Exhibit 10.15


 


JOINT
SALES AGREEMENT


 


THIS JOINT SALES AGREEMENT  (this “Agreement”) is made as of this 31st day of
August 2007, (the “Effective
Date”), by and among Barrington
Traverse City LLC, a Delaware limited liability company (“Sales Agent”) and Tucker Broadcasting of Traverse City, Inc. (“Station Licensee”),
a Delaware corporation.


 


W I T N E S S E T H:


 


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


 


WHEREAS, Sales Agent and
Station Licensee are parties to that certain Assignment and Assumption Agreement,
dated as of the date hereof (the “Assignment and Assumption Agreement”),
pursuant to which Sales Agent has assigned certain of its rights under the
Station Purchase Agreement to Station Licensee, including the right to purchase
the FCC licenses (the “FCC
Licenses”) for, and the assets of, the Stations;


 


WHEREAS, in order to better and more efficiently promote the economic
and business development of the Stations following the closing of the
transactions contemplated by the Station Purchase Agreement, the parties desire
to enter into this Agreement as of and with respect to the period following the
Base Date (as defined below); and 


 


WHEREAS, simultaneously with
the execution and delivery of this Agreement, the parties hereto are entering
into that certain Shared Services Agreement, with respect to which Sales Agent
shall provide certain services and make available to the Station Licensee
certain technical and other facilities (the “Shared Services Agreement”).


 


NOW, THEREFORE, in
consideration of the foregoing premises and the mutual promises, undertakings,
covenants and agreements of the parties contained in this Agreement, the
parties hereto, intending to be legally bound, hereby agree as follows:


 


ARTICLE I


 


DEFINITIONS


 


Section 1.1       Terms Defined in this Section.  The following terms, as used in this
Agreement, shall have the meanings set forth in this Section:


 

















 


“Affiliate” means, with respect to any Person,
(a) any other Person that, directly or indirectly through one or more
intermediaries, controls, is controlled by, or is under common control with
such Person, or (b) an officer or director of such Person or of an Affiliate of
such Person within the meaning of clause (a) of this definition.  For purposes of clause (a) of this
definition, without limitation, (i)
a Person shall be deemed to control another Person if such Person (A) has
sufficient power to enable such Person to elect a majority of the board of
directors (or comparable governing body) of such Person, or (B) owns a majority
of the beneficial interests in income and capital of such Person, and (ii) a Person shall be deemed to control
any partnership of which such Person is a general partner.


 


“Applicable Law”
means any of the Communications Act, the FCC Rules, and all other federal, state
and local constitutions, laws, statutes, codes, rules, regulations, ordinances,
judgments, orders, decrees and the like of any governmental entity, including
common law.


 


“Base Date”
means the date on which the closing of the Station Purchase Agreement shall
have occurred.


 


“Communications
Act” means the Communications Act of 1934, as amended, as in
effect from time to time.


 


“FCC”
means the Federal Communications Commission or any successor agency thereto.


 


“FCC Rules”
means the rules and published policies of the FCC, as in effect from time to
time.


 


 “Market” means the
Nielsen “Designated Market Area” that encompasses the Stations. 


 


“Network” means any national television
network party to any network affiliation agreement to which Licensee is a party
with respect to the Station.


 


“Obligations of Sales Agent” means any and all
obligations and duties of Sales Agent under (i)
this Agreement, and (ii) the
Shared Services Agreement.


 


 “Person” includes, without limitation,
natural persons, corporations, business trusts, associations, companies, joint
ventures, and partnerships.


 


“Third Party
Claim” means any action, suit, claim or legal, administrative,
arbitration, mediation, governmental or other proceeding or investigation,
other than any brought by a party to this Agreement or an Affiliate of a party
to this Agreement.


 


 “Transaction Documents” means this
Agreement, the Shared Services Agreement, the Option Agreement, the Letter
Agreement, the Station Purchase Agreement, the Assignment and Assumption Agreement
and the other documents, agreements and instruments executed by the parties
hereto and thereto in connection therewith.


 


Section 1.2       Additional Defined Terms.  In addition to the defined terms in the
preamble, recitals and Section 1.1 hereof, the following is a list of
terms used in this Agreement and a reference to the section or schedule hereof
in which such term is defined:


 


2

















 


	
  Term

  	
   

  	
  Section/Schedule

  
	
   

  	
   

  	
   

  
	
  Acquisition Financing Arrangement

  	
   

  	
  Schedule 3.1

  
	
  Advertisements

  	
   

  	
  Section 4.1

  
	
  Broadcast Material

  	
   

  	
  Section 4.3

  
	
  Defense Counsel

  	
   

  	
  Section 8.3

  
	
  Defense Notice

  	
   

  	
  Section 8.3

  
	
  Delivered Programming

  	
   

  	
  Section 4.2

  
	
  Designated Expenses

  	
   

  	
  Schedule 3.1

  
	
  Direct Claim

  	
   

  	
  Section 8.3(e)

  
	
  Disclosure Statement

  	
   

  	
  Section 5.2(c)

  
	
  Indemnified Party

  	
   

  	
  Section 8.3

  
	
  Indemnifying Party

  	
   

  	
  Section 8.3

  
	
  Initial Term

  	
   

  	
  Section 2.1(a)

  
	
  Licensee Revenue Share

  	
   

  	
  Section 3.1(a)

  
	
  Loss

  	
   

  	
  Section 8.1

  
	
  Net Sales Revenue

  	
   

  	
  Schedule 3.1

  
	
  Operating Budget

  	
   

  	
  Section 5.1(d)

  
	
  Option Agreement

  	
   

  	
  Section 2.2(a)

  
	
  Other Expenses

  	
   

  	
  Schedule 3.1

  
	
  Policy Statement

  	
   

  	
  Section 4.3

  
	
  Premises

  	
   

  	
  Section 5.4

  
	
  Principal Agreements

  	
   

  	
  Schedule 3.1

  
	
  PSAs

  	
   

  	
  Section 4.4

  
	
  Ratings Agencies

  	
   

  	
  Section 5.1(j)

  
	
  Sales Agent Assignee

  	
   

  	
  Section 9.3

  
	
  Sales Agent Indemnified Party

  	
   

  	
  Section 8.2

  
	
  Station Indemnified Party

  	
   

  	
  Section 8.1

  
	
  Term

  	
   

  	
  Section 2.1(b)

  
	
  Trade Agreements

  	
   

  	
  Section 4.5

  



 


ARTICLE II


 


TERM


 


Section 2.1       Term.


 


(a)   Initial
Term.  This Agreement shall be
deemed effective, and the initial term hereof shall commence, on and as of the
Base Date and such initial term (the “Initial Term”) shall continue until the
eighth (8th) anniversary of the Base Date, unless terminated in accordance with
Section 2.2 below.


 


(b)   Renewal
Term.  This Agreement shall be
renewed automatically for an additional term of eight (8) years commencing on
the day following the expiration of the Initial Term (the Initial Term and any
such renewal terms hereinafter referred to as the “Term”); provided,  however, that this Agreement may be
terminated by Sales Agent, on the one hand, or Station Licensee, on the other,
prior to the expiration of the Initial Term by delivery to the other party of
180 days prior written notice of such termination, which notice may be given by
such


 


3

















 


party to the other party
commencing on the date which is seven (7) years and six (6) months after the
Base Date.


 


Section 2.2       Termination.


 


(a)   Mutual
Agreement.  This Agreement may
be terminated at any time by mutual agreement of the parties hereto.  This Agreement shall terminate upon the
Option Closing (as such term is defined in the Option Agreement) under that
certain Option Agreement, dated as of the date hereof, by and between Station
Licensee and Sales Agent, as such agreement may be amended from time to time
pursuant to the terms thereof (the “Option Agreement”).


 


(b)   Termination
by Station Licensee or  Sales Agent.  This Agreement may be terminated by Station
Licensee or Sales Agent, by written notice to the other, upon the occurrence of
any of the following events; provided
that any such termination shall be effective as of the date thirty (30) days
after such notice:


 


(i)            this Agreement has been
declared invalid under Applicable Law or illegal in whole or substantial part
by an order or decree of an administrative agency or court of competent
jurisdiction which is not subject to appeal or further administrative or
judicial review, and the parties, acting in good faith, are unable to agree
upon a modification of the Agreement so as to cause the Agreement to comply
with Applicable Law; or


 


(ii)           there has been a change in
the Communications Act or the FCC Rules that causes this Agreement in its
entirety to be in violation thereof and the applicability of such change is not
subject to appeal or further administrative review; and the parties, acting in
good faith, are unable to agree upon a modification of the Agreement so as to
cause the Agreement to comply with the Communications Act or the FCC Rules as
so changed.


 


(c)   Termination
by Sales Agent.  This
Agreement may be terminated by Sales Agent, by written notice to Station
Licensee, upon the occurrence of any of the following events, provided that any such termination shall
be effective as of the date thirty (30) days after such notice and provided  further
that if there is an exercise of the Option (as defined in the Option Agreement)
under the Option Agreement prior to any such termination or during the 30-day
period thereafter, the termination hereunder shall not be effective until the
either of (i) the Option Closing
(as defined in the Option Agreement) or (ii)
the termination of the Option Agreement:


 


(i)            if Sales Agent is not then
in material breach and Station Licensee is in material breach under this
Agreement or the Shared Services Agreement (other than a breach by Station
Licensee of any of its payment obligations under the Shared Services Agreement)
and Station Licensee has failed to cure such breach within thirty (30) days
after receiving written notice of such breach from Sales Agent, or if Sales
Agent is not then in material breach and Station Licensee breaches any of its
payment obligations to Sales Agent under the Shared Services Agreement (other
than any such payment obligation that is being contested in good faith) which
breach shall not have been cured within fifteen (15) days after receiving
written notice of such breach from Sales Agent;


 


(ii)           if Station Licensee or any
Affiliate of Station Licensee makes a general assignment for the benefit of
creditors, files, or has filed against it, a petition for


 


4

















 


bankruptcy, reorganization
or an arrangement for the benefit of creditors, or for the appointment of a
receiver, trustee, or similar creditor’s representative for the property or
assets of Station Licensee or any Affiliate of Station License under any
federal or state insolvency law which, if filed against Station Licensee or any
Affiliate of Station Licensee, has not been dismissed within thirty (30) days
thereof; or


 


(iii)          upon and at any time
following termination of the Option Agreement.


 


(d)   Termination
by Station Licensee.  This
Agreement may be terminated by Station Licensee, by written notice to Sales
Agent, upon the occurrence of any of the following events, provided that any such termination shall
be effective as of the date thirty (30) days after such notice and provided  further
that if there is an exercise of the Option under the Option Agreement prior to
any such termination or during the 30-day period thereafter, the termination
hereunder shall not be effective until the either of (i) the Option Closing or (ii) the termination of the Option
Agreement:


 


(i)            if Station Licensee is not
then in material breach and Sales Agent breaches any of its obligations under
this Agreement or the Shared Services Agreement which breach reasonably could
be expected to result in the revocation or non-renewal of the Stations’ FCC
Licenses and such breach shall not have been cured within thirty (30) days
after receiving written notice of such breach from Station Licensee, or if
Sales Agent breaches any of its payment obligations to Station Licensee (other
than any such payment obligation that is being contested in good faith) which
breach shall not have been cured within fifteen (15) days after receiving
written notice of such breach from Station Licensee; 


 


(ii)           if Sales Agent or any of its
Affiliates makes a general assignment for the benefit of creditors, files, or
has filed against it a petition for bankruptcy, reorganization or an
arrangement for the benefit of creditors, or for the appointment of a receiver,
trustee, or similar creditor’s representative for the property or assets of
Sales Agent or any of its Affiliates under any federal or state insolvency law
which, if filed against Sales Agent or any of its Affiliates, has not been
dismissed within thirty (30) days thereof; or


 


(iii)          upon and at any time
following termination of the Option Agreement.


 


Section 2.3       Certain Matters Upon Termination.  


 


(a)   Continuing
Obligations.  No expiration or
termination of this Agreement shall terminate the obligations of any party
hereto to indemnify the other parties for Third Party Claims under Section 8 of
this Agreement, or limit or impair any party’s rights to receive payments due and
owing hereunder on or before the effective date of such termination.


 


(b)   Cooperation.  Notwithstanding anything to the contrary
contained in this Agreement, if this Agreement is terminated pursuant to the
second sentence of Section 2.2(a) following the Option Closing, the parties
shall cooperate with each other as may be reasonably requested to effect an
allocation of the revenues and expenses for any partial calendar month


 


5

















 


resulting from such termination
or to effect any working capital payment required in connection with such
allocation or a related transfer of control pursuant to the Option Agreement. 


 


ARTICLE III


 


CONSIDERATION


 


Section 3.1       Licensee Revenue Share.  


 


(a)   As consideration for the right of Sales
Agent to market and sell air time made available under this Agreement, with
respect to each calendar month during the Term, Sales Agent shall pay over to
Station Licensee an amount equal to seventy percent (70%) of the total amount
of Net Sales Revenue for the applicable calendar month (the “Licensee Revenue Share”).  Sales Agent shall retain the remaining thirty
percent (30%) of the total amount of Net Sales Revenue for such calendar month
as its commission with respect to its sales agency, programming and other
duties hereunder.  


 


(b)   The Licensee Revenue Share shall be due and
payable on the fifteenth (15th) day of each calendar month and shall be
calculated with respect to the immediately preceding calendar month in
accordance with Schedule 3.1.  The Licensee Revenue Share shall be prorated
for any partial calendar month during the Term.


 


ARTICLE IV


 


SCOPE OF SERVICES


 


Section 4.1       Sales and Related Services.  Except as expressly provided to the contrary
herein, Station Licensee retains Sales Agent on an exclusive basis for the Term
to market and sell all forms of regional and local spot advertising,
sponsorships, direct response advertising, paid programming (including
infomercials), and all long-form advertising broadcast on the Stations and all
advertising on any Internet site maintained by or on behalf of the Stations
during the Term (the “Advertisements”).  Subject to the  terms of Schedule
3.1, national spot advertising broadcast on the Stations shall
continue to be sold by the Stations’ national rep firm as selected from time to
time by Station Licensee.  Station
Licensee shall provide to Sales Agent and its employees such information as
Sales Agent may reasonably request to support the marketing and sale of the
Advertisements and the collection of accounts receivable with respect
thereto.  Sales Agent also shall be
responsible for the Stations’ traffic, billing and collection functions for the
Advertisements.  Sales Agent shall
designate an adequate number of its personnel to perform such services for the
Stations.  Sales Agent shall conduct the
sales and traffic functions for the Stations in accordance with standard
practice in the industry.  Sales Agent and
Station Licensee shall periodically review the personnel needs and job functions
of the persons designated by Sales Agent to perform its obligations under this
Agreement and implement such changes as they mutually agree are
appropriate.  Revenues from the sale of
the Advertisements shall be allocated between Sales Agent and Station Licensee
as set forth in Section 3.  Sales Agent
may sell the Advertisements in combination with any other broadcast stations of
its choosing; provided,  however,
that under no circumstances may Sales Agent require advertisers to purchase
time on the Stations and any other station together.  Subject to Section 4.3, the placement,
duration and rates of the Advertisements shall be determined by Sales
Agent.  The value of commercial time
bartered in


 


6

















 


exchange
for programming shall be excluded from the definition of Net Sales
Revenue.  Network compensation and
retransmission fees payable in connection with the Stations shall be included
in the computation of Net Sales Revenue.


 


Section 4.2       Delivered Programming.  Commencing on the Base Date, Sales Agent
shall provide to the Station Licensee for broadcast, simulcast or rebroadcast
on the Stations, as applicable, local news and other programming as described
more particularly in Schedule 4.2
hereof (the “Delivered
Programming”), which Delivered Programming shall be less than 25
hours per week and less than 15% of the Stations’ broadcast hours for any
week.  Sales Agent shall be responsible
for obtaining the rights to broadcast the Delivered Programming on the Stations
and for paying all costs incurred in obtaining such rights.  To the extent permission is required to
rebroadcast any Delivered Programming under Section 325 of the Communications
Act, Sales Agent hereby grants Station Licensee such permission.  The Delivered Programming shall be subject to
Sales Agent’s editorial judgment and the requirements of Section 4.3, including
but not limited to the right of rejection or preemption of Station
Licensee.  All Delivered Programming
shall be in conformity in all material respects with standards established by
Station Licensee and consistent with similar programming broadcast on Sales
Agent’s own television broadcast stations and shall otherwise conform to all
Applicable Law, including the Communications Act, the FCC Rules and the
intellectual property rights of third parties.    


 


Section 4.3       Content Policies.  All material furnished by Sales Agent for
broadcast on the Stations, including all Delivered Programming and
Advertisements (collectively, “Broadcast Material”) shall comply with applicable
federal, state and local regulations and policies, including commercial limits
in children’s programming.  Station
Licensee shall have the right to preempt any Broadcast Material to present
program material of greater local or national importance.  Station Licensee may reject any Broadcast
Material if it reasonably determines that the broadcast of such material would
violate Applicable Law or would otherwise be contrary to the public interest.  Station Licensee shall promptly notify Sales
Agent of any such rejection, preemption, or rescheduling and shall cooperate
with Sales Agent in efforts to fulfill commitments to advertisers and
syndicators.  Schedule 4.3 sets forth Station Licensee’s statement of
policy (the “Policy Statement”)
with regard to the Broadcast Material. 
Sales Agent shall ensure that the Broadcast Materials are in compliance
with the terms of this Agreement and the Policy Statement.


 


Section 4.4       Public Service Announcements. Sales Agent acknowledges
that the Stations have in the past provided time on the Stations for the
promotion of public service organizations in the form of public service
announcements (“PSAs”),
and agrees that it will release spot time to Station Licensee for the broadcast
of PSAs at times and in amounts consistent with the Stations’ past practices
and consistent with Sales Agent’s operating policies applicable to the
broadcast of PSAs.  Station Licensee and
Sales Agent shall cooperate in good faith concerning the placement of the PSAs
to be broadcast on the Stations; provided,  however,
that Station Licensee shall be ultimately responsible for selecting, obtaining
and scheduling PSAs for broadcast on the Stations.


 


Section 4.5       Trade and Barter Spots.  On or as soon as reasonably practicable after
the Base Date, Station Licensee shall deliver to the Sales Agent a list, which
is accurate and complete in all material respects, of all contracts for the
sale of advertising time on the Stations for non-cash consideration that are in
effect as of, and will extend beyond, the Base Date (“Trade


 


7

















 


Agreements”).  Sales Agent shall comply with and honor all
such Trade Agreements, if and to the extent that Trade Agreement spots may be
broadcast on a preemptible basis.  The
dollar value of advertising time on the Stations provided to advertisers
pursuant to Trade Agreements shall not be included in the computation and
determination of Net Sales Revenue for purposes of this Agreement.  After the Base Date Sales Agent and Station
Licensee shall have the right to enter into new contracts for the sale of
Advertisements for non-cash consideration, provided
that the parties agree to each such Trade Agreement and provided  further
that the dollar value of such advertising time on the Stations for such Trade
Agreements shall be included in the computation and determination of Net Sales
Revenue for purposes of this Agreement. 
The parties shall mutually agree as to the use of the non-cash
consideration received for each new Trade Agreement.  For purposes of this Section 4.5, the term
“Trade Agreement” applies only to the bartering of advertising in return for
goods and services other than programming.


 


Section 4.6       Accounts Receivable.  Notwithstanding anything to the contrary
contained herein, any accounts receivable or revenue received by Sales Agent in
respect of the operation of the Stations during the period prior to the Base
Date, in respect of which the Sellers received a credit to the purchase price
under the Station Purchase Agreement or to which the Sellers are entitled
pursuant to the Station Purchase Agreement, if any, shall not be included in
Net Sales Revenue.


 


Section 4.7       Monthly Reports; Books and Records.  The following obligations shall begin on the
first day of the first full calendar month beginning after the Base Date:


 


(a)   On or before the twentieth (20th) day of
each calendar month during the Term, Sales Agent shall furnish Station Licensee
with a report regarding Sales Agent’s sales by advertiser, of the
Advertisements for the previous calendar month. 
Without limiting Schedule 3.1
hereof, Station Licensee shall have the right to review the books and records
of Sales Agent at reasonable times and upon reasonable notice, with respect to
the sale of Advertisements and any other sales by Sales Agent in connection
with or related to its sale of the Advertisements for the Stations.


 


(b)   Station Licensee shall furnish to Sales
Agent information each month with respect to Station Expenses.   Upon reasonable prior notice, Sales Agent
shall have the right at all reasonable times to review (and the right, at Sales
Agent’s expense, to make copies of) the books and records of Station Licensee, provided that the foregoing access shall
not interfere unreasonably with the Stations’ business.   


 


(c)   The audit and inspection rights of Sales
Agent under this Section 4.7 shall survive any termination or expiration of
this Agreement for a period of two (2) years.


 


Section 4.8       Control. 
Notwithstanding anything to the contrary in this Agreement, the parties
hereto acknowledge and agree that during the Term, Station Licensee will
maintain ultimate control and authority over the Stations, including,
specifically, control and authority over the Stations’ operations, finances,
personnel and programming.  Without
limiting the generality of the foregoing, nothing contained in this Agreement
shall be deemed to limit the control and authority of Station Licensee with
respect to the selection, development and acquisition of any and all
programming to be broadcast over the Stations, as well as the payment therefor,
other than


 


8

















 


those
payments of Sales Agent associated with the Delivered Programming.  To that end, Station Licensee shall (a) have
exclusive authority for the negotiation, preparation, execution and
implementation of any and all programming agreements for the Stations, and (b)
retain and hire or utilize whatever employees Station Licensee reasonably deems
appropriate or necessary to fulfill those programming functions.  Sales Agent shall not represent, warrant or
hold itself out as the licensee of the Stations, and all sales material
prepared by Sales Agent for the sale of advertising time on the Stations shall
identify Station Licensee as the licensee of the Stations using mutually
agreeable wording and references.  Sales
Agent shall sell advertising time and enter into all agreements for the sale of
time on the Stations and for the Delivered Programming in its own name.


 


ARTICLE V


 


OTHER OBLIGATIONS OF THE PARTIES


 


Section 5.1       Responsibilities of Station Licensee.  Station Licensee, at its expense, shall be
responsible for and perform the following obligations with respect to the
business and operations of the Stations during the Term, in accordance with and
subject to the following provisions:


 


(a)   Station Licensee shall continue to maintain
full control over the operations of the Stations, including programming
editorial policies, employees of Station Licensee and Station
Licensee-controlled facilities.  Station
Licensee shall be responsible for, and shall comply in all material respects
with all applicable provisions of the Communications Act, the FCC Rules and all
other Applicable Law with respect to the operation of the Stations.  Station Licensee shall file in a timely and
complete manner all reports and applications required to be filed with the FCC
or any other governmental body.


 


(b)   Station Licensee shall maintain in effect
policies of insurance insuring the assets and the business of the Station in
accordance with good industry practices.


 


(c)   Station Licensee shall use, operate, and
maintain all of its assets in a commercially reasonable manner.  If any loss, damage, impairment, confiscation
or condemnation of any of such assets occurs, Station Licensee shall use
commercially reasonable efforts and cooperate with Sales Agent to repair,
replace, or restore the assets to their prior condition as soon thereafter as
possible, and Station Licensee shall use the proceeds of any claim under any
insurance policy to repair, replace or restore any of the assets of the
Stations that are lost, damaged, impaired or destroyed.


 


(d)   Station Licensee shall be responsible for
payment of all operating costs of the Stations (excluding those costs to be
borne by Sales Agent in accordance with Section 5.2), including the cost of
electricity, other utilities and rental or other payments with respect to any
real property leased by Station Licensee, taxes, the Services Fee (as defined
in the Shared Services Agreement) and the salaries, insurance, and other costs
for all personnel employed by Station Licensee and, without limiting the
foregoing, shall pay all other Station Expenses.  Promptly following the Base Date, but in no
event more than thirty (30) days thereafter, Station Licensee shall provide
Sales Agent copies of the operating budgets of the Stations (collectively, the


 


9

















 


“Operating Budget”),
which shall reflect Station Licensee’s good faith budget of reasonable and
customary capital and other expenses necessary to the operations of the
Stations and not otherwise contemplated by the Designated Expenses, as
determined by Station Licensee in its sole discretion.  Station Licensee shall provide updated copies
of the Operating Budget each year during the Term, identifying adjustments from
year to year.  


 


(e)   Subject to the Obligations of Sales Agent,
Station Licensee shall pay when due all music rights payments (including,
without limitation, music performance rights, synchronization rights, and
master use rights), if any, in connection with the broadcast and/or
transmission of all announcements, including the Advertisements, and
programming on the Stations, other than the Delivered Programming.


 


(f)   Station Licensee shall be solely responsible
for all costs and expenditures associated with the procuring of programming to
be aired on the Stations, other than those associated with the Delivered
Programming.  Station Licensee shall pay
over to Sales Agent all funds received by Station Licensee each year from the
Network and any other program syndicator or supplier for promotion of the
Network and other programming on other stations or media, and Sales Agent shall
use all such funds solely for their intended promotional or other similar
purposes and in accordance with Section 4(b) of the Shared Services
Agreement.  Station Licensee shall
cooperate with Sales Agent in filing any necessary forms or reports required to
obtain co-op reimbursement or other funds to which Sales Agent is entitled
under this Section 5.1(f).  For the
purposes of Schedule 3.1 hereof,
Sales Agent’s receipt of promotional or co-op payments identified in this
Section 5.1(f) shall not be considered a part of Net Sales Revenue and its
expenditures of such promotional or co-op payments shall not be considered an
expense for purposes of calculating Net Sales Revenue.  To the extent that any network or program
service agreement of Station Licensee provides that, in exchange for cash
payment, additional spot time that otherwise would be used by such network or
program service may be released for local sales by the Stations, Station
Licensee, upon request by the Sales Agent, will obtain the release of such
commercial spot inventory for the placement of Advertisements by the Sales
Agent, subject to Sales Agent paying to Station Licensee the cash amount
required for such release.


 


(g)   Subject to the provisions of any network
affiliation or other programming agreement to which Station Licensee is a
party, Station Licensee shall consult and cooperate with Sales Agent in the
negotiation, maintenance and enforcement of retransmission consent agreements
with cable, satellite and other multichannel video providers.  Station Licensee, in consultation with Sales
Agent, shall exercise its rights to mandatory carriage and retransmission
consent for cable television and other multichannel video providers in a manner
that ensures the maximum possible distribution of the Stations’ signal on cable,
direct-broadcast-satellite and other multichannel video programming
distributors serving communities located in the Market.


 


(h)   Station Licensee shall not take any action
or unreasonably omit to take any action that would be reasonably likely to result
in a (i) revocation,
non-renewal or material impairment of the FCC Licenses, (ii) material adverse effect upon the
Stations’ transmitters, antennae and other material assets included in the
Stations’ transmission facilities or (iii)
material breach or default under the terms of any of the agreements to which
Station Licensee is a party on and as of the date hereof.


 


10

















 


(i)   Station Licensee shall list Sales Agent as
the exclusive sales representative for the Advertisements in all applicable
trade listings and advertising and promotional material if and when such
listings and material are published by Station Licensee.  


 


(j)   To the extent permitted under the terms of
any applicable agreement, Station Licensee shall provide to Sales Agent such
routine ratings information and ratings reports with respect to the Stations as
are customarily prepared or obtained by the Stations in the ordinary course of
business as Sales Agent may reasonably request from time to time.  Except as otherwise agreed by the parties
hereto, Station Licensee shall maintain (including timely payment of all fees)
any agreements with A.C. Nielsen Company or its affiliates or other ratings
information providers customarily used by the Stations as a source of local
station research information for the Stations (collectively, the “Ratings Agencies”).  At Sales Agent’s request, Station Licensee
shall use its commercially reasonable efforts to assist Sales Agent in
obtaining from the Ratings Agencies permission to use the Stations’ ratings
information and reports in connection with the sale of the Advertisements.


 


(k)   During the Term, Station Licensee shall
not:  (i)
engage in any business other than the business of owning and operating the
Stations; (ii) incur any
liabilities or obligations, except those liabilities and obligations incurred
in connection with its business conducted in compliance with clause (i) of this
Section 5.1(k); (iii) incur any
indebtedness for borrowed money, including guaranteeing or becoming a surety
with respect to the indebtedness of another Person; (iv) file a voluntary petition in bankruptcy, any petition or
answer seeking for itself any reorganization, arrangement, composition,
readjustment of debt, liquidation or dissolution or similar relief under any
present or future insolvency statute, law or regulation of any jurisdiction;
petition or apply to any tribunal for any receiver, custodian or any trustee
for substantially all of its properties or assets; file any answer to any such
petition admitting or not contesting the material allegations of any such
petition sufficient to support the grant or approval of any such order,
judgment or decree; seek, approve or consent to any such proceeding or in the
appointment of any trustee, receiver, sequestrator, custodian, liquidator or
fiscal agent for it or substantially all of its properties or assets; or take
any action for the purpose of effecting any of the foregoing; or be the subject
of an order entered appointing any such trustee, receiver, custodian,
liquidator or fiscal agent, or (v)
amend or modify any provision of that certain Agreement by and between Station
Licensee and Tucker Media and Management Consulting L.L.C., as its sole
shareholder, dated as of the date hereof (the “Tucker Management Agreement”).


 


(l)   During the Term, Station Licensee shall
cooperate with Sales Agent and, upon request by Sales Agent, use commercially
reasonable efforts to assist Sales Agent in making and prosecuting any claims
for indemnification pursuant to the Station Purchase Agreement relating to any
assets of the Stations owned, leased or held by Station Licensee which are or
may be subject to claims under the Station Purchase Agreement, and Sales Agent
shall reimburse Station Licensee for reasonable costs and expenses in
connection with any such cooperation afforded pursuant to this Section
5.1(l).  


 


(m)   During the Term, Station Licensee shall
provide to Sales Agent upon the written request of Sales Agent (but no more
often than once each fiscal quarter) a true and accurate listing of the
outstanding equity interests of Station Licensee and the holders thereof.  Station Licensee acknowledges that Sales
Agent may provide such information to its lenders.   


 


11

















 


Section 5.2       Responsibilities of Sales Agent.  Sales Agent, at its expense and subject to
the provisions of Schedule 3.1,
shall be responsible for and perform the following obligations with respect to
the marketing and sale of the Advertisements during the Term in accordance with
and subject to the following provisions:


 


(a)   Sales Agent shall be solely responsible for
(i) all commissions to its
employees, agencies or representatives and other expenses incurred in its
marketing and sale of the Advertisements; (ii)
all expenses incurred in its performance of traffic, billing and collections
functions with respect to the Advertisements; 
(iii) any other fees
incurred in performing its obligations under this Agreement; and (iv) all fees related to the software used
for sales, traffic, billing and similar functions including any fees charged by
the provider to make Sales Agent’s software interface in the most efficient
manner with the Stations’ master control equipment.


 


(b)   Sales Agent shall be solely responsible for
the salaries, taxes and related costs for all personnel employed by Sales Agent
in the sale of the Advertisements and the collection of accounts receivable
(including salespeople, billing personnel and traffic personnel).


 


(c)   Sales Agent shall cooperate with Station
Licensee and use commercially reasonable efforts to assist Station Licensee in
complying with the provisions of the Communications Act and FCC Rules regarding
political advertising, including compliance with Station Licensee’s statement
disclosing political advertising rates and practices for purchasers of
political advertising consistent with Applicable Law (“Disclosure Statement”).  Sales Agent shall supply such information
promptly to Station Licensee as may be necessary to comply with the public
inspection file, lowest unit rate, equal opportunities and reasonable access
requirements of the Communications Act and FCC Rules.  If the Stations fail to meet the political
time obligations under the Communications Act and FCC Rules based on the
advertising sold by Sales Agent, then, to the extent reasonably necessary to
enable Station Licensee to cause the Stations to comply with such political
time obligations, Sales Agent shall release advertising availabilities to
Station Licensee; provided,  however,
that all revenues realized by Station Licensee from the sale of such
advertising time shall be immediately paid to Sales Agent and shall be
considered a part of its Net Sales Revenue.


 


(d)   All Broadcast Material shall comply in all
material respects with the Policy Statement, the Communications Act, the FCC
Rules and other Applicable Law and shall not violate the intellectual property
rights of any Person.  All services to be
provided and all obligations to be performed by Sales Agent hereunder shall
comply in all material respects with all Applicable Law, including without
limitation the Communications Act and FCC Rules, and standards of performance
customary for the broadcast television industry.


 


Section 5.3       Delivery of Broadcast Material.  All Broadcast Material shall be delivered to
the Stations in a format to be mutually agreed upon by the parties hereto, in a
form ready for broadcast on the Stations’ existing playback equipment, and with
quality suitable for broadcast.  Station
Licensee shall not be required to provide production services or to copy,
reformat or otherwise manipulate material furnished by Sales Agent other than
inserting tape cartridges or similar broadcast-ready media into machinery or
computers for broadcast.


 


12

















 


Section 5.4       Provision of Office Space.  Station Licensee shall provide to employees
and agents of Sales Agent and its Affiliates the right to access and use space
designated for Sales Agent’s use in the Stations’ studio buildings (the “Premises”) as
reasonably necessary for Sales Agent’s performance of the Obligations of Sales
Agent under this Agreement, so long as the provision of such space does not
unreasonably interfere with the conduct of the business or operations of the
Stations.  When on the Premises, Sales
Agent’s personnel shall be subject to the reasonable direction and control of
the management personnel of Station Licensee. 
Station Licensee shall make available to Sales Agent for use without fee
or charge all facilities and equipment of the Stations.


 


Section 5.5       Access to Information.  In order to ensure compliance with the
Communications Act, the FCC Rules and other Applicable Law, Station Licensee
shall be entitled to review at its reasonable discretion from time to time any
Broadcast Material that Station Licensee may reasonably request.  Sales Agent also shall maintain and deliver
to the Stations such records and information required by the FCC Rules to be
placed in the public inspection files of the Stations pertaining to the sale of
political programming and advertisements, in accordance with the provisions of
Sections 73.1940 and 73.3526 of the FCC Rules, and to the sale of sponsored
programming addressing political issues or controversial issues of public
importance, in accordance with the provisions of Section 73.1212 of the FCC
Rules.  Sales Agent shall furnish to
Station Licensee upon request any other information that is reasonably
necessary to enable Station Licensee to prepare any records or reports required
by the FCC or other governmental entities. 
Nothing in this Section 5.5 shall entitle Station Licensee to review the
internal corporate or financial records of Sales Agent.  Station Licensee shall keep confidential any
information obtained from Sales Agent in connection with this Agreement, except
as and to the extent required by Applicable Law.  If this Agreement is terminated, Station
Licensee shall return to Sales Agent all information obtained by it from Sales
Agent in connection with this Agreement. 
This Section 5.5 shall survive any termination or expiration of this
Agreement for a period of three (3) years.


 


Section 5.6       Noncompete. Station Licensee covenants and agrees, on
behalf of itself and its Affiliates, that during the Term, neither it nor any
or its Affiliates will, without the prior written consent of Sales Agent,
directly or indirectly, own, manage, operate, control, or engage or participate
in the ownership, management, operation, or control of, or be connected as a
shareholder, partner, or joint venturer with, any business or organization
which engages in the business of television broadcasting within the Market,
other than the Stations.  Notwithstanding
the foregoing, the ownership of an equity interest of five percent (5%) or less
of a publicly traded company that does not otherwise constitute control over
such company shall not be prohibited.


 


ARTICLE VI


 


REPRESENTATIONS AND WARRANTIES OF STATION LICENSEE


 


Station Licensee represents and warrants to
Sales Agent as follows:


 


Section 6.1       Authorization and Binding Obligation.  The execution, delivery, and performance of
this Agreement by Station Licensee has been duly authorized by all necessary
organizational action on the part of Station Licensee.  This Agreement has been duly executed and
delivered by Station Licensee and constitutes the legal, valid, and binding
obligation of it,


 


13

















 


enforceable
against it in accordance with its terms except as the enforceability thereof
may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium, insolvency, reorganization, or other similar laws of general
application affecting the enforcement of creditors’ rights or by general principles
of equity limiting the availability of equitable remedies.


 


Section 6.2       Absence of Conflicting Agreements or Consents.  The execution, delivery, and performance by
Station Licensee of this Agreement and the documents contemplated hereby (with
or without the giving of notice, the lapse of time, or both): (a) will not
conflict with the organizational documents of Station Licensee; (b) to the
actual knowledge of Station Licensee, does not conflict with, result in a
breach of, or constitute a default under any law, judgment, order, ordinance,
injunction, decree, rule, regulation, or ruling of any court or governmental
instrumentality applicable to Station Licensee, (c) does not conflict
with, constitute grounds for termination of, result in a breach of, constitute
a default under, or accelerate or permit the acceleration of any performance
required by the terms of any agreement, instrument, license, or permit to which
Station Licensee is a party or by which it is bound as of the date hereof; and
(d) will not create any claim, lien, charge, or encumbrance upon any of
the assets of the Stations owned by Station Licensee, other than any lien for
current taxes, payments of which are not yet due and payable, or liens in
respect of pledges or deposits under worker’s compensation laws or similar
legislation, carriers’, warehousemen’s, mechanics’, laborers’ and materialmen’s
and similar liens, if the obligations secured by such liens are not then
delinquent or are being contested in good faith by appropriate proceedings.


 


ARTICLE VII


 


REPRESENTATIONS AND WARRANTIES OF SALES AGENT


 


Sales Agent represents and warrants to
Station Licensee as follows:


 


Section 7.1       Authorization and Binding Obligation.  The execution, delivery, and performance of
this Agreement by Sales Agent have been duly authorized by all necessary
organizational action on the part of such party.  This Agreement has been duly executed and
delivered by Sales Agent and constitutes the legal, valid, and binding obligation
of such party, enforceable against such party in accordance with its terms
except as the enforceability thereof may be limited by bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium, insolvency, reorganization or
other similar laws of general application affecting the enforcement of
creditors’ rights or by general principles of equity limiting the availability
of equitable remedies.


 


Section 7.2       Absence of Conflicting Agreements and Required Consents.  The execution, delivery, and performance by
Sales Agent of this Agreement and the documents contemplated hereby (with or
without the giving of notice, the lapse of time, or both):  (a) will not conflict with the governing
documents of Sales Agent; (b) to the actual knowledge of Sales Agent, does not
conflict with, result in a breach of, or constitute a default under, any law,
judgment, order, ordinance, injunction, decree, rule, regulation, or ruling of
any court or governmental instrumentality applicable to such party; and (c)
does not conflict with, constitute grounds for termination of, result in a
breach of, constitute a default under, or accelerate or permit the acceleration
of any performance required by the terms of, any agreement, instrument, license
or permit to which Sales Agent is a party or by which it is bound as of the
date hereof.


 


14
















 


ARTICLE VIII


 


INDEMNIFICATION AND REMEDIES


 


Section 8.1       By Sales Agent. Sales Agent shall, jointly and
severally, indemnify, defend and hold harmless Station Licensee and any
employee, director, member, manager, officer, stockholder, or agent of Station
Licensee, or any of its Affiliates, successors or assignees (exclusive of Sales
Agent and its Affiliates and agents) (each, a “Station
Indemnified Party”), from and against, and reimburse and pay to
such Station Indemnified Party as incurred, any loss, liability, damage or
expense (including reasonable legal expenses and costs and any cost or expense
arising from or incurred in connection with any action, suit, proceeding, claim
or judgment) relating to any matter described in this Section 8.1, or in enforcing
the indemnity provided by this Section 8.1 (any such amount being a “Loss”), which any such Station
Indemnified Party may suffer, sustain or become subject to, in any way arising
from, relating to, or as a result of:


 


(a)   any act or omission, event or occurrence
that was or shall be caused by Sales Agent, its agents or Affiliates (including
any predecessor in interest thereto) relating to the business of Sales Agent or
the Stations;


 


(b)   any omission by Sales Agent or breach by
Sales Agent (including any predecessor in interest to Sales Agent) of any of
its obligations hereunder; or


 


(c)   any Broadcast Material.


 


The obligations of Sales Agent under this
Section 8.1 shall survive any termination or expiration of this Agreement. The
obligations of Sales Agent under this Section 8.1 shall be direct and not
conditioned or conditional upon Station Licensee’s pursuit of remedies against
any other party, including the Sellers pursuant to the Station Purchase
Agreement, and irrespective of Station Licensee’s rights under the Station
Purchase Agreement, Station Licensee shall have the right to elect to proceed
against Sales Agent in the first instance without any requirement to first
proceed against the Sellers or any such third party.


 


Notwithstanding anything to the contrary
contained herein, in no event shall Sales Agent be liable under this Section
8.1 for punitive, treble, exemplary, consequential, special or other damages
that are not actual damages in accordance with Applicable Law.


 


Section 8.2       By Station Licensee. Except with respect to or to the
extent of any Loss subject to indemnification pursuant to the terms and subject
to the conditions of Section 8.1 and subject to the limitations set forth in
Section 11(b) of the Shared Services Agreement, Station Licensee shall, jointly
and severally, indemnify, defend and hold harmless Sales Agent and any
employee, director, member, manager, officer, stockholder or agent of Sales
Agent, or any of its Affiliates, successors or assignees (each, a “Sales Agent Indemnified Party”) from
and against, and reimburse and pay to such Sales Agent Indemnified Party, as
incurred, any Loss, which any such Sales Agent Indemnified Party may suffer,
sustain or become subject to, in any way arising from, relating to, or as a
result of:


 


15

















 


(a)   any libel, slander, illegal competition or
trade practice, infringement of trademarks, trade names, or program titles,
violation of rights of privacy, and infringement of copyrights and proprietary
rights resulting from or relating to all material broadcast on the Station
following the Base Date other than the Broadcast Material and with respect to
which Station Licensee had notice or otherwise should have been reasonably
aware; and


 


(b)   the actions or omissions of Station Licensee’s
employees and representatives in performing their duties under this Agreement
or in acting outside the scope of their employment, which actions or omissions
constitute willful misconduct or gross negligence.


 


Section 8.3       Procedure.


 


(a)   If any Person entitled to indemnification
under this Agreement (an “Indemnified Party”)
asserts a claim for indemnification for, or receives notice of the assertion or
commencement of any Third Party Claim as to which such Indemnified Party
intends to seek indemnification under this Agreement, such Indemnified Party
shall give reasonably prompt written notice of such claim to the party from
whom indemnification is to be sought (an “Indemnifying Party”),
together with a statement of any available information regarding such claim. The
Indemnifying Party shall have the right, upon written notice to the Indemnified
Party (the “Defense Notice”) within
fifteen (15) days after receipt from the Indemnified Party of notice of such
claim, to conduct at its expense the defense against such Third Party Claim in
its own name, or if necessary in the name of the Indemnified Party (which
notice shall specify the counsel the Indemnifying Party will appoint to defend
such claim (“Defense Counsel”); provided,  however, that the Indemnified Party shall have the right to
approve the Defense Counsel, which approval shall not be unreasonably withheld
or delayed). The parties hereto agree to cooperate fully with each other in
connection with the defense, negotiation or settlement of any Third Party Claim.
If the Indemnifying Party delivers a Defense Notice to the Indemnified Party,
the Indemnified Party will cooperate with and make available to the
Indemnifying Party such assistance and materials as may be reasonably requested
by the Indemnifying Party, all at the expense of the Indemnifying Party.


 


(b)   If the Indemnifying Party shall fail to give
a Defense Notice, it shall be deemed to have elected not to conduct the defense
of the subject Third Party Claim, and in such event the Indemnified Party shall
have the right to conduct such defense in good faith. If the Indemnified Party
defends any Third Party Claim, then the Indemnifying Party shall reimburse the
Indemnified Party for the costs and expenses of defending such Third Party
Claim upon submission of periodic bills. If the Indemnifying Party elects to
conduct the defense of the subject Third Party Claim, the Indemnified Party may
participate, at his or its own expense, in the defense of such Third Party
Claim; provided,
however, that such Indemnified Party
shall be entitled to participate in any such defense with separate counsel at
the expense of the Indemnifying Party if (i) so requested
by the Indemnifying Party to participate or (ii)
in the reasonable opinion of counsel to the Indemnified Party, a conflict or
potential conflict exists between the Indemnified Party and the Indemnifying
Party that would make such separate representation advisable; and provided, further, that
the Indemnifying Party shall not be required to pay for more than one counsel
for all Indemnified Parties in connection with any Third Party Claim.


 


16

















 


(c)   Regardless of which party defends a Third
Party Claim, the other party shall have the right at its expense to participate
in the defense of such Third Party Claim, assisted by counsel of its own
choosing. The Indemnified Party shall not compromise, settle, default on, or
admit liability with respect to a Third Party Claim without the prior written
consent of the Indemnifying Party, which consent shall not be unreasonably
withheld or delayed, and, if the Indemnified Party settles, compromises,
defaults on, or admits liability with respect to a Third Party Claim except in
compliance with the foregoing, the Indemnified Party will be liable for all
Losses paid or incurred in connection therewith and the Indemnifying Party
shall have no obligation to indemnify the Indemnified Party with respect
thereto. The Indemnifying Party shall not compromise or settle a Third Party
Claim without the consent of the Indemnified Party, which consent shall not be
unreasonably withheld or delayed, unless such compromise or settlement includes
as a term thereof an unconditional release of the Indemnified Party and such
compromise or release does not impose any non-monetary obligations on the
Indemnified Party other than immaterial administrative obligations (and all
monetary obligations are subject to the indemnification provisions of this
Agreement), in which case the consent of the Indemnified Party shall not be
required.


 


(d)   After any final decision, judgment or award
shall have been rendered by a court or governmental entity of competent
jurisdiction and the expiration of the time in which to appeal therefrom, or
after a settlement shall have been consummated, or after the Indemnified Party
and the Indemnifying Party shall have arrived at a mutually binding agreement
with respect to a Third Party Claim hereunder, the Indemnified Party shall
deliver to the Indemnifying Party notice of any sums due and owing by the
Indemnifying Party pursuant to this Agreement with respect to such matter and
the Indemnifying Party shall be required to pay all of the sums so due and
owing to the Indemnified Party by wire transfer of immediately available funds
within ten (10) business days after the date of such notice.


 


(e)   It is the intent of the parties that all
direct claims by an Indemnified Party against a party not arising out of Third
Party Claims shall be subject to and benefit from the terms of this Section 8.3.
Any claim under this Section 8.3 by an Indemnified Party for
indemnification other than indemnification against a Third Party Claim (a “Direct Claim”) will be asserted by
giving the Indemnifying Party reasonably prompt written notice thereof, and the
Indemnifying Party will have a period of 20 days within which to satisfy such
Direct Claim. If the Indemnifying Party does not so respond within such 20 day
period, the Indemnifying Party will be deemed to have rejected such claim, in
which event the Indemnified Party will be free to pursue such remedies as may
be available to the Indemnified Party under this Section 8.


 


(f)   A failure by an Indemnified Party to give
timely, complete, or accurate notice as provided in this Section 8.3 shall
not affect the rights or obligations of either party hereunder except to the
extent that, as a result of such failure, any party entitled to receive such
notice was deprived of its right to recover any payment under its applicable
insurance coverage or was otherwise materially adversely affected or damaged as
a result of such failure to give timely, complete, and accurate notice.


 


(g)   The parties shall use their commercially
reasonable efforts to collect the proceeds of any insurance that would have the
effect of reducing any Losses (in which case such proceeds shall reduce such
Losses). To the extent any Losses of an Indemnified Party are reduced


 


17

















 


by receipt of payment under insurance
policies or from third parties not affiliated with the Indemnified Party, such
payments (net of the expenses of the recovery thereof) shall be credited
against such Losses and, if indemnification payments shall have been received
prior to the collection of such proceeds, the Indemnified Party shall remit to
the Indemnifying Party the amount of such proceeds (net of the cost of
collection thereof) to the extent of indemnification payments received in
respect of such Losses. The indemnification obligations hereunder shall survive
any termination of this Agreement.


 


Section 8.4       Services Unique. The parties hereby agree that the
services to be provided by the parties under this Agreement are unique and that
substitutes therefor cannot be purchased or acquired in the open market. For
that reason, the parties would be irreparably damaged in the event of a
material breach of this Agreement by the another party. Accordingly, to the
extent permitted by the Communications Act and the FCC Rules then in effect,
the parties may request that a decree of specific performance be issued by a
court of competent jurisdiction, enjoining the another party to observe and to
perform such other party’s covenants, conditions, agreements and obligations
hereunder, and the parties hereby agree neither to oppose nor to resist the
issuance of such a decree on the grounds that there may exist an adequate
remedy at law for any material breach of this Agreement.


 


Section 8.5       Exclusivity. After the Base Date, the indemnification
provided by this Section 8 shall be the sole and exclusive remedy of either of
Sales Agent and Station Licensee against the other party hereto for any claim
arising out of a breach of any representation, warranty, covenant or agreement
herein or otherwise in connection with this Agreement; provided,
that this Section 8.5 shall not prohibit (a) injunctive relief (including
specific performance) pursuant to Section 8.4 or if available under Applicable
Law or (b) any other remedy available at law or in equity for any fraud
committed in connection with this Agreement.


 


ARTICLE IX


 


MISCELLANEOUS


 


Section 9.1       No Partnership or Joint Venture. This Agreement is not
intended to be, and shall not be construed as, an agreement to form a
partnership or a joint venture between the parties. Except as otherwise
specifically provided in this Agreement, no party shall be authorized to act as
an agent of or otherwise to represent any other party hereto.


 


Section 9.2       Confidentiality. Each party hereto agrees that it will
not at any time during or after the termination of this Agreement disclose to
others or use, except as duly authorized in connection with the conduct of the
business or the rendering of services hereunder, any secret or confidential
information of the other parties. To the extent required by the Communications
Act and FCC Rules, each party shall place a copy of this Agreement in its
public inspection file and shall consult with the other party and agree upon
the confidential and proprietary information herein that shall be redacted from
such copy.


 


Section 9.3       Assignment; Benefit; Binding Effect. No party may assign
this Agreement or delegate its obligations under this Agreement without the
prior written consent of the other parties. Notwithstanding anything to the
contrary contained herein, (a) Sales Agent may assign its


 


18

















 


rights and
obligations under this Agreement to any successor in interest as the operator
or licensee of television broadcast stations WPBN(TV) and WTOM(TV) or purchaser
of all or substantially all of the assets of such stations (each a “Sales Agent Assignee”) upon written
notice to Station Licensee; provided,  however, that
such Sales Agent Assignee shall also assume the rights and obligations of the
Option Holder (as defined in the Option Agreement) under the Option Agreement,
and provided that Sales Agent, as assignor,
shall guarantee, and remain responsible for, the full and complete performance
of its Sales Agent Assignee and any subsequent assignee of Sales Agent Assignee
and (b) Station Licensee shall assign this Agreement and all of its rights and
obligations hereunder to any Person to which the FCC Licenses are transferred
or assigned with the prior written consent of Sales Agent, which consent shall
not be unreasonably withheld, provided that
as a condition to such transfer or assignment (i)
this Agreement, the Shared Services Agreement, the Option Agreement and all of
Station Licensee’s rights and obligations hereunder and thereunder are assigned
to such Person, which assignments are to be effective simultaneously, (ii) such Person is legally and financially qualified to be
the holder of the FCC Licenses and (iii) such
Person executes and delivers to the Sales Agent an instrument in form and
substance reasonably acceptable to Sales Agent, accepting such assignments of
this Agreement, the Shared Services Agreement, the Option Agreement and the
rights and obligations of Station Licensee hereunder and thereunder and
agreeing to pay, discharge and perform the obligations and liabilities of
Station Licensee hereunder and thereunder in accordance with the terms hereof
and thereof and such other documents and instruments as Sales Agent may
reasonably request. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and permitted
assigns. Any permitted assignee of a party hereto shall be a party to this
Agreement for all purposes hereof.


 


Section 9.4       Force Majeure. Any delay or interruption in the
broadcast operation of the Stations, in whole or in part, due to acts of God,
strikes, lockouts, material or labor restrictions, governmental action, riots,
natural disasters or any other cause not reasonably within the control of a
party shall not constitute a breach of this Agreement, and no party shall be
liable to any other party for any liability or obligation with respect thereto.


 


Section 9.5       Further Assurances. The parties hereto shall take any
actions and execute any other documents that may be necessary or desirable to
the implementation and consummation of this Agreement.


 


Section 9.6       Press Release. No party hereto shall publish any press
release, make any other public announcement or otherwise communicate with any
news media concerning this Agreement or the transactions contemplated hereby
without the prior written consent of the other parties hereto; provided,  however,
that nothing contained herein shall prevent any party from promptly making all
filings with governmental authorities as may, in its judgment, be required or
advisable in connection with the execution and delivery of this Agreement or
the consummation of the transactions contemplated hereby.


 


Section 9.7       Unenforceability. If one or more provisions of this
Agreement or the application thereof to any Person or circumstances shall be
invalid or unenforceable to any extent, the remainder of this Agreement and the
application of such provisions to other Persons or circumstances shall not be
affected thereby and shall be enforced to the greatest extent permitted by
Applicable Law, except that, if such invalidity or unenforceability should
change the basic


 


19

















 


economic
positions of the parties hereto, they shall negotiate in good faith such
changes in other terms as shall be practicable in order to restore them to
their prior positions. In the event that the FCC alters or modifies its rules
or policies in a fashion which would raise substantial and material questions
as to the validity of any provision of this Agreement, the parties shall
negotiate in good faith to revise any such provision of this Agreement in an
effort to comply with all applicable FCC Rules while attempting to preserve the
intent of the parties as embodied in the provisions of this Agreement. The
parties hereto agree that, upon the request of either of them, they will join
in requesting the view of the staff of the FCC, to the extent necessary, with
respect to the revision of any provision of this Agreement in accordance with
the foregoing.


 


Section 9.8       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 by personal delivery, or sent by
commercial delivery service or registered or certified mail, return receipt
requested, (c) deemed to have been given on the date of personal delivery
or the date set forth in the records of the delivery service or on the return
receipt, and (d) addressed as set forth on Schedule 9.8.


 


Section 9.9       Governing Law. This Agreement shall be construed and
governed in accordance with the laws of New York without reference to the
conflict of laws principles thereof.


 


Section 9.10     Captions. The captions in this Agreement are for
convenience only and shall not be considered a part of, or effect the
construction or interpretation of any provision of, this Agreement.


 


Section 9.11     Gender and Number. Words used herein, regardless of the
gender and number specifically used, shall be deemed and construed to include
any other gender, masculine, feminine, or neuter, and any other number,
singular or plural, as the context requires.


 


Section 9.12     Counterparts and Facsimile Signatures. This Agreement
may be executed in any number of counterparts, each of which shall be deemed an
original but all of which together shall constitute one and the same instrument.
This Agreement shall be legally binding and effective upon delivery of
facsimile signatures.


 


Section 9.13     Entire Agreement. This Agreement and the attachments and
Schedules hereto (which are hereby incorporated by reference and made a part
hereof), [the Assignment and Assumption Agreement], the Shared Services
Agreement, the Option Agreement and the letter agreement dated as of the date
hereof from Sales Agent to Station Licensee (the “Letter
Agreement”), when executed and delivered by the parties thereto,
collectively represent the entire understanding and agreement among the parties
hereto with respect to the subject matter hereof and thereof and supersede all
prior agreements with respect to the subject matter hereof and thereof. Notwithstanding
anything to the contrary contained herein or in any of the other Transaction
Documents and, without limiting any of the other rights or remedies of the
parties hereunder or under any of the Transaction Documents, the parties
acknowledge and agree that Sales Agent may offset any amount owed by Station
Licensee to Sales Agent pursuant to any of the Transaction Documents as a
credit against any amount owed by Sales Agent to Station Licensee pursuant to
any of the Transaction Documents. No term or provision hereof may be changed,
modified, terminated or discharged (other than in accordance with its terms),
in whole or


 


20

















 


in part,
except by a writing which is dated and signed by the parties hereto. No waiver
of any of the provisions or conditions of this Agreement or of any of the
rights, powers or privileges of a party hereto shall be effective or binding
unless in writing and signed by the party claimed to have given or consented to
such waiver.


 


Section 9.14     Other Definitional Provisions. The terms “hereof,” “herein”
and “hereunder” and terms of similar import will refer to this Agreement as a
whole and not to any particular provision of this Agreement. Section references
contained in this Agreement are references to Sections in this Agreement,
unless otherwise specified. Each defined term used in this Agreement has a
comparable meaning when used in its plural or singular form. Each
gender-specific term used in this Agreement has a comparable meaning whether
used in a masculine, feminine or gender-neutral form. Whenever the term “including”
is used in this Agreement (whether or not that term is followed by the phrase “but
not limited to” or “without limitation” or words of similar effect) in
connection with a listing of items within a particular classification, that
listing will be interpreted to be illustrative only and will not be interpreted
as a limitation on, or an exclusive listing of, the items within that
classification.


 


 


[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]


 


21

















 


IN WITNESS
WHEREOF, this Joint Sales Agreement has been executed by the
parties hereto effective as of the date first written above.


 


	
   

  	
  SALES AGENT:

  
	
   

  	
   

  
	
   

  	
  Barrington Traverse City LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Paul M.
  McNicol

  	
   

  
	
   

  	
   

  	
  Name: Paul
  M. McNicol

  
	
   

  	
   

  	
  Title:
  Senior Vice President/Secretary

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  STATION LICENSEE:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Tucker Broadcasting of Traverse City, Inc.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Benjamin
  W. Tucker

  	
   

  
	
   

  	
   

  	
  Name:
  Benjamin W. Tucker

  
	
   

  	
   

  	
  Title: President

  
					



 

















 


SCHEDULE 3.1


 


I.              Net Sales Revenue.


 


A.            For purposes of this Agreement, the term “Net Sales Revenue” means (i) all gross revenue received by Sales Agent or Station
Licensee for all Advertisements, less agency, buying service or other sales
commissions paid to or withheld by an advertiser, agency or service, as the
case may be, and (ii) any other amounts
designated for inclusion in the calculation of Net Sales Revenue pursuant to
the terms and subject to the conditions of this Agreement.


 


II.            Station Expenses;
Payments.


 


A. In the event that due to the performance
of the Stations and the resulting revenues of the Stations with respect to any
given month during the Term, the total aggregate amount of Designated Expenses
and Other Expenses exceeds the amount of the Licensee Revenue Share for such
month, Sales Agent shall pay to Station Licensee the differential of such
amounts. Any expenses incurred by Station Licensee that do not constitute
Designated Expenses or Other Expenses (including obligations pursuant to a
credit or loan facility that is not designated as an Acquisition Financing
Arrangement as provided below) shall remain solely the obligation of Station Licensee.


 


B. For purposes of this Agreement:


 


(a)           “Designated Expenses”
shall mean the sum of the actual out-of-pocket payments and expenses of Station
Licensee for the following: (i) utilities
associated with the Stations’ transmitting facilities together with all other
expenses, including rental payments, payable by Station Licensee under any
lease for real property on which the Stations are located or used exclusively
for the operation of the Stations, (ii) salaries
for up to two of the Stations’ full-time employees, one of which shall be the
station manager and hourly rates for accounting and human resource services,
all at reasonable and customary rates for such employees or services, (iii) expenses related to maintenance and filings with
respect to the FCC Licenses in respect of the Stations and other expenses of
compliance with FCC Rules and other Applicable Law in connection with the
operation of the Stations, including reasonable and customary attorneys’ fees
of Station Licensee incurred in connection therewith, (iv)
property taxes on any real property, personal property and leased property on
which the Stations are located or used exclusively for the operation of the
Stations, (v) in the event that Station Licensee
shall have elected to borrow the purchase price with respect to its acquisition
under the Station Purchase Agreement (pursuant to the Assignment and Assumption
Agreement) pursuant to a credit agreement or other financing arrangement
contemplated by that certain Commitment Letter, dated as of August 31, 2007,
from Banc of America Securities LLC, Wachovia Bank, National Association,
Wachovia Capital Markets, LLC and CIT Lending Services Corporation in favor of
Tucker Broadcasting of Traverse City, Inc., or any other financing arrangement
provided by, or entered into with, Pilot Group L.P. or an Affiliate thereof (an
“Acquisition Financing


 


2

















 


Arrangement”),
the payments due by Station Licensee pursuant to such Acquisition Financing
Arrangement, other than those payments due pursuant to such Acquisition
Financing Agreement to the extent arising out of the failure of Station
Licensee to make a timely payment thereunder for which Station Licensee had
received timely payment hereunder or otherwise to the extent arising out of
actions or omissions of Station Licensee in breach of such Acquisition
Financing Arrangement (provided, that
any payments under this clause shall be made directly to Station Licensee), (vi) premiums and other out-of-pockets costs and expenses
relating to any insurance that Station Licensee is required to maintain
pursuant to the terms of the Option Agreement, (vii)
all music rights payments required to be paid by Station Licensee (including
music performance rights, synchronization rights, and master use rights), in
connection with the broadcast and/or transmission of all announcements and
programming on the Stations, including the Advertisements (but excluding the
Delivered Programming, which shall be the responsibility of Sales Agent), (viii) all payments for the acquisition or licensing of
programming during the Term, including television network payments, (ix) payments or distributions pursuant to the Tucker
Management Agreement, as in effect on the date hereof, (x)
amounts payable under the Shared Services Agreement with Sales Agent, (xi) amounts payable under the lease agreements listed on Exhibit
A attached hereto, and (xii) any costs
or expense actually incurred by Station Licensee as a result of complying with
its obligation to broadcast the Broadcast Material.


 


(b)           “Other Expenses”
shall mean expenses that are reasonably necessary or customary in the operation
and maintenance of the Stations, which have been consented to in advance by
Sales Agent, provided that Station Licensee
shall have no obligation under this Agreement to incur any Other Expenses in
the absence of such consent and agreement to reimburse under this subparagraph
(b).


 


C.            “Station Expenses”
shall mean, collectively, Designated Expenses, Other Expenses, expenses in
accordance with the Operating Budget, and any other expenses, distributions or
payment obligations that are not contemplated by the Operating Budget.


 


D. In order to promote the administration of
the payment obligations between the parties under this Agreement and the Shared
Services Agreement (individually and collectively, the “Principal
Agreements”), the parties agree that (i) the amounts due and payable by one party under any of the
Principal Agreements may be offset against any outstanding payment obligation
by the other party under any of the Principal Agreements; and (ii) to the extent reasonably practicable,
Sales Agent shall deliver to Station Licensee in connection with the payment of
the Licensee Revenue Share a single statement reflecting the respective payment
obligations of the parties under each of the Principal Agreements, which
statement shall reflect any offsetting amounts.


 


3

















 


SCHEDULE 4.2


 


SCHEDULE OF DELIVERED
PROGRAMMING


 


Commencing on the Base
Date, Sales Agent shall be permitted to provide the Delivered Programming in
accordance with the terms and subject to the conditions of this Agreement. Notwithstanding
anything herein to the contrary, the obligations of Station Licensee set forth
in this Schedule 4.2 shall be subject to Station Licensee’s rights under
Sections 4.2, 4.3, 4.4 and 4.8 of this Agreement.


 


At any time and from time
to time following the Base Date, Sales Agent may designate by written notice to
Station Licensee the days and times during which the Delivered Programming
shall be broadcast on the Stations, and Station Licensee shall commence the
broadcast of such Delivered Programming no later than 14 days following its
receipt of such notice, so long as (i) the duration
of such Delivered Programming, together with the duration of all other
Delivered Programming broadcast on the applicable Station, does not exceed 15%
of such Station’s weekly broadcast schedule and (ii)
the broadcast of such Delivered Programming during the days and times specified
by Sales Agent does not conflict with the contractual obligations of Station
Licensee.


 


At any time and from time
to time following the Base Date, Sales Agent may designate, by written notice
to Station Licensee, existing programming broadcast on the Stations that,
effective upon receipt of such notice, shall constitute Delivered Programming
for all purposes under this Agreement (such existing programming so designated
by Sales Agent, the “Converted Programming”).
At Sales Agent’s election, such notice may specify changes to the days and
times during which such Converted Programming shall be broadcast on the
Stations and Station Licensee shall broadcast such Converted Programming during
the days and times specified by Sales Agent no later than 14 days following its
receipt of such notice, so long as (i) the duration
of such Converted Programming, together with the duration of all other
Delivered Programming broadcast on the applicable Station, is less than 15% of
such Station’s weekly broadcast schedule and (ii)
the broadcast of such Converted Programming during the days and times specified
by Sales Agent does not conflict with the contractual obligations of Station
Licensee. Subject to receipt of any required consent, Station Licensee shall
assign to Sales Agent as promptly as practicable following receipt of Sales
Agent’s written notice Station Licensee’s rights and interests in the Converted
Programming. Station Licensee shall use commercially reasonable efforts to
obtain the consent of any third parties required in connection with any such
assignment.


 


If the FCC changes its
rules or policies in a manner that allows Sales Agent to provide Delivered
Programming that exceeds 15% of the Stations’ broadcast hours for any week, at
the request of Sales Agent, Station Licensee shall cooperate in good faith with
Sales Agent to agree upon one or more additional time periods during which
Sales Agent shall be permitted to provide additional Delivered Programming for
broadcast on the Stations, but in no event shall the aggregate duration of all
Delivered Programming, including such additional time periods, exceed the total
amount of Delivered Programming as may be permitted by the FCC after giving
effect to such change in the FCC Rules.


 

















 


Upon no less than 14 days
prior written notice from Sales Agent to Station Licensee, Sales Agent may
change the date and times that the Delivered Programming shall be broadcast on
the Stations and Station Licensee agrees to broadcast the Delivered Programming
in accordance with such revised schedule.


 


2

















 


SCHEDULE 4.3


 


POLICY STATEMENT FOR BROADCAST MATERIAL


 


Sales Agent agrees to cooperate with Station
Licensee in the broadcasting of programs of high quality and, for this purpose,
to observe the following policies in the preparation, writing, production and
delivery of Broadcast Material.


 


CONTROVERSIAL ISSUE.
Any discussion of controversial issues of public importance shall be reasonably
balanced with the presentation of contrasting viewpoints in the course of
overall programming; no attacks on the honesty, integrity, or like personal
qualities of any person or group of persons shall be made; and Station programs
(other than public forum or talk features) are not to be used as a forum for
editorializing about individual candidates. If such events occur, Licensee may
require that responsive programming be aired.


 


NO PLUGOLA OR PAYOLA. The mention of any
business activity or “plug” for any commercial, professional, or other related
endeavor, except where contained in an actual commercial message of a sponsor,
is prohibited.


 


ELECTION PROCEDURES. At least ninety (90) days
before the start of any primary or regular election campaign, Sales Agent will
clear with Station Licensee the rate Sales Agent will charge for the time to be
sold to candidates for public office and/or their supporters to make certain
that the rate charged is in conformity with Applicable Law and Station Licensee’s
policy.


 


PROGRAMMING PROHIBITIONS. Sales Agent shall
not knowingly broadcast any of the following programs or announcements:


 


(a)  False Claims. False or unwarranted
claims for any product or service.


 


(b)  Unfair Imitation. Infringements of
another advertiser’s rights through plagiarism or unfair imitation of either
program idea or copy, or any other unfair competition.


 


(c)  Commercial Disparagement. Any unlawful
disparagement of competitors or competitive goods.


 


(d)  Obscenity/Indecency/Profanity. Any
programs or announcements that are obscene or indecent, as those terms are
interpreted and applied by the FCC or any programs or announcements that are
slanderous, obscene, profane, vulgar, repulsive or offensive, either in theme
or treatment.


 


(e)  Price Disclosure. Any price mentions
except as permitted by Licensee’s policies current at the time.


 


(f)  Unauthorized Testimonials. Any
testimonials which cannot be authenticated.


 

















 


(g)  Descriptions of Bodily Functions. Any
continuity which describes in a repellent manner internal bodily functions or
symptomatic results or internal disturbances, and no reference to matters which
are not considered acceptable topics in social groups.


 


(h)  Conflict Advertising. Any advertising
matter or announcement which may, in the reasonable opinion of Station
Licensee, be injurious or prejudicial to the interest of the public, the
Stations, or honest advertising and reputable business in general.


 


(i)  Fraudulent or Misleading Advertisement. Any
advertisement matter, announcement, or claim which Sales Agent knows to be
fraudulent, misleading, or untrue.


 


LOTTERIES. Announcements giving any
information about lotteries or games prohibited by Applicable Law are
prohibited.


 


RELIGIOUS PROGRAMMING RESTRICTIONS. The
subject of religion and references to particular faiths, tenants, and customs
shall be treated with respect at all times. Broadcast Material shall not be
used as medium for attack on any faith, denomination, or sect or upon any
individual or organization.


 


CREDIT TERMS ADVERTISING. Any advertising of credit
terms shall be made over the Station in accordance with Applicable Law.


 


NO ILLEGAL ANNOUNCEMENTS. No announcements or
promotion prohibited by Applicable Law shall be made over the Stations. At
Station Licensee’s request, any game, contest, or promotion relating to or to
be presented over the Stations must be fully stated and explained in advance to
Station Licensee, which reserves the right in its sole discretion to reject any
game, contest, or promotion.


 


LICENSEE DISCRETION PARAMOUNT. In accordance
with the responsibilities of Station Licensee under the Communications Act and
the FCC Rules, Station Licensee reserves the right to reject or terminate any
Broadcast Material proposed to be presented or being presented over the
Stations which is in conflict with the policy of Station Licensee or which in
the reasonable judgment of Station Licensee would not serve the public
interest.


 


PROGRAMMING IN WHICH SALES AGENT HAS A FINANCIAL INTEREST. Sales
Agent shall advise Station Licensee with respect to any Broadcast Material
concerning goods or services in which Sales Agent has a material financial
interest. Any announcements for such goods and services for which Sales Agent
charges less than its regular rate shall clearly identify Sales Agent’s
financial interest.


 


MISCELLANEOUS.


 


(a)  Waiver.
To the extent legally permissible, the parties may jointly waive any of the
foregoing policies in specific instances if, in their opinion, good
broadcasting in the public interest is served.


 


2

















 


(b)  Prior
Consent. In any case where questions of policy or interpretation arise,
Sales Agent will attempt in good faith to submit the same to Station Licensee
for decision before making any commitments in connection therewith.


 


3

















 


SCHEDULE 9.8


 


NOTICES


 


If to Station Licensee:


 


Tucker
Broadcasting of Traverse City, Inc.


Attention:  Ben Tucker, President


9434 N. Sunset
Ridge


Fountain
Hills, AZ 85268


Phone:  (480)836-2181


Email:  bentucker13@cox.net


 


With a copy
(which shall not constitute notice) to:


 


Pillsbury
Winthrop Shaw Pittman LLP


2300 N Street,
NW


Washington, DC
20037-1122


Attention:  Clifford M. Harrington


Phone:  202-663-8525


Fax:  202-663-8007


 


 


If to Sales Agent:


 


Barrington
Traverse City, LLC


45 Fifth Avenue


24th Floor


New York, NY 
10151


Attention:  Paul McNicol


Fax:  (212) 486-2896


 


with a copy (which shall not constitute
notice) to:


 


Barrington
Broadcasting LLC


2500 West
Higgins Road, Suite 880


Hoffman
Estates, IL 60195


Attention:  K. James Yager


Fax:  847-755-3045


 

















 


and


 


Covington
& Burling


1201
Pennsylvania Avenue, N.W.


Washington, DC
20004-2401


Attention:  Eric Dodson Greenberg, Esq.


Phone: (202)
662-5193


Fax: (202)
662-6291


 


2

















 


Exhibit A


 


1. Office Lease dated as of March 1, 2003
between Goldfinger, LLC, and Scanlan Communications, Inc., as amended by that
certain Amendment and Assignment of Lease Agreement dated October 16, 2003
among Max Media of Traverse City LLC, Goldfinger, LLC and Scanlan
Communications, Inc.


 


2.             Land Lease dated July 12, 2006 between CC
Michigan, LLC d/b/a/ Charter Communications and Max Media of Traverse City LLC
for land commonly known as Charter Communication’s Headend Site.


 


3.             Lease Agreement dated September 30, 1982
(as amended on March 1, 2003) between Seller and Ted Joubran for office space
located at 205 E. Front St., Traverse City, MI. As amended.


 


4.             Lease Agreement dated February 20, 2004
between Max Media of Traverse City LLC and H&N Storage Facilities LLC,
d/b/a Silver Lake Self Storage for Space #0334, for an approximately 12x40
unit, located at 5215 Curtis Road, Traverse City, MI.


 


5.             Storage Agreement dated January 16, 2004
between Seller and ProFile, LLC for document storage.


 


3