Exhibit 10.16


 


AFFILIATION AGREEMENT


(PRIMARY AFFILIATE)


 


This Affiliation Agreement (the “Agreement”), is entered into as this
151 of October, 2003, by and between UPN, a Delaware partnership, located at 51
West 52nd Street, New York, New York 10019, and Young
Broadcasting of Sioux Falls, Inc. (“Licensee”), located at 501 S. Phillips
Avenue Sioux Falls, South Dakota 57104 with respect to television station
KELO-DT (the “Station”), which broadcasts on television channel 32 and which is
licensed by the Federal Communications Commission (the “FCC”) to serve the
community of Sioux Falls, South.  Dakota
(the “Licensed Community”), located in the Designated Market Area of Sioux
Falls (Mitchell), South Dakota (the “DMA”). 
It is understood that Licensee also owns KELO-TV (the “Analog station”),
which broadcasts on television channel 11, is licensed by the FCC to serve
the Licensed Community for the DMA and is affiliated with the CBS television
network.


 


1.                                      LICENSED
RIGHTS.


 


1.1.          Telecast
Rights.  Subject to the terms of
this Agreement, UPN hereby grants to Licensee, and Licensee accepts, a limited
license to telecast the Network Programs (as defined below), over the Station’s
television broadcast facilities.


 


1.2.          Additional
Rights.  Subject to the terms of
this Agreement, UPN hereby grants to Licensee a royalty-free nonexclusive
license during the License Term (as defined below) to use all trade marks and
service marks used by UPN, including, without limitation, the mark “UPN,” as
well as the logos and other artwork used by UPN to depict such mark
(collectively the “Marks’s in the DMA as trademarks or service marks solely and
directly in connection with Licensee’s television production and telecasting
activities and the advertising and promotion of those activities (collectively
the “Goods and Services”).


 


1.3.          Reserved
Rights.  UPN reserves all other
rights which UPN may have in the New York Programs and the Marks which are
not expressly licensed to Licensee hereunder (the “Reserved Rights”),
including, without limitation, the right to use, and to grant and license to
others the right to use,              e
Marks, in whole or in part, in any manner whatsoever, including without
limitation as a trade name, corporate name, trademark or service mark in
connection with any and all goods and services.  As between Licensee and UPN, UPN may exploit the Reserved Rights
as UPN sees fit, without restriction, except as otherwise expressly provided in
this Agreement.


 


2.                                      NETWORK
PROGRAMS.


 


2.1.          The
Programs.  The television programs
licensed to Licensee hereunder are all television programs delivered by UPN to
its affiliates for telecast on a network basis during the License Term
(collectively the “Network Programs”).


 

















 


2.2.          Time
Periods.  UPN currently intends to
deliver Network Programs to be telecast during the following time periods:


 


2.2.1.       UPN’s current broadcast
schedule is as follows:


 


	
  Prime Time Programs:

  	
   

  	
  Monday through Friday, 8:00 p.m. to 10:00 p.m., Eastern and
  Pacific Times, 7:00 p.m. to 9:00 p.m., Central and Mountain Times.

  
	
   

  	
   

  	
   

  
	
  Saturday Programming:

  	
   

  	
  Saturday, 12:00 noon to 2:90 p.m. (in all time zones).

  



 


2.2.2.       Subject to the provisions
of paragraph 2.5, below, UPN shall have the right to begin delivering up
to seven (7) nights of Prime Time programming (as defined in paragraph 2.6,
below), to be telecast from 8:00 p.m. to 10:00 p.m., Eastern and Pacific Times,
7:00 p.m. to 9:00 p.m., Central and Mountain Times for programs which are
schedule for telecast other than on Sunday, or from 7:00 p.m. to 10:00 p.m.,
Eastern and Pacific Times, 6:00 p.m. to 9:00 p.m., Central and Mountain Times,
for programs scheduled for telecast on Sunday.


 


2.2.3.       Subject to the provisions
of paragraph 2.5, below, UPN shall have the right to begin delivering up
to one (1) hour of Late Night programming (as defined in
paragraph 2.6, below) to be telecast Monday through Friday, commencing no
earlier than 11:00 p.m., Eastern and Pacific Times, and no earlier than 10:00
p.m., Central and Mountain Times, and ending no later than 12:30 a.m. the following
morning, Eastern and Pacific Times, and no later than 11:30 p.m., Central and
Mountain Times, with the exact telecast time to be determined by UPN.


 


2.3.          Special
Network Programs.  In addition to
the Network Programs set forth in paragraph 2.2, above, UPN anticipates
that it may deliver special programs during each year (each a “Special Network
Program”), which Special Network Programs may be intended for telecast on days
or at times when UPS is not then regularly delivering Network Programs for
telecast.  If and when UPN determines to
deliver a Special Network Program, UPN shall provide Licensee with
thirty (30) days prior written notice of e specific day and time during
which such Special Network Program will be scheduled.  Any such Special Network Program shall be considered a Network
Program for all purposes hereunder, except, that, in lieu of the carriage
obligations set forth in paragraph 4, below, with respect to any such
Special Network Program, Licensee shall be required to telecast up to three (3)
such Special Network Programs over the facilities of the Station during each
broadcast season and, to the extent that UPN delivers more than three (3)
Special Network programs in any broadcast season, Licensee shall use its best
efforts to telecast, such additional Special Network Programs over the
facilities of the Station.


 


2.4.          Additional
Network Programs.  Notwithstanding
anything to the contrary in this Agreement, including, without limitation, the
provisions of paragraph 2.2 hereof, UPN shall have the right, in its sole
discretion, to day or days on which UPN schedules Network Programs generally
(as opposed to any specific Network Program) for telecast from those listed in
paragraph 2.2, above; (iv) change any time period or time periods
during which UPN


 


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schedules Network Programs
generally (as opposed to any specific Network Program) for telecast from those
listed in paragraph 2.2, above; (v) schedule Network Programs for
telecast on days or at times not currently contemplated pursuant to
paragraph 2.2, above; and (vi) increase or decrease the number of
hours of Network Programs to be furnished hereunder from the number of hours
specified in paragraph 2.2.1, above (including, without limitation an increase
or decrease resulting from an addition in or reduction of the number of days on
which UPN schedules Network Programs for telecast).  Any program delivered by UPN to its broadcast affiliates in place
of any Network Program that, as of the date of this Agreement, is regularly
scheduled for telecast by UPN (a “Current Network Program”), whether on a
temporary or permanent basis, shall also be considered a “Network Program” for
all purposes hereunder.  Any program delivered
by UPN to its broad                t
affiliates in addition to the Current Network Programs (whether on a temporary
or permanent basis) is referred to herein as an “Additional Network Program.”
Except as expressly provided in paragraph 6.1, below, all Additional
Network Programs shall also be considered Network Programs for al purposes
hereunder.  Notwithstanding anything to
the contrary in this paragraph 2.4 or in paragraph 2.5, below, the selection,
scheduling, renewal, substitution and withdrawal of any Network Program, or any
portion thereof, shall at all times remain within UPN’s sole discretion.


 


2.5.          Change
in Schedule.  UPN shall have the
right, in its sole discretion, to change its broadcast schedule (or to change
or alter any Network Program) pursuant to clauses (i) and (ii) of
paragraph 2.4, above, without the obligation to provide Licensee with any
notice of any such change.  If UPN
intend to change its broadcast schedule pursuant to clauses (iii), (iv) or (v)
of paragraph 2.4, above, and such change will not result in either an
increase or decrease in the total number of hours of Network Programs fished by
UPN, UPN shall give Licensee not less than ninety (90) days prior written
notice of each such change.  If UPN
intends to change its broadcast schedule pursuant to clauses (iii), (iv) or (v)
of paragraph 2.4, above, and such change will result in either an increase
or decrease in the total number of hours of Network Programs furnished by UPN,
or if UPN intends to change its broadcast schedule pursuant to clause
(vi) of paragraph 2.4, above, UPN shall give Licensee not less than
one hundred eighty (180) days prior written notice of each such change.


 


2.6.          Definitions.  For purposes of this Agreement, `Prime Time”
means 8:00 p.m. (Mondays through Saturdays, 7:00 p.m. on Sundays) to 11:00
p.m., Eastern and Pacific Times, and 7:00 p.m. (Mondays through Saturdays, 6:00
p.m. on Sundays) to 10:00 p.m., Mountain and Central Times.  “Late Night” means 11:00 p.m. to 12:30 a.m.
the following morning, Eastern and Pacific Times, and 10:00 p.m. to 11:30 p.m.,
Central and Mountain Times.  “Saturday
Programming” means programming delivered by UPN for telecast on Saturday (other
than the Enterprise
Weekend Run (as defined in paragraph 2.7, below)), in a time period other
than Prime Time or Late Night.  “Sunday
Programming” means programming delivered by UPN for telecast on Sunday (other
than the Enterprise
Weekend Run (as defined in paragraph 2.7, below)), in a time period other
than Prime Time or Late Night.  The
Saturday Programming and the Sunday Programming are collectively referred to
herein as the “Weekend Programming.” “Daytime Programming” means programming
delivered by UPN for telecast Monday through Friday (or on any one (1) or
more days other than Saturday and Sunday, in a time period other than prime Time
or Late Night.


 


2.7.          Star Trek:  Enterprise.  UPN acknowledges that one (1) of the
Prime Time programs currently scheduled for telecast as a Network Program is
the one (1) hour television


 


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series entitled Star
Trek:  Enterprise.  In addition to the Prime Time telecast,
Station shall repeat each episode of Star Trek: 
Enterprise or its successor between 4:00 p.m. and 12:00
midnight on the Saturday or Sunday immediately following the Prime Time
telecast (the “Enterprise Weekend Run”).


 


3.             LICENSE
TERM.  The tern of the
rights granted to Licensee hereunder (the “License Term”) shall commence and
end on the dates specified in the Deal Terms Rider attached hereto.


 


4.                                      CARRIAGE.


 


4.1.          Complete
Telecasts.  Licensee agrees that it
is of the essence of this Agreement that it shall telecast, over a program
stream (a “Subchannel”) that may be multiplexed with other program seams,
including that of the Analog Station, telecast over other Subchannels, all
Network Programs delivered to Licensee in their entirety, including, without
limitation, all commercial announcements, promotional announcements, Network
ID’s, credits and all data transmitted as part of the signal, without
interruption, deletion or addition (except for the addition of Licensee’s
commercial announcements as provided in paragraph 5, below) on the dates
and at the times the Network Programs are scheduled b UPN, subject only to
paragraph 6.1, below.  In connection
with the foregoing, Licensee agrees to maintain complete and accurate records
of all commercial and promotional announcements telecast.  Licensee shall submit copies of all such
records to UPN within one (1) week after UPN’s request therefor.


 


4.2.          Transmission
of Network Programs.  Station will
provide carriage of the Network Programs exclusively on Station’s digital
channel in the technical format, consistent with the ATSC standards, provided y
UPN, which shall be deemed to include the transmission by Station of all
program related material, as defined below, provided by UPN.  Station will provide sufficient channel
capacity to achieve a level of transmission quality deemed acceptable by UPN in
its reasonable discretion.  It is
expressly understood that this Agreement applies only to the primary network
feed in digital format of the programming provided by the Network to its
affiliated stations for the purpose of analog broadcasting, together with any
associated program related material. 
Consistent with and subject to the foregoing, the Station shall have the
right to us any available portion of its digital signal for the purpose of
transmitting local programs or any other material for any business purpose;
provided, however, that in the event that UPN proposes that the Station carry
additional UPN digital programming (i.e., “multiplexed” programming) or
ancillary data which is not “program related” as defined below, Licensee agrees
to negotiate in good faith with UPN regarding the:  terns pursuant to which such multiplexed programming or ancillary
data may be carried.  As used in this
paragraph, “program-related material” shall mean (i) information and
material of a commercial or non-commercial nature which is directly related to
the subject matter or identification of, or persons appearing i , the Network
Programs, or to specific UPN commercial advertisements or promotional
announcements contained in the Network 4   Programs, if such
information or material is transmitted concurrently or substantially
concurrently with the associated Network Program, commercial advertisement or
promotional announcement, (ii) closed captioning information,
(iii) program identification codes, (iv) program ratings information, (v)
alternative language feeds related to the programming, (vi) video description
information and (vii) such other material as may be essential to or
necessary for the delivery or distribution of the Net-Work Programs in digital
format.  Licensee shall telecast each
Network Program licensed hereunder solely from the Station’s originating


 


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transmitter and antenna.  Except as shall be unavoidably incident to
the foregoing, Licensee shall not (i) transmit any Network Program, or any
audio or visual portion thereof, into a place where admission is charged or
where the reception of the transmission is made subject to the payment of a
fee; (ii) relay the telecast of any Network Program, or any audio or
visual portion thereof, to any other party; or (iii) cause, authorize or
permit the transmission, duplication or recording of any Network Program, or
any audio or visual portion thereof, by or over any other medium, facility,
device, or method not expressly authorized hereunder; except that Licensee may
assert a right to carriage of Station’s signal by a cable television system or
other multichannel video programming distributor (“MVPD”) pursuant to the
provisions of the Cable Consumer Protection and Competition Act of 1992 (“the
1992 Cable Act”) or the Satellite Home Viewer Improvements Act (“SHVIA”), or any
successors thereto (collectively, the “Acts”), and may, to the extent permitted
by paragraph 4.4 hereof, grant consent to the retransmission of such
signal by a cable television system or other MVPD, as defined by the Acts.


 


4.3.          Translators.  Notwithstanding the provisions of
paragraph 4.2, above, Licensee shall have the right to transmit a Network
Program over the facilities of all translators which the Station regularly uses
for the retransmission of its broadcast signal (whether or not any such translator
is owned or operated by Licensee) simultaneously with its transmission of that
Network Program over the facilities of the Station’s main transmitter.  In the event that the signal emanating from
the Station’s translators is received in a community outside the Station’s DMA,
UPN shall have the right, at any time (but not the obligation), to rescind such
rights.  If requested by UPN, within
one (1) week after Licensee’s receipt of UPN’s written request, Licensee
shall provide UPN with a list of all translators used for the retransmission of
the Station’s broadcast signal.


 


4.4.          Retransmission
Consent.  Licensee may grant consent
to the retransmission of Station’s signal by a cable television system or other
MVPD pursuant to the provisions of the Acts (hereafter “retransmission
consent”), provided that at the time retransmission consent is granted the
cable television system or other multichannel program service on which
Station’s signal is to be retransmitted (serves television homes within the
DMA.  Notwithstanding anything to the
contrary in the foregoing, in no case shall retransmission consent be granted
to a television receive-only satellite service, or a direct broadcast satellite
service, if Station’s signal is to be retransmitted by such service to
television homes outside of Station’s television market other than “unserved
household(s),” as that term is defined in Section 119(d) of Title 17,
United States Code, as in effect on October 5, 1992.  Nothing contained herein shall (i) be
deemed a license to a cable television system or other MVPD to transmit any of
the Network Programs or (ii) affect UPN’s rights as against any cable
television system or other MVPD.


 


5.                                      LICENSEE’S
COMMERCIAL AND PROMOTIONAL ANNOUNCEMENTS.


 


5.1.          Formatting
for Hour Long Programs.  Subject
only to applicable governmental rules and regulations, each hour of Network
Programs hereunder shall be formatted to provide Licensee with the amount.  of time for Licensee’s commercial
announcements (inclusive of station breaks) as set forth below.  In addition, UPN may place promotional
announcements in the Network Programs, the number, timing and format of which
shall be determined by UPN.


 


5

















 


5.1.1.       Prime Time:  Three (3) minutes per hour.


 


5.1.2.       Daytime Programming:  If a Network Program telecast during this
time period is intended primarily for children twelve (12) years old or
younger (as determined by UPN), five (5) minutes per hour.  With respect to all other Network Programs
telecast during this time period; seven (7) minutes per hour.


 


5.1.3.       Enterprise Weekend
Run:  Four (4) minutes per
hour.


 


5.1.4.       Weekend Programming:  If a Network Program telecast during this
time period is intended primarily for children twelve (12) years old or
younger (as determined by UPN), four (4) minutes per hour.  If a Network Program telecast during this
time period is a theatrical or television motion picture (other than a motion
picture intended primarily for children twelve (12) years old or younger),
six (6) minutes per hour.  With
respect to all other Network Programs telecast during this time period,
seven (7) minutes per hour.


 


5.1.5.       Late Night:  Seven (7) minutes per hour.


 


5.2.          Formatting,
for Other Programs.  The number of
minutes of commercial announcement time provided to Licensee pursuant to
paragraph 5.1, above, shall be pro-rated for Network Programs which are
less than or greater than one (1) hour in duration.


 


5.3.          Formatting
Changes.  Notwithstanding the
provisions of paragraph 5.1, above, UPN may decrease the amount of
commercial time available to Licensee in any Network Program or change the
allocation of such commercial time between UPN and Licensee with the prior
approval of the Affiliate Board (as defined in paragraph 10, below), upon
ninety (90) days prior written notice to Licensee.  Subject to the foregoing, the placement,
timing and format of all commercial announcements contained in the Network
Programs shall be determined by UPN.


 


5.4.          Licensee
Commercials.  Subject to the provisions
of this paragraph 5, Licensee may insert commercial announcements within a
Network Program in accordance with UPN’s instructions and procedures and in
accordance with applicable laws, but only at those points designated by UPN for
such purposes.  Neither UPN nor Licensee
shall share in the revenue realized by the other from the sale of commercial
announcements.


 


5.5.          Competitive
Products.  Licensee shall use
reasonable efforts, in scheduling its commercial announcements, to avoid the
placement of such announcements in the same commercial pod competitive products
or services contained in commercial announcements sold by UPN, provided that
UPN s! all have; given Station reasonable notice of UPN’s anticipated
commercial lineup in the Network Program in question.  In addition, Licensee shall use reasonable efforts, in scheduling
its commercial announcements, to avoid the placement of such announcements for
products or services that are competitive with those of an advertiser to which
UPN has agreed to provide category exclusivity in the Network Program
(including commercial breaks adjacent thereto) with respect to which such
exclusivity agreement applies, provided that UPN shall have given Station at
reasonable notice of such exclusivity arrangements.


 


5.6.          Limitation
on Commercials.  In the event that
any state, federal, or other governmental rule, regulation or law (including,
without limitation, a regulation of the FCC), or


 


6

















 


any other governmental action
reduces or otherwise limits the commercial advertising or non-program time that
can be used in any or all of the Network Programs, then, notwithstanding the
provisions of paragraph 5.1, above, UPN shall be entitled to reduce, on a
pro-rata basis, the amount of commercial time available to License and UPN in
each of the Network Programs, upon ninety (90) days prior written notice
to Licensee. (or upon such shorter notice as may be required by such law or
regulation).


 


6.                                      PREEMPTION.


 


6.1.          Authorized Preemptions.


 


6.1.1.       Nothing contained herein
shall be construed to prevent Licensee from rejecting or refusing any Network
Program that Licensee reasonably believes to be unsatisfactory, unsuitable or
contrary to the public interest (an “Unacceptable Program”), or from
substituting a program that Licensee reasonably believes is of greater local or
national importance; provided, however, that Licensee shall give UPN written
notice of each such preemption, and the justification therefor, at least
seventy-two (72) hours in advance of the scheduled telecast, or as soon
thereafter as circumstances permit (including an explanation of the cause for
any lesser notice); and further provided that, except with respect to
Unacceptable Programs, unless UPN gives Licensee written notice that UPN is
exercising its right, pursuant to paragraph 6.2, below, to terminate
Licensee’s right to telecast the preempted Network Program, Licensee fulfills
its make.  good obligations as set forth
in paragraph 6.3.  below.  A Network Program may be considered
unsatisfactory, unsuitable or contrary to the public interest only if
(i) Licensee reasonably believes that the telecast of the Network Program
would violate any applicable governmental laws, rules, regulations or published
policies; (ii) the Network Program does not meet customary engineering
standards; or (iii) Licensee reasonably believes that the Network Program
would not meet prevailing contemporary standards of good taste in the Licensed
Community.  No Network Program may be
considered unsatisfactory, unsuitable or contrary to the public interest, or of
lesser local or national importance, based on program performance or ratings,
advertiser reactions, or the availability of alternative programming
(including, without limitations, sporting events) which Licensee believes to be
more profitable or attractive than the scheduled Network Program.


 


6.1.2.       A preemption of a Network
Program permitted under this paragraph 6.1 is referred to herein as an
“Authorized Preemption”.  In addition to
the Authorized Preemptions described in paragraph 6.1.1, Authorized
Preemptions shall include (prodded Licensee fulfills its make-good obligations
as set forth in paragraph 6.3, below) (i) preemptions expressly
authorized by Exhibit A; and (ii) a preemption for a Force Majeure
Event, as defined in paragraph 2 of the Standard Terms and Conditions attached
hereto.  Any preemption, including,
without limitation, a preemption of a commercial or promotional announcement
contained in a Network Program, which is not an Authorized Preemption hereunder
is an “Unauthorized Preemption”.


 


6.2.          UPN’s
Rights With Respect to Preemptions. 
If, pursuant to paragraph 6.1 hereof, Licensee preempts, or
notifies UPN that it will preempt, a Network Program, then (regardless of whether
such preemption is an Authorized Preemption or an Unauthorized Preemption), UPN
shall have the right, in its sole discretion, to either (i) terminate
Licensee’s


 


7

















 


right to telecast the preempted
Network Program, and license such telecast rights to any other party, or
(ii) require Licensee to comply with the make-good provisions of
paragraph 6.3, below (which make-good provisions shall, however, be
inapplicable if the Network Program preempted was an Unacceptable
Program).  If, with respect to any
series of Network Programs (a “Network Series”), Licensee preempts
three (3) or more episodes during any twelve (12) month period
(regardless of whether or not such preemptions are Authorized Preemptions or
Unauthorized Preemptions, but not including any preemption to broadcast a
program which Licensee reasonably believes is of greater local or national
importance), then in addition to any other rights or remedies accorded to UPN
hereunder, UPN shall have the right, in its sole discretion, to terminate
Licensee’s right to telecast the remaining episodes of such Network Series
intended for telecast during the then-current and/or future broadcast
season(s), and may license the telecast rights to such terminated episodes to
any other party.


 


6.3.          Make-goods.  In the event that Licensee fails for any
reason to telecast any Network Program or any part thereof (including, without
limitation, all of the commercial and promotional announcements contained
therein) as provided herein, and, pursuant to paragraph 6.2 hereof, UPN
elects to require Licensee to comply with the make-good provisions of this
paragraph 6.3 with respect to such omitted Network Program, except with
respect to the preemption of an Unacceptable Program, Licensee shall telecast
such omitted Network Program and the commercial and promotional announcements
contained therein (or any replacement Network Program and commercial and
promotional announcements designated by UPN) in the time period pre-designated
by the parties as set forth in Exhibit A hereto.  If Licensee does not promptly comply with the provisions of this
paragraph 6.3, UPN shall have the right, without limitation of any other
right it may have, to license the telecast rights to the omitted Network
Program to any other party, and shall have the right to terminate Licensee’s
right to telecast the remaining episodes of such Network Series intended for
telecast during the then-current and/or future broadcast season(s) and
thereafter license the telecast rights to such terminated episodes to any other
part.  In addition, if Licensee does not
promptly comply with the provisions of this paragraph 6.3, the preemption,
which gave rise to the make-good obligation, shall automatically constitute an
Unauthorized Preemption hereunder (as of the date of the original preemption),
even if such preemption was originally an Authorized Preemption.


 


7.                                      PROMOTION.


 


7.1.          Promotional
Announcements.  In addition to the
promotional announcements included by UPN in the Network Programs, UPN shall
provide Licensee with promotional announcements for the Network Programs (the
“Promos”), at no cost to Licensee to be telecast by the Station at times when
the Station is not telecasting Network Programs.  Licensee shall use its’ best efforts to telecast the Promos in
consultation with UPN to obtain the best possible promotion for the Network
Programs; provided, however, that, Licensee must comply with the minimum
promotional announcement requirements set forth in paragraph 7.2, below.  For purposes of this Agreement, Promos do
not include UPN ID’s or other similar announcements that refer only to UPN and
do not refer to any specific Network Program, nor do Promos include any
promotional announcement included by UPN in any Network Program.  Licensee agrees to maintain complete and
accurate records of all promotional announcements telecast.  Licensee shall submit copies of such records
to UPN within three (3) weeks after UPN’s request therefor.


 


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7.2.          Minimum
Promotional Announcement Requirements. 
With respect to the promotional announcement obligation set forth in
paragraph 7.1, above, Licensee shall telecast no fewer than two (2)
thirty (30) second Promos :each hour, seven (7) days per week, when
the Station is not telecasting Network Programs.  In addition; Station shall telecast no fewer than four (4)
thirty (30) second Promos each day, seven (7) days per week,) at any
time between 7:00 a.m. and 12:00 midnight in the Station’s local time zone
during programming on the Analog Station and on the Subchannel that carries the
Analog Station.  The programming in
which each of the Promos is telecast shall be compatible with the Network
Program being promoted in such Promo.


 


7.3.          Other
Promotional Materials.  UPN shall
provide Licensee, at no cost to Licensee, with such print, on-air television,
radio and collateral materials promoting the Network Programs as UPN deems
appropriate.  UPN shall also provide, at
reasonable cost to Licensee, such other merchandising materials as UPN deems
appropriate.


 


7.4.          Station
Identification.  Commencing on the
date Licensee executes this Agreement or, at UPN’s election, on a subsequent
date established by UPN, and continuing throughout the License Term, Licensee
shall, on the Subchannel that carries the Network Programs, identify the
Station exclusively a an affiliate of “UPN,” as part of the “UPN Network” or by
such other name as UPN may subsequently designate in writing, in all Station
IM.’s telecast, and in all other promotional material distributed by Licensee
or under Licensee’s control with respect to the Station, whether or not such
identifications or promotional materials relate to the Network Programs or
other programming telecast by the Station on the Sub channel that carries the
Network Programs; provided, however, that such identification may be preceded
or followed by the Station’s call letters, community of license and channel
position.  All such Station I.D.’s and
promotional materials shall also incorporate the UPN logo, as provided to
Licensee in the UPN Logo Usage Guide (the “Usage Guide”), in a design
consistent with the rules set forth in said Usage Guide that has received the
prior approval of UPN in accordance with the procedures specified therein.  wring the License Term, Licensee shall not
identify the Station as being affiliated with or part of any ‘,other broadcast
television network, and shall also identify the Station as being the primary
UPN affiliate in the Licensed Community to all ratings services, including,
without limitation, Nielsen.  In
addition, in the event that the Station telecasts television programming
provided by any other television network, the Station shall not telecast the
name, logos or any other identification of such other television network.  $t is understood that the foregoing
restrictions are applicable only with respect to the programming telecast by
Station on the Subchannel that carries the Network Programs and do not apply to
any other Subchannel over which Station may be telecasting programming of
another network.


 


7.5.          Co-op
Advertising.  Licensee shall
participate in UPN’s co-op advertising program in!, accordance with UPN’s
written co-op advertising guidelines, as the same may be in effect from
time-(o-time.  In that regard, Licensee
shall allocate a portion of the Station’s annual advertising budget to allow
for Licensee’s participation in UPN’s co-op advertising program:


 


7.6.          Restrictions
On Advertising and Promotional Materials. 
From time to time, UPN may provide Licensee with written notice of
advertising, publicity and promotional requirements and restrictions applicable
to the Network Programs, the persons rendering services in the Network Programs
or UPN’s advertisers.  Licensee shall
strictly comply with these requirements and restrictions at all times after
their receipt.  If Licensee undertakes
to conduct its


 


9

















 


own promotional activities
(including, without limitation, any contest, sweepstakes or other similar
promotional activity), Licensee agrees and acknowledges that the indemnity
provisions of paragraph 4.2 of the Standard Terms and Conditions attached
hereto shall extend to any claims against UPN (or any other party indemnified
by Licensee pursuant to paragraph 4.2 of the Standard Terms and
Conditions) arising out of or relating to any such promotional activity.


 


8.                                      EXCLUSIVITY.


 


8.1.          Exclusivity.  Except as set forth in paragraphs 6.2 and
6.3, above, during the License Term UPN shall not license the Network Programs,
or any of them, to any broadcast television station licensed by the FCC to
operate in the Licensed Community, other than the Station.  Licensee acknowledges that telecasts of the
Network Programs originating outside of the Licensed Community may be received
by television sets located within the Licensed Community, and Licensee agrees
that such reception shall not constitute a breach of this Agreement by UPN.


 


8.2.          Network
Exclusivity Zone.  For purposes of
this paragraph, a television station’s “Network’, Exclusivity Zone” shall mean
the zone within thirty-five (35) miles of the station’s reference points,
or! in the case of a “small market television station,” as defined in
Section 76.92 of the FCC Rules, the zone within fifty-five (55) miles
of said reference points; provided, however, that in no case shall the “Network
Exclusivity Zone” include an area within the Designated Market Area, as most
recently determined by Nielsen, of another UPN affiliate.  A station’s “reference points” for purposes
of this paragraph shall be as defined in Section 73.658(m) of the FCC
Rules, and shall be deemed to include, with respect to 4 station in a
hyphenated market, the reference points of each named community in that market.  For purposes of this Agreement, “FCC Rules”
means the rules and regulations of the FCC, as the same may be in effect from
time-to-time, as set forth in volume 47 of the Code of Federal Regulations
(“47 CFR”).  All references in this
Agreement to specific sections of the FCC Rules shall be deemed to be
references to the applicable section in 47 CFR


 


8.3.          Network
Non-duplication.  Licensee shall be
entitled to exercise, within Station’s Network Exclusivity Zone, the protection
against.  duplication of network
programming in any and all formats (including digital format), as provided by
Sections 76.92 through 76.95 and Sections 76.120 through 76.124 of the FCC
Rules, with respect to a Network Program during the period beginning
one (1) day before and ending seven (7) days after the day UPN
intends for such Network Program to be generally broadcast by UPN’s affiliates;
provided, however, that such right shall apply only to Network Programs,
broadcast in the intended time period or authorized make-good time period; and
provided further that nothing herein shall be deemed to preclude UPN from
granting to any other broadcast television station licensed to any other
community similar network non-duplication rights within that station’s Network
Exclusivity Zone, and Licensee’s aforesaid right of network non-duplication
shall not apply with respect to the transmission of the programs of another UPN
affiliate (current or future) by a “community unit,” or a satellite carrier, as
those terms are defined by the FCC Rules, located (wholly or partially), or
serving subscribers, within the area in which Station’s Network Exclusivity
Zone overlaps the Network Exclusivity Zone of that other UPN affiliate.  In connection with the foregoing,
concurrently with the parties’ execution of this Agreement, the parties will
enter into an Exclusivity Rider substantially in the form of Exhibit B
hereto.  Notwithstanding the provisions
of this paragraph or the Exclusivity Rider, (a) UPN shall have


 


10

















 


the right to authorize any
television broadcasting station (whether or not such station is in the Licensed
Community) to telecast any program offered by UPN concerning a subject UPN
deems to be of immediate national significance, including, without limitation,
a Presidential address; and (b) with respect to’, the MGM movies that
currently constitute the Saturday Programming, exclusivity is granted only with
respect to the regularly scheduled period of broadcast of said Saturday
Programming.


 


8.4.          Exclusive
Network Rule.  In consideration for
the exclusivity granted to Licensee hereunder, if at any time, the FCC’s
exclusive network rule is eliminated or amended to permit Licensee to have an
exclusive affiliation agreement (i.e., an affiliation agreement that prohibits
Licensee from telecasting programming provided by , other networks), then
Licensee agrees that, commencing upon the effective date of such amendment or
the elimination of such rule, Licensee shall not telecast or otherwise
retransmit programming provided by any other national network on the Subchannel
that carries the Network Programs.


 


9.                                      DELIVERY.


 


9.1.          Program
Retention and Retention.  UPN shall
make the Network Programs available to Licensee in such sequence as UPN shall
determine.  Any and all costs of whatever
kind or nature incurred with respect to the reception of the Network Programs
and the telecast of the Network Programs by the Station shall ‘,be borne by and
shall be the sole responsibility of Licensee. 
All right, title and interest in and to the Network Programs delivered
to Licensee shall, at all times, remain the property of UPN, subject only to
Licensee’s right to telecast the Network Programs in accordance with the terms
of this Agreement.  Licensee shall have
the right to prepare and retain a taped copy of each Network Program delivered
to Licensee hereunder until such time as the Station has telecast that Network
Program as scheduled by UPN (provided, however, that, in the case of Star
Trek:  Enterprise or its
successor, Licensee may retain the taped copy until the Enterprise Weekend Run is
telecast), after which time Licensee shall erase or destroy the taped copy of
that Network Program.  At UPN’s request,
Licensee shall furnish UPN with a Certificate of Erasure or Destruction signed
by an officer of Licensee, or other evidence reasonably acceptable to [VPN] of
such erasure or destruction.


 


9.2.          Program
Information.  UPN shall endeavor to
provide Licensee with synopses for each of the Network Programs, as well as
other programming information, reasonably in advance of the Station’s telecast
of each Network Program.


 


10.                               AFFILIATE
BOARD.


 


For purposes
of this Agreement, the “Affiliate Board” means the Affiliate Board of Governors
established to represent the UPN affiliates. 
UPN shall consult with the Affiliate Board from time to time in
connection with the Network Programs; provided, however, that, except as
expressly provided to the contrary herein, all decisions shall ultimately be
made by UPN in its sole discretion:


 


11.                               CHANGE
IN OPERATIONS.


 


Licensee shall
notify UPN immediately in writing if Licensee applies to the Federal
Communications Commission to materially modify the Station’s transmitter
location, power or


 


11

















 


frequency or if Licensee plans
to materially modify the Station’s hours of operation or programming format.


 


12.                               STANDARD
TERMS AND CONDITIONS.


 


This Agreement
is subject to UPN’s Standard Terms and Conditions, which are attached hereto
and incorporated herein by reference. 
In the event of any inconsistency between the principal portion of this
Agreement and the Standard Terms and Conditions, the principal portion of this
Agreement (including the riders and exhibits attached hereto) shall control.


 


IN WITNESS
WHEREOF, the parties hereto have executed this Agreement as of the day and year
first written above.


 


 


	
  UPN

  	
  YOUNG BROADCASTING OF

  
	
   

  	
  SIOUX FALLS, INC.

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  
	
  Name:

  	
   

  	
   

  	
  Name:

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  	
  Title:

  	
   

  	
   

  
	
  Dated:

  	
   

  	
   

  	
  Dated:

  	
   

  	
   

  



 


12

















 


STANDARD TERMS AND CONDITIONS


 


1.                                      TRADEMARK MATTERS.


 


1.1.          Licensee acknowledges all of UPN’s
rights and interests in and to the Marks throughout the world in any form or
embodiment thereof.  Licensee
acknowledges and agrees that it has not acquired any property rights in or to
the Marks, will not acquire any property rights in or to the Marks other than
the license specifically granted herein, and will not use the Marks of any
similar trademark, service mark or trade name at any time during or after the License
Term except pursuant to this Agreement and any amendment or supplement hereto
executed by UPN.  Licensee will never
challenge UPN’s rights or those of UPN’s grantors with respect to the Marks,
nor will Licensee challenge the validity of the Marks or any application for
registration thereof, or any copyright or trademark registrations thereof.  Licensee will not, at any time, do or suffer
to be done, any act or thing which will in any way jeopardize, dilute or adversely
affect any of UPN’s rights or the rights of its grantors with respect to the
Marks or any registrations thereof or which, directly or indirectly, will
reduce the value of the Marks.


 


1.2.          Licensee acknowledges that the Marks
have acquired valuable secondary meaning and goodwill with the public, and that
products and services bearing the Marks have acquired a reputation


 


of highest quality. 
Accordingly, Licensee undertakes and agrees not to use the Marks in any
manner whatsoever which, directly or indirectly, would derogate or detract from
their, repute or which would demean, ridicule or reflect adversely upon the
Marks or UPN.  Licensee recognizes that
its undertaking in this paragraph represents a major inducement and
consideration for UPN to enter into this Agreement.


 


1.3.          Notwithstanding anything to the
contrary contained herein, in the event that UPN discontinues its use of one
(1) or more of the Marks, upon written notice to:  Licensee that UPN has discontinued its use of such Mark or Marks,
the license granted hereunder with respect to the Mark or Marks referred to in
UPN’s notice shall automatically terminate and Licensee shall have no further
right to any use of such Mark or Marks.


 


1.4.          The quality of the Goods and Services
shall meet or exceed the quality of the goods and services offered by UPN that
utilize the Marks.


 


1.5.          Licensee shall faithfully and
accurately reproduce the Marks.  No
partial version of the Marks, or any fragments thereof, nor, except as
expressly provided below, any modified or derivative version of the Marks, may
be used at any time for any purpose without UPN’s prior written consent in each
instance.  Notwithstanding the
foregoing, UPN agrees that Licensee may use one or more of the Marks in
connection with Licensee’s trademarks or service marks used by Licensee in
connection with the Stations’ telecast activities.  In that regard, UPN specifically acknowledges that Licensee shall
be entitled to use one or more of the Marks in combination with the Stations’
call letters or channel designation to identify the Stations, and may use such
designation in connection with all of the Stations’ television production and
telecasting activities, and the advertising and promotion thereof, regardless
of whether or not such activities consist of telecasting Network Programs.  UPN also specifically acknowledges that
Licensee shall be entitled to refer to its news telecasts as “UPN News,” and
may use such designation in connection with advertising and promoting the
Stations’ news production and 


 

















 


telecasting activities.  Except as set forth herein, Licensee shall
not combine any other trademark, service mark or trade name with the Marks,
without UPN’s express prior written approval. 
UPN shall own any approved partial, modified or derivative versions of
the Marks and, subject to Licensee’s rights and the rights of any third
parties, any approved combination marks.


 


1.6.          Licensee shall, at its own expense,
apply trademark notices or other markings as UPN may request in connection with
each and every use of the Marks.  Notwithstanding
the foregoing, Licensee shall not be responsible for trademark notices on
Network Program and related materials delivered by UPN to Licensee pursuant to
this Agreement; provided that Licensee shall not alter any notices contained in
such Network Programs and related materials.


 


1.7.          Licensee shall be solely responsible
for and shall comply with all laws, rules and regulations, if any, of
governments and agencies and political subdivisions thereof in connection with
the Goods and Services.  Licensee
wan-ants and represents that the Goods and Services will not violate the rights
of any other person or entity.


 


1.8.          Upon UPN’s request, Licensee shall
furnish to -UPN, free of cost, a detailed statement describing the Goods and
Services, including, without limitation, the form and manner in which such
activities are intended to be rendered, along with copies of all materials to
be used in connection with the Goods and Services in the form Licensee intends
to utilize such materials.


 


1.9.          UPN or its representatives shall, upon
reasonable notice; have access for quality inspection purposes to the premises
where the Goods and Services are produced or rendered during regular business
hours.  All expenses of conducting such
inspections shall be borne by UPN, unless such inspection reveals that the
Goods and Services do not comply in all material respects with the quality
standards set forth herein, in which case Licensee shall pay all reasonable
costs and expenses of carrying out the inspection.


 


1.10.        If UPN reasonably determines that any
material aspect of the Goods and Services, or Licensee’s use of the Marks in
connection with the production, advertising, promotion or telecasting of the
Goods and Services, does not comply with UPN’s quality standards or is otherwise
in violation of this Agreement, then UPN shall notify Licensee in writing
specifying such deficiencies.  If
Licensee does not correct all such deficiencies to UPN’s reasonable
satisfaction within a reasonable time, then, in addition to any other rights or
remedies afforded to UPN, UPN may avail itself of any of the remedies set forth
in paragraph 7, below.


 


1.11.        Licensee shall fully cooperate with UPN
in protecting all rights in and to the Marks. 
Licensee shall not at any time register or apply to register for
Licensee’s benefit the Marks or any modified or derivative version
thereof.  All uses of the Marks by
Licensee hereunder shall inure to the benefit of UPN or its grantors.


 


1.12.        In the event that Licensee learns of any
infringement or imitation of the Marks or of any use by any person of a
copyright, trademark, service mark, trade name, trade dress or proprietary item
similar to the Marks, it shall promptly notify UPN thereof in writing and if,
in Licensee’s opinion, such infringement, imitation, or use also constitutes an


 


2

















 


infringement of the rights
granted to Licensee hereunder, Licensee shall specifically so state in its
notice; provided, however, that Licensee’s inadvertent failure to give such
notice shall not constitute a breach of this Agreement.  In such event, UPN shall have the sole right
to determine whether or not any action shall be taken with respect ‘Ito such
infringements or imitations.  Licensee
agrees to assist UPN to the extent necessary in the procurement of any
protection or to protect any of UPN’s rights to the Marks, and UPN, if it so
desires, may commence or prosecute any claims or suits in its own name or in
Licensee’s name, or join Licensee as a party thereto.  Licensee shall not institute any suit or take any action on
account of any such infringement or imitation without first obtaining UPN’s
written consent to do so.  All costs and
expenses, including legal fees, incurred in connection with any such suits
which are instituted by Licensee with UPN’s prior written consent shall be
borne solely by Licensee.  As to suits
instituted by Licensee with UPN’s prior written consent, Licensee shall
undertake and control the prosecution of such suits using counsel approved by
UPN, and such counsel shall consult fully with UPN concerning the strategy and
tactics of such Proceedings.  UPN shall
have the right to participate and represent its interests through counsel of
its own choosing.  If UPN elects to
participate through counsel of its own choosing, UPN shall pay the costs of
such’ counsel.  Licensee shall not have
any rights against UPN for damages or any other remedy by reason of any action
filed by UPN, any determination by UPN not to act or any settlement to which
UPN may agree with respect to any alleged infringements or imitations by others
of the Marks, nor shall any such action or determination, or such settlement,
by UPN affect the validity or enforceability of this Agreement.


 


1.13.        UPN will at all times have the right, in
its sole discretion, to take whatever steps it deems necessary or desirable to
protect the Marks from harmful or wrongful activities of third parties
involving the Goods and Services or otherwise and, subject to the provisions of
paragraph 1.12, above, shall have the right to control any litigation or
other proceeding undertaken by it for any such purpose.


 


1.14.        The license granted hereunder with
respect to the Marks shall automatically terminate on the expiration of the
License Term.


 


2.                                      FORCE
MAJEURE.


 


UPN shall not be liable to Licensee for failure to supply any
programming or any part thereof, nor shall Licensee be liable to UPN for
failure to telecast any such programming or any part thereof, by reason of any
act of God, labor dispute, non-delivery by program suppliers or others, failure
or breakdown of satellite or other facilities, legal enactment, governmental
order or regulation or any other cause beyond their respective control (each a
“Force Majeure Event”).


 


3.                                      REPRESENTATIONS AND WARRANTIES.


 


3.1.          UPN represents and warrants that
Licensee’s telecasting of the Network Programs over the facilities of the
Station, in accordance with this Agreement, shall not violate or infringe upon
the rights of others; provided, however, that the foregoing representations and
warranties shall not apply to: 
(i) public performance rights in music as set forth in
paragraph 5, below; (ii) any material furnished or added to the
Network Programs after delivery to Licensee


 


3

















 


by any party other than UPN; or
(iii) the deletion of any material from or changes to the Network Programs
as delivered by UPN by any party other than UPN.


 


3.2.          Licensee represents and warrants that
it has full authority to enter into and completely perform this Agreement.  Licensee has not, and will not, undertake
any action that might impair UPN’s rights under this Agreement.  There are no existing or threatened claims;
or litigation that would adversely affect or impair Licensee’s ability to
completely perform under this Agreement.


 


4.                                      INDEMNITIES.


 


4.1.          UPN will defend, indemnify and hold
harmless Licensee (including its officers, directors, owners, shareholders,
employees and agents) from and against any and 411 third party claims and expenses
(including, without limitation, reasonable attorneys’ fees) and liabilities,
but not including “lost profits” or consequential or indirect damages, due to
UPN’s breach of any of its obligations, representations or warranties set forth
in this Agreement.  Notwithstanding the
foregoing, UPN does not make any representations or warranties with respect to,
and shall not indemnify Licensee against, any claim, action or proceeding
wherein it is alleged that matter contained in the Network Programs was the proximate
cause of any criminal or self-destructive act or resulting civil damage.


 


4.2.          Licensee will defend, indemnify and
hold harmless UPN, its successors, licensees, assigns and parent, subsidiary
and affiliated companies or entities (including, without limitation, any
partners in UPN), and the directors, officers, employees, agents, successors,
licensees and assigns of each of the foregoing, from and against any and all
third party claims and expenses (including, without limitation, reasonable
attorneys’ fees) and liabilities, due to: 
(i) the use by Licensee or its successors or assigns of the Network
Programs (other than claims, damages, liabilities, costs or expenses as to
which and to the extent that UPN is obligated to indemnify Licensee pursuant to
the preceding paragraph); (ii) Licensee’s telecast or distribution of
promotional materials for the Network Programs other than those promotional
materials delivered to Licensee by UPN; (iii) Licensee’s failure to comply
with any restriction on the exercise of any rights granted to it under this
Agreement; (iv) Licensee’s breach of any of its obligations,
representations or warranties set forth in this Agreement; or (v) any
matters excluded from UPN’s representations and warranties pursuant to clauses (i),
(ii) or (iii) of paragraph 3.1, above. 
Licensee will remain responsible for honoring Licensee’s indemnity
obligations pursuant to this paragraph 4.2 despite any assignment pursuant
to paragraph 11, below.


 


4.3.          Each party agrees that, upon receipt
or presentation of any claim or notification of the institution of any action
with respect to which indemnification might be required hereunder, such party
will promptly notify the other party in writing thereof.  With respect to any such indemnification,
the indemnitor shall have the right to control the course and conduct of such
defense, and the indemnitee shall cooperate fully with the indemnitor in
defending such claim.  Any such
indemnitee shall have the right, in its discretion and at its sole expense, to retain
independent counsel and to participate in any such defense.


 


4

















 


5.                                      Music.


 


UPN warrants that the performing rights to the music contained in the
Network Programs shall be (i) controlled by a performing rights society,
(ii) in the public domain, or (iii) controlled by UPN to the extent
necessary to permit Licensee’s use hereunder. 
UPN does not represent or warrant that Licensee may exercise the performing
rights to such music without paying a performing rights royalty or license
fee.  Licensee shall, at its sole cost
and expense, secure all performing rights licenses necessary for the telecast
of the music contained in each of the Network Programs.


 


6.                                      DEFAULT.


 


6.1.          The occurrence of any of the following
events shall constitute an “Event of Default” hereunder:  (i) Licensee’s insolvency or failure to
pay its debts when due; (ii) Licensee’s making an assignment for the
benefit of creditors, or seeking relief under any bankruptcy taw or similar law
for the protection of debtors, or suffering a bankruptcy petition to be filed
against it or a receiver or trustee appointed for substantially all of its
assets, if the same is not removed within thirty (30) days;
(iii) Licensee’s breach of or failure to comply with any material term,
covenant, representation, warranty or condition of this Agreement or any other
agreement between UPN and Licensee; (iv) a breach by any company or entity
affiliated with Licensee (including, without limitation, Licensee’s parent or subsidiary
entities) of, or failure by any such party to comply with, any material term,
covenant, representation, warranty or condition of any agreement between UPN
and any such company or entity; (v) any attempt by Licensee to make any
assignment or transfer of this Agreement without first obtaining UPN’s consent
as required by paragraph 11, below; or (vi) with respect to an
assignment or transfer of this Agreement to which UPN has consented pursuant to
paragraph 11, below, Licensee’s failure to obtain a written agreement from
such assignee or transferee prior to any such assignment or transfer, in form
and substance satisfactory to UPN, assuming all of Licensee’s obligations under
this Agreement (provided, however, that nothing contained herein shall prevent
UPN from waiving such Event of Default and ratifying such assignment or
transfer).


 


6.2.          With respect to any Event of Default
hereunder, if the Event of Default is incapable of cure, then Licensee will be
in default immediately upon the occurrence of the event giving rise to the
default.  If the Event of Default
incapable of cure, then Licensee will have ten (10) days after its receipt of a
written notice from UPN specifying the Event of Default within which to cure
the default.  If the Event of Default is
incapable of cure, or if Licensee fails to cure within the, time provided,
then, in addition to any and all other rights or remedies accorded to UPN
pursuant to this Agreement (including, without limitation, the termination
rights accorded to UPN pursuant to paragraph 7.1.1, below), and in
addition to any and all other rights or remedies accorded to UPN at law or in
equity (including, without limitation, the right to recover damages), UPN may
avail itself of any of the additional remedies set forth in paragraph 9,
below.


 


7.                                      TERMINATION
RIGHTS.


 


7.1.          Notwithstanding anything to the
contrary contained in this Agreement, in addition to any other rights or
remedies accorded to UPN pursuant to this Agreement, or any other rights or
remedies accorded to UPN at law or in equity, and regardless of whether or not
an Event of Default has occurred (except as expressly noted below), UPN may
(but shall not be


 


5

















 


obligated to) terminate this
Agreement upon the occurrence of any one (1) or more of the following events
(subject to any applicable notice provisions set forth below):


 


7.1.1.       Upon the occurrence of an Event of
Default, if such Event of Default is not cured within the time allowed pursuant
to paragraph 6.2, above (if any). 
Such termination shall become effective immediately upon Licensee’s
receipt of UPN’s written termination notice.


 


7.1.2.       If Licensee fails to give UPN written
notice, as required by paragraph 11.3 hereof, of the filing with the FCC
of an application for consent to the assignment or transfer of control of
Station’s License, by UPN’s giving Licensee written notice of termination
within thirty (30) days of its learning of the filing of such application.  A termination of this Agreement pursuant to
this paragraph 7.1.2 shall be effective as of the effective date of any
assignment or transfer of control (voluntary or involuntary) of Station’s
License or any interest therein, or fifteen (15) days after Licensee’s receipt
of notice of termination, whichever is later.


 


7.1.3.       If the Station has three (3) or more
Unauthorized!, Preemptions during any twelve (12) month period during the
License Term, or if UPN reasonably believes based on Licensee’s actions or
statements that such Unauthorized Preemptions will occur.  Such termination shall become effective
thirty (30) days after Licensee’s receipt of UPN’s written termination notice.


 


7.1.4.       If the Station’s power, frequency or
hours of operation are materially reduced at any time, other than as a result of
a Force Majeure Event, or’ the Station’s transmitter location or programming
format is materially changed, so that Station’s value to UPN as a telecaster of
Network Programs is less than as of the date of this Agreement, and such
reduction or change has not been cured within fifteen (15) business days after
it occurs.  Such termination shall
become effective immediately upon Licensee’s receipt of UPN’s written
termination notice.


 


7.1.5.       If, due to a Force Majeure Event,
Licensee substantially fails to telecast the Network Programs, as scheduled by
UPN, for four (4) consecutive weeks, or for six (6) weeks in the aggregate
during any twelve (12) month period. 
Such termination shall become effective fifteen (15) days after
Licensee’s receipt of UPN’s written termination notice.


 


7.1.6.       If UPN, or any company affiliated with
UPN, including, without limitation, Paramount Pictures Corporation, CBS and
Viacom Inc. or any of their affiliates, acquires a financial interest (or
acquires an option to acquire a financial’ interest) in a television station,
or the license for such station, in the Station’s DMA.  Such termination shall become effective
thirty (30) days after Licensee’s receipt of UPN’s written termination notice.


 


7.1.7.       If, at any time during the License Term,
Licensee enters into a local marketing or time brokerage agreement (or other
similar agreement) with any third party and such third party causes Licensee or
the Station to engage in practices or activities which UPN reasonably believes
are or will be detrimental to UPN, or causes


 


6

















 


Licensee or
the Station to discontinue any activities or practices which UPN reasonably
believes are beneficial to UPN.  Such
termination shall become effective thirty (30) days after Licensee’s receipt of
UPN’s written termination notice.


 


7.1.8.       If UPN ceases operation of a national
network television service.  Such
termination shall become effective ninety (90) days after Licensee’s receipt of
UPN’s written termination notice.


 


7.2.          Licensee shall have the right to
terminate this Agreement only if, due to any Force Majeure Event, UPN
substantially fails to provide Network Programs generally for four (4)
consecutive weeks, or for six (6) weeks in the aggregate during any twelve (12)
month period, in which event Licensee may terminate this Agreement upon fifteen
(15) days prior written notice. 
Notwithstanding the foregoing, UPN’s failure to provide any specifically
identified Network Program (as opposed to its failure to provide Network
Programs generally), or UPN’s delivery of repeat telecasts of one or more
Network Programs, beyond the number of repeat telecasts originally contemplated
by UPN, shall not constitute a failure to provide Network Programs as provided
herein.


 


8.                                      RIGHTS
ON TERMINATION.


 


8.1.          On the expiration or termination of
the licenses granted:  to Licensee
hereunder, whether by expiration of the License Term or UPN’s termination of
this Agreement prior to the expiration of the License Term, all of Licensee’s
rights hereunder (including, without limitation, all of Licensee’s rights with
respect to the Network Programs and the Marks) shall automatically terminate
and revert to UPN, and Licensee shall immediately discontinue telecasts of the
Network Programs and all use of the Marks or any variation or simulation
thereof.  In addition, upon any such
termination, Licensee shall immediately discontinue producing, advertising and
promoting the Goods and Services unless Licensee first removes all references
to or uses of the Marks.


 


8.2.          Without limiting the foregoing, upon
termination of the licenses granted to Licensee hereunder, the parties shall
perform all other acts which may be necessary or useful to render effective the
termination of Licensee’s interest in the Network Programs and the Narks, and
Licensee shall execute any assignment, conveyance, acknowledgment or other
document that UPN may require, relinquishing or conveying to UPN any and all
rights to or interest in the Marks that Licensee has, and any goodwill
associated therewith.


 


8.3.          If UPN terminates this Agreement
pursuant to any provision hereof, notwithstanding such termination, UPN shall
continue to have, and hereby reserves, all rights and remedies which it has, or
which are granted to it by operation of law, with respect to any breach of this
Agreement by Licensee, including, without limitation the right to recover
damages with respect to any breach of this Agreement and the right to seek
injunctive or other equitable relief with respect to any unlawful or
unauthorized use of the Network Programs or the Marks.


 


9.                                      ADDITIONAL
REMEDIES.


 


9.1.          Licensee agrees that Licensee’s
obligations hereunder are of a special, unique, unusual and extraordinary
character which give them a peculiar value such that Licensee’s failure to
comply with such obligations cannot be reasonably or adequately


 


7

















 


compensated by damages in an
action at law, and that a breach of Licensee’s obligations hereunder will cause
UPN to suffer irreparable injury and damage. 
Licensee hereby expressly agrees that UPN will be entitled to injunctive
or equitable relief, including, without limitation, specific performance, to
prevent or cure, any breach or threatened breach of Licensee’s obligations
hereunder.  UPN’s resort to injunctive
or equitable relief, however, will not be construed as a waiver of any other
rights which UPN may have against Licensee for damages or otherwise.


 


9.2.          A waiver by either party of any breach
of this Agreement shall not be deemed a waiver of any prior or subsequent
breach hereof.  No waiver shall be
effective’ unless in writing.  The
exercise of any right will not be deemed a waiver of any other right or of any
default of the other party.  All
remedies of either party shall be deemed cumulative and the pursuit of any one
remedy shall not be deemed a waiver of any other remedy.  Except where otherwise specifically noted,
all references in this Agreement to “damages” shall mean all recoverable
damages to the fullest extent permissible under law, including, without
limitation, consequential damages, statutory damages and punitive damages.


 


10.                               NOTICE
OF INTENT TO SELL AVAILABLE ASSETS.


 


If at any time during the License Term Licensee intends to sell,
transfer or assign any or all of its rights in and to the Station, the assets
comprising the Station or the license for the Station (collectively the
“Available Assets”), prior to selling, assigning or transferring any of the
Available Assets to a third party, Licensee shall notify UPN in writing to such
effect prior to offering the Available Assets to any third party.


 


11.                               ASSIGNMENT.


 


11.1.        UPN may assign this Agreement to
(i) any entity affiliated with UPN, including, without limitation, any
entity which is a partner in UPN, (ii) any entity affiliated With any
partner in UPN, or (iii) any entity acquiring all, or substantially all,
of the assets or business of UPN. 
Thereafter, such assignee may assign this Agreement to any other entity
affiliated with such assignee.  Any such
assignment shall release the assignor from its obligations hereunder and
substitute the assignee therefor.


 


11.2.        Licensee may not assign this Agreement
or any rights hereunder, either in whole or in part, voluntarily or by
operation of law, without UPN’s prior written consent.  Any assignment permitted by UPN hereunder
shall not relieve Licensee of its obligations hereunder.  Any purported assignment by Licensee (including,
without limitation, a transfer of control of the Station’s license) without
UPN’s prior written consent shall, at UPN’s election, be null and void and
shall not be enforceable against UPN; provided, however, that UPN, in its sole
discretion, may elect to waive the Event of Default arising from Licensee’s
failure to. obtain UPN’s prior written consent to any such assignment (or
transfer of control) and UPN may consent to a purported assignment of this
Agreement (or a transfer of control of the Station’s license) by Licensee after
the effective date of such purported assignment (or transfer of control).  For purposes of this paragraph, an
assignment or transfer of a controlling interest in Licensee’s capital stock or
other evidence of ownership, or the sale of all or substantially all of Licensee’s
assets, will be deemed an assignment or transfer for which UPN’s prior written
consent must first be obtained.


 


8

















 


11.3.        Licensee shall notify UPN immediately
after any application is made to the FCC relating to a transfer either of any
interest in Licensee or of the Station’s license.  In the event that UPN shall disapprove of the proposed
transferee, UPN shall have the right to terminate !,this Agreement effective as
of the effective date of any such transfer (except a transfer within the provisions
of Section 73.3540(f) of the FCC Rules) by giving Licensee notice thereof,
within thirty days after the date on which Licensee gives UPN notice of the
making of such application.  If UPN does
not so terminate this Agreement, Licensee shall, prior to the effective date of
any such transfer of any interest in Licensee or of the Station’s license, and
as a condition precedent to such transfer, procure and deliver to UPN, in form
reasonably satisfactory to UPN, the agreement of the proposed transferee that,
upon consummation of the transfer, the transferee will unconditionally assume
and perform all obligations of Licensee under this Agreement.  Upon delivery of said agreement to UPN, the
provisions of this Agreement applicable to Licensee shall, effective upon the
date of such transfer, be applicable to such transferee.


 


11.4.        Licensee’s obligations to procure the
assumption of this Agreement by any transferee of Station as a condition
precedent to such transfer shall be deemed to’ be of the essence of this
Agreement; further, Licensee expressly recognizes that money damages will be
inadequate to compensate UPN for the breach of such obligation, and that UPN
shall accordingly be entitled to equitable relief to enforce the same.


 


12.                               NOTICES.


 


All notices, statements and other documents which either party is
required to give hereunder shall be in writing and shall be given either by
personal delivery, overnight mail, certified or registered mail or facsimile
(except as otherwise provided herein). 
Delivery of any notice, statement or other document to either party
shall be deemed complete if and when such notice, statement or document is
personally delivered to such party, upon receipt by such party of a facsimile,
or upon its deposit in the mail, postage pre-paid, registered or certified
mail, return receipt requested, and addressed to the recipient at the address
set forth herein.  All notices given
hereunder shall be sent to the applicable party at the address for that party
set forth on the first page of this Agreement, or to such other address as such
party may be designate in writing from time to time.  All notices given to UPN hereunder shall be sent to the attention
of the President, Affiliate Relations, or otherwise as UPN may designate in
writing from time to time.


 


13.                               UNAUTHORIZED
COPYING.


 


Subject to the provisions of paragraph 9.1 of the principal
portion of this Agreement, Licensee shall not, and shall not permit others to,
record, copy or duplicate any programming or other material furnished by UPN
hereunder, in whole or in part, and shall take all reasonable precautions to
prevent any such recording, copying or duplicating.  Notwithstanding the foregoing, if the Station is located in the
Mountain Time Zone, Licensee may pre-record programming from UPN’s satellite
feed for later telecast at the times scheduled by UPN.  Licensee shall erase all such pre-recorded
programming promptly after its scheduled telecast and shall otherwise comply
with the provisions of paragraph 9.1 of the principal portion of this
Agreement.  Nothing in this
paragraph 13 shall in any way authorize Licensee to telecast any Network
Program more than the number of times specifically authorized by UPN.


 


9

















 


14.                               MISCELLANEOUS.


 


14.1.        Licensee shall not alter, delete or
reposition any copyright, trademark, logo, credit or any other notice included
in any materials or programming delivered pursuant to this Agreement, or
include any advertisements or other material in any Network Program other than
Licensee’s commercial announcements as provided in paragraph 5 of the
principal portion of this Agreement. 
Without limiting the generality of the foregoing, it is an express
requirement of this Agreement that, when telecast, each Network Program bear
the copyright notice contained in the Network Program as delivered by UPN.


 


14.2.        The relationship between the parties
herein is strictly that of a licensor and licensee.  Nothing contained in this Agreement shall create any partnership,
joint venture, fiduciary or agency relationship between UPN and Licensee nor
shall anything contained herein be deemed to constitute a sale or rental of any
Network Program.  Each party is acting
independently hereunder and shall independently discharge all obligations
imposed on it by any applicable federal, state or local law, regulation or
order now or hereinafter in force or effect.


 


14.3.        The titles of the paragraphs of this
Agreement are for convenience only and shall not in any way affect the
interpretation of this Agreement or any part thereof.


 


14.4.        This Agreement is not for the benefit of
any third party and shall not be deemed to grant any right or remedy to any
third party whether or not referred to herein.


 


14.5.        This Agreement, which includes, without
limitation, the Standard Terms and Conditions and any schedules, exhibits and
riders attached hereto, constitutes the entire understanding between UPN and
Licensee with respect to the subject matter hereof and supersedes all prior or
contemporaneous agreements, representations, warranties, statements, promises,
arrangements and understandings, either oral or written, express or implied,
with respect to the subject matter hereof. 
Each party acknowledges that no representation or agreement not
expressly contained in this Agreement has been made to the other party or any
of such party’s agents, employees or representatives.  This Agreement may not be modified or amended except in writing
signed by each party hereto and no changes, amendments, assignments or waivers
hereof shall be binding upon UPN until accepted in writing by a duly authorized
officer of UPN.


 


14.6.        This Agreement shall be governed by and
construed in accordance with the federal laws of the United States, including,
without limitation, the FCC Rules, regulations and published policies of the
FCC, and the laws of the State of New York applicable to contracts entered into
and fully performed therein.  Any legal
proceedings brought to resolve any dispute arising out of or relating to this
Agreement shall be commenced in the appropriate Los Angeles or New York County
court or the United States District Court for the Central District of
California or the Southern District of New York.  No action or proceeding brought pursuant to this Agreement shall
be commenced or maintained outside of either Los Angeles or New York
County.  Regardless of the parties’
respective domicile or residence, the parties hereby submit to the exercise of
personal jurisdiction over them by the Los Angeles or New York County courts or
the United States District Court for the Central District of California or the
Southern District of New York.  In that
regard, Licensee hereby irrevocably appoints the Secretary of State of the
State of California as its attorney-in-fact for purposes of service of summons
or other legal


 


10

















 


process on Licensee in the
State of California and the Secretary of State of the State of New York as its
attorney-in-fact for purposes of service of summons or other legal process on
Licensee in the State of New York.  Such
service may be made by mailing a copy of any summons or other legal process in
any such action or proceeding to the applicable Secretary of State and delivering
a copy of such summons or other legal process to Licensee in accordance with
the provisions of paragraph 12 of these Standard Terms and
Conditions.  The California and New York
Secretaries of State are hereby authorized and directed to accept service of
summons or other legal process on Licensee’s behalf.  Service of such summons or other legal process as provided herein
shall be deemed personal service on Licensee, accepted by Licensee as such, and
shall be legal and binding upon Licensee for all purposes of any such action or
proceeding.  Licensee irrevocably waives
any objection which it may now or hereafter have to the venue of any suit,
action or proceeding arising out of or relating to this Agreement or any
document executed in connection herewith brought in the courts of the State of
California, County of Los Angeles, the State of New York, County of New York,
or in the United States District Court for the Central District of California
or Southern District of New York, and hereby further irrevocably waives any
claim that any such suit, action or proceeding brought in any such court has
been brought in an inconvenient forum.


 


14.7.        In the event of any dispute arising
under or related to this Agreement, the prevailing party shall be entitled to
recover its reasonable attorneys’ fees and costs incurred therein.


 


14.8.        If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction or
other governmental authority (including, without limitation, the FCC) to be
invalid, void or unenforceable, (i) the remainder of the terms,
provisions, covenants and restrictions of this Agreement shall remain in full
force and effect and shall in no way be affected, impaired or invalidated, and
(ii) to the fullest extent possible, the provisions of this Agreement
(including, without limitation, all portions of any section of this Agreement
containing such provision held to be invalid, illegal or unenforceable that are
not themselves invalid, illegal or unenforceable) shall be construed so as to
give effect to the intent manifested by the provision held invalid, illegal or
unenforceable.


 


14.9.        This Agreement and all rights and all
obligations hereunder shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and permitted assigns
(including, without limitation, any assignee or transferee pursuant to any
assignment or transfer for which UPN has consented pursuant to
paragraph 11.2 or 11.3, above).


 


14.10.      As used in this Agreement “and” means all
of the possibilities, “or” means any or all of the possibilities in any
combination, “either...or” means only one (1) of the possibilities and
“including” means “including, without limitation”.


 


14.11.      This Agreement may be executed in one (1)
or more counterparts, each of which shall, for all purposes, be deemed an
original, and all of such counterparts together shall constitute one (1) and
the same Agreement.


 


11

















 


DEAL TERMS RIDER


 


YOUNG BROADCASTING OF SIOUX FALLS, INC.
(KELO-DT)


 


This agreement (the “Rider”) shall serve as a rider to the October 15,
2003, Affiliation Agreement between UPN and Young Broadcasting of Sioux Falls,
Inc. with respect to KELO-DT, which broadcasts on television channel 32 and
which is licensed by the FCC to serve the community of Sioux Falls, South
Dakota located in the Designated Market Area of Sioux Falls (Mitchell), South
Dakota.  Unless otherwise indicated, all
capitalized terms used herein shall be defined as set forth in the
Agreement.  In the event of any conflict
between any of the provisions of this Rider and the Agreement, the applicable
provision of this Rider shall control.


 


1.             The
License Term shall be a five (5) year period commencing on January 27,
2004.  Licensee shall have the option to
extend the Agreement for an additional five year term by giving UPN written
notice of its election to extend, no fewer than ninety (90) days before the
expiration of the License Term.


 


2.             Paragraph 1.1
of the Agreement is amended by inserting “certain of after the word “over” in
said paragraph.


 


3.             The
first sentence of paragraph 2.2 of the Agreement is deleted.


 


4.             Notwithstanding
anything to the contrary contained in paragraphs 2.2.2, 2.2.3 or 2.3, in
the event UPN elects to deliver additional programs to Station as described in
said paragraphs, Licensee shall not be obligated to telecast such additional
programs and Licensee’s sole obligation with respect thereto shall be to use
its best efforts to clear such programs. 
Any such programs cleared by Licensee shall be deemed to be Network
Programs and subject to the terms and conditions of the Agreement.  In addition, paragraph 2.4 of the
Agreement is amended by adding the following sentence at the end thereof:


 


If the time periods during which UPN schedules a Network Program is
outside the time periods specified in 2.2.1, then Licensee will use its best
efforts to clear the Network Program during the requested alternate time
period.


 


5.             It
is understood that a “change in broadcast schedule” as set forth in paragraph 2.5
shall not include the change in time of telecast of any Network Program if such
change is to a time period outside those specified in paragraph 2.2.1.


 


6.             Notwithstanding
the terms of paragraph 3 of the Agreement or paragraph 1 of this
Rider, and in addition to any termination rights accorded to UPN in the
Standard Terms and Conditions of the Agreement, UPN may terminate the
Agreement, in its sole discretion, at any time upon one (1) years prior written
notice to Licensee, which termination shall in no event be effective prior to
January 26, 2007.


 


7.             Notwithstanding
the terms of paragraph 4.1 of the Agreement, the only data that Licensee
shall be obligated to telecast shall be data included within the definition of
program related material set forth in paragraph 4.2 of the Agreement.


 


1

















 


8.             The
fourth sentence of paragraph 4.2 of the Agreement is amended by deleting
everything after “business purpose” in said sentence.


 


9.             Paragraph 4.2
of the Agreement is further amended by inserting the following after “as” in
clause (vii) in the fifth sentence of said paragraph:


 


UPN and Licensee agree (which agreement shall not be unreasonably
withheld by either party)


 


10.           The
breach by Licensee of paragraph 5.5 of the Agreement shall not be deemed a
material breach of the Agreement.


 


11.           Paragraph 6.1.1
of the Agreement is deleted and replaced with the following:


 


Nothing contained herein shall be construed
to prevent Licensee from exercising its rights under the FCC’s “Right to Reject
Rule” as set forth in Section 73.658(e) of the FCC Rules whereby Licensee
may reject or refuse any Network Program that Licensee reasonably believes to
be unsatisfactory, unsuitable or contrary to the public interest (an “Unacceptable
Program”), or may substitute a program that Licensee reasonably believes is of
greater local or national importance; provided, however, that Licensee shall
give UPN written notice of each such preemption, and the justification
therefor, at least seventy-two (72) hours in advance of the scheduled telecast,
or as soon thereafter as circumstances permit (including an explanation of the
cause for any lesser notice); and further provided that, except with respect to
Unacceptable Programs, unless UPN gives Licensee written notice that UPN is
exercising its right, pursuant to paragraph 6.2, below, to terminate
Licensee’s right to telecast the preempted Network Program, Licensee fulfills
its make-good obligations as set forth in paragraph 6.3, below.  No Network Program may be considered
unsatisfactory, unsuitable or contrary to the public interest, or of lesser
local or national importance, based on program performance or ratings,
advertiser reactions, or the availability of alternative programming (including,
without limitation, sporting events) which Licensee believes to be more
profitable or attractive than the scheduled Network Program.


 


12.           Paragraph 7.1
of the Agreement is amended by deleting the first clause of the second sentence
of said paragraph and replacing it with the following:


 


Licensee shall use good faith efforts to telecast the Promos to obtain
the best possible promotion for the Network Programs;


 


13.           The
second sentence of paragraph 8.1 is deleted and replaced with the
following:


 


Licensee acknowledges that telecasts of the Network Programs by a
television broadcast station located outside of the Licensed Community or
Network Exclusivity Zone may be received over the air by television sets
located within the Licensed Community or Network Exclusivity Zone and Licensee
agrees that such reception shall not constitute a breach of this Agreement by
UPN.


 


2

















 


14.           Paragraph 8.2
and the first two sentences of paragraph 8.3 of the Agreement are deleted
in their entirety.  “Notwithstanding the
provisions of this paragraph or the Exclusivity Rider,” in the third sentence
of paragraph 8.3 is deleted and replaced with “Notwithstanding the
provisions of paragraph 8.1 of the Agreement,”.  Licensee agrees that no exclusivity is granted pursuant to the
Agreement with respect to the retransmission by cable systems of broadcast
signals originating outside the Licensed Community whether pursuant to a
compulsory license or otherwise.


 


15.           The
words “Any and all costs of whatever kind or nature” in the second sentence of
paragraph 9.1 of the Agreement are deleted and replaced with the
following:


 


UPN, at its expense, shall deliver the Network Programs to Licensee in
good quality for telecast by Licensee and all costs


 


16.           The
word “endeavor” in the paragraph 9.2 of the Agreement is deleted and
replaced with “use reasonable efforts”.


 


17.           The
word “immediately” in paragraph 1.1 of the Agreement is deleted and
replaced with “, within fourteen (14) business days,”


 


18.           Paragraph 4.1
of the Standard Terms and Conditions is deleted and replaced with the
following:


 


UPN will defend, indemnify and hold harmless Licensee, its successors,
licensees, assigns and parent, subsidiary and affiliated companies or entities,
and the directors, officers, employees, agents, successors, licensees and
assigns of each of the foregoing, from and against any and all third party
claims and expenses (including, without limitation, reasonable attorneys’ fees)
and liabilities, due to (i) Licensee’s telecast or distribution in
accordance with the provisions of this Agreement of promotional materials for
the Network Programs delivered to Licensee by UPN (ii) UPN’s breach of any
of its obligations, representations or warranties set forth in this Agreement.  UPN will remain responsible for honoring
UPN’s indemnity obligations pursuant to this paragraph 4.1 despite any
assignment pursuant to paragraph 11, below.


 


19.           The
words “thirty (30) days” in the second sentence of paragraph 7.1.6 of the
Standard Terms and Conditions are deleted and replaced with “one (1) year”.


 


20.           Paragraph 7.2
of the Standard Terms and Conditions is amended by deleting “only” in the first
sentence thereof and by inserting the following after the first sentence of
said paragraph:


 


In addition, Licensee shall have the right to terminate this Agreement
in the event of a breach by UPN of, or failure by UPN to comply with, any
material term, covenant, representation, warranty or condition of this
Agreement in which event UPN will have ten (10) days after its receipt of
written notice from Licensee specifying the breach or failure within which to
cure the breach or failure.  Such
termination shall become effective immediately upon UPN’s receipt of Licensee’s
written termination notice.


 


3

















 


21.           Paragraph 9.1
of the Standard Terns and Conditions is deleted and replaced with the
following:


 


Licensee and UPN agree that each of their obligations hereunder are of
a special, unique, unusual and extraordinary character which give them a
peculiar value such that either party’s failure to comply with such obligations
cannot be reasonably or adequately compensated by damages in an action at law,
and that a breach of a party’s obligations hereunder will cause the other party
to suffer irreparable injury and damage. 
Each party hereby expressly agrees that the other party will be entitled
to injunctive or equitable relief, including, without limitation, specific
performance, to prevent or cure any breach or threatened breach of such other
party’s obligations hereunder.  Either
party’s resort to injunctive or equitable relief, however, will not be
construed as a -waiver of any other rights which such party may have against
the other party for damages or otherwise.


 


22.           Paragraph 10
of the Standard Terms and Conditions is deleted.


 


23.           Paragraph 11.2
of the Standard Terms and Conditions is amended, by inserting “which consent
shall not be unreasonably withheld; provided, however, that a pro forma
assignment or transfer or control permitted to be filed pursuant to the FCC
Rules on FCC Form 315 shall not require consent by UPN” at the end of the
first sentence thereof.


 


24.           Paragraph 11.3
or the Standard Terms and Conditions is amended by inserting “, including,
without limitation, any notice filed on FCC Form 316” at the end of the
first sentence thereof and by inserting “which disapproval may only be for
reasonable cause,” between “transferee,” and “UPN” in the second sentence
thereof.


 


25.           Paragraph 11.4
of the Standard Terms and Conditions is deleted and replaced with the
following:


 


Each party’s obligations to procure the assumption of this Agreement by
any transferee of such party as a condition precedent to such transfer and such
assumption shall be deemed to be of the essence of this Agreement; further each
party expressly recognizes that money damages will be inadequate to compensate
the other party for the breach of such obligation, and that each party shall
accordingly be entitled to equitable relief to enforce the same.


 


26.           The
5th through 8th sentences of paragraph 14.6 of the
Standard Terms and Conditions are deleted.


 


27.           Licensee
agrees to use its best efforts to obtain upon commencement of the License Term
and maintain through the end of the first year of the License Term,
distribution by cable systems of the Subchannel that carries the Network
Programs to at least sixty five percent (65%) of cable subscribers in the
Station’s DMA and to obtain within one years of the commencement of the License
Term and to maintain for the duration thereof, distribution by cable systems to
ninety percent (90%) of cable subscribers in the Station’s DMA.


 


4

















 


28.           It
is agreed and understood that nothing in the Agreement shall be construed as a
waiver of any legal right or obligation possessed by or imposed on the parties
by any applicable law, rule or regulation. 
In particular, it is agreed that paragraphs 2.2.2, 2.2.3, 2.3, 2.4,
2.5, 4.1, 4.2, 6.1.1, 6.1.2, 6.2 and 6.3 shall be construed so as to conform
with the “exclusive affiliation”, “territorial exclusivity”, “time option” and
“right to reject” rules (47 CFR § 73.658) as interpreted by the
FCC.  It is understood that the
interpretation of these rules is presently the subject of an FCC
proceeding.  It is agreed that the terms
of the Agreement shall be construed in a fashion consistent with the decision
rendered in that proceeding.


 


5

















 


EXHIBIT A


 


1.             Licensee
does not have any prior programming commitments.  Licensee shall nevertheless be entitled to ten (10) hours per
calendar year of one-time-only preemptions of Network Programs (pro rated for
the period from the commencement of the License Term through the first December
31 thereof and for the period from the final January 1 thereof through the end
of the License Term), which preemptions shall be deemed Authorized
Preemptions.  In addition, it is
understood that Licensee intends to explore the possibility of obtaining
broadcast rights to professional and local sports programming in which event
the parties shall negotiate in good faith with respect to increasing the number
of Authorized Preemptions and UPN shall not unreasonably withhold its consent
to such an increase.


 


2.             With
regard to preemptions of Prime Time Network Programs, the make-good times shall
be as follows, with Licensee exerting its best efforts to program the make-good
alternatives in descending order as set forth in the table below:


 


	
  2.1.

  	
   

  	
  First Alternative:

  	
   

  	
  Immediately following the preemption, or if the news immediately
  follows the preemption, immediately following said newscast, provided that no
  make-goods shall conclude after 12:00 midnight Eastern and Pacific Times.
  (11:00 p.m. Central and Mountain Times).

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2.2.

  	
   

  	
  Second Alternative:

  	
   

  	
  Saturday, 8:00 p.m. – 10:00 p.m. or Sunday, 7:00 p.m. – 10:00 p.m.
  Eastern and Pacific Times (Saturday, 7:00 p.m. - 9:00 p.m. or Sunday, 6:00
  p.m. — 9:00 p.m. Central and Mountain Times), until such time as UPN programs
  said time period(s).

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2.3.

  	
   

  	
  Third Alternative:

  	
   

  	
  Saturday, 5:00 p.m. – 8:00 p.m. or Sunday, 4:00 p.m. – 7:00 p.m.
  Eastern and Pacific Times (Saturday, 4:00 p.m. – 7:00 p.m. or Sunday, 3:00
  p.m. – 6:00 p.m. Central and Mountain Times).

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2.4.

  	
   

  	
  Fourth Alternative:

  	
   

  	
  Monday through Sunday, 10:00 p.m. – 12:00 midnight Eastern and
  Pacific Times (9:00 p.m. – 11:00 p.m. Central and Mountain Times).

  



 


Notwithstanding the foregoing, the make-good time for WWE Smackdown! or
any successor WWE program shall be in accordance with those requirements
imposed from time to time by World Wrestling Entertainment and UPN and of which
Licensee shall be notified by UPN.  Such
requirements are currently that the make-good time shall be between 6:00 p.m.
and 2:00 a.m. on the Friday or Saturday following the preemption.


 


A - 1

















 


3.             Pursuant
to paragraph 6.3 of the Agreement, the make-good times for preemptions of
non-Prime Time Network Programs shall be as follows:


 


	
  3.1.

  	
   

  	
  Weekend Programming

  	
   

  	
  If the preempted Network Program is one intended primarily for
  children twelve (12) years old or younger, Saturday or Sunday between 7:00
  a.m. and 6:00 p.m. (in all time zones). 
  For all other preempted Weekend Programming, Saturday or Sunday
  between 12:00 noon and 12:00 midnight (in all time zones).

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  3.2.

  	
   

  	
  Daytime Programming

  	
   

  	
  Monday through Friday between 2:00 p.m. and 6:00 p.m. in all time
  zones).

  



 


4.             Notwithstanding
anything in paragraphs 2 and 3 of this Exhibit A to the contrary, no
make-good telecast shall conflict with the telecast of any other regularly
scheduled Network Program and no make-good telecast shall conclude after the
end of the Sunday broadcast day (i.e. 2:00 a.m. Monday morning) during the
broadcast week the preempted Network Program was originally scheduled for
telecast.


 


A - 2

















 


EXHIBIT B


 


EXCLUSIVITY RIDER


 


This Exclusivity Agreement is entered into with reference to the
following facts:


 


A.            Licensee
and UPN have entered into that certain Affiliation Agreement pursuant to which
UPN has agreed to deliver certain television programs to Licensee (collectively
the “Network Programs”).


 


B.            Licensee
desires to exhibit the Network Programs on an exclusive basis in the Licensed
Community.


 


C.            UPN
desires that Licensee shall exhibit the Network Programs in the Licensed
Community on an exclusive basis.


 


WHEREFORE, Licensee
and UPN hereby agree as follows:


 


1.0           The
following definitions shall apply in interpreting the terms of this Exclusivity
Agreement:


 


1.10         “Cable
television system” has the meaning given to that term in Section 76.5(a)
of the FCC Rules.


 


1.11         “FCC
Rules” means the rules and regulations of the FCC, as the same may be in effect
from time-to-time, as set forth in volume 47 of the Code of Federal Regulations
(47 CFR).  All references in this
Exclusivity Agreement to specific sections of the FCC Rules shall be deemed to
be references to the applicable section in 47 CFR


 


1.12         “Network
Exclusivity Zone” means the zone within thirty-five (35) miles of a station’s
Reference Points, or, in the case of a “small market television station”, as
defined in Section 76.92 of the FCC Rules, the zone within fifty-five (55)
miles of said Reference Points; provided, however, that in no case shall the
“Network Exclusivity Zone” include an area within the Designated Market Area,
as most recently determined by Nielsen Media Research, of another UPN
affiliate.


 


1.13         “Reference
Point” has the meaning given to that term in Section 73.658(m) of the FCC
Rules, and shall be deemed to include with respect to a station in a hyphenated
market, the Reference Point of each named community in that market.


 


1.14         “Television
station” means any television broadcast station licensed by the FCC and operating
on a channel regularly assigned to its community by Section 73.606 or
73.622 of the FCC Rules.


 


2.0           All
capitalized terms used in this Exclusivity Agreement without definition shall
have the meaning accorded to such terms in the Affiliation Agreement.


 


3.0           UPN
agrees that during the License Term, except as set forth in paragraphs 6.2
and 6.3 of the Affiliation Agreement, UPN shall not license the Network
Programs, or any of them, to any broadcast television station licensed by the
FCC to operate in the Licensed Community, other than the Station.  Licensee acknowledges that telecasts of the
Network


 


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Programs
originating outside of the Licensed Community may be received by television
sets located within the Licensed Community, and Licensee agrees that such
reception shall not constitute a breach of this Exclusivity Agreement by UPN.


 


4.0           Licensee
shall be entitled to exercise, within Station’s Network Exclusivity Zone, the
protection against duplication of network programming in any and all formats
(including digital format), as provided by Sections 76:92 through 76.95 of
the FCC Rules, and Sections 76.120 through 76.124 of the FCC Rules, with
respect to a Network Program during the period beginning one (1) day before and
ending seven (7) days after the day UPN intends for such Network Program to be
generally broadcast by UPN’s affiliates; provided, however, that such right
shall apply only to Network Programs broadcast in the intended time period or
authorized make-good time period; and provided further that nothing herein
shall be deemed to preclude UPN from granting to any other broadcast television
station licensed to any other community similar network non-duplication rights
within that station’s Network Exclusivity Zone, and Licensee’s aforesaid right
of network non-duplication shall not apply with respect to the transmission of
the programs of another UPN affiliate (current or future) by a “community
unit”, or a satellite carrier, as those terms are defined by the FCC Rules,
located (wholly or partially), or serving subscribers, within the area in which
Station’s Network Exclusivity Zone overlaps the Network Exclusivity Zone of
that other UPN affiliate. 
Notwithstanding the provisions of this Exclusivity Agreement,
(a) UPN shall have the right to authorize any television broadcasting
station (whether or not such station is in the Licensed Community) to telecast
any program offered by UPN concerning a subject UPN deems to be of immediate national
significance, including, without limitation, a Presidential address and
(b) with respect to the MGM movies that currently constitute the Saturday
Programming, exclusivity is granted only with respect to the regularly
scheduled period of broadcast of said Saturday Programming.


 


5.0           If
any provision or part thereof of this Exclusivity Agreement is determined to be
invalid by a final decision of any court or government agency, the remaining
provisions or part thereof shall remain in full force and effect.


 


6.0           In
the event that a cable television system, television station or any other
entity or person fails to respect Licensee’s exclusive rights pursuant to this
Exclusivity Agreement and the FCC Rules, or any other applicable agreements,
rules or statutes, Licensee shall promptly notify UPN and Licensee may
institute such actions and proceedings as are provided for by the FCC Rules or
under any statute, law, regulation or at common law in order to enforce its
exclusive rights and recover damages for the violation thereof.  UPN may, but shall not be obligated to, join
Licensee in such actions and proceedings, and may be represented by counsel of
its choice.  If it so elects, or in the
event that Licensee fails to institute any such action or proceeding, UPN may institute
and prosecute any such suit or proceeding in its own name as it may determine
in its sole discretion.  In the event
any damages or monies for the violation of Licensee’s exclusive rights or of
any statute, law or regulation, are recovered in any joint action or
proceeding, the amount so recovered shall be divided between UPN and Licensee
according to their respective damages established in the joint action or
proceeding after first deducting therefrom reasonable expenses and counsel
fees.  In the event that either party
brings an action or proceeding without being joined therein by the other party,
the party bringing the action or proceeding shall pay its own expenses and
counsel fees, and shall retain any amount recovered for its own benefit.


 


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IN WITNESS WHEREOF, the
parties hereto have executed this Exclusivity Agreement as of the day and year
first written above.


 


	
  UPN

  	
  YOUNG BROADCASTING OF SIOUX FALLS,
  INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  
	
  Peter Schruth

  	
  Name:

  	
  Mark E. Antonitis

  
	
  President, Affiliate Relations

  	
   

  
	
   

  	
  Title:

  	
  President/General Manager

  
	
   

  	
   

  
	
  Dated:

  	
   

  	
   

  	
  Dated:

  	
  10-22-03

  
							



 


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