Exhibit 10.9


 


TIME
BROKERAGE AGREEMENT


 


By and Between


 


Atlantic Media
Group, Inc.


 


and


 


Vision
Communications, Inc.


 


April 28, 1994


 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  TABLE OF
  DEFINITIONS

  	
   

  	
  iv

  
	
   

  	
   

  	
   

  
	
  1.

  	
   

  	
  Overall Purpose
  and Term; Renewal Option

  	
   

  	
  3

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2.

  	
   

  	
  Construction and
  Lease of Facilities

  	
   

  	
  3

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  3.

  	
   

  	
  Facilities

  	
   

  	
  4

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  4.

  	
   

  	
  Payment

  	
   

  	
  4

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  5.

  	
   

  	
  Responsibilities

  	
   

  	
  6

  
	
   

  	
   

  	
  A.

  	
   

  	
  Broker’s
  Responsibilities

  	
   

  	
  6

  
	
   

  	
   

  	
  B.

  	
   

  	
  Atlantic’s
  Responsibilities

  	
   

  	
  7

  
	
   

  	
   

  	
  C.

  	
   

  	
  Additional
  Responsibilities

  	
   

  	
  7

  
	
   

  	
   

  	
  D.

  	
   

  	
  Renewal, Modification
  and Cancellation of Contracts

  	
   

  	
  8

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  6.

  	
   

  	
  Revenues and
  Deposits

  	
   

  	
  8

  
	
   

  	
   

  	
  A.

  	
   

  	
  Revenues from
  Post-Commencement Date Broadcast Time Sales and Uses of Station’s
  Studio/Production Facilities

  	
   

  	
  8

  
	
   

  	
   

  	
  B.

  	
   

  	
  Bank Accounts
  for Revenues from Broker’s Activities/ Payments By Broker from Such Revenues

  	
   

  	
  9

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  7.

  	
   

  	
  Station
  Facilities

  	
   

  	
  9

  
	
   

  	
   

  	
  A.

  	
   

  	
  Operation of
  Station

  	
   

  	
  9

  
	
   

  	
   

  	
  B.

  	
   

  	
  Interruption of
  Normal Operations

  	
   

  	
  10

  
	
   

  	
   

  	
  C.

  	
   

  	
  Studio Location

  	
   

  	
  10

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  8.

  	
   

  	
  Handling of
  Station Communications

  	
   

  	
  11

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  9.

  	
   

  	
  Atlantic’s
  Compliance With FCC Rules and Policies

  	
   

  	
  11

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  10.

  	
   

  	
  Programming and
  the Public Interest

  	
   

  	
  11

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  11.

  	
   

  	
  Special Programs

  	
   

  	
  14

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  12.

  	
   

  	
  Station
  Identification

  	
   

  	
  14

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  13.

  	
   

  	
  Political
  Advertising

  	
   

  	
  15

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  14.

  	
   

  	
  Children’s
  Programming

  	
   

  	
  15

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  15.

  	
   

  	
  Atlantic’s
  Responsibility For Compliance with FCC Technical Rules

  	
   

  	
  17

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  16.

  	
   

  	
  Force Majeure

  	
   

  	
  17

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  17.

  	
   

  	
  Trade Secrets
  and Proprietary Information

  	
   

  	
  18

  
	
   

  	
   

  	
   

  	
   

  	
   

  



 

















 


	
  18.

  	
   

  	
  Payola and
  Conflicts of Interest

  	
   

  	
  19

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  19.

  	
   

  	
  Broker’s
  Compliance with Law

  	
   

  	
  19

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  20.

  	
   

  	
  No Sub-Brokering

  	
   

  	
  20

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  21.

  	
   

  	
  Indemnification

  	
   

  	
  20

  
	
   

  	
   

  	
  A.

  	
   

  	
  Broker’s
  Indemnification of Atlantic

  	
   

  	
  20

  
	
   

  	
   

  	
  B.

  	
   

  	
  Atlantic’s
  Indemnification of Broker

  	
   

  	
  21

  
	
   

  	
   

  	
  C.

  	
   

  	
  Procedure for
  Indemnification

  	
   

  	
  21

  
	
   

  	
   

  	
  D.

  	
   

  	
  Insurance

  	
   

  	
  24

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  22.

  	
   

  	
  Atlantic’s Events
  of Default

  	
   

  	
  24

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  23.

  	
   

  	
  Broker’s Events
  of Default

  	
   

  	
  27

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  24.

  	
   

  	
  Termination Upon
  Order of Governmental Authority

  	
   

  	
  31

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  25.

  	
   

  	
  Additional
  Representations, Warranties and Covenants

  	
   

  	
  32

  
	
   

  	
   

  	
  A.

  	
   

  	
  Mutual
  Additional Representations, Warranties and Covenants

  	
   

  	
  32

  
	
   

  	
   

  	
  B.

  	
   

  	
  Finders

  	
   

  	
  32

  
	
   

  	
   

  	
  C.

  	
   

  	
  Atlantic’s
  Additional Representations, Warranties and Covenants

  	
   

  	
  33

  
	
   

  	
   

  	
  D.

  	
   

  	
  Broker’s
  Additional Representations, Warranties and Covenants

  	
   

  	
  33

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  26.

  	
   

  	
  Sale of Station
  To Broker

  	
   

  	
  33

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  27.

  	
   

  	
  Procedure for
  Termination

  	
   

  	
  34

  
	
   

  	
   

  	
  A.

  	
   

  	
  Upon Broker’s
  Events of Default

  	
   

  	
  34

  
	
   

  	
   

  	
  B.

  	
   

  	
  Upon Broker’s
  Failure to Enter Into or Maintain Fox Affiliation Agreement

  	
   

  	
  34

  
	
   

  	
   

  	
  C.

  	
   

  	
  Upon Certain
  Atlantic’s Events of Default

  	
   

  	
  35

  
	
   

  	
   

  	
  D.

  	
   

  	
  Upon Government
  Termination

  	
   

  	
  35

  
	
   

  	
   

  	
  E.

  	
   

  	
  Upon Force
  Majeure

  	
   

  	
  36

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  28.

  	
   

  	
  Notices

  	
   

  	
  36

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  29.

  	
   

  	
  Modification and
  Waiver

  	
   

  	
  37

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  30.

  	
   

  	
  Construction

  	
   

  	
  37

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  31.

  	
   

  	
  Headings

  	
   

  	
  37

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  32.

  	
   

  	
  Assignment

  	
   

  	
  37

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  33.

  	
   

  	
  Counterparts

  	
   

  	
  38

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  34.

  	
   

  	
  Entire Agreement

  	
   

  	
  38

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  35.

  	
   

  	
  No Partnership
  or Joint Venture Created

  	
   

  	
  38

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  36.

  	
   

  	
  Severability

  	
   

  	
  38

  



 


ii

















 


	
  37.

  	
   

  	
  Legal Effect

  	
   

  	
  39

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  38.

  	
   

  	
  No Party Deemed
  Drafter

  	
   

  	
  39

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  39.

  	
   

  	
  Arbitration

  	
   

  	
  39

  
	
   

  	
   

  	
  A.

  	
  Generally

  	
   

  	
  39

  
	
   

  	
   

  	
  B.

  	
  Notice of
  Arbitration

  	
   

  	
  39

  
	
   

  	
   

  	
  C.

  	
  Selection of Arbitrator

  	
   

  	
  40

  
	
   

  	
   

  	
  D.

  	
  Conduct of
  Arbitration

  	
   

  	
  40

  
	
   

  	
   

  	
  E.

  	
  Enforcement

  	
   

  	
  41

  
	
   

  	
   

  	
  F.

  	
  Expenses

  	
   

  	
  41

  



 


iii

















 


TABLE OF
DEFINITIONS


 


	
  Term

  	
   

  	
  Page Defined

  
	
   

  	
   

  	
   

  
	
  AAA Rules

  	
   

  	
  39

  
	
  Additional Local Programming

  	
   

  	
  13

  
	
  Additional Syndicated Programming

  	
   

  	
  12

  
	
  Arbitration Notice

  	
   

  	
  40

  
	
  Atlantic

  	
   

  	
  1

  
	
  Atlantic’s Event of Default

  	
   

  	
  24

  
	
  Atlantic’s Termination Notice

  	
   

  	
  34

  
	
  ATV

  	
   

  	
  33

  
	
  Broker

  	
   

  	
  1

  
	
  Broker’s Event of Default

  	
   

  	
  27

  
	
  Broker’s Termination Notice

  	
   

  	
  36

  
	
  Claimant

  	
   

  	
  21

  
	
  Commencement Date

  	
   

  	
  3

  
	
  Communications Act

  	
   

  	
  1

  
	
  Consideration

  	
   

  	
  19

  
	
  Disputes

  	
   

  	
  39

  
	
  Disputing Person

  	
   

  	
  39

  
	
  FCC

  	
   

  	
  1

  
	
  Final Determination

  	
   

  	
  40

  
	
  Governmental Termination Event

  	
   

  	
  31

  
	
  HDTV

  	
   

  	
  33

  
	
  Indemnifying Party

  	
   

  	
  21

  
	
  Losses

  	
   

  	
  20

  
	
  Mandatory Cessation Date

  	
   

  	
  35

  
	
  Option Agreement

  	
   

  	
  2

  



 


iv

















 


	
  Term

  	
   

  	
  Page
  Defined

  
	
   

  	
   

  	
   

  
	
  Station

  	
   

  	
  1

  
	
  Station Bank Account(s)

  	
   

  	
  9

  



 


v

















 


TIME BROKERAGE AGREEMENT


 


THIS TIME BROKERAGE
AGREEMENT is made this 28th of April, 1994, by and between Atlantic Media
Group, Inc., a South Carolina corporation (“Atlantic”),  and Vision Communications, Inc., a
Delaware corporation (“Broker”).


 


WHEREAS, Atlantic is
authorized to construct and operate a new television broadcast station on
Channel 21 at Florence, South Carolina, with the call sign WFIL (the “Station”), pursuant to authorization
issued by the Federal Communications Commission (“FCC”); and


 


WHEREAS, Broker has
entered into an agreement to purchase the assets of broadcast station WPDE-TV,
Florence, South Carolina; and


 


WHEREAS, the parties
hereto have carefully considered the Communications Act of 1934, as amended
(the “Communications Act”)  and the FCC’s time brokerage policies
adopted pursuant thereto, and intend that this Agreement in all respects comply
with such Communications Act and policies; and


 


WHEREAS, the Florence,
South Carolina television and advertising markets are highly competitive and
will remain so, unaffected by the transactions contemplated hereunder; and


 


WHEREAS, Atlantic desires
to enter into this Agreement to facilitate the construction of the Station and
to provide a regular source of diverse programming and income to sustain the
operations of the Station; and


 


WHEREAS, Broker desires
to provide an over-the-air program service to the Florence, South Carolina area
using the facilities of the Station; and


 

















 


WHEREAS, Atlantic agrees
to provide time exclusively to Broker on terms and conditions that conform to
policies of the Station and the FCC for time brokerage arrangements and that
are as set forth herein; and


 


WHEREAS, Broker agrees to
utilize the Station’s transmitting facilities solely to broadcast programming
of Broker’s selection that conforms with the policies of Atlantic and with all
rules, regulations and policies of the FCC, and as set forth herein; and


 


WHEREAS, Atlantic
maintains, and shall continue to maintain during the term of this Agreement,
ultimate control over the Station’s facilities including control over the
Station’s finances, personnel and programming; and


 


WHEREAS,
contemporaneously herewith, the parties hereto have entered into: (1) an Option
Agreement (the “Option Agreement”)
granting to Broker or Broker’s assignee an option to purchase substantially all
of the assets used in connection with the operation of the Station, and to
obtain the assignment of the Station’s FCC licenses to Broker or Broker’s
assignee (and capitalized terms herein which are not otherwise defined herein
shall have the same meanings as stated in the Option Agreement) and (2) a
Transmission Facilities and Studio Construction and Lease Agreement;


 


NOW, THEREFORE, in
consideration of the foregoing, and of the mutual promises set forth herein,
and for other good and valuable consideration, the sufficiency of which
Atlantic and Broker hereby acknowledge, Atlantic and Broker, intending to be
bound legally, hereby agree as follows:


 


2

















 


1.         Overall Purpose and
Term; Renewal Option.  In accordance
with the terms and limitations set forth herein: (a) Broker shall construct at
its own expense transmission, including microwave, and studio facilities for
the Station and shall program the Station, promote the Station and its
programming, sell commercial and other time on the Station and bill for and
collect the payments for time sales on the Station; and (b) Atlantic will lease
such transmission and studio facilities from Broker, maintain the Station’s
transmitting and microwave relay facilities, and make said facilities available
to Broker. Subject to the terms of this Agreement, each party hereby warrants
and covenants that it will fulfill said obligations, and its other obligations
specified herein, to the fullest extent permitted by law (including the FCC’s
rules and policies) in a diligent, reasonable manner.


 


Broker shall begin its
time brokerage activities with regard to the Station pursuant to this Agreement
upon the commencement of Station program tests, and said date shall be referred
to herein as the “Commencement Date.”
The term of this Agreement shall be a period of five (5) years from the date on
which Broker acquires the assets of broadcast station WPDE-TV, Florence, South
Carolina, or from April 8, 1994, whichever occurs first. Broker also shall have
the option to extend this agreement for one successive five (5) year term, on
the same terms and conditions as this Agreement, by giving notice of its intent
to exercise such option not less than six months prior to the expiration of the
initial term.


 


2.         Construction and Lease
of Facilities.  Broker shall
construct at its own expense transmission facilities for the Station (including
antenna transmission line, transmitter, and


 


3

















 


studio-transmitter microwave link equipment) pursuant
to agreed on specifications and in accordance with the terms of the FCC
construction permit for the Station. Broker also will provide studio facilities
for the Station, including studio-transmitter microwave link equipment in full
compliance with the FCC’s main studio rules, regulations and policies. Atlantic
shall lease such facilities from Broker in accordance with the Transmission
Facilities and Studio Construction and Lease Agreement of even date herewith.


 


3.         Facilities.  Atlantic shall make the Station’s television
broadcasting transmission facilities available to Broker for broadcast on the
Station of programs selected by Broker, and advertising/commercial
announcements sold by Broker, which may originate from Station’s studios,
Broker’s studios or from other sources contracted for by Broker. In addition,
Atlantic will make available to Broker, at no cost, during the term of this
Agreement, exclusive use (other than Atlantic’s own use for the Station
pursuant to this Agreement) of all of Atlantic’s studio and production facilities,
for Broker’s use in its activities with regard to the Station pursuant to this
Agreement and for use by Station WPDE-TV. 
Atlantic may use the Station’s studio and production facilities, during
the term of this Agreement, for Station public affairs programs and public
service announcements, consistent with paragraphs 9 and 10 below.


 


4.         Payment.  As consideration for Atlantic’s permitting
Broker to air its programming on the Station pursuant to this Agreement, Broker
shall pay Atlantic as follows:


 


4

















 


A.        Five thousand dollars
($5,000)  per month for the period
beginning April 1, 1994 through and including the month during which Broker
begins providing programming to the Station pursuant to this Agreement.


 


B.        Beginning on the earlier
of September 1, 1994 or the Commencement Date, Broker shall pay Atlantic the
sum of ten thousand dollars ($10,000) on the first day of each month. Payments
shall continue at this amount for twelve consecutive months.


 


C.        Beginning on the
Commencement Date, in addition to the ten thousand dollars ($10,000) monthly
payments referred to in paragraph 4.B. above, an amount equal to Atlantic's
operating expenses (including Atlantic's rent pursuant to the Transmission
Facilities and Studio Construction and Lease Agreement), as determined in
advance by Atlantic and Broker.


 


D.        Beginning with the first
anniversary of Broker’s monthly payment obligations pursuant to Paragraph 4.B,
and on every anniversary thereafter, the parties shall recalculate Broker’s
payment obligation for the forthcoming twelve-month period. The new monthly
payment amount shall be equal to the sum of the following:


 


1.         Base Amount.  $10,000 per month increased five (5)% percent
on the first anniversary, and an additional five (5)% percent on each
subsequent anniversary.


 


2.         Expenses.  Atlantic’s estimated monthly cost of
operating the Station for the forthcoming year, including utilities associated
with the Station’s transmitting facilities (pursuant to the Transmission
Facilities and Studio Lease Agreement), rent to


 


5

















 


Broker for the Station’s transmitting and studio
facilities, and salaries for the Station’s General Manager and Chief Operator,
all based on an operating budget jointly agreed to by Atlantic and Broker.


 


5.         Responsibilities.


 


A.       Broker’s
Responsibilities.


 


i.          Broker
shall employ and be responsible for paying the salaries, commissions, payroll
taxes, insurance and all other related costs for all personnel (other than
Atlantic’s employees) involved in the acquisition, compilation, production,
broadcast and sale of the Station’s programming and commercial messages,
including but not limited to administrative, internal and external sales,
traffic, billing, collections, promotion, production, outside talent and master
control personnel (but excluding such expenses as incurred by Atlantic for
Station programming originated by Atlantic).


 


ii.         Broker
also shall be responsible for paying all promotional expenses in connection
with the Station’s programming (but excluding such expenses as incurred by
Atlantic for Station programming originated by Atlantic).


 


iii.        Broker’s
personnel shall operate and maintain Atlantic’s studio, production and master
control facilities, including maintaining the Station’s program and operations
logs, under the supervision


 


6

















 


of the Station’s General Manager and Chief Operator.


 


iv.       Broker
shall be responsible for its own telephone systems and local and long-distance
telephone service and fax costs.


 


B.        Atlantic’s
Responsibilities.


 


Atlantic shall be
responsible for and shall pay all of Atlantic own expenses of operating and
maintaining the Station, including, but not limited to:


 


i.          All
lease obligations in connection with property leased to Atlantic;


 


ii.         Utility
bills for utility services at both the Station’s main studio/office location
and its tower/transmitter site;


 


iii.        Telephone
system maintenance costs and local exchange and long distance telephone service
costs for Atlantic’s telephone system and usage at the Station’s main
studio/office location(s) and at the Station’s tower/transmitter site;


 


iv.       Salaries,
payroll taxes, insurance and other related costs of all personnel employed by
Atlantic for the Station;


 


v.        Costs
of engineering and technical personnel necessary to assure compliance with the
FCC’s rules and policies and maintenance and repair of the Station’s
transmitting and microwave relay facilities; and


 


7

















 


C.        Additional
Responsibilities.


 


i.          Broker
shall be fully responsible for the supervision and direction of its employees,
and Atlantic shall be fully responsible for the supervision and direction of
its employees.


 


ii.         Broker
and Atlantic shall pay their respective expenses with regard to the Station and
in no event will any such payable remain unpaid for more than ninety (90) days
unless such payable is being disputed in good faith.


 


iii.        Except
as otherwise mutually agreed, as between Atlantic and Broker, Atlantic is and
will continue to be responsible for all obligations of Atlantic pursuant to any
contracts of employment of Station employees and any contracts with labor
unions to which Atlantic is a party.


 


D.        Renewal,
Modification and Cancellation of Contracts.


 


Atlantic will comply with
all reasonable requests of Broker with respect to the renewal and cancellation
of contracts (in accordance with their terms) or the entry into or the
modification of contracts which affect Broker’s time brokerage activities with
regard to the Station pursuant to this Agreement.


 


6.         Revenues
and Deposits.


 


A.        Revenues from
Post-Commencement Date Broadcast Time Sales and Uses of Station’s
Studio/Production Facilities.  Broker
shall have the exclusive right to sell, either directly or indirectly through
sales representatives, and shall be solely responsible for billing and
collecting payments for, all programs


 


8

















 


and commercials aired on the Station, and production
fees for uses of the Station’s studio/production facilities, on or after the
Commencement Date until the termination of this Agreement. Broker may contract;
and bill in its own name for the sale of broadcast time on the Station and uses
of the Station’s studio/production facilities on and after Commencement Date
until the termination of this Agreement. Broker also shall have the right to
negotiate for, subject to Atlantic’s approval, and to receive, for deposit
pursuant to sub-paragraph 6.B. below, all compensation due to the Station from
cable television systems pursuant to the “retransmission consent” provisions of
the Cable Television Consumer Protection and Competition Act of 1992.


 


B.        Bank Accounts for
Revenues from Broker’s Activities/Payments By Broker from Such Revenues.  Broker shall deposit all sums it receives
pursuant to sub-paragraph 6.A. above into a bank account (or accounts)
established by Broker, in Broker’s name, exclusively for this purpose (the “Station Bank Account(s)”), and the funds
in such Station Bank Account(s) shall be the property of Broker. Broker shall
be authorized to endorse payments received in names other than Broker’s (e.g., “WFIL”
or “WFIL-TV”) in order to deposit such payments into the Station Bank Account(s).


 


7.        Station
Facilities.


 


A.        Operation of Station.  Atlantic represents that, upon completion of
Station construction, the Station will be operated by Atlantic throughout the
term of this Agreement, in all material respects in accordance with the authorizations
issued to it by the FCC and all applicable FCC rules, regulations and policies.
As of the Commencement Date, Atlantic shall make the


 


9

















 


Station available to Broker for program transmissions,
at least at ninety five percent (95%) of the Station’s currently authorized
effective radiated power, for one hundred sixty-eight (168) hours per week,
Sunday through Saturday, except for downtime occasioned by required maintenance
and other interruptions contemplated by sub-paragraph 7.B. below and paragraph
16 of this Agreement. Any routine or non-emergency maintenance work affecting
operation of the Station at full power shall be scheduled with at least
forty-eight (48) hours prior notice to Broker, and shall not take place during
a rating period, and to the extent possible Atlantic shall cause such
maintenance work to be performed between the hours of 1:00 AM and 6:00 AM
Florence local time.


 


B.        Interruption of Normal
Operations.  If the Station suffers
any loss or damage of any nature to its transmission or studio facilities which
results in the interruption of service or the inability of the Station to
operate with its maximum authorized facilities, Atlantic shall immediately
notify Broker of such loss or damage and Atlantic shall undertake, subject to
Broker’s prior consent, such consent not to be unreasonably withheld, such
repairs as are necessary to restore full-time operation of the Station with its
maximum authorized facilities as expeditiously as possible following the
occurrence of any such loss or damage. If Atlantic is unable to or does not
commence such repairs as soon as possible, Broker may do so on Atlantic’s
behalf, and may pay for such repairs in accordance with the procedures
specified in sub-paragraph 5.D. above.


 


C.        Studio Location.  Atlantic shall maintain a main studio
facility, within the Station’s principal community contour,


 


10

















 


and shall staff the Station consistent with the FCC’s
rules and policies.


 


8.         Handling of Station
Communications.  Atlantic shall
receive and handle mail, faxes, telegraph messages and telephone calls in
connection with the Atlantic’s operation of the Station.


 


9.         Atlantic’s Compliance
With FCC Rules and Policies.  Atlantic
shall comply in all material respects with all FCC rules and policies
applicable to its operation of the Station. Without limiting the foregoing
sentence, Atlantic’s obligations shall include ascertaining the needs and
interests of the Station’s service area, maintaining the Station’s political
broadcasting and public inspection files and the Station’s maintenance logs,
meeting equal employment opportunity requirements with regard to Atlantic’s
employees, preparing the Station’s quarterly issues/programs lists and making
all required FCC filings.


 


10.       Programming and the
Public Interest.  Throughout the term
of this Agreement, unless otherwise agreed to by the parties hereto, Broker
shall program the Station so as to maintain a general, advertiser-supported,
entertainment/sports format, with some mix permitted of home shopping,
religious, foreign language and infomercial programming. The Station shall not
become predominantly a home shopping, religious, foreign language and/or
infomercial station. The programming selected by Broker shall consist of such
materials as are determined by Broker to be appropriate and/or in the public
interest including, without limitation, public affairs programming, public
service announcements, entertainment, news, weather reports, sports,
promotional material, commercial material and advertising. Without


 


11

















 


limiting the foregoing sentence, Broker will program
at least a total of one and one-half hours per week of news, public affairs, or
other non-sports, non-entertainment programming, between the hours of 6:00 AM
and 12:00 Midnight. Generally, Broker will air over the Station an amount of
informational programming (which may be news, public affairs or other informational
programming, including PSAs) at least equal to the total amount of such
programming aired over Station WPDE-TV.


 


Following the
commencement of Broker programming on the Station, Broker’s management
personnel as designated by Broker will meet at least twice per month with
Atlantic’s Station Manager in order to help formalize Atlantic’s oversight over
Broker’s activities at the Station. At such meetings, Atlantic will provide
Broker with the results of Atlantic’s ongoing efforts to ascertain the
problems, needs and interests of the Station’s service area, so that the
programming and public service announcements selected and/or scheduled by
Broker will be responsive thereto. In the event Atlantic determines that
additional attention should be directed to particular community needs, Broker
will cooperate to assure that Station’s locally-produced programming serves
those needs. In the event Atlantic decides that additional local programming
must be aired over the Station in order to better serve viewers’ problems,
needs and interests, Broker will cooperate with Atlantic in producing up to one
hour weekly of such programming using the appropriate facilities of Station and
staff of Broker. If Atlantic acquires syndicated programming (“Additional Syndicated Programming”) or if
Atlantic uses the Station’s staff for the production of local programs in
addition to  the informational and


 


12

















 


public affairs programming described above in this
paragraph 10 (“Additional Local Programming”)
and in addition to the one hour per week specified in the immediately preceding
sentence, then all expenses for such additional programming (including fees to
Broker for use of Broker’s facilities, in accordance with a schedule adopted by
Broker) will be paid by Atlantic and will not be included in the calculation of
Broker payments due Atlantic under this Agreement. Such programs will be aired
at a mutually agreeable time between 6:00 AM and midnight.


 


Broker shall provide
Atlantic with all documents it receives which are required to be placed in the
Station’s political or public inspection files. Broker shall, upon reasonable
request by Atlantic, provide Atlantic with information with respect to programs
and public service announcements broadcast on the Station which are responsive
to the problems, needs and issues facing the residents of the Station’s service
area, and Broker’s programming for children, so as to assist Atlantic in the
preparation of required programming reports, and will assist Atlantic upon
request in compiling such other information which is reasonably necessary to
enable Atlantic to prepare other records and reports required by the FCC or
other government agencies.


 


Atlantic shall have the
full and unrestricted right to reject, delete and not broadcast any material
contained in any part of the programming selected and/or scheduled by Broker
which Atlantic in good faith determines is unsuitable for broadcast or the
broadcast of which Atlantic in good faith concludes would be contrary to law or
the public interest. Atlantic shall retain ultimate control over the Station’s
policies and standards, and, in that regard,


 


13

















 


shall adopt written standards, generally in accordance
with industry standards for commercial television broadcast stations, in
substantially the same form and substance as Exhibit C attached hereto, for the
acceptance of programming material and commercial announcements. Atlantic
retains the right to modify such standards to conform to general industry
standards or to meet specific FCC rules and policies and to take any other
actions necessary for compliance with federal, state and local laws, rules and
regulations. Broker hereby covenants, warrants and represents that with regard
to the Station it will, at all times during the term of this Agreement, comply
in all material respects with such standards for acceptance of programming
material and commercial announcements.


 


11.       Special Programs.  Atlantic reserves the right, in its
discretion, to preempt Broker’s programs to broadcast special programs on
occasion concerning issues or events of local, regional or national importance
in the event that Broker does not broadcast same on its own initiative;
however, in all such cases, Atlantic will use its best efforts to give Broker
reasonable notice of its intention to preempt programs scheduled by Broker.


 


12.       Station Identification.  Atlantic will be responsible for the proper
broadcast of FCC-required station identification announcements; however,
Broker, while conducting its activities with regard to the Station pursuant to
this Agreement, shall broadcast all required station identification
announcements with respect to the Station in full compliance with FCC rules and
policies.


 


14

















 


13.       Political Advertising.  Atlantic will be responsible for compliance
with the political broadcasting requirements of the Communications Act and the
FCC’s rules and policies promulgated thereunder. Broker, while conducting its
activities with regard to the Station pursuant to this Agreement, will comply
with said political broadcasting requirements, rules and policies. Broker
promptly shall supply to Atlantic such information as may be reasonably
necessary to permit Atlantic to comply with the lowest unit charge requirements
of Section 315 of the Communications Act. To the extent that Atlantic believes
necessary in Atlantic’s sole discretion, 
Broker  shall  release 
to  Atlantic  advertising availabilities and program time
as required by the FCC’s rules and policies to permit Atlantic to comply with
the reasonable access provisions of Section 312(a)(7) of the Communications Act
and the equal opportunities provision of Section 315 of the Communications Act
and the rules and policies of the FCC promulgated thereunder; provided,
however, that revenues realized by Atlantic as a result of any such release of
advertising and programming time shall promptly be remitted to Broker.


 


14.       Children’s Programming.  Atlantic will be responsible for insuring the
Station’s compliance with the Children’s Television Act of 1990 [47 U.S.C. §
303a and 303b], and the rules and policies of the FCC promulgated thereunder,
including ensuring that the Station complies with the commercial limits
established therein and serves the educational and informational needs of
children. Broker, while conducting its activities with regard to the Station
pursuant to this Agreement, will comply with said Children’s Television Act and
FCC rules and policies by presenting a


 


15

















 


reasonable amount of children’s programming, including
educational/informational programming, and by observing the limitations on
advertising. In connection therewith, Broker shall be responsible for preparing
all necessary reports and certifications and delivering same to Atlantic for
placement in the Station’s public inspection file. Upon delivery of such
reports and certifications, they shall be certified by Broker’s general manager
as true and correct in all material respects. Such reports and certifications
shall include, without limitation, the following: (a) a quarterly report on
children’s programming pursuant to Section 73.3526(a)(8)(iii) of the FCC’s
rules; and (b) a certificate with respect to compliance with advertising limits
in children’s programs pursuant to Section 73.3526(a)(8)(ii) of the FCC’s
rules. Such advertising certification shall be in the form of the certificate
attached hereto as Exhibit F. In completing each quarterly certificate in the
form attached hereto as Exhibit F, Broker shall list the titles of all children’s
programs carried in the past quarter in which the advertising limits apply,
both local and network, all program segments wherein the allowed commercial
limits were exceeded, and a separate memo explaining why any excesses occurred.
In carrying out its obligations with respect to children’s programming, Broker
shall further maintain records with respect to commercial matter in children’s
programming either in the form of logs of programs reflecting the commercial
time, tapes of the programs, lists of commercial minutes aired in identified
children’s programs, or appropriate certificates from networks and syndicators
with respect to compliance with the FCC’s requirements on commercial limits.


 


16

















 


15.       Atlantic’s
Responsibility For Compliance with FCC Technical Rules.  Atlantic shall retain, on a full time or part
time basis, a qualified Chief Engineer who shall be responsible for maintaining
the Station’s transmission facilities. Atlantic shall retain a Chief Operator,
as that term is defined by the rules and regulations of the FCC (who may also
hold the position of Chief Engineer), who shall be responsible for ensuring
compliance by the Station with the technical operating and reporting
requirements established by the FCC.


 


16.       Force Majeure.  Each party shall carry standard property and
casualty insurance for the property and equipment it owns. If any failure or
impairment of facilities or any delay or interruption in the broadcast of
programs, or failure at any time to furnish facilities, in whole or in part,
for broadcast, occurs due to causes beyond the control of Atlantic, then such failure,
impairment, delay or interruption, by itself, shall not constitute a breach of
or an event of default under this Agreement and Atlantic will not be liable to
Broker for any such failure, impairment, delay or interruption so long as (if
Atlantic elects to remedy such failure, impairment, delay or interruption)
Atlantic undertakes and continues reasonable efforts, subject to Broker’s
consent, such consent not to be unreasonably withheld, to remedy any such
failure, impairment, delay or interruption. Promptly thereafter, if it elects
to do so by written notice to Broker, Atlantic will obtain any applicable
insurance proceeds and apply such proceeds to the cost of remedying such
failure, impairment, delay or interruption; provided that, if Atlantic
determines that it will not do so, Atlantic will give Broker prompt written
notice


 


17

















 


of such determination. If Atlantic elects not to
remedy such failure, impairment, delay or interruption (or does not elect to do
so prior to the ninetieth day after such failure, impairment, delay or
interruption occurs), then during the six months thereafter Broker may elect to
obtain such insurance proceeds and effect such remedy by giving Atlantic
written notice to that effect. Whether Atlantic or Broker has elected to effect
such remedy, if the insurance proceeds are inadequate to pay the cost of such
remedy, Atlantic shall pay the difference.


 


17.       Trade Secrets and
Proprietary Information.  In the
event that: (a) any trade secrets or other proprietary information of Broker in
connection with this Agreement become known to Atlantic, and (b) such trade
secrets and/or proprietary information are not otherwise available in the
public domain or known publicly, Atlantic agrees to maintain the
confidentiality of such trade secrets and/or proprietary information and not to
use or disclose any such trade secrets and/or proprietary information without
the prior written consent of Broker (except as required by law, rule or
regulation, or by order of any government agency or court).


 


In the event that: (a)
any trade secrets or other proprietary information of Atlantic in connection
with this Agreement become known to Broker, and (b) such trade secrets and/or
proprietary information are not otherwise available in the public domain or
known publicly, Broker agrees to maintain the confidentiality of such trade
secrets and/or proprietary information and not to use or disclose any such
trade secrets and/or proprietary information without the prior written consent
of Atlantic (except as required


 


18

















 


by law, rule or regulation, or by order of any
government agency or court).


 


The provisions of this
paragraph 17 shall continue in effect for two (2) years after the termination
of this Agreement.


 


18.       Payola and Conflicts of
Interest.  Broker agrees not to, and
to use reasonable efforts to cause its employees who have the ability to cause
the broadcast of programs and/or commercial matter on Station not to, accept
any consideration, compensation or gift or gratuity of any kind whatsoever,
regardless of its value or form, including, but not limited to, a commission,
discount, bonus, material, supplies or other merchandise, services or labor
(collectively, “Consideration”),
whether or not pursuant to written contracts or agreements between Broker and
merchants or advertisers, in consideration for the broadcast of any matter on
the Station unless the payor is identified, in the broadcast for which
Consideration was provided, as having paid for or furnished such Consideration,
in accordance with Sections 317 and 507 of the Communications Act [47 U.S.C. §§
317 and 508] and the FCC’s rules and policies. Broker agrees to execute, and,
as a condition of each such employee’s employment, to cause each of Broker’s
employees to execute, at least once every calendar year, a payola/conflict of
interest affidavit in the form attached hereto as Exhibit D, and Broker agrees
to deliver the originals of all such affidavits to Atlantic as expeditiously as
possible following their execution.


 


19.       Broker’s Compliance with
Law.  Broker agrees that, throughout
the term of this Agreement, Broker will comply with all laws, rules,
regulations and policies applicable to the functions


 


19

















 


performed by it in connection with the Station,
including, but not limited to, meeting equal employment opportunity
requirements with respect to Broker’s employees performing duties in connection
with the Station.


 


20.       No Sub-Brokering.  Broker will not sell time on the Station to
other time brokers who in turn will sell programming time to others. However,
nothing in this paragraph or this Agreement shall be interpreted as prohibiting
Broker from arranging for the broadcast on the Station of barter programming,
as that term is commonly used in the television broadcast syndicated program
business.


 


21.       Indemnification.


 


A.        Broker’s
Indemnification of Atlantic.  Other
than with respect to matters described in paragraph 22 below, Broker will
indemnify and hold Atlantic and Atlantic’s employees, agents and contractors
harmless, including but not limited to reasonable attorney’s fees, from and
against all liability, claims, damages and causes of action (“Losses”) arising out of or resulting from
acts or omissions of Broker which constitute: (a) libel and slander to the
extent not covered by insurance maintained by Broker or Atlantic; (b) willful
infringement of trade marks, service marks or trade names to the extent not
covered by insurance maintained by Broker or Atlantic; (c) willful or repeated
violations of law, rules, regulations, or orders (including the FCC’s rules and
policies); (d) willful invasion of rights of privacy or willful infringement of
copyrights or other proprietary rights; or (e) breaches of this Agreement.
Broker’s obligation to indemnify and hold Atlantic and Atlantic’s employees,
agents and contractors


 


20

















 


harmless against the Losses specified above shall
survive any termination of this Agreement until the expiration of all
applicable statutes of limitation.


 


B.        Atlantic’s
Indemnification of Broker.  Other
than with respect to matters described in paragraph 23 below, Atlantic will
indemnify and hold Broker and Broker’s employees, agents and contractors
harmless, including but not limited to reasonable attorney’s fees, from and
against all Losses arising out of or resulting from acts or omissions of
Atlantic which constitute: (a) libel and slander to the extent not covered by
insurance maintained by Broker or Atlantic; (b) willful infringement of
trademarks, service marks or trade names to the extent not covered by insurance
maintained by Broker or Atlantic; (c) willful or repeated violations of law,
rules, regulations or orders; (d) willful invasion of rights of privacy or
willful infringement of copyrights and other proprietary rights; or (e)
breaches of this Agreement. Atlantic’s obligation to indemnify and hold Broker
and Broker’s employees, agents and contractors harmless against Losses
specified above shall survive any termination of this Agreement until the
expiration of all applicable statutes of limitation.


 


C.        Procedure for
Indemnification.  The procedure for
indemnification pursuant to sub-paragraphs 21.A. and 21.B. above will be as
follows:


 


i.          Notice.  The party claiming indemnification (the “Claimant”) will give reasonably prompt
notice to the party from whom indemnification is claimed (the “Indemnifying Party”) of any claim for
which indemnification is sought, whether between the parties or brought by a
third party, specifying (i) the factual


 


21

















 


basis of such claim (to the extent that it is then
known to the Indemnifying Party) and (ii) the amount of the claim (to the
extent that it is then known to the Indemnifying Party) . If such claim relates
to an action, suit or proceeding filed by a third party against the Claimant,
such notice will be given by the Claimant not later than the twentieth day
after the Claimant received written notice of such action, suit or proceeding; provided
that any failure to deliver or delay in delivering such notice on or prior to
such twentieth day will relieve the Indemnifying Party of its obligations to
the Claimant in respect of such claim only to the extent that the Indemnifying
Party is prejudiced by such failure or delay.


 


ii.         Investigation.  Following receipt of notice from the Claimant
of a claim for which indemnification is sought, the Indemnifying Party will
have twenty days (or such shorter period of time as is required to respond to
the subject litigation or proceeding) to make, at the Indemnifying Party’s
expense, such investigation of the claim as the Indemnifying Party deems
necessary or desirable. For the purposes of such investigation, the Claimant
agrees to make available to the Indemnifying Party, at the Indemnifying Party’s
expense, all information relied upon by the Claimant to substantiate such
claim.


 


iii.        Third-Party Claims.  With respect to any claim by a third party
pursuant to which such third party seeks only the recovery of an amount of
money and as to which a Claimant seeks indemnification under sub-paragraph 21.A
or 21.B. above, the Indemnifying Party will have the right (at any time after
the Indemnifying Party gives the Claimant written notice wherein the


 


22

















 


Indemnifying Party acknowledges that the Indemnifying
Party is obligated to indemnify the Claimant in respect of such claim pursuant
to sub-paragraph 21.A. or 21.B. above, as appropriate), at the Indemnifying
Party’s own expense, to participate in or assume control of the defense of such
claim with counsel reasonably satisfactory to the Claimant, and the Claimant
will use reasonable efforts to cooperate with the Indemnifying Party in such
defense. If the Indemnifying Party elects to assume control of the defense of
any third-party claim, the Claimant will have the right to participate in the
defense of such claim and retain separate co-counsel at its own expense; provided
that if the Indemnifying Party requests that the Claimant participate in such
defense or if the Claimant reasonably believes that a conflict of interest
exists between the Claimant and the Indemnifying Party, then the Indemnifying
Party will reimburse the Claimant for the reasonable expenses and fees of the
Claimant’s counsel. Without the Claimant’s consent, the Indemnifying Party will
not consent to an entry of judgment or settlement of such claim which does not
include a release of all liability of the Claimant. If the Indemnifying Party
does not elect to assume control or otherwise participate in the defense of any
third party claim, it will be bound by the results obtained by the Claimant
with respect to such claim.


 


iv.        Expedited Response.  If a claim, whether between the parties or by
a third party, requires immediate action, the parties will use reasonable
efforts to reach a decision with respect to such claim as expeditiously as
possible.


 


23














D.        Insurance.  Broker and Atlantic each shall maintain
broadcasters’ liability insurance policies covering libel, slander, invasion of
privacy and the like, general liability, blanket crime, property damage,
business interruption, automobile liability, and workers’ compensation
insurance in forms and amounts customary in the television broadcast industry,
and each of the parties hereto shall name the other as an additional insured
under such policies to the extent that their respective interests may appear and
shall provide for notice to the other party prior to cancellation thereof.
Prior to the Commencement Date, each party shall provide the other with
certificates evidencing such insurance, and shall further provide certificates
evidencing renewal thereof prior to the expiration of such policies.


 


22.       Atlantic’s Events of Default.  A “Atlantic’s Event of Default” will occur if:


 


(a)       Atlantic
fails to provide the use of the Station’s transmission facilities or a material
portion of the Station’s studio/production facilities to Broker in accordance
with paragraph 3 above for any period of five or more consecutive days, or for
any five or more days during any period of ten consecutive days;


 


(b)       A
failure or impairment of facilities or delay or interruption in the broadcast
of programs, or failure to furnish facilities for broadcast, described in
paragraph 16 above, occurs and (i) Atlantic gives Broker written notice to the
effect that Atlantic elects not to remedy such failure,


 


24

















 


impairment, delay or
interruption in accordance with paragraph 16 above, or (ii) such failure,
impairment, delay or interruption continues for ninety days and, prior to the
ninetieth day thereof, Atlantic does not give Broker written notice to the
effect that Atlantic elects to remedy such failure, impairment, delay or
interruption in accordance with paragraph 16 above;


 


(c)       Atlantic
fails to cure any other breach of this Agreement by Atlantic on or prior to the
ninetieth day after Atlantic receives a written request from Broker to cure
such default, if such default, if not cured, would have a materially adverse
effect on Broker’s activities with respect to the Station pursuant to this
Agreement (provided that, so long as Atlantic continues to use
reasonable efforts to cure such default, such failure will not constitute an
Atlantic’s Event of Default so long as the continuing existence of such default
will not have a materially adverse effect on Broker’s activities with respect
to the Station pursuant to this Agreement); or


 


(d)       Atlantic
commits repeated, willful breaches of its obligations pursuant to this
Agreement which, when considered separately, do not constitute an Atlantic’s
Event of Default described in clauses (a) through (c) above but which, when
taken together, materially impair Broker’s ability to


 


25

















 


conduct its activities with respect to the Station in
accordance with this Agreement, and Atlantic thereafter commits any such
willful breach after having received written notice from Broker to the effect
that, if any such willful breach occurs again after more than a reasonable cure
period after such notice, Broker may declare that an Atlantic’s Event of
Default has occurred pursuant to this sub-paragraph 22(d).


 


(e)       Atlantic
ceases doing business as a going concern, makes an assignment for the benefit
of creditors, admits in writing its inability to pay its debts as they become
due, files a voluntary petition in bankruptcy, is adjudicated a bankrupt or an
insolvent, files a petition seeking for itself any reorganization, arrangement,
composition, readjustment, liquidation, dissolution or similar arrangement
under any present or future statute, law or regulation or files an answer
admitting the material allegations of a petition filed against it in any such
proceeding, consents to or acquiesces in the appointment of a trustee,
receiver, or liquidator of it or of any substantial part of its assets or
properties, or if it or its shareholders shall take any action looking to its
dissolution or liquidation.


 


Notwithstanding the foregoing, no fact or circumstance
described in this paragraph 22 will constitute an Atlantic’s Event of Default
if


 


26

















 


the existence of such fact
or circumstance is proximately caused or contributed to in any material respect
by any material breach by Broker of its obligations under this Agreement. Any
period provided in this paragraph 22 for the cure of any condition which, if
uncured, would constitute an Atlantic’s Event of Default will be tolled from
the time Atlantic gives Broker a written notice disputing the existence of such
condition and until the end of any accounting or arbitration pursuant to this
Agreement or the Option Agreement concerning the existence of such condition or
until such dispute is otherwise finally resolved.


 


23.       Broker’s Events of Default.  A “Broker’s Event of Default” occurs if:


 


(a)       Broker fails to provide
programming for broadcast by the Station for any period of five or more
consecutive days, or for any five or more days during any period of ten
consecutive days;


 


(b)       Broker
fails to cease or cure, as promptly as possible after Broker receives written
request from Atlantic, any violation of applicable law or any rule or
regulation which, if not ceased or cured at such time, would have a materially adverse effect on any FCC License
which is essential to the operation of the Station as it is operated on the
Commencement Date;


 


(c)       Broker does not cease,
as soon as practicable after Broker receives a written request from Atlantic,
the broadcast over the Station of any programming which is obscene or indecent;


 


27

















 


(d)       Broker commits willful and repeated violations of applicable law or
rules or regulations of a type which are not described in sub-paragraph 23(b)
above if such willful and repeated violations would have a materially adverse
effect on any FCC License which is essential to the operation of the Station as
it is operated on the Commencement Date, and Broker thereafter commits any such
willful violation after having received written notice from Atlantic to the
effect that, if any such willful violation occurs again after more than a reasonable
cure period after such notice, Atlantic may declare that a Broker’s Event of
Default has occurred pursuant to this sub-paragraph 23(d);


 


(e)       Broker commits willful and repeated violations of Atlantic’s written
standards for acceptance of programming material and commercial announcements
described in paragraph 10 above (as in effect from time to time), and Broker
thereafter commits any such willful violation after having received written
notice from Atlantic to the effect that, if any such willful violation occurs
again after more than a reasonable cure period after such notice, Atlantic may
declare that a Broker’s Event of Default has occurred pursuant to this
sub-paragraph 23(e);


 


(f)        Broker fails to cure any other breach of this Agreement by Broker on or
prior to the ninetieth


 


28

















 


day after Broker receives a written request from
Atlantic to cure such default, if such default, if not cured, would have a
materially adverse effect on the operation of the Station by Atlantic if Broker’s
activities with respect to the Station pursuant to this Agreement were
terminated (provided that, so long as Broker continues to use reasonable
efforts to cure such default, such failure will not constitute a Broker’s Event
of Default so long as the continuing existence of such default will not have a
materially adverse effect on the operation of the Station by Atlantic if Broker’s
activities with respect to the Station pursuant to this Agreement were
terminated); or


 


(g)       Broker
commits repeated, willful breaches of its obligations pursuant to this
Agreement which, when considered separately, do not constitute a Broker’s Event
of Default described in clauses (a) through (i) above but which, when taken
together, frustrate Atlantic’s activities with respect to the Station in
accordance with this Agreement, and Broker thereafter commits any such willful
breach after having received written notice from Atlantic to the effect that,
if any such willful breach occurs again after more than a reasonable cure
period after such notice, Atlantic may declare that a Broker’s Event of Default
has occurred pursuant to this sub-paragraph 23(g).


 


29

















 


(h)       Broker
ceases doing business as a going concern, makes an assignment for the benefit
of creditors, admits in writing its inability to pay its debts as they become
due, files a voluntary petition in bankruptcy, is adjudicated a bankrupt or an
insolvent, files a petition seeking for itself any reorganization, arrangement,
composition, readjustment, liquidation, dissolution or similar arrangement
under any present or future statute, law or regulation or files an answer
admitting the material allegations of a petition filed against it in any such
proceeding, consents to or acquiesces in the appointment of a trustee,
receiver, or liquidator of it or of any substantial part of its assets or
properties, or if it or its shareholders shall take any action looking to its
dissolution or liquidation.


 


Notwithstanding the foregoing, no fact or circumstance
described in this paragraph 23 will constitute a Broker’s Event of Default if
the existence of such fact or circumstance is proximately caused or contributed
to in any material respect by any material breach by Atlantic of its
obligations under this Agreement. Any period provided in this paragraph 23 for
the cure of any condition which, if uncured, would constitute a Broker’s Event
of Default will be tolled from the time Broker gives Atlantic a written notice
disputing the existence of such condition and until the end of any accounting
or arbitration pursuant to this Agreement or the Option


 


30

















 


Agreement concerning the existence of such condition
or until such dispute is otherwise finally resolved.


 


24.       Termination Upon Order
of Governmental Authority.  A “Governmental
Termination Event” will occur if any court or federal, state or
local government authority (including the FCC) orders or takes any action which
becomes effective and which requires the termination or material curtailment of
the Broker’s activities with respect to the Station pursuant to this Agreement;
provided that such order or action will no longer constitute a
Governmental Termination Event if such action or order is subsequently stayed
or ceases to be effective. If any court or federal, state or local government
authority announces or takes any other action or proposed action which could
result in a Governmental Termination Event, then either Broker or Atlantic may
seek administrative or judicial relief therefrom (in which event the other of
them shall cooperate with such effort in any reasonable manner requested) and
consult with such agency and its staff concerning such matters and, in the
event that this Agreement is not terminated, use their best efforts and
negotiate in good faith a modification to this Agreement which would obviate
any such questions as to validity while preserving, to the extent possible, the
intent of the parties and the economic and other benefits of this Agreement and
the Option Agreement and the portions thereof the validity of which are called
into question. If the FCC designates the license renewal application of the
Station for a hearing as a consequence of this Agreement or for any other
reason, or initiates any revocation or other proceeding with respect to the
authorizations issued to the Atlantic for the operation of the


 


31

















 


Station, then Atlantic shall use diligent, reasonable
efforts to contest such action and shall be responsible for its expenses
incurred as a consequence of such FCC proceeding; provided, however, that
Broker shall cooperate and comply with any reasonable request of Atlantic to
assemble and provide to the FCC information relating to Broker’s performance
under this Agreement. In the event of termination of Broker’s activities with
respect to the Station pursuant to this Agreement as a result of any
Governmental Termination Event, Atlantic shall cooperate reasonably with Broker
to the extent permitted to enable Broker to fulfill advertising or other
programming contracts then outstanding.


 


25.       Additional
Representations, Warranties and Covenants.


 


A.        Mutual Additional
Representations, Warranties and Covenants.  Each of Atlantic and
Broker represents that it is legally qualified, and has all requisite corporate
powers and capacity, to enter into this Agreement, and that the execution,
delivery and performance hereof by it shall not constitute a breach or violation
of any agreement, contract or other obligation to which it is subject or by
which it is bound. Each party hereto represents and warrants that it has taken
all necessary corporate and other necessary action to make this Agreement
legally binding on such party, and that the individual signing this Agreement
on behalf of such party has been fully authorized and empowered to execute this
Agreement on behalf of such party.


 


B.        Finders.  The
parties hereto represent and warrant that no broker or finder has been used in
connection with the transactions contemplated by this Agreement and the Option
Agreement.


 


32

















 


C.        Atlantic’s Additional
Representations, Warranties and Covenants.  Atlantic makes the
following further representations, warranties and covenants:


 


i.          Authorizations.  Atlantic
owns or holds all material licenses and other permits and authorizations
reasonably necessary for the construction of the Station (including licenses,
permits and authorizations issued by the FCC), and Atlantic (including its
Affiliates, principals, employees and agents) will take no action to impair
such licenses, permits and authorizations.


 


ii.         Advanced
Television/High Definition Television.  If the FCC gives Atlantic the right
to apply for a second Florence area television channel for Advanced Television
(“ATV”) or High Definition
Television (“HDTV”), Atlantic will submit and prosecute a complete, timely
application to the FCC for that purpose, if requested by Broker, provided that
Broker shall agree to reimburse Atlantic for all costs and expenses occasioned
by such filing and prosecution. If the FCC awards Atlantic such a second
Florence area channel, such channel will be included within this Time Brokerage
Agreement in the same manner, and under the same terms, as the Station’s
current broadcast channel.


 


D.        Broker’s Additional
Representations, Warranties and Covenants.  In carrying out its
activities with regard to the Station pursuant to this Agreement, Broker shall
comply in all material respects with the terms, provisions and conditions of
the Station’s contracts and agreements which are utilized by Broker.


 


26.       Sale of Station To
Broker.  Notwithstanding any other provision of
this Time Brokerage Agreement to the contrary, this Time Brokerage Agreement
shall terminate (except for the


 


33

















 


indemnification provisions and Section 17 of this Time
Brokerage Agreement, which shall survive any such termination) upon the Closing
as defined in the Option Agreement.


 


27.       Procedures for
Termination.


 


A.        Upon Broker’s Events of
Default.  At any time when a Broker’s Event of
Default is in existence, Atlantic may give Broker written notice (a “Atlantic’s Termination Notice”) to the
effect that Atlantic elects to terminate this Agreement pursuant to this
sub-paragraph 27.A; provided that, if the matter of whether a Broker’s
Event of Default has occurred is the subject of a dispute pursuant to this
Agreement, then this Agreement and the Option will expire instead on the
sixtieth (60th) day after the Final Determination of the arbitrator (as defined
in paragraph 39.D.) that such Broker’s Event of Default occurred.


 


B.        Upon Broker’s Failure
to Enter Into or Maintain Fox Affiliation Agreement.  Broker may give Atlantic
written notice (a “Broker’s  Termination Notice”) on or after August 1,
1995 to the effect that Broker elects to terminate this Agreement if the
Station has not entered into an affiliation agreement for the Station with the
Fox television network. Broker also may give Atlantic such written notice
terminating this Agreement if, after the commencement of said Fox affiliation
agreement, Fox cancels such affiliation for any reason. If Broker terminates
this Agreement pursuant to this sub-paragraph, Broker shall continue to fulfill
its obligations under this Agreement for up to one year (including the monthly
payments specified in section 4 above). In such circumstance, Atlantic shall
have option(s) to purchase the transmission facilities used for the Station,
but excluding the


 


34

















 


tower on which the Station antenna is installed,
pursuant to the Transmission Facilities and Studio Construction and Lease
Agreement of even date herewith.


 


C.        Upon Certain Atlantic’s
Events of Default.  At any time when an Atlantic’s Event of
Default (other than an Atlantic’s Event of Default described in sub-paragraph
22(b) above) is in existence, Broker may give Atlantic written notice (a “Broker’s Termination Notice”)  to the effect that Broker elects to end
the term of this Agreement pursuant to this sub-paragraph 27.C.; provided
that, if the matter of whether an Atlantic’s Event of Default has occurred is
the subject of a dispute pursuant to this Agreement, then this Agreement will
expire instead on the sixtieth (60th) day after the Final Determination of the
arbitrator (as defined in paragraph 39.D.) that such Atlantic’s Event of
Default occurred.


 


D.        Upon Government
Termination.    Subject
to the termination provisions of sub-paragraphs 27.A., 27.B. and 27.C., if a
Governmental Termination Event occurs, then the term of this Agreement will
continue until the first to occur of


 


(a)       the
date upon which the activities of Broker and Atlantic are required to be
ceased, as mandated by the agency or authority which brought about such
Governmental Termination Event (the “Mandatory
Cessation
Date”), and


 


(b)       the Acquisition Date (as that term is defined in the Option Agreement);
and


 


(c)       the expiration or the termination of the Option Agreement in accordance
with its terms.


 


35

















 


E.         Upon Force Majeure.  At
any time after an Atlantic’s Event of Default described in sub-paragraph 22(b)
has occurred, Broker may give Atlantic written notice (also a “Broker’s Termination Notice”)  to the effect that Broker elects to
terminate this Agreement pursuant to this sub-paragraph 27.E.


 


28.       Notices.         All notices, demands and
requests required or permitted to be given under the provisions of this
Agreement shall be (a) in writing, (b) delivered to the recipient in person or
sent by commercial delivery service or registered or certified mail, postage
prepaid and return receipt requested, (c) deemed to have been given on the date
received by the recipient (if delivered in person) on the date set forth in the
records of the delivery service (if delivered by commercial delivery service)
or on the date of receipt (if delivered by certified mail) and (d) addressed as
follows:


 


	
   

  	
  If to Atlantic:

  	
  Albert D. Ervin 

  Atlantic Media Group, Inc. 

  2920 Midiron Courts 

  Myrtle Beach, SC 29577

  
	
   

  	
   

  	
   

  
	
   

  	
  with a copy
  (which

  shall not constitute

  notice) to:

  	
  Henry A.
  Solomon, Esq. 

  Haley, Bader & Potts 

  4350 N. Fairfax Drive 

  Suite 900 

  Arlington, VA 22203-1633

  
	
   

  	
   

  	
   

  
	
   

  	
  If to Broker:

  	
  Mr. William
  Christian 

  Vision Communications, Inc. 

  106 Possum Way 

  Clarks Summit, PA 18411

  
	
   

  	
   

  	
   

  
	
   

  	
  with a copy
  (which

  shall not constitute

  notice) to:

  	
  Howard M.
  Liberman, Esq. 

  Arter & Hadden 

  1801 K Street, N.W. 

  Suite 400K 

  Washington, D.C. 20006-1301

  



 


36

















 


or to any such other or additional persons and
addresses as the parties may from time to time designate in a writing delivered
in accordance with this paragraph 28.


 


29.       Modification and Waiver.   No amendment, supplement
or modification of any provision of this Agreement shall be effective unless
the same shall be in writing and signed by the party against whom enforcement
of any such amendment, supplement or modification is sought, and then such amendment,
supplement or modification shall be effective only in the specific instance and
for the purpose for which given.


 


30.       Construction.  This
Agreement shall be governed by and construed in accordance with the domestic
laws of the State of South Carolina, without giving effect to any choice of law
or conflict of law provision or rule (whether of the State of South Carolina or
any other jurisdiction) that would cause the application of the laws of any
jurisdiction other than the State of Wisconsin.


 


31.       Headings.  The
headings in this Agreement are included for ease of reference only and will not
control or affect the meaning or construction of the provisions of this
Agreement.


 


32.       Assignment.  This
Agreement may not be assigned by either party hereto without the express
written approval of the other party hereto; however, this Agreement shall be
assignable by Broker to Diversified Communications without consent of Atlantic,
and where appropriate in the context and consistent with this provision, the term
“Broker” as used herein shall mean and include such assignee.


 


37

















 


33.       Counterparts.  This
Agreement may be signed in any number of counterparts with the same effect as
if the signature(s) on each such counterpart were upon the same instrument.
This Agreement shall be effective as of the date first above written.


 


34.       Entire Agreement.  Other
than the Option Agreement and the Transmission Facilities and Studio
Construction and Lease Agreement, this Agreement represents the sole and entire
understanding and agreement between the parties with respect to the subject
matter of this Agreement. This Agreement supersedes all prior negotiations and
understandings between the parties whatsoever all letters of intent and other
writings relating to such negotiations and understandings.


 


35.       No Partnership or Joint
Venture Created.  Nothing in this Agreement shall be
construed to create a partnership or joint venture between Atlantic and Broker
or to afford any rights to any third party other than as expressly provided
herein. Neither Atlantic nor Broker shall have any authority to create or
assume in the name or on behalf of the other party any obligation, express or
implied, or to act or purport to act as the agent or legally empowered
representative of the other party hereto for any purpose.


 


36.       Severability.  Whenever
possible each provision of this Agreement will be interpreted so as to be
effective and valid under applicable law. Subject to the provisions of
paragraph 23 above, if any provision of this Agreement is held to be prohibited
by or invalid under applicable law, such provision shall be ineffective only to
the extent of such prohibition or invalidity, without invalidating or otherwise
affecting the remainder or such provision or the remaining provisions of this
Agreement.


 


38

















 


37.       Legal Effect.  This
Agreement shall be binding upon and shall inure to the benefit of the parties
hereto, their heirs, executors, personal representatives, successors and
assigns.


 


38.       No Party Deemed Drafter.  No
party will be deemed the drafter of this Agreement and if this Agreement is
construed by a court of law such court should not construe this Agreement or
any provision against any party as its drafter.


 


39.       Arbitration.


 


A.        Generally.  Broker
and Atlantic agree that the arbitration procedures described in this paragraph
39 will be the sole and exclusive method of resolving and remedying claims for
money damages (including any claim for indemnification pursuant to paragraph
21) arising under this Agreement (“Disputes”).
Nothing in this paragraph 39 will prohibit a party from instituting
litigation to enforce any Final Determination, as defined in sub-paragraph
39.D. below, or availing itself of any remedy other than money damages. Broker
and Atlantic agree that, except as otherwise provided in the Commercial
Arbitration Rules of the American Arbitration Association as in effect from
time to time (the “AAA Rules”),
the arbitration procedures described in this paragraph 39 and any Final
Determination will be governed by, and will be enforceable pursuant to, the
Uniform Arbitration Act as in effect in the State of South Carolina from time
to time. No person will be entitled to claim or recover punitive damages in any
such proceeding.


 


B.        Notice of Arbitration.  If
Broker or Atlantic (the “Disputing Person”) will
give the other person a written notice setting forth the nature of the asserted
Dispute. If Broker and


 


39

















 


Atlantic do not resolve any such asserted Dispute
prior to the tenth business day after such notice is given, then the Disputing
Person may commence arbitration pursuant to this paragraph 39 by giving the
other person a written notice to that effect (an “Arbitration Notice”), setting forth any matters which are
required to be set forth therein in accordance with the AAA Rules.


 


C.        Selection of Arbitrator.  Broker
and Atlantic will attempt to select a single arbitrator by mutual agreement. If
no such arbitrator is selected prior to the twentieth (20th) business day after
the related Arbitration Notice is given, then an arbitrator who is experienced
in matters of the type which are the subject matter of the Dispute will be
selected in accordance with the AAA Rules.


 


D.        Conduct of Arbitration.  The
arbitration will be conducted under the AAA Rules, as modified by any written
agreement between Broker and Atlantic. The arbitrator will conduct the
arbitration in a manner so that the final result, determination, finding,
judgment or award determined by the arbitrator (the “Final  Determination”) is
made or rendered as soon as practicable, and the parties and arbitrator will
use their reasonable best efforts to reach a Final Determination no later than
the sixtieth day after the arbitrator is selected. Any Final Determination will
be final and binding upon Broker and Atlantic there will be no appeal from or
reexamination of any Final Determination, except in the case of fraud, perjury
or evident partiality or misconduct by the arbitrator prejudicing the rights of
Broker or Atlantic or to correct manifest clerical errors.


 


40

















 


E.         Enforcement.  Broker and Atlantic
agree that a Final Determination may be enforced in any state or federal court
having jurisdiction over the subject matter of the related Dispute. For
purposes or any action or proceeding instituted with respect to any Final
Determination, each of Broker and Atlantic irrevocably submits to the
jurisdiction of any such court, irrevocably consents to the service of process
by registered mail or personal service, and irrevocably waives, to the fullest
extent permitted by law, any objection which it may have as to personal
jurisdiction, the laying of venue, and any claim that such action or proceeding
has been brought in an inconvenient forum.


 


F.         Expenses.  The prevailing party in
any such arbitration proceeding in connection with this Agreement, also will be
entitled to recover from the other party its reasonable attorneys’ fees and
disbursements and the non-prevailing party also will be required to pay all
other costs and expenses associated with the arbitration or audit (including
the fees and expenses of any such arbitrator or Independent Accountant). As
part of the Final Determination the arbitrator may designate the prevailing
party. In the event that the arbitrator is unable to determine that a party has
prevailed in the arbitration or audit, such costs and expenses shall be
equitably allocated by the arbitrator upon the basis of the outcome of the
arbitration or audit. If the arbitrator or Independent Accountant is unable to
allocate such fees on this basis as a result of the outcome, then the costs of
arbitration or audit shall be paid equally by the parties and each party shall
pay its own expenses. Except as provided in this sub-paragraph 39. F., each
party to this Agreement will bear its own costs and expenses (including legal
fees and disbursements) in connection
with any such proceeding or submission.


 


41

















 


IN WITNESS WHEREOF, the
parties hereto have executed this Agreement to be effective as of the date
above written.


 


	
   

  	
   

  	
  ATLANTIC MEDIA GROUP, INC. 

  (“Atlantic”)

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ [ILLEGIBLE], President

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  VISION COMMUNICATIONS, INC. 

  (“Broker”)

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ William Christian

  	
   

  



 


	
  ACCEPTED:

  
	
   

  
	
  DIVERSIFIED
  COMMUNICATIONS

  
	
   

  
	
   

  
	
  By:

  	
  /s/ Carolyn Catlin

  	
   

  
	
   

  
	
   

  



 


42

















 


DIVERSIFIED
COMMUNICATIONS

5 Milk Street 

Portland, Maine 04112


March 18, 1994


Vision Communications, Inc.

106 Possum Way

Clarks Summit, PA 18411


Attn: Mr. William Christian


 


	
   

  	
  Re:

  	
  Atlantic Media Group, Inc.

  
	
   

  	
   

  	
  Time Brokerage Agreement

  



 


Gentlemen:


 


This
will confirm our agreement concerning the Time Brokerage Agreement (“TBA”)
being negotiated between Vision Communications, Inc. (“Vision”) and Atlantic
Media Group, Inc. (“Atlantic”) for the television station authorized an Channel
21 at Florence, South Carolina.


 


In
the event Vision and Diversified Communications (“Diversified”) close on the
sale of Station WPDE-TV, Florence, South Carolina, on or prior to March 31,
1994, Diversified hereby renounces and disclaims any direct or indirect rights
and interests it may be deemed to have with respect to the operation of Channel
21 pursuant to the TBA.


 


However,
in the event Vision and Diversified do not close on the sale of WPDE-TV to
Vision on or prior to Match 31, 1994, Vision hereby assigns to Diversified all
of its rights and delegates to Diversified all of its obligations under the
TBA, and Diversified hereby accepts all of Vision’s rights and assumes all of
Vision’s obligations under the TBA, all effective as of April 1, 1994. Such
acceptance and assumption by Diversified is conditioned only upon Vision’s
agreement to keep Diversified and its counsel fully informed as to the
negotiations with Atlantic concerning the TBA, and the related agreements
contemplated by the TBA. Diversified agrees to advise Vision as promptly as
possible with respect to its position concerning negotiations relating to the
TBA and related agreements with respect to issues that may arise during such
negotiations. Furthermore, in the event Vision and Diversified do not close on
the sale of WPDE-TV to Vision on or prior to March 31, 1994, and Diversified
and Atlantic enter into the TBA and related agreements contemplated by the TBA,
Diversified agrees to reimburse Vision promptly for its reasonable engineering
and legal fees and expenses incurred in connection with the negotiations with
Atlantic.


 

















 


If
this accurately reflects our agreement, please so indicate by signing in the
space provided below.


 


	
   

  	
   

  	
  Very truly yours, 

  DIVERSIFIED COMMUNICATIONS

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Paul Clancy

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  VP/CFO

  	
   

  
						



 


 


	
  Agreed to and accepted
  this 18th day

  of March, 1994.

  Vision Communications, Inc.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ William Christian

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
					



 


2

















 


Dear Mr. Ervin:


 


Pursuant
to Sections 1 and 28 of the Time Brokerage Agreement dated April 28, 1994 by
and between Atlantic Media Group, Inc. (“Atlantic”) and Vision Communications,
Inc., as assigned to Diversified Communications (“Diversified”) pursuant to a
Letter Agreement dated March 18, 1994 by and between Atlantic and Diversified
(together, the “Time Brokerage Agreement”), we hereby notify you that
Diversified is exercising its option to extend the Time Brokerage Agreement
for one successive five-year term. The Time Brokerage Agreement now shall
expire on April 8, 2004.


 


Please
feel free to contact me if you have any questions regarding this matter.


 


	
   

  	
   

  	
  Sincerely,

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  /s/ David Lowell

  	
   

  
	
   

  	
   

  	
   

  	
  David Lowell, President

  



 


On
behalf of Atlantic, I hereby acknowledge receipt and acceptance of the exercise
by Diversified of its option extending the Time Brokerage Agreement to April 8,
2004


 


	
   

  	
  Atlantic Media Group, Inc.

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Albert
  D. Ervin

  	
   

  	
   

  	
   

  
	
   

  	
  Albert D. Ervin, Vice President

  	
   

  	
   

  
						



 


cc. Henry A. Solomon, Esquire