Buyer and that specific
performance is an appropriate remedy for Buyer in the event this Agreement is
breached by Seller. The parties agree that the rights afforded by the preceding
sentence shall be in addition to any and all rights Buyer may have at law or
equity. If any action is brought by Buyer to enforce this Agreement, Seller
shall waive the defense that there is an adequate remedy at law.
SECTION 3. REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to Buyer as follows:
3.1 Seller is, and upon exercise of the Option will be, a
corporation duly incorporated, validly existing and in good standing under the
laws of the State of California.
3.2 Seller has, and upon the exercise of the Option will have,
full corporate power and authority to enter into this Agreement and the Purchase
Agreement and to consummate the transactions contemplated hereby and thereby.
The execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby have been duly authorized by all necessary
corporate action on the part of Seller and no other corporate proceedings on the
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part of Seller are necessary to authorize this Agreement and the Purchase
Agreement or to consummate the transactions contemplated hereby and thereby.
This Agreement constitutes, and any other instruments contemplated hereby
when executed will constitute, the legal, valid and binding obligations of
Seller, enforceable in accordance with their terms, except as may be affected
by bankruptcy and insolvency laws and court-applied equitable principles.
3.3 The execution and delivery of this Agreement, the
consummation of the transactions contemplated hereby, and the compliance with
the terms, conditions and provisions of this Agreement, with or without the
giving of notice or the passage of time, or both, will not: (i) violate any
provision of Seller's articles of incorporation or by-laws, (ii) conflict
with or result in a breach of or constitute a default under any of the terms,
conditions or provisions of any indenture, mortgage, loan or credit agreement
or any other agreement or instrument to which Seller is party or by which it
or any of the assets of Seller may be bound or affected, or any decree,
judgment or order of any court or governmental department, commission, board,
agency or instrumentality, domestic or foreign, or any applicable law,
ordinance, rule or regulation, including but not limited to the
Communications Act of 1934, as amended (the "Act"), and the rule and
regulations of the FCC promulgated thereunder.
3.4 All of the Station Assets other than the Real Property
are, and upon the exercise of the Option all of the Station Assets (including
the Real Property) will be, owned by Seller free and clear of all liens,
pledges, charges, claims, security interests of other encumbrances, whether
consensual, statutory or otherwise (collectively, "Liens").
SECTION 4. COVENANTS OF SELLER
4.1 So long as this Agreement is in effect, Seller covenants
that it will not, without the Buyer's prior written approval, which shall not be
unreasonably withheld:
(a) Create, assume or suffer to exist, directly or
indirectly, any mortgage, deed of trust or Lien of any nature whatsoever, upon
any of the Station Assets, now owned or hereafter as acquired, excluding, Liens
incurred in the ordinary course of business.
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(b) Sell, transfer, lease or otherwise dispose of
any of the Station Assets excepts in connection with the acquisition of
replacement property of equivalent kind and value.
(c) Enter into any agreement to consolidate or merge
with or into, or to sell all or substantially all of its capital stock,
properties or assets to, any person or entity.
(d) Enter into any agreement or grant any person or
entity a right to purchase the Station's FCC licenses or all or substantially
all of the Station Assets.
(e) Enter into any agreement or take any other
action that would interfere with, or prevent, Seller from transferring the
Station Assets to Buyer as contemplated hereunder or under the Purchase
Agreement.
(f) Take any action that jeopardizes the validity or
enforceability of or rights under the Station's FCC licenses.
4.2 So long as this Agreement is in effect, Seller covenants
that it will:
(a) Subject to the terms and conditions of the TBA,
(i) carry on the business and activities of the Station in the ordinary course
of business, consistent with past practices of Seller, (ii) pay or otherwise
satisfy all obligations of the Station as they come due and payable; (iii)
maintain all Station Assets in customary repair, order and condition; and (iv)
maintain their books of account, records and files in substantially the same
manner as heretofore maintained.
(b) Maintain the validity of the Station's FCC
licenses, comply in all material respects with all requirements of the Station's
FCC licenses and the rules and regulations of the FCC, and deliver to Buyer,
within ten (10) days after filing, copies of any reports, applications or
responses to the FCC related to the Station that are filed from and after the
date hereof.
(c) Maintain in full force and effect all existing
casualty, liability and other insurance insuring the Station and the Station
Assets in amounts not less than those in effect on the date hereof.
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(d) Upon receiving notice or otherwise becoming
aware of any violation relating to the Station's FCC licenses, any violation by
the Station of any rules and regulations of the FCC or any material violations
under any other applicable laws and regulations, promptly notify Buyer and, at
Seller's expense, use reasonable commercial efforts to cure all such violations
in a timely fashion.
4.3 Seller covenants that it will acquire good, record and
marketable fee simple title to the Real Property no later than December 31,
1997.
SECTION 5. REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to Seller that Buyer has full
corporate power and authority to enter into this Agreement and to consummate the
transactions contemplated hereby. The execution and delivery of this Agreement
and the consummation of the transactions contemplated hereby have been duly
authorized by all necessary corporate action on the part of Buyer and no other
corporate proceedings on the part of Buyer are necessary to authorize this
Agreement or to consummate the transactions contemplated hereby. This Agreement
constitutes the legal, valid and binding obligation of Buyer, enforceable in
accordance with its terms, except as may be affected by bankruptcy and
insolvency laws and court-applied equitable principles.
SECTION 6. MISCELLANEOUS
6.1 If any provision or provisions contained in this
Agreement are held to be invalid, illegal or unenforceable, this shall not
affect any other provision hereof, and this Agreement shall be construed as if
such invalid, illegal or unen forceable provision or provisions had not been
contained herein.
6.2 No party may assign this Agreement without the prior
written consent of the other party, which consent shall not be unreasonably
withheld, and any purported assignment without such consent shall be null and
void and of no legal force or effect. This Agreement shall be binding upon and
shall inure to the benefit of the parties hereto and their respective successors
and assigns. Nothing in this Agreement, express or implied, is intended to
confer on any person other than the parties hereto and their respective
successors and assigns any rights, remedies, obligations, or liabilities under
or by reason of this Agreement.
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6.3 No amendment, waiver of compliance with any provision or
condition hereof, or consent pursuant to this Agreement will be effective unless
evidenced by an instrument in writing signed by the parties.
6.4 The headings contained in this Agreement are included for
convenience only and no such heading shall in any way alter the meaning of any
provision.
6.5 This Agreement shall be governed by, enforced under and
construed in accordance with the laws of the State of Delaware, without giving
effect to any choice or conflict of law provision or rule thereof.
6.6 Any notice required hereunder shall be in writing and
any notice or other communications shall be deemed given when delivered
personally or one (1) day after deposited with a recognized overnight air
courier for overnight delivery and addressed as follows:
(a) if to Buyer:
Radio Unica Corp.
8400 N.W. 52nd Street
Suite 101
Miami, Florida 33176
Attn: Joaquin F. Blaya
with a required copy to:
Skadden, Arps, Slate, Meagher & Flom LLP
1440 New York Avenue, N.W.
Washington, D.C. 20005
Attn: John C. Quale, Esq.
(b) If to Seller:
Lotus Oxnard Corp.
6290 Sunset Boulevard
Suite 1600
Los Angeles, California 90028
Attn: Howard A. Kalmenson
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with a required copy to:
Robinson Silverman Pearce Aronsohn & Berman LLP
1290 Avenue of the Americas
New York, New York 10104
Attn: Jerome S. Boros, Esq.
or such other address as the addressee may have specified in a notice duly given
to the sender as provided herein.
6.7 This Agreement may be executed in one or more counter
parts, each of which shall be deemed an original but all of which together will
constitute one and the same instrument.
6.8 After the date hereof, Buyer shall be afforded
reasonable opportunity to inspect the Station and the books and records of the
Seller relating to the Station and the Station Assets upon reasonable request.
6.9 Buyer and Seller each agree that they will use their
best efforts to keep confidential (except for such disclosure to attorneys,
bankers, underwriters, investors, etc. as may be appropriate in the furtherance
of this transaction and except for such filings with the FCC as may be required)
all information of a confidential nature obtained in connection with the
transactions contemplated by this Agreement, and in the event that such
transactions are not consummated, each party will return to the other party such
documents and other material obtained from the other party in connection
therewith.
6.10 Buyer and Seller shall jointly prepare, and determine
the timing of, any press release or other announcement to the public relating to
the execution of this Agreement. No party hereto will issue any press release or
make any other public announcement relating to the transactions contemplated
hereby without the prior consent of the other party hereto, except that any
party may make any disclosure required to be made by it under applicable law if
it determines in good faith that it is appropriate to do so and gives prior
notice to the other party.
6.11 Each party shall bear all costs incurred by it in
connection with the transactions contemplated by this Agreement.
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6.12 Seller agrees that from the date hereof and during the
time period in which the Option is exercisable hereunder, or if the Option is
exercised, during the period prior to execution of the Purchase Agreement, it
shall not offer or seek to offer, or entertain or discuss any offer, to sell the
Station or the Station Assets, other than as contemplated under this Agreement.
6.13 This Agreement (together with the Exhibits hereto) and
the TBA embody the entire agreement between the parties regarding the subject
matter hereof and there are no other agreements, representations, warranties, or
understandings, oral or written, between them with respect to the subject
matter hereof.
6.14 Prior to consummation of the Purchase Agreement and to
obtaining consent from the FCC, Buyer shall not, directly or indirectly,
control, supervise or direct or attempt to control, supervise or direct the
operations of the Station or Seller; such operations, including complete
ultimate control and supervision of all of the Station's programs, employees
and policies, shall remain the sole responsibility of Seller, as set forth in
the rules and policies of the FCC.
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement on the day and year first written above.
LOTUS OXNARD CORP.
By: /s/ Howard A. Kalmenson
-------------------------------
Name: Howard A. Kalmenson
Title: President
RADIO UNICA CORP.
By:
-------------------------------
Name: Joaquin F. Blaya
Title: President
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement on the day and year first written above.
LOTUS OXNARD CORP.
By:
-------------------------------
Name: Howard A. Kalmenson
Title: President
RADIO UNICA CORP.
By: /s/ Joaquin F. Blaya
-------------------------------
Name: Joaquin F. Blaya
Title: Chairman & C.E.O.
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LOTUS COMMUNICATIONS JOINDER AGREEMENT
As a material inducement for Buyer to enter into the foregoing
Option Agreement of even date herewith and for other valuable consideration, the
receipt and adequacy of which are hereby acknowledged, Lotus Communications
Corp., a California corporation ("Lotus") and owner of all of the issued and
outstanding capital stock of Seller, hereby joins in and agrees to be bound by
the provisions of Section 4.2(c) of the foregoing Option Agreement for the
purposes of making the covenant set forth in Section 4.2(c). In addition, and in
furtherance of Seller's covenant set forth in Section 4.3, Lotus covenants and
agrees that it will transfer to Seller by December 31, 1997 good, record and
marketable fee simple title to the Real Property. Lotus acknowledges that
specific performance is an appropriate remedy in the event this covenant is
breached. In addition, Lotus acknowledges and agrees that (i) any claim of
Buyer arising under the Option Agreement may be asserted against Lotus and (ii)
Lotus shall be jointly and severally liable under the Option Agreement for any
default in the performance of the obligations of Seller thereunder or for any
breach by Seller of any representa tion, warranty, covenant or agreement
contained therein.
Lotus represents and warrants to Buyer as follows: (a) Lotus
is, and upon exercise of the Option will be, a corporation duly incorporated,
validly existing and in good standing under the laws of the State of California;
(b) Lotus has, and upon the exercise of the Option will have, full corporate
power and authority to enter into this Joinder Agreement and the Joinder
Agreement attached to the Purchase Agreement and to consummate the transactions
contemplated hereby and thereby; (c) the execution and delivery of this Joinder
Agreement and the consummation of the transactions contemplated hereby have been
duly autho rized by all necessary corporate action on the part of Lotus and no
other corporate proceedings on the part of Lotus are necessary to authorize this
Joinder Agreement and the Joinder Agreement attached to the Purchase Agreement
or to consummate the transactions contemplated hereby and thereby; and (d) this
Joinder Agreement constitutes, and any other instruments contemplated hereby
when executed will constitute, the legal, valid and binding obligations of
Lotus,
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enforceable in accordance with their terms, except as may be affected by bank
ruptcy and insolvency laws and court-applied equitable principles.
Dated as of the 31st day of October, 1997.
LOTUS COMMUNICATIONS CORP.
By: /s/ Howard A. Kalmenson
----------------------------
Name: Howard A. Kalmenson
Title: President
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Exhibit 1
That portion of Lot 75, Rancho Tapo, Subdivision No. 3, in the County of
Ventura, State of California, according to the Map recorded in Book 8, Page 26
of Miscellaneous Records (Maps), in the office of the County Recorder of said
County, as such portion of said Lot 75 is shown as Parcel B on that certain
Parcel Map Waiver and Lot Line Adjustment recorded February 8, 1990, as
Instrument No. 90-020583, of Official Records.
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