EXHIBIT 10.22
INDEMNIFICATION AGREEMENT
This Indemnification Agreement is entered into as of this 22nd day of
December, 1995 ("Agreement") by and between Fox Broadcasting Company ("FBC") and
Fox Children's Network, Inc. ("FCN").
Whereas, FBC is party to a number of affiliation agreements with United
States television stations pursuant to which, inter alia, FBC has agreed to
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provide such stations with, and such stations have agreed to air, certain
programming; for purposes of this Agreement, such affiliation agreements
(including, without limitation, those heretofore and those hereafter entered
into by FBC) shall be referred to as the "Station Affiliation Agreements";
Whereas, in connection with certain of the Station Affiliation Agreements
the programming that FBC is providing to the applicable stations includes
programming produced by or for or otherwise licensed by FCN (collectively, "FCN
Programming"); and
WHEREAS, the parties hereto desire to enter into this Agreement in order to
evidence their agreement to cross-indemnify one another in connection with third
party claims, if any, arising under the Station Affiliation Agreements;
NOW THEREFORE, in consideration of the mutual covenants and agreements set
forth in this Agreement and for other good and valuable consideration (the
receipt and sufficiency of which is hereby acknowledged by each of the parties
hereto), FBC and FCN hereby agree as follows:
I. INDEMNIFICATION:
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A. FBC INDEMNIFICATION OF FCN: FBC shall indemnify and hold harmless FCN
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(and its respective directors, officers, employees, agents, successors, assigns
and licensees) (collectively, the "FCN Indemnified Parties") from and against
all loss, cost, liabilities and expenses (including, without limitation,
reasonable attorneys' fees, court costs and any judgment and settlement
payments) or claims suffered by, incurred by or imposed upon the FCN Indemnified
Parties by reason of any third party claim or action asserted under or pursuant
to any Station Affiliation Agreement (other than a third party claim which is
based primarily upon the acts or omissions of FCN and/or any FCN Programming
and/or any advertising or promotional materials created by FCN).
B. FCN INDEMNIFICATION OF FBC: FCN shall indemnify and hold harmless FBC
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(and its directors, officers, employees, agents, successors, assigns and
licensees) (collectively, the "FBC
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Indemnified Parties") from and against all loss, cost, liabilities and expenses
(including, without limitation, reasonable attorneys' fees, court costs and any
judgment and settlement payments) or claims suffered by, incurred by or imposed
upon the FBC Indemnified Parties by reason of any third party claim or action
asserted under or pursuant to any Station Affiliation Agreement, the basis of
which arises primarily from the acts or omissions of FCN and/or any FCN
Programming and/or any advertising or promotional materials created by FCN.
C. DEFENSE: If any of the indemnified parties is made or threatened to be
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made a defendant in or party to any action or proceeding, judicial or
administrative, instituted by any third party for the liability under which or
the costs or expenses of which any of the indemnified parties is entitled to be
indemnified pursuant to this Paragraph I (any such third party action or
proceeding being referred to as an "Indemnification Claim"), the indemnified
party or parties shall give prompt notice thereof to the indemnifying party;
provided that the failure to give such notice shall not affect the indemnified
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party or parties' ability to seek indemnification hereunder unless such failure
has materially and adversely affected the indemnifying party or parties' ability
to prosecute successfully an Indemnification Claim. Each indemnified party
shall permit the indemnifying party, at its own expense, to assume the defense
of any such claim or any litigation to which this Paragraph 1 may be applicable,
by counsel reasonably satisfactory to the indemnified party or parties;
provided, that the indemnified party or parties shall be entitled at any time,
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at its or their own cost and expense (which expense shall not be recoverable
from the indemnifying party unless the indemnifying party is not adequately
representing or, because of a conflict of interest, may not adequately
represent, the indemnified party or parties' interests), to participate in such
claim, action or proceeding and to be represented by attorneys of its or their
own choosing. If the indemnified party or parties elects to participate in such
defense, such party or parties will cooperate with the indemnifying party in the
conduct of such defense. The indemnified party or parties may not concede,
settle or compromise any Indemnification Claim without the consent of the
indemnifying party. The indemnifying party, in the defense of any such claim or
litigation, shall not, except with the approval of each indemnified party,
consent to entry of any judgment or enter into any settlement which does not
include as an unconditional term thereof the giving by the claimant or plaintiff
to such indemnified party or parties of a full and complete release from all
liability in respect to such claim or litigation.
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II. MISCELLANEOUS:
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A. GOVERNING LAW: THE TERMS OF THIS AGREEMENT SHALL BE GOVERNED BY AND
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CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA APPLICABLE TO
CONTRACTS MADE WITHIN, AND TO BE PERFORMED WITHIN, SUCH STATE, EXCLUDING CHOICE
OF LAW PRINCIPLES OF SUCH STATE THAT WOULD REQUIRE THE APPLICATION OF THE LAWS
OF A JURISDICTION OTHER THAN SUCH STATE.
B. NO ADVERSE CONSTRUCTION: The rule that a contract is to be construed
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against the party drafting the contract is hereby waived, and shall have no
applicability in construing this Agreement or the terms of this Agreement.
C. COUNTERPARTS: This Agreement may be executed in one or more
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counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument. Each counterpart may
consist of a number of copies hereof, each signed by less than all, but together
signed by all, of the parties hereto.
D. AMENDMENTS AND WAIVERS: Neither this Agreement nor any term hereof may
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be changed, waived, discharged or terminated orally or in writing, except that
any term of this Agreement may be amended and the observance of any such term
may be waived (either generally or in a particular instance and either
retroactively or prospectively) with (but only with) the written consent of all
of the parties hereto; provided, however, that no such amendment or waiver shall
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extend to or affect any obligation not expressly waived or impair any right
consequent therein. No delay or omission to exercise any right, power or remedy
accruing to any party hereto shall impair any such right, power or remedy of
such party nor be construed to be a waiver of any such right, power or remedy
nor constitute any course of dealing or performance hereunder.
E. CONSENT TO JURISDICTION; FORUM SELECTION: Any actions, suits or
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proceedings instituted in connection with this Agreement or the performance by
the parties of their obligations hereunder shall be instituted and maintained
exclusively in the Superior Court for the State of California, County of Los
Angeles or in the United States District Court for the Central District of
California. By execution and delivery hereof, each party hereto hereby
consents, for itself and in respect of its property, to the jurisdiction of the
aforesaid courts solely for the purpose of adjudicating its rights or
obligations under, or any disputes involving, this Agreement or any document
related hereto. Each party hereto hereby irrevocably waives, to the extent
permitted by applicable law, any objection, including, without limitation, any
objection that the other corporate party or parties lack the
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capacity to ▇▇▇ or defend based upon its or their lack of a certificate of
qualification to conduct intrastate business in California, and any objection to
the laying of venue or based on the grounds of forum non conveniens, which it
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may now or hereafter have to the bringing of any action or proceeding in such
jurisdiction in respect of this Agreement or any document related
hereto.
F. NOTICE: Any notice or demand which either FCN or FBC is required, or
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may desire, to give to the other shall be in writing and shall be given by
addressing the same to the other at the address hereinafter set forth, or at
such other address as may be designated in writing by any such party by notice
given to the other in the manner prescribed in this Paragraph II.F and shall be
deemed given by being so addressed and (i) delivered personally, (ii) deposited
postage prepaid in the United States mail, (iii) delivered to a telegraph or
cable company toll prepaid or (iv) sent by telecopy (or telefax), and the date
of said personal delivery, deposit, telegraphing or the sending of such telecopy
shall be the date of the giving of such notice; provided, however, that any
notice alleging a default must be given by the means set forth in (i), (iii) or
(iv) above. Any notice or demand to FCN shall be addressed as follows:
Fox Children's Network, Inc.
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Any notice or demand to FBC shall be addressed as follows:
Fox Broadcasting Company
▇▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
SVP Legal Affairs
Fox Television Group
Attention: ▇▇▇ ▇▇▇▇▇▇▇▇▇
G. SEVERABILITY: If any provision of this Agreement shall, for any reason,
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be held to be invalid, illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect any other provision of this
Agreement, but this Agreement shall be construed as if such invalid, illegal or
unenforceable provision had never been contained herein. If, moreover, any
restriction or other provision of this Agreement shall for any reason be held to
be too broad as to duration, geographical scope, activity or subject, it shall
be construed by limiting and reducing such provision or restriction so as to be
enforceable to the extent compatible with applicable law, the parties hereby
agreeing that said restrictions and other provisions
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of this Agreement are fair and reasonable as at the date hereof. The parties
shall endeavor in good faith negotiations to replace the invalid, illegal or
unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the invalid, illegal or unenforceable
provisions.
H. NO THIRD PARTY BENEFICIARIES: Except as expressly otherwise provided to
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the contrary in Paragraph 1 for the benefit of the FCN Indemnified Parties and
the FBC Indemnified Parties, as applicable, this Agreement is not for the
benefit of any third party and shall not be deemed to give any right or remedy
to any such third party whether referred to herein or not.
I. FURTHER ASSURANCES: Each party to this Agreement agrees to execute,
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acknowledge, deliver, file and record such further certificates, amendments,
instruments, agreements and documents, and to do all such other acts and things,
as may be required by Law or as may reasonably be necessary or advisable to
carry out the intent and purposes of this Agreement.
J. ENTIRE AGREEMENT: This Agreement contains the entire understanding of
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the parties, and there are no further or other agreements or understandings,
written or oral, in effect between the parties relating to the subject matter
hereof unless expressly referred to herein. No party to this Agreement makes any
representation or warranty except as expressly set forth herein.
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IN WITNESS WHEREOF, FCN and FBC have executed this Agreement as of the date
first above written.
FOX CHILDREN'S NETWORK, INC.
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇▇▇
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Its: Senior Vice President
FOX BROADCASTING COMPANY
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇▇▇
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Its: Senior Vice President
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