Document/Exhibit Description Pages Size
1: 10-Q Paxson Communications, Inc. Form 10-Q 21 142K
13: EX-10.100 Asset Purchase Agreement 40 175K
14: EX-10.101 Asset Purchase Agreement 41 177K
15: EX-10.102 Asset Purchase Agreement 45 190K
16: EX-10.103 Construction Agreement 9 37K
17: EX-10.104 Loan Agreement 29 120K
18: EX-10.105 Asset Purchase Agreement 44 184K
19: EX-10.106 Asset Purchase Agreement 42 176K
20: EX-10.107 Agreement and Plan of Merger 34 110K
21: EX-10.107.01 First Amendment to Agreement and Plan of Merger 3 17K
22: EX-10.108 Asset Purchase Agreement 41 174K
23: EX-10.109 Option Agreement 9 35K
24: EX-10.110 Subordinated Note 13 50K
25: EX-10.111 Asset Purchase Agreement 40 142K
26: EX-10.112 Asset Purchase Agreement 40 169K
27: EX-10.113 Time Brokerage Agreement 28 96K
28: EX-10.114 Purchase Agreement 17 63K
29: EX-10.115 Asset Purchase Agreement 32 138K
30: EX-10.116 Asset Purchase Agreement 32 148K
31: EX-10.117 Asset Purchase Agreement 32 144K
32: EX-10.118 Asset Purchase Agreement 33 147K
33: EX-10.119 Time Brokerage Agreement 16 70K
34: EX-10.120 Loan Agreement 28 109K
35: EX-10.121 Second Amendment to Asset Purchase Agreement 6 22K
36: EX-10.122 Asset Purchase Agreement 41 180K
37: EX-10.123 Asset Purchase Agreement 94 303K
38: EX-10.124 Loan Agreement 52 170K
39: EX-10.125 Time Brokerage Agreement 28 98K
40: EX-10.126 Option Agreement 18 64K
2: EX-10.89 Amended as Restated Promissory Note 6 25K
3: EX-10.90 First Anemdment to Loan Agreement 2 15K
4: EX-10.91 Asset Purchase Agreement 15 73K
5: EX-10.92 Asset Purchase Agreement 41 174K
6: EX-10.93 The Brokerage Agreement 29 97K
7: EX-10.94 Asset Purchase Agreement 38 173K
8: EX-10.95 First Amendment 2 15K
9: EX-10.96 Promissory Note 4 21K
10: EX-10.97 Stock Purchase Agreement 42 199K
11: EX-10.98 Asset Purchase Agreement 42 178K
12: EX-10.99 Asset Purchase Agreement 42 177K
41: EX-27 Financial Data Schedule (For SEC Use Only) 1 12K
EXHIBIT 10.126
================================================================================
OPTION AGREEMENT
BY AND AMONG
PAXSON COMMUNICATIONS OF
SALT LAKE CITY-16, INC.
AND
ROBERTS BROADCASTING OF
SALT LAKE CITY, L.L.C.
* * *
AUGUST 5, 1996
================================================================================
OPTION AGREEMENT
This OPTION AGREEMENT is entered into as of August 5, 1996, by and
among Paxson Communications of Salt Lake City-16, Inc., a Florida corporation
(the "Purchaser"), Roberts Broadcasting Company of Utah, a Delaware corporation
(the "Company"), Roberts Broadcasting of Salt Lake City, L.L.C., a Delaware
limited liability company (the "LLC"), Michael Roberts ("M. Roberts"), and
Steven Roberts ("S. Roberts" and together with M. Roberts, individually, an
"Optionor" and collectively, the "Optionors").
WHEREAS, the Purchaser and the LLC have entered into a Loan
Agreement dated as of April 19, 1996, as amended on the date hereof (the "Loan
Agreement"), pursuant to which the Purchaser has agreed to loan to the LLC up
to $3,703,000 (the "Loan") for the purpose of constructing television station
KZAR(TV), Provo, Utah (the "Station") and for other corporate purposes;
WHEREAS, the Company is currently the permittee of the Station
pursuant to a construction permit and other authorizations (the "Permits")
issued by the Federal Communications Commission (the "FCC");
WHEREAS, the Company has agreed to assign to the LLC the Permits
and any other Assets (as defined below) immediately upon the grant by the FCC
of its consent to the assignment of the Permits to the LLC;
WHEREAS, the Optionors own all of the issued and outstanding
shares of the capital stock of the Company and all of the issued and
outstanding membership interests of the LLC; and
WHEREAS, the Optionors desire to grant to the Purchaser the
exclusive and irrevocable option to purchase (i) up until the Assignment
Closing (as defined below), a 50% interest in all of the issued and outstanding
shares of the capital stock of the Company (the "Company Interest") and (ii)
immediately following the Assignment Closing, a 50% interest in all of the
issued and outstanding membership interest in the LLC (the "LLC Interest").
NOW, THEREFORE, in consideration of the foregoing and of the
mutual covenants, agreements and conditions hereinafter set forth, the parties,
intending to be legally bound, agree as follows:
ARTICLE 1. DEFINITIONS
As used herein, the following terms shall have the meanings set
forth below:
"Agreement" means this Option Agreement, as amended, supplemented,
or modified from time to time.
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"Assets" means collectively all the tangible and intangible
assets, real, personal or mixed, owned or held by the Company prior to the
Assignment Closing and the LLC after the Assignment Closing and used or useful
in the business or operations of the Station, including personal property, real
property, contracts, intangibles, and all other information relating to the
Station.
"Assignment Closing" mean the consummation of the assignment of
the Permits and the other Assets from the Company to the LLC following the
grant by the FCC of its consent to such assignment.
"Closing" has the meaning set forth in Section 3.1.
"Closing Date" has the meaning set forth in Section 2.3.
"Option" has the meaning set forth in Section 2.1.
"Option Period" has the meaning set forth in Section 2.2.
"Purchase Price" has the meaning set forth in Section 2.4.
All other capitalized terms used in this Agreement shall have the
meanings set forth elsewhere in this Agreement.
ARTICLE 2. OPTION
2.1 Option. In consideration of the payment by Purchaser to
the Optionors of an aggregate amount of Three Hundred Twenty-Five Thousand
Dollars ($325,000), the receipt and sufficiency of which are hereby
acknowledged, the Optionors hereby grant to the Purchaser an irrevocable and
exclusive option (the "Option") to purchase, at the Purchaser's sole
discretion, (i) up until the Assignment Closing, the Company Interest and (ii)
immediately following the Assignment Closing, the LLC Interest, in each case
free and clear of all debts, liens, encumbrances or other liabilities, subject
to the terms and conditions set forth herein.
2.2 Option Period. The Option shall run for a period of
seven (7) years (the "Option Period") commencing on the date of execution of
this Agreement. The Purchaser in its sole discretion may exercise the Option
at any time during this period.
2.3 Option Exercise. The Purchaser, in its sole discretion,
may exercise the Option by delivering a written notice of its election to
exercise the Option to the
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Optionors, specifying the date of purchase and if the exercise happens after
the Assignment Closing, agreeing to accept and assume all the terms and
provisions of the Company's Operating Agreement attached hereto as Exhibit 1.
In the event that the acquisition of the Company Interest or the LLC Interest,
as applicable, pursuant to the Option requires the prior consent of the FCC,
then the Closing Date for such acquisition shall be the fifth day following the
date of such FCC consent or, at the option of Purchaser in its sole discretion,
the fifth day following the date on which such FCC consent shall have become a
final order no longer subject to administrative or judicial review,
reconsideration or appeal ("Final Order").
2.4 Purchase Price. The purchase price (the "Purchase
Price") for the Company Interest or the LLC Interest, as applicable, shall be:
One Thousand Dollars ($1,000).
ARTICLE 3. CLOSING
3.1 Closing. Except as otherwise mutually agreed upon by the
Purchaser and the Optionors, the closing of this transaction (the "Closing")
shall take place at 10:00 a.m. on the Closing Date, in the offices of Dow,
Lohnes & Albertson, 1200 New Hampshire Avenue, N.W., Washington, D.C., or at
such other place as the parties hereto may agree.
3.2 Delivery of Certificate and Payment of Purchase Price.
At the Closing, the Optionors shall deliver to the Purchaser stock or
membership certificates representing the Company Interest or the LLC Interest,
as applicable, and any assignment documents necessary to vest in the Purchaser
good and marketable title to the Company Interest or the LLC Interest, as
applicable, all in form and substance reasonably satisfactory to the Purchaser,
and the Purchaser shall pay the Purchase Price by wire transfer of immediately
available federal funds to a bank or other financial institution designated by
the Optionors.
ARTICLE 4. COVENANTS
4.1 Authorization of Interests. The LLC, the Company and the
Optionors hereby represent that prior to the date of execution of this
Agreement, they have taken all actions necessary to authorize the Company
Interest and LLC Interest and that such interests are fully paid and
nonassessable and were issued in compliance with all laws. The LLC and the
Optionors further covenant that they shall not amend the Operating Agreement of
the LLC without the prior written consent of the Purchaser, except as required
by this Agreement and until the Assignment Closing, the Company and the
Optionors covenant that they shall not amend the Company's organizational
documents without the prior written consent of the Purchaser.
- 4 -
4.2 Member Transfer Restrictions. From the date hereof until
the earlier of the Closing Date or the end of the Option Period, the
Optionholders shall not transfer (as such term is defined herein) and shall
cause the LLC not to issue any interests in the LLC without the prior written
consent of the Purchaser and from the date hereof until the Assignment Closing,
the Optionors shall not transfer and shall cause the Company not to issue any
interest in the Company without the prior written consent of the Purchaser. For
purposes of this Section 4.2, the term "transfer" shall include any sale,
pledge, gift, assignment or other disposition, including a disposition under
judicial order, legal process, execution, attachment or enforcement of a
pledge, trust or other encumbrance.
4.3 Governmental Licenses and Franchises. The Company and
the LLC shall not, and the Optionors shall not permit the Company or the LLC to
cause or permit, by any act or failure to act, any of the licenses, permits, or
other authorizations issued by the FCC or any other governmental authority in
connection with the Station (the "Governmental Licenses") to expire or to be
surrendered or modified, or take any action that would cause any governmental
authority to institute proceedings for the suspension, revocation, or adverse
modification of any of the Governmental Licenses, or fail to prosecute with due
diligence any pending applications to any governmental authority in connection
with the construction and operation of the Station, or take any other action
within their control that would result in the Station being in noncompliance
with the requirements of any law, the rules and regulations of any governmental
authority, or the terms of any Governmental License.
4.4 Access to Information. The Optionors, the Company and
the LLC shall give to Purchaser and its counsel, accountants, engineers, and
other authorized representatives access to the Assets, to the officers,
employees, and agents of the Company and the LLC, and to all books and records
relating thereto, and will furnish or cause to be furnished to Purchaser and
its authorized representatives all information relating to the Assets, the
Company, the LLC and the Station that they reasonably request at any time
during the Option Period (including any FCC or Copyright Office filings,
financial reports and operations reports produced with respect to the Station).
4.5 Notification. The Optionors, the LLC and the Company
shall give Purchaser prompt written notice of any material change in any of the
information contained in their representations and warranties in this
Agreement.
4.6 Preservation of Business. The Optionors shall use their
best efforts to cause until the Assignment Closing the Company to preserve the
business and organization of the Company intact and use their best efforts to
keep available to the Company its employees and to preserve its relationships
with suppliers and advertisers and others having business
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relations with it, to the end that the business, operations, and prospects of
the Company shall be unimpaired at the earlier to occur of the Assignment
Closing or the Closing Date. Optionors shall use their best efforts to cause
the LLC to preserve the business and organization of the LLC intact and use
their best efforts to keep available to the LLC its employees and to preserve
its relationships with suppliers and advertisers and others having business
relations with it, to the end that the business, operations, and prospects of
the LLC shall be unimpaired at the Closing Date. The ordinary and customary
operating, marketing, promotional, sales, and advertising practices of the
Company until the earlier to occur of the Assignment Closing or the Closing
Date and of the LLC at all times until the Closing Date shall be maintained.
4.7 Confidentiality. Each party hereto shall keep
confidential any information obtained from the other party in connection with
the transactions contemplated by this Agreement, except as and to the extent
required by applicable law and, in the case of Purchaser, as disclosure may be
required in connection with Purchaser's review and financing of this
transaction.
4.8 Cooperation. Purchaser, the Optionors, the LLC and the
Company shall cooperate fully with each other and their respective counsel and
accountants in connection with any actions required to be taken as part of
their obligations under this Agreement, and the parties will use their best
efforts to consummate the transactions contemplated hereby and to fulfill their
obligations hereunder. No party shall take any action that is inconsistent
with its obligations under this Agreement, that would render any of its
representations or warranties herein untrue or incomplete or that could hinder
or delay the consummation of the transactions contemplated by this Agreement.
4.9 Representations and Warranties True at Closing. Each
party hereto shall take all actions necessary to make its respective
representations and warranties hereunder true and correct as of the Closing.
4.10 Assignment of Permits. The Optionors shall cause the
Company and the LLC to file, and the Company and the LLC shall file, within
five days of the date of this Agreement an application with the FCC for the
grant by the FCC of its consent to the assignment of the Permit from the
Company to the LLC (the "FCC Consent"). The Optionors, the Company and the LLC
shall use their best efforts to obtain a grant of the application as
expeditiously as practicable and shall oppose any requests for reconsideration
or judicial review of the FCC Consent. As expeditiously as practicable
following the grant of the FCC Consent, the Optionors shall cause the Company
to, and the Company shall, transfer, assign and convey to the LLC the Permit
and any other assets used or useful in
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connection with the construction, business or operation of the Station free and
clear of all liens, security interests, pledges, claims, demands and other
encumbrances.
4.11 No Inconsistent Actions. The Optionors shall cause the
LLC during the term of this Agreement and the Company until the Assignment
Closing not to take the following actions and the Optionors shall not take the
following actions: (i) any actions that would be inconsistent with the terms of
this Agreement or that could have an adverse effect or hinder or delay the
rights of the Purchaser hereunder, (ii) any merger, consolidation or
restructuring of the Company or the LLC, (iii) the sale, transfer or
distribution of any of the Assets, including the Permit, by the Company or the
LLC or (iv) any actions that could have an adverse effect on the Station.
ARTICLE 5. REPRESENTATIONS AND WARRANTIES OF THE OPTIONORS
The Optionors hereby represent and warrant to the Purchaser that:
5.1 Authority; Binding Obligation. The Optionors have all
requisite capacity, power and authority to enter into this Agreement and to
carry out the transactions contemplated hereby. This Agreement constitutes a
legal, valid and binding obligation of the Optionors, enforceable in accordance
with its terms.
5.2 Title. The Optionors are the sole direct owners,
beneficially and of record, of all of the issued and outstanding equity
interest in the Company and the LLC, and have good, valid and marketable title
to such equity interest, free and clear of all liens and other encumbrances
other than encumbrances created by the Loan Agreement. There are no
outstanding agreements, arrangements, commitments or understandings of any kind
affecting or relating to any interests of the Company or the LLC other than as
set forth herein and in the Loan Agreement.
ARTICLE 6. REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND THE LLC
6.1 Authority; Binding Obligation. The execution, delivery
and performance of this Agreement and all transactions contemplated hereby have
been and shall be duly and validly authorized by all necessary action on the
part of the Company and the LLC (none of which actions have been modified or
rescinded and all of which actions are in full force and effect). This
Agreement constitutes a legal, valid and binding obligation of the Company and
the LLC, enforceable in accordance with its terms.
- 7 -
6.2 Business of the Company and the LLC. The sole business
of the Company and the LLC is the acquisition and the operation of the Station,
and the Company and the LLC have taken, and at Closing will have taken, no
actions that are not in furtherance of the operation of the Station.
6.3 Organization, Standing, and Authority. The LLC is a
limited liability company duly organized, validly existing, and in good
standing under the laws of the State of Delaware and the Company is a
corporation duly organized, validly existing, and in good standing under the
laws of the State of Delaware and each of the LLC and the Company and has the
requisite power and authority to (i) own, lease, and use its assets as now and
hereafter owned, leased and used by it, and (ii) conduct its business as now
and hereafter conducted. The LLC has delivered to the Purchaser true and
complete copies of its Operating Agreement and the Company has delivered to the
Purchaser true and complete copies of its organizational documents.
6.4 Absence of Conflicting Agreements. The execution,
delivery, and performance of this Agreement and the documents contemplated
hereby (with or without the giving of notice, the lapse of time, or both): (a)
do not require the consent of any third party; (b) will not conflict with any
provision of the organizational documents of the Company or the LLC; (c) will
not conflict with, result in a breach of, or constitute a default under any
applicable law, judgment, order, ordinance, injunction, decree, rule,
regulation, or ruling of any court or governmental instrumentality; (d) will
not conflict with, constitute grounds for termination of, result in a breach
of, constitute a default under, or accelerate or permit the acceleration of any
performance required by the terms of any agreement, franchise, instrument,
license, or permit to which the Company or the LLC is a party or by which the
Company or the LLC is bound; and (e) will not create any claim, lien, charge,
or encumbrance upon any of the Company Interest, LLC Interest or Assets.
6.5 Consents. No consent, approval, permit, or authorization
of or declaration to or filing with any governmental or regulatory authority or
any other public or private third party is required (a) to render this
Agreement and the transactions contemplated hereby valid and effective or (b)
to permit this Agreement and the transactions contemplated hereby to be
consummated.
6.6 Claims and Legal Actions. There is no claim, legal
action, counterclaim, suit, arbitration, governmental investigation, or other
legal, administrative, or tax proceeding, nor any order, decree, or judgment,
in progress or pending, or, to the best knowledge of the Company or the LLC,
threatened, against or relating to the Company, the LLC, the Station, the
Assets, or the business of the Company or the LLC, nor does the Company or the
LLC know or have reason to be aware of any basis for the same.
- 8 -
6.7 Compliance with Laws. In its operation of the Station
and its ownership and maintenance of the Assets, the Company has complied and
is complying fully with the terms of all Governmental Licenses and with all
laws, rules, regulations, and ordinances, including all trademark, service
mark, trade name, or copyright rules and regulations, all building and zoning
laws, codes, and regulations, all rules and regulations of the Federal Aviation
Administration relating to tower heights, lighting and marking, all
environmental and other land use laws and all laws relating to the employment
of labor. Neither the ownership nor use of any properties nor the conduct of
its business conflicts with the rights of any other person or entity.
6.8 Full Disclosure. No representation or warranty made by
the Company or the LLC in this Agreement or in any certificate, document, or
other instrument furnished or to be furnished by the Company or the LLC
pursuant hereto contains or shall contain any untrue statement of a material
fact, or omits or shall omit to state any material fact required to make any
statement contained herein or therein not misleading. The Company or the LLC
is not aware of any impending or contemplated event or occurrence that would
cause any of the foregoing representations not to be true and complete on the
date of such event or occurrence as if made on that date.
ARTICLE 7. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
7.1 Authority; Binding Obligation. The Purchaser is a
corporation duly organized, validly existing, and in good standing under the
laws of the State of Florida. On the Closing Date, the Purchaser shall be duly
qualified to conduct business in the State of Utah. The Purchaser has all
requisite corporate power and authority to enter into this Agreement and to
carry out the transactions contemplated hereby. This Agreement constitutes a
legal, valid and binding obligation of the Purchaser, enforceable in accordance
with its terms.
7.2 Financial and Character Qualifications. The Purchaser
has the financial qualifications to make the payments to the Optionors called
for in this Agreement.
7.3 Absence of Conflicting Agreements and Required Consents.
The execution, deliver, and performance by Purchaser of this Agreement and the
documents contemplated hereby (with or without the giving of notice, the lapse
of time, or both): (a) do not require the consent of any third party, (b) will
not conflict with the Bylaws or Certificate of Incorporation of Purchaser, (c)
will not conflict with, result in a breach of, or constitute a default under,
any applicable law, judgment, order, ordinance, injunction, decree, rule,
regulation, or ruling of any court or governmental instrumentality; and (d)
will not conflict
- 9 -
with, constitute grounds for termination of, result in a breach of, constitute
a default under, or accelerate or permit the acceleration of any performance
required by the terms of, any agreement, instrument, license or permit to which
Purchaser is a party or by which Purchaser may be bound, such that Purchaser
could not acquire the Company Interest or the LLC Interest, as applicable.
ARTICLE 8. CONDITIONS PRECEDENT TO THE PURCHASER'S OBLIGATION TO
CLOSE
The obligations of the Purchaser to purchase the Company Interest
or the LLC Interest, as applicable, and pay the Purchase Price to the Optionors
are subject to the satisfaction at or prior to Closing of each of the following
conditions:
8.1 Representations, Warranties and Covenants. The
representations and warranties of the Company, the LLC, and the Optionors made
herein and in the Loan Agreement and any documents or agreements executed
pursuant thereto shall have been true and correct when made and shall be true
and correct on the date of Closing as though such representations and
warranties were made on and as of such date, except for changes in the ordinary
course of business or of which Purchaser has received notice; and the Company,
the LLC and the Optionors shall have performed and complied with all covenants
and agreements required to be performed or complied with by them prior to
Closing.
8.2 No Breach or Default. There shall be no existing default
under, or breach by the Company, the LLC or the Optionors of, this Agreement or
the Loan Agreement or any agreement or document entered into pursuant thereto.
8.3 Governmental Licenses. If the Closing occurs prior to
the Assignment Closing, the Company shall be, or if the Closing occurs after
the Assignment Closing, the LLC shall be, the holder of all Governmental
Licenses, and there shall not have been any modification of any of the
Governmental Licenses that could have an adverse effect on the conduct of the
business and operations of the Station. No proceeding shall be pending the
effect of which would be to revoke, cancel, fail to renew, suspend or modify
adversely any of the Governmental Licenses.
8.4 FCC Consent. If required, the FCC shall have consented
to the Purchaser's acquisition of the Company Interest or the LLC Interest, as
applicable, and, at the option of the Purchaser, such consent shall have become
a Final Order.
- 10 -
ARTICLE 9. CONDITIONS PRECEDENT TO THE
OPTIONORS' OBLIGATION TO CLOSE
The obligation of the Optionors to sell the Company Interest or
the LLC Interest, as applicable, to the Purchaser is subject to the
satisfaction at or prior to Closing of each of the following conditions:
9.1 Representations and Warranties. The representations and
warranties of the Purchaser made herein and in the Loan Agreement and any
agreement or document entered into pursuant thereto shall be true and correct
on the date of Closing as though such representations and warranties were made
as of such date; and the Purchaser shall have performed and complied with all
covenants and agreements required to be performed or complied with by the
Purchaser prior to Closing.
9.2 Payment of Purchase Price. The Purchaser shall be ready,
willing and able to deliver the Purchase Price pursuant to Section 3.3.
9.3 FCC Consent. If required, the FCC shall have consented
to the Purchaser's acquisition of the Company Interest or the LLC Interest, as
applicable.
ARTICLE 10. TERMINATION
This Agreement may be terminated by the Purchaser without
liability, if the Purchaser is not then in material default, upon written
notice to the other parties, upon the occurrence of any of the following:
(a) Conditions. If on the Closing Date any of the
conditions precedent to the obligations of the Purchaser set forth in this
Agreement have not been satisfied or waived in writing by the terminating
party;
(b) Judgments. If there shall be in effect on the
Closing Date any judgment, decree, or order that would prevent or make unlawful
the Closing of this Agreement; or
(c) Expiration of Option. The Option has not been
exercised before the end of the Option Period.
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ARTICLE 11. INDEMNIFICATION
11.1 Indemnification By the Optionors, the LLC and the
Company. The Optionors, the LLC and the Company shall, jointly and severally,
indemnify, defend and hold harmless the Purchaser and its officers, directors,
agents, employees and shareholders from and against any and all demands,
claims, complaints, actions or causes of action, suits, proceedings,
investigations, arbitrations, assessments, losses, damages, liabilities, costs
and expenses, including, but not limited to, interest, penalties and attorneys'
fees and disbursements (collectively, "Damages"), asserted against, imposed
upon or incurred by the Purchaser, or its officers, directors, agents,
employees or shareholders, directly or indirectly, by reason of or resulting
from (a) any breach of the representations and warranties of the Optionors, the
LLC or the Company contained in or made in connection with this Agreement; or
(b) any noncompliance by the Optionors, the LLC or the Company with any
covenants, agreements or undertakings of the Optionors, the LLC or the Company
contained in or made in connection with this Agreement. In the event of any
indemnification of the Purchaser pursuant to this Section 11.1, the Purchaser
shall be entitled, in addition to its rights and remedies pursuant to this
Agreement, or otherwise at law or in equity, to deduct the amount of such
indemnification from any payment otherwise due to the Optionors in connection
with the transactions contemplated hereunder or hereby.
11.2 Indemnification By the Purchaser. The Purchaser shall
indemnify, defend and hold harmless the Optionors, the LLC and the Company and
its partners, agents and employees from and against any Damages asserted
against, imposed upon or incurred by the Optionors, the LLC or the Company,
directly or indirectly, by reason of or resulting from (a) any breach of the
representations and warranties of the Purchaser contained in or made in
connection with this Agreement; or (b) any noncompliance by the Purchaser with
any covenants, agreements or undertakings of the Purchaser contained in or made
in connection with this Agreement.
11.3 Conditions of Indemnification. The obligations and
liabilities of the parties hereunder with respect to their indemnities pursuant
to this Article 11, resulting from any claim or other assertion of liability by
third parties (collectively, "Claims"), shall be subject to the following terms
and conditions:
(a) The party seeking indemnification (the
"Indemnified Party") must give the other party or parties, as the case may be
(the "Indemnifying Party"), notice of any such Claim promptly after the
Indemnified Party receives notice thereof.
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(b) The Indemnifying Party shall have the right to
undertake, by counsel or other representatives of its own choosing, the defense
of such claim.
(c) In the event that the Indemnifying Party shall
elect not to undertake such defense, or within a reasonable time after notice
of any such Claim from the Indemnified Party shall fail to defend, the
Indemnified Party (upon further written notice to the Indemnifying Party) shall
have the right to undertake the defense, compromise or settlement of such
Claim, by counsel or other representatives of its own choosing, on behalf of
and for the account and risk of the Indemnifying Party (subject to the right of
the Indemnifying Party to assume defense of such Claim at any time prior to
settlement, compromise or final determination thereof).
(d) Anything in this Article 11 to the contrary
notwithstanding, (i) if there is a reasonable probability that a Claim may
materially and adversely affect the Indemnified Party other than as a result of
money damages or other money payments, the Indemnified Party shall have the
right, at its own cost and expense, to participate in the defense, compromise
or settlement of the Claim, (ii) the Indemnifying Party shall not, without the
Indemnified Party's written consent, settle or compromise any Claim or consent
to entry of any judgment which does not include as an unconditional term
thereof the giving by the claimant or the plaintiff to the Indemnified Party of
a release from all liability in respect of such Claim, and (iii) in the event
that the Indemnifying Party undertakes defense of any Claim, the Indemnified
Party, by counsel or other representative of its own choosing and at its sole
cost and expense, shall have the right to consult with the Indemnifying Party
and its counsel or other representatives concerning such Claim and the
Indemnifying Party and the Indemnified Party and their respective counsel or
other representatives shall cooperate with respect to such claim.
ARTICLE 12. CERTAIN REMEDIES
12.1 Specific Performance. The Optionors, the LLC and the
Company recognize that if either of them refuses to perform under the
provisions of this Agreement, monetary damages alone would not be adequate to
compensate Purchaser. Purchaser 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 Agreement. If any action is brought
to enforce this Agreement, the Optionors, the LLC and the Company agree to
waive the defense that there is an adequate remedy at law.
12.2 Attorney's Fees. In the event of an alleged default by
any party which results in the filing of a lawsuit for damages, specific
performance, or other remedy, the
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prevailing party shall be entitled to reimbursement by the other party of
reasonable legal fees and expenses incurred by the prevailing party.
ARTICLE 13. MISCELLANEOUS
13.1 Additional Actions and Documents. Each of the parties
hereto hereby agrees to take or cause to be taken such further actions, to
execute, deliver and file or cause to be executed, delivered and filed such
further documents and instruments, and to obtain such consents, as may be
necessary or as may be reasonably requested in order to fully effectuate the
purposes, terms and conditions of this Agreement.
13.2 Expenses. Each party shall pay such party's expenses
incident to this Agreement and the transactions contemplated hereunder,
including all legal and accounting fees and disbursements.
13.3 Notices. All notices, requests, demands or other
communications which may be or are required to be given, served or sent by any
party to any other party pursuant to this Agreement shall be in writing and
shall be (a) hand delivered, (b) mailed by first class, registered or certified
mail, return receipt requested, postage prepaid, or (c) delivered by an
overnight commercial courier service such as Federal Express, in each case
addressed as follows:
(i) If to the Company, the LLC or the Optionors:
Roberts Broadcasting Company of
Salt Lake City, L.L.C.
1408 N. Kings Highway
Suite 300
St. Louis, Missouri 63113
(ii) If to the Purchaser:
Paxson Communications of
Salt Lake City-16, Inc.
601 Clearwater Park Road
West Palm Beach, Florida 33401
13.4 Each party may designate by notice in writing a new
address to which any notice, demand, request or communication may thereafter be
so given, served or sent. Each notice, demand, request or communication which
shall be mailed or delivered in the
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manner described above shall be deemed sufficiently given, served, sent and
received for all purposes at such time as it is delivered to the addressee
(with the return receipt, the delivery receipt or the affidavit of messenger
being deemed conclusive evidence of such delivery) or at such time as delivery
is refused by the addressee upon presentation.
13.5 Assignment. This Agreement shall not be assignable by
the Optionors, the LLC or the Company without prior written consent of the
Purchaser. This Agreement shall be assignable by the Purchaser to a
wholly-owned subsidiary of the Purchaser or to any other person who is able to
demonstrate its financial and other qualifications to perform the Purchaser's
obligations hereunder.
13.6 Amendment. No amendment, modification or discharge of
this Agreement, and no waiver hereunder, shall be valid or binding unless set
forth in writing and duly executed by the party against whom enforcement of the
amendment, modification, discharge or waiver is sought.
13.7 Headings. Article and section headings contained in this
Agreement are inserted for convenience of reference only, shall not be deemed
to be a part of this Agreement for any purpose, and shall not in any way define
or affect the meaning, construction or scope of any of the provisions hereof.
13.8 Binding Effect. Subject to any provision hereof
restricting assignment, this Agreement shall be binding upon and shall inure to
the benefit of the parties hereto and their respective successors and permitted
assigns.
13.9 Governing Law. This Agreement, the rights and
obligations of the parties hereto, and any claims or disputes relating
thereto, shall be governed by and construed in accordance with the laws of the
State of Florida (excluding the choice-of-law rules thereof), and exclusive
venue and jurisdiction shall be in the state or federal district court for the
district including Palm Beach, Florida.
13.10 Execution in Counterparts. This Agreement may be
executed in two or more counterparts, none of which need contain the signatures
of all parties hereto and each of which shall be deemed an original.
13.11 Survival of Representations. The representations,
warranties, covenants and agreements made by the parties in this Agreement and
in any document or instrument delivered in connection herewith or the
transaction contemplated hereby, shall survive without limitation except as
imposed by law.
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13.12 Attorneys' Fees. If any litigation should arise among
the parties in connection with the transactions contemplated by this Agreement,
the prevailing party shall be entitled to recover reasonable attorneys' fees in
addition to all other damages and remedies.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, each of the undersigned has duly executed this
Agreement, or has caused this Agreement to be duly executed on its behalf, on
the day and year first hereinabove set forth.
LLC:
WITNESS: ROBERTS BROADCASTING OF SALT LAKE
CITY, L.L.C.
/s/ ?
By: /s/ Michael V. Roberts
------------------- ---------------------------
Name: Michael V. Roberts
Title: Member
COMPANY:
WITNESS: ROBERTS BROADCASTING COMPANY OF UTAH
/s/ ?
By: /s/ Michael V. Roberts
------------------- ---------------------------
Name: Michael V. Roberts
Title: Secretary
WITNESS: OPTIONORS:
/s/ ? /s/ Michael Roberts
------------------- ---------------------------------
MICHAEL ROBERTS
WITNESS:
/s/ ? /s/ Steven Roberts
------------------- ---------------------------------
STEVEN ROBERTS
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PURCHASER:
WITNESS: PAXSON COMMUNICATIONS OF
SALT LAKE CITY-16, INC.
___________________________ By: /s/ William L. Watson
---------------------
Name: William L. Watson
Title: Secretary
Dates Referenced Herein
| Referenced-On Page |
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This ‘10-Q’ Filing | | Date | | First | | Last | | | Other Filings |
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| | |
Filed on: | | 8/13/96 | | | | | | | None on these Dates |
| | 8/5/96 | | 1 | | 2 |
For Period End: | | 6/30/96 |
| | 4/19/96 | | 2 |
| List all Filings |
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