Time Brokerage Agreement

TIME BROKERAGE AGREEMENT


This time brokerage agreement dated June 27, 1997, is entered into by and between ONYX BROADCASTING, INC. a Delaware corporation ("Licensee"), and NCR II, INC, a Virginia corporation ("Programmer"). Collectively, Licensee and Programmer shall be identified as the "Parties").


Recitals.


Licensee owns radio station KTRR-FM of Loveland, Colorado (the "Station"). The principals of Programmer are experienced in radio station ownership and operation, and Licensee wishes to retain Programmer to provide sales and marketing services, technical support, and programming for the Station that is in conformity with the rules, regulations, and policies for time brokerage agreements of the Federal Communications Commission ("FCC") and this agreement.


NOW, THEREFORE, in consideration of the above recitals and the mutual promises and covenants contained herein, the Parties, intending to be bound legally, agree as follows:


Section 1
Effective Date and Programmer Services


1.1 Effective Date. The Initial Term (hereinafter defined) of this agreement shall begin (the "Effective Date") on the earlier to occur of August 5, 1996 or the termination, cancellation, or expiration of Licensee's present Program Services Agreement (the "Duchossois Agreement") entered into on August 5, 1991 with Duchossois Communications Company of Colorado, Inc. ("Duchossois").


1.2 Term. The initial term shall continue after the Effective Date for a period of five years (the "Initial Term"), and thereafter for four additional five year terms [the "Additional Term(s)," and, with the Initial Term, the "Term")] unless sooner terminated by Programmer's notice of termination given to Licensee no less than one hundred eighty (180) days before expiration of the Initial Term or of any Additional Term.


1.3 Programmer Services. During the Term, Licensee agrees to make available to Programmer on an exclusive basis broadcast time on the Station as set forth in this agreement. Programmer shall provide entertainment programming in the format and content of its selection complete with commercial matter, news, public service announcements, and other suitable programming for at least one hundred sixty-two (162) hours per week, which broadcast time of the Station Licensee shall make available during the Term exclusively


to Programmer, free and clear of all rights of any other person or entity. Licensee reserves to itself, however, the right to broadcast its own programming material for up to six (6) hours per week between the hours of 6 AM - 12:00 Noon on Sundays ("Licensee's Reserved Time") for its own regularly scheduled news, public affairs and other suitable non-entertainment programming designed to serve the community needs and interests of the Station's listening audience. Licensee shall cooperate with and promptly (at least 24 hours before) notify Programmer if Licensee will use all or any part of Licensee's Reserved Time, and Programmer shall have the right to use any unused portion of Licensee's Reserved Time in default of such a notice from Licensee.


1.4 Consideration. As consideration for Programmer's rights hereunder and the air time made available during the Term hereof, Programmer shall make payments as set forth in Attachment 1.4 attached hereto and identified by the initials of the Parties' representatives. The Parties agree that Attachment 1.4 and Attachment 7.3 contain proprietary and confidential information, and each agrees to take all steps reasonably necessary to maintain such confidentiality, including redacting such confidential information from any copy of this agreement that is filed with the FCC.


1.5 Expenses and Revenues. Licensee shall be solely responsible for the timely payment of all taxes and other costs incidental thereto, all FCC regulatory fees, real estate and personal property taxes, all utility costs relating to the existing transmitter site, transmitter and antenna, and all maintenance and repair costs on the transmitter equipment. Programmer shall be solely responsible for all expenses attributable to its programming on the Station, including but not limited to any expenses incurred in the origination and/or delivery of its programming to the Station's studio and transmitter sites, for all costs associated with the acquisition, clearance, and production of its own programming, and for the salaries, taxes, insurance and related costs for all personnel employed by Programmer in connection with the sale of advertising time, marketing of the Station, technical maintenance of Station's equipment, and production and delivery of programming. Programmer shall retain all revenues from the sale of commercial time during its programming of the Station, including any revenues arising from such programming during Licensee's Reserved Time. In the event Licensee broadcasts programming outside Licensee's Reserved Time, other than as a result of preemptions under Section 2.1 or Section 3.2, it shall reimburse Programmer at the Station's then highest unit rate, per half-hour, or any portion thereof, in accordance with the Station's existing rate cards, said amount to be deducted from the next payment to Licensee due under Section 1.4 above.


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1.6 Use of Station's Facilities. Throughout the entire Term Programmer shall make its studio facilities, located within the Station's principal community contour, reasonably available to Licensee, at no charge, for the production and presentation of Licensee's programming and as otherwise necessary to fulfill Licensee's obligations as an FCC licensee. Consistent with its obligations under this agreement and with all requirements of the laws, rules, and regulations of the FCC, Programmer shall have full use of the Station's facilities, studios, and equipment free from any hindrance or interference from any person or persons whomsoever claiming by, through, or under Licensee, which facilities Programmer shall use only for the purpose of exercising its rights and fulfilling its obligations under this agreement.


1.7 Contracts. This agreement does not obligate Programmer to assume any of Licensee's existing contracts, agreements, or leases. Notwithstanding the foregoing, Programmer shall cooperate with Licensee to fulfill all appropriate contracts, agreements, and leases in effect on the Effective Date that involve operation of the Station. From and after the date hereof, Licensee will take all actions necessary to make certain that, and, as a precondition of Programmer's agreements and liability hereunder, it shall be a fact that, as of the Effective Date the Station (or Licensee for Station) is not then subject to, and that Licensee has not entered into or committed Station to, any contract, lease, or agreement that will bind Programmer during the Term or any part thereof, except such as may have received the prior, written approval of Programmer, or as may be expressly permitted hereunder. Except with Licensee's prior written approval, Programmer will not enter into any contracts, leases, or agreements that will bind Licensee in any way after termination of this agreement, except for agreements for the sale of broadcast time for cash entered into in the normal course of business that may be canceled without penalty on no more than thirty (30) days prior notice.


Section 2
Licensee's Duties and Obligations


2.1 Licensee's Authority. At all time, Licensee shall remain responsible for compliance by Station with all applicable provisions of the Communications Act of 1934, as amended (the "Act"), the rules, regulations and policies of the FCC, and all other applicable laws. Licensee shall be solely responsible for and pay in a timely manner all operating costs of the Station, including but not limited to the expenses listed and identified as Licensee's expenses on Attachment 1.4 including the salaries, taxes, insurance, and related costs for all personnel employed by Licensee. Licensee shall maintain insurance consistent with its


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existing coverages covering the Station's transmission facilities, and shall include Programmer as a named additional insured as its interests may appear. Programmer recognizes that the Station is obligated to broadcast programming to meet the needs and interests of the Red Lion, Pennsylvania, area, and Programmer shall air programming on issues of importance to the local community. In the event of the occurrence of a local or national emergency that in the good faith, reasonable judgment of Licensee, is not being adequately addressed by Programmer, Licensee retains the right to interrupt Programmer's programming to substitute programming produced by Licensee that is more responsive to the emergency. During the Term, Licensee shall maintain all FCC Licenses for the Station's operation in full force and effect in compliance with all FCC rules, regulations, and policies, and shall timely file all necessary reports and prosecute to a satisfactory conclusion all renewal or other applications necessary to maintain such Licenses in full force and effect during the Term, without material change or restriction.


2.1A Station Signal. At all times during the Term, at its sole expense Licensee shall maintain the Station's broadcast signal within such signal's present technical parameters and without Programmer's prior consent, shall not materially change the Station's presently licensed tower or transmission facilities.


2.2 Additional Licensee Obligations.


(a) Station's ID. During the Term, Programmer shall coordinate with Licensee to ensure that the Station's hourly station identifications and any other required announcements are aired as Licensee may direct, and Licensee shall not change "KTRR-FM" as the Station's call sign without the consent of Programmer.


(b) Political Advertising. During the Term, Programmer shall cooperate with Licensee to assist Licensee in complying with all rules of the FCC regarding political broadcasting. Licensee shall promptly supply to Programmer, and Programmer shall promptly supply to Licensee, such information, including all inquiries concerning the broadcast of political advertising, as may be necessary to comply with FCC rules and polices, including the lowest unit rate, equal opportunities, reasonable access, political file, and related requirements of federal law. Programmer, in consultation with Licensee, shall develop a statement that discloses the Station's political broadcasting policies to political candidates, and Programmer shall follow those policies in the sale of political programming or advertising during the Term. In the event that Programmer fails to satisfy political broadcasting requirements under the Act and the rules, regulations,


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and policies of the FCC and such failure inhibits Licensee in its compliance with the political broadcasting requirements of the FCC, then to the extent reasonably necessary to assure such compliance, Programmer shall either provide rebates to political advertisers or release advertising availabilities to Licensee.


(c) Main Studio. In cooperation with Programmer, during the Term Licensee shall (i) maintain and staff a main studio, as that term is defined by the FCC, which Licensee may locate within facilities that Programmer shall provide within the Station's principal community contour, or at such other location that complies with FCC rules for the location of a main studio within such area, (ii) maintain a local public inspection file within Loveland, Colorado, and (iii) prepare and place in such inspection file in a timely manner all material required by Section 73.3526 of the FCC's rules, including without limitation the Station's quarterly issues/program lists. Programmer shall provide Licensee with timely information concerning Programmer's programs as is necessary to assist Licensee in the preparation of such lists.


(d) Employment Practices. During the Term, Programmer shall provide to Licensee such information as Licensee reasonably may request concerning Programmer's recruitment, hiring, or employment practices in connection with Programmer's provision of services to the Station.


2.3 Responsibility for Employees. Licensee shall provide and be responsible for the Station's personnel necessary to fulfill Licensee's responsibilities or as otherwise required by the FCC for agreements of this nature. Programmer shall be directly and solely responsible for the salaries, taxes, insurance, and related costs for all of the personnel employed by it in operating the Station after the Effective Date.


2.4 Collection of Accounts Receivable. For a period of ninety (90) days (the "Collection Period") following any termination of this agreement, Licensee shall collect as agent for Programmer the accounts receivable of the Station in existence as of the termination date. Programmer shall provide Licensee with a list of all such accounts receivable to be collected by Licensee. In collecting such accounts receivable, Licensee shall use reasonable diligence, but shall not be required to institute legal proceedings to collect any account receivable, or to defend any claim or counterclaim by any account debtor. All amounts received from an account debtor that also is an account debtor of Licensee after the termination date shall be applied first to payment of the accounts receivable of Programmer. Within ten (10) days of the end of each calendar month of the Collection Period, Licensee shall


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deliver to Programmer the net amount, after deducting any sales commission, agency fees and similar direct expenses attributable to such accounts receivable, of all amounts collected and credited to the accounts receivable of Programmer during the prior calendar month in accordance with this Section 2.4. Within ten (10) days of the end of the Collection Period, Licensee shall deliver to Programmer all records of uncollected accounts receivable of Programmer and any amounts not previously remitted to Programmer at which time Licensee's obligation for the collection of Programmer's accounts receivable shall cease.


2.5 Failures to Broadcast. If during the Term, the Station fails to broadcast for any reason, other than as a result of circumstances or events attributable to Programmer, or as provided in Section 2.1 or Section 2.3. Programmer shall be entitled to deduct $1,000 per day from the amount payable to Licensee hereunder for each twenty-four hours in which broadcasting at the Station was interrupted for an aggregate of two or more hours, which amount shall be offset by any payments due and payable to Licensee pursuant to the last sentence of Section 1.5.


2.6 Right to Cure. Any deficiency or degradation in the coverage or power of the Station occurring at any time during the Term, or the effects of any and all actions or failures to act by Licensee that adversely affect Station or its broadcast operations, or any obligations of Licensee that are not fulfilled, remedied, or cured by Licensee as promptly as is possible, may be fulfilled, remedied, or cured by Programmer at its sole election in order to ensure the availability and full utility of the broadcast time herein made available to Programmer, and the expense of any such actions by Programmer shall be charged to Licensee and may first be deducted from the amounts payable to Licensee hereunder, except to the extent that any such loss of Programmer's is covered by business interruption or similar insurance coverage payable to Programmer.


Section 3
Licensee's Programming Policies


3.1 Programming Policy Statement. Licensee has adopted a Programming Policy Statement (the "Policy Statement"), a copy of which appears as Attachment 3.1 attached hereto and identified by the initials of the Parties' representatives. During the Term, Programmer shall comply in all material respects with the Policy Statement and with all applicable rules and regulations of the FCC. If a program, commercial announcement, or promotional material supplied by Programmer contains material that is obscene, indecent, libelous, constitutes a "personal attack"; or an invasion of


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privacy or violates the Act or the FCC's rules, or otherwise does not comply with the Policy Statement Licensee may, after prior, written notice to Programmer (to the extent time permits such notice), suspend or cancel such program, commercial announcement, or promotional material and may require Programmer to substitute a suitable program, commercial announcement, or promotional material. Notwithstanding the foregoing or Attachment 3.1, the parties agree that the regular broadcast of programming similar in style and content to the Rush Limbaugh and Don Imus programs shall not constitute a violation of Section 3.1 or Attachment 3.1, and further agree that the isolated broadcast of material that is inconsistent with certain provisions of Attachment 3.1 shall not constitute a violation of Section 3.1 or Attachment 3.1.


3.2 Licensee Oversight of Programming. Programmer recognizes that Licensee has the right to reject or refuse such portions of the Programmer's programming that is contrary to the public interest. At all times, all actions of Licensee shall be based upon Licensee's good faith implementation of its responsibilities as an FCC Licensee and shall not be taken for commercial purposes or for the commercial, economic, or business advantage of Licensee. Within the limitation of Attachment 3.2, at all times Programmer shall determine the entertainment format and marketing and promotional direction of the Station. Attached hereto as Attachment 3.2 is a general description of Programmer's presently planned programming. Licensee is generally familiar with Programmer's operating standards and, in particular, approves of the programming outlined in Attachment 3.2. Programmer shall make no substantial and material change in its scheduled programming from that described in Attachment 3.2 without Licensee's prior consent, which shall not be unreasonably withheld.


3.3 Compliance with Copyright Act. Programmer represents, warrants and covenants to Licensee that Programmer has full authority to broadcast its format and programming on the Station, and that Programmer shall not knowingly broadcast any material in violation of the Copyright Act. Licensee will be responsible for all copyright clearances for its programming and shall maintain the Station's copyright licenses in full force and effect.


3.4 Payola. With respect to its programming on the Station during the Term, Programmer agrees that it will not accept, and will not knowingly permit any of its employees to accept, any consideration, compensation, gift, or gratuity of any kind whatsoever, regardless of its value or form, for the broadcast of any material on the Station unless the payer is identified on the program for which consideration was provided as having paid for or


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furnished such consideration, in accordance with the Act and FCC requirements.


3.5 Cooperation on Programming. Programmer and Licensee mutually acknowledge their interest in ensuring that the Station serve the needs and interest of the residents of the Loveland, Colorado area and agree to cooperate during the Term in doing so. Licensee shall, on a regular basis, assess (which results shall be shared with Programmer on a regular basis) the issues of public concern and address those issues in the Station's public service programming. Licensee shall describe those issues and responsive programming and place issues/programs lists in the Station's public inspection file as required by FCC rules. Further, during the Term Programmer shall provide Licensee with information concerning such of Programmer's programs as are responsive to community issues in order to assist Licensee in meeting its public service programming obligations. Upon Licensee's reasonable request, Programmer shall also provide Licensee with such other information as reasonably may be necessary to enable Licensee to prepare records and reports required by the Commission or other local, state, or federal government entities.


Section 4
Indemnification


4.1 Programmer's Indemnification. Programmer shall indemnify and hold harmless Licensee from and against any and all claims, losses, costs, liabilities, damages, and expenses, including any FCC fines or forfeitures (including reasonable legal fees and other expenses incidental thereto) of every kind, nature, and description, including but not limited to slander or defamation or otherwise (hereinafter "Claims"), arising out of Programmer's broadcasts on the Station and/or sale of advertising time under this agreement during the Term, or the actions or conduct of Programmer's employees.


4.2 Licensee's Indemnification. Licensee shall indemnify and hold harmless Programmer from and against any and all Claims arising out of broadcasts originated by Licensee pursuant to this agreement, and for the actions or conduct of Licensee or Licensee's employees.


4.3 Time Brokerage Challenge. If this agreement is challenged at the FCC or in any other administrative or judicial forum, whether or not in connection with any license assignment application, counsel for Licensee and Programmer shall jointly defend the agreement and the Parties' performance hereunder throughout all such proceedings. If portions of this agreement do not receive the approval of the FCC, then the Parties shall reform


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the agreement, consistent with the provisions of Section 6.6 below, as necessary to satisfy the FCC's concerns.


Section 5
Termination


5.1 Termination.


(a) Automatic Termination.


This agreement and the Term hereof shall terminate automatically upon the occurrence of any of the following:


(i) the earlier of (a) Programmer's termination of the Term hereof as herein provided, or (b) the day before the anniversary date hereof in the year 2022;


(ii) this agreement is declared invalid or illegal in whole or substantial part by an order or decree of an administrative agency or court of competent jurisdiction and such order or decree has become final and is no longer subject to further administrative or judicial review, or


(iii) there is a material change in FCC rules, policies or precedent that causes this agreement to be in material, incurable violation thereof and such change is in effect and not the subject of an appeal or further administrative review, provided, however, that in such event the Parties first shall negotiate in good faith and attempt to agree on an amendment to this agreement consistent with Section 6.6 below.


(b) Other Termination.


This agreement may be terminated (i) by the Parties' mutual written consent, or (ii) by Licensee giving Programmer prior, written notice of such termination in the event of (a) Programmer's material breach of a material provision of this agreement that is not cured (or a cure instituted and carried forward in good faith) within thirty (30) days after written notice thereof to Programmer describing such breach in detail, or (b) failure to close and consummate any agreed Sale of the Station to Programmer as hereafter agreed upon by the Parties, which failure is due solely to Programmer's material, uncured default under such agreement of Sale after thirty (30) days written notice of such default given to Programmer by Licensee describing such default in detail, or (iii) by Programmer giving Licensee at least sixty (60) days prior, written notice of such termination at any time upon or after any Sale (hereinafter defined) or other transfer of the


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Station or the Station's Licenses to an owner other than the Licensee.


5.2 Force Majeure. Subject to Section 2.6, any failure or impairment of the Station's facilities or any delay or interruption in the broadcast of programs, or failure at any time to furnish facilities, in whole or in part, for broadcast, due to acts of God, strikes, lockouts, material or labor restrictions by any governmental authority, civil riot, floods and any other cause not reasonably within the control of Licensee or Programmer, shall not constitute a breach of this agreement or create liability to or on any of the Parties.


Section 6
Miscellaneous


6.1 Assignment. This agreement is binding upon the Parties, their successors and assigns. Neither of the Parties may assign its rights under this agreement without the prior written consent of the other party. For purposes of this Section 6.1, an assignment shall include any change in control of a Party, e.g., by sale of capital stock, merger, or operation of law.


6.2 Amendment. No amendment to this agreement shall be effective unless evidenced by an instrument in writing signed by both Parties.


6.3 Headings. The headings herein are for convenience only and do not control or affect the meaning or construction of the provisions of this agreement.


6.4 Governing Law. This agreement is subject to applicable federal, state, and local law, rules and regulations, including, but not limited to, the Act and the rules, regulations, and policies of the FCC. The construction and interpretation of this agreement and the Parties' obligations hereunder will be determined under and controlled by the laws of the Commonwealth of Virginia, without giving effect to such laws' principles regarding choice of law or conflicts of laws.


6.5 Notices. Each notice, consent, request, demand or other communication required or permitted hereunder shall be in writing and shall be deemed to have been duly given only upon the earlier of receipt (by hand delivery, fax, or otherwise) or five (5) days after having been mailed, certified or registered United States mail, postage prepaid, addressed as follows:


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if to Licensee or Onyx Broadcasting, Inc.
Gammon: 8401 Old Courthouse Road, Suite 140
Tyson's Corner, Virginia 22180
Attention: Mr. Thomas P. Gammon
President


copy to: Meredith Senter, Esquire
c/o Leventhal, Senter & Lerman
Suite 600
2000 K Street, N.W.
Washington, D.C. 2006-1809


if to Programmer: NCR II, Inc.
c/o Brill Media Company, L.P.
420 N.W. Fifth Street, Suite 3-B
P.O. Box 3353
Evansville, Indiana 47732
Attention: Alan R. Brill


copy to: Charles W. Laughlin, Esquire
c/o Thompson & McMullan, P.C.
100 Shockoe Slip
Richmond, Virginia 23219


or when so delivered or mailed to such other place or person as a party hereafter from time to time may have designated in a prior written notice to the other party.


6.6 Invalidity. If any provision of this agreement or the application thereof to any person or circumstances shall be held invalid or unenforceable to any extent, the Parties shall negotiate in good faith and attempt to agree on an amendment to this agreement that will provide the Parties with substantially the same rights, economic benefits, and obligations to the greatest extent possible as the original agreement in valid, binding, and enforceable form.


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