Time Brokerage Agreement

EXECUTION
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TIME BROKERAGE AGREEMENT
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This Time Brokerage Agreement (the "Agreement") by and between Tropic of St. Simons, Inc., a Delaware corporation ("Time Broker"), Lee M. Mitchell ("Licensee"), the receiver appointed by order of the Superior Court of Fulton County, Georgia ("Superior Court") or any successor receiver appointed by said Court to manage the assets of WMOG (FM) and WMOG (AM) (the "Station"), recites and provides as follows.


WHEREAS, Licensee has available broadcasting time and is engaged in the business of radio broadcasting on the Station; and


WHEREAS, Time Broker desires to avail itself of some of the Station's broadcast time;


NOW, THEREFORE, for and in consideration of the mutual covenants herein contained, the parties hereto have agreed and do agree as of the _______ day of March, 1994 (the "Commencement Date"), as follows:


W I T N E S S E T H:


1. FACILITIES. Licensee shall broadcast on the Station, or cause to be broadcast, programs which are presented to it by Time Broker as described in greater detail on Attachment I hereto. Notwithstanding the foregoing, Licensee reserves the right to refuse to broadcast any program or programs containing matter which is, or in the opinion of Licensee may be, or which a third party claims to be, violative of any right of its or theirs or which may constitute a personal attack as that term is and has been defined by the Federal Communications Commission (the "FCC"), or which is deemed to be indecent or obscene by the FCC. During the term hereof, Time Broker shall maintain the ability to deliver its programming to Licensee's transmitter site.


2. CONSIDERATION. Time Broker shall pay Licensee for broadcast of the programs provided hereunder in the amounts specified in Section 1 of Attachment II hereto. The failure of Licensee to demand or insist upon timely payment shall not constitute a waiver of its right to do so.


3. TERM. Unless earlier terminated in accordance with the express provisions 2 hereof, this Agreement shall continue until the Closing Date as defined in Section 11.1 of the Purchase Agreement (as defined in Section 21 hereof).


4. PROGRAMS. Time Broker shall furnish or cause to be furnished the artistic personnel and material for the programs provided pursuant to this Agreement and all such programs shall be in good taste and in material accordance with applicable statutes and FCC requirements. All programs provided by Time Broker hereunder shall be prepared and presented in material conformity with the standards set forth in Attachment III hereto and shall be transmitted by Time Broker at its own cost to Licensee's transmitter site.


5. HANDLING OF MAIL. Licensee shall not be required to receive or handle mail, cables, telegraph or telephone calls in connection with the programs provided by Time Broker hereunder. Time Broker shall promptiy advise Licensee of any public or FCC complaint or inquiry known to Time Broker concerning such programming, and shall provide Licensee with copies of any letters to Time Broker from the public concerning the foregoing. Time Broker shall timely respond to all such communications as appropriate.


6. PROGRAMMING AND OPERATING STANDARDS AND PRACTICES.


6.1 COMPLIANCE WITH STANDARDS. Time Broker shall adhere in all material respects to the standards set forth in Attachment III hereto with respect to the Station's programming and operations and shall comply with all applicable statutes and FCC requirements with respect to such programming and operations. If, in the judgment of Licensee, Time Broker does not adhere in all material respects to such standards, Licensee may suspend or cancel any specific program not in compliance, and Time Broker will endeavor to provide substitute programming therefor. From and after the Commencement Date, Time Broker shall perform its obligations hereunder in all material respects in a commercially reasonable manner consistent with industry standards.


6.2 EQUIPMENT AND EXPENDITURES. All transmitting equipment necessary for broadcasting by the Station shall be maintained by Licensee in a condition consistent with good engineering practice and in compliance in all material respects with the applicable rules, regulations and technical standards of the FCC.


6.3 FCC COMPLIANCE. Time Broker shall maintain and deliver to Licensee all records and information required by the FCC to be placed in the public inspection files of the Station pertaining to the broadcast of political programming and advertisements, in accordance with the provisions of Sections 73. 1940 and 73.3526 of the FCC's rules, and to the broadcast of sponsored programming addressing political issues or controversial subjects of public importance, in accordance with the provisions of Section 73.1212 of the FCC's rules. Time Broker also shall consult with Licensee and adhere strictiy to all applicable statutes and the rules, regulations and policies of the FCC as announced from time to time, with respect to the carriage of political advertisements and programming (including, without limitation, the rights of candidates and, as appropriate, others to "equal opportunities" and the carriage of


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3 contrasting points of view as mandated by any "fairness" rules with respect to such "issue-oriented" advertising or programming as may be broadcasf) and the charges permitted therefor. Time Broker shall provide the Licensee such documentation relating to such programming as Licensee shall request, and shall indemnify Licensee for any claim, demand, cost or expense (including reasonable attorneys' fees) arising from the broadcast of any such material on the Station during the term of this Agreement.


7. RESPONSIBILITY FOR EMPLOYEES AND EXPENSES. Time Broker shall employ and be responsible for the salaries, taxes, insurance and costs related to all personnel used in the production of its programming, and Licensee shall bear the same responsibility with respect to all personnel used in the production of its programming and shall, if requested by Time Broker, execute and deliver a certification in the form of Attachment VIII hereto. Time Broker shall pay for all costs associated with its program production, all fees to ASCAP, BMI and SESAC attributable to its programs and for any other copyright fees attributable to its programming broadcast on the Station. Each party shall indemnify and hold the other party harmless from all costs and liabilities imposed on it under this Section 7.


8. OPERATION OF STATION. Notwithstanding anything to the contrary in this Agreement, Licensee shall retain full authority and power with respect to the operation of the Station during the term of this Agreement, and shall take any and all steps necessary to faithfully and continuously do so throughout the term of this Agreement and shall, if requested by Time Broker, execute and deliver a certification in the form of Attachment VIII hereto. Licensee shall maintain all licenses, contracts, leases and other agreements necessary to the operation of the Station during the term hereof in accordance with the express provisions of this Agreement. Licensee further agrees and acknowledges that its responsibility to retain control is an essential element of the continuing validity and legality of this Agreement. Without limiting the generality of the provisions of Section 7, Licensee shall provide and pay for (a) its General Manager for the Station, who shall report solely to, and be accountable solely to, Licensee and who shall direct the day-to-day operations of the Station and (b) such other engineering and programming costs and expenses as are necessary to fulfill its obligations under this Agreement, including but not limited to all costs of required meter readings and any remote control facilities to be manned by Licensee's personnel to meet FCC operating requirements. Licensee shall retain control over the policies, programming and operations of the Station, including, without limitation, the right to decide whether to accept or reject any programming or advertisements, the right to preempt any program in order to broadcast a program deemed by Licensee to be of greater national, regional or local interest, and the right to take any other actions necessary to comply with the laws of the United States, and the rules, regulations, and policies of the FCC, including the rules regarding the prohibition of unauthorized transfers of control. Licensee shall be responsible for meeting all applicable operating requirements with respect to its local service obligations.


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9. SPECIAL EVENTS. Licensee reserves the right, in its sole discretion and without liability to Time Broker, to preempt any of Time Broker's programs, and to use part or all of the time contracted for by Time Broker hereunder to broadcast events of special importance. In all such cases, Licensee will use its best efforts to give Time Broker reasonable notice of its intention to preempt such broadcast or broadcasts, and, in the event of such preemption, Time Broker shall receive from Licensee the payment credit specified in Section 2 of Attachment II hereto for the preempted broadcast or broadcasts.


10. FORCE MAJEURE. No failure or impairment (i. e., failure to broadcast at the Station's full authorized height and power) of the facilities of the Station or any delay or interruption in broadcast programs, or failure at any time to furnish facilities, in whole or in part, for broadcasting, due to acts of God, strikes or threats thereof or force majeure or due to other causes behind the reasonable control of Licensee shall constitute an Event of Default under this Agreement. Licensee shall not be liable to Time Broker with respect to any such failure or impairment, except to the extend of allowing in each such case an appropriate payment credit to Time Broker for time or broadcasts not provided.


11. RIGHTS IN PROGRAMS. All right, titie and interest in and to all programs provided by Time Broker hereunder, and the right to authorize the use of such programs in any manner and in any media whatsoever, shall be and remain vested at all times solely in Time Broker.


12. PAYOLA; PLUGOLA. Time Broker shall execute and deliver to Licensee an annual Payola Affidavit, substantially in the form attached hereto as Attachment IV. Time Broker agrees that neither it not its employees or agents will accept any gift, gratuity or other consideration from any party for the playing of records, the presentation of any programming or the broadcast of any commercial announcement over the Station without such broadcast being announced as sponsored. No commercial message, plug or undue reference shall be made in any programming presented over the Station to any business venture, profit-making activity or other interest (other than non-commercial announcements or bona fide charities, church activities or other public service activities) without such broadcast being announced as sponsored.


13. COMPLIANCE WITH LAW. Each party shall comply with all laws and regulations applicable to the conduct of its business and the broadcast of its programming.


14. INDEMNIFICATION. From and after the Commencement Date, each party shall indemnify and hold harmless the other pursuant to the terms of the Indemnification Agreement attached hereto as Attachment VII, and executed and delivered by the parties herewith.


15. EVENTS OF DEFAULT. Except as expressly set forth Section 10, the following, after the expiration of the applicable cure periods specified in Paragraph 15.6, shall constitute Events of Default under the Agreement:


15.1 NON PAYMENT. Time Broker's failure to timely pay the consideration


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15.2 DEFAULT IN COVENANTS. Time Broker's or Licensee's material default in the observance or performance of any covenant, condition or agreement contained herein; or


15.3 BREACH OF REPRESENTATION. Time Broker's or Licensee's material breach of any representation or warranty made by it herein, or in any certificate or document furnished pursuant to the provisons hereof, which shall prove to have been false or misleading in any material respect as of the time made or furnished.


15.4 DEFAULT UNDER RELATED AGREEMENTS. The occurrence of an Event of Default under the Purchase Agreement and any other related agreement with respect to either party.


15.5 INSOLVENCY; BANKRUPTCY; RECEIVERSHIP.


(a) If either party shall (1) fail to pay generally its debts as they become due, (2) commence a voluntary case under the Federal bankruptcy laws, as now or hereafter constituted, or any other applicable Federal or state bankruptcy, insolvency or other similar law, (3) consent or fail to object to the appointment of a receiver, liquidator, assignee, trustee, custodian, sequestrator or other similar official for such party or any substantial part of such party's property, or to the taking possession by any such official of any substantial part of the property of such party, or (4) make any assignment for the benefit of creditors;


(b) The entry of (1) any decree or order for relief by a court having jurisdiction over either party or its property in an involuntary case under the Federal bankruptcy laws, as now or hereafter constituted, or any other applicable Federal or state bankruptcy, insolvency or other similar law, (2) any decree or order for appointment of a receiver, liquidator, assignee, trustee, custodian, sequestrator or similar official for either party or any substantial part of such party's property, or (3) any decree or order for the termination or liquidation of any of the affairs of either party and any such entry shall continue unstayed and in effect for 60 days; or


(c) If either party shall fail within 60 days after the commencement of any proceedings against it under the Federal bankruptcy laws or any other applicable Federal or state bankruptcy, insolvency or similar law, to have such proceedings dismissed or stayed.


15.6 CURE PRRIODS. An Event of Default pursuant to Sections 15.1 through 15.4 hereof, inclusive, shall not be deemed to have occurred until thirty (30) days after the non-defaulting party has provided the defaulting party with written notice specifying the event or events that if not cured would constitute an Event of Default, and such an event of default has not been cured. This period may be extended (in writing only, and only by the non-defaulting party in its sole discretion) for a reasonable period of time if the defaulting party is acting in good faith to cure and such delay is not materially adverse to the other party.


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16. TERMINATION.


16.1 TERMINATION FOR DEFAULT. Either party may terminate this Agreement upon the occurrence of an uncured Event of Default with respect to the other party by giving the other party written notice of such termination.


16.2 TERMINATION FOR CHANGE IN FCC RULES OR POLICIES. The parties believe that the terms of this Agreement meet all of the requirements of current FCC policy for brokerage agreements and agree that they shall negotiate in good faith to meet any FCC concern with respect to it if they are incorrectiy interpreting current FCC policy or if that policy is modified. If the parties cannot agree within a reasonable time to a modification or modifications deemed necessary by either party to meet FCC requirements, either party may terminate this Agreement by giving the other party written notice of termination. Notwithstanding any termination hereof under this Section 16.2, the parties shall continue to be bound by their respective obligations under the Purchase Agreement.


16.3 TERMINATION FOR CLOSING UNDER PURCHASE AGREEMENT. This Agreement shall immediately terminate upon the occurrence of the Closing under the Purchase Agreement.


16.4 EVENTS UPON TERMINATION OR EXPIRATION.


(a) Upon any termination or expiration hereof, (f) Licensee shall be under no further obligation to make available to Time Broker any further broadcast time or broadcast transmission facilities and all amounts accrued or payable to Licensee up to the date of termination which have not been paid shall immediately become due and payable by Time Broker, (if) Time Broker shall be responsible for debts and obligations of Time Broker resulting from the use of air time and transmission facilities including, without limitation, accounts payable and net barter balances, but not for Licensee' s federal, state, local and other tax liabilities associated with Time Broker's payments hereunder or for other payments to Licensee, and (iii) in the event that the Purchase Agreement is terminated prior to the Closing, Time Broker shall assign to Licensee and Licensee shall assume the Assigned Contracts (as defined in Section 30) that remain in effect (or that have been renewed, extended or replaced on substantially similar terms) on the date of such termination or expiration together (provided that Time Broker has procured the necessary consents to such reassignment) with all agreements between Time Broker and others for the sale of broadcast time on the Stations for cash at reasonable market rates in effect on such date; provided, however, that Licensee shall not be required to assume any renewal, extension or replacement of an Assigned Contract that has a remaining term of more than one (1) year unless such agreements are approved in writing by Licensee in advance. With respect to any contract assigned to Licensee pursuant to this subjection 16.4(a), all expenses and income arising under such contracts shall be prorated between Licensee and Time Broker as of the date on which such contracts are assigned to Licensee (the "Proration Date") in a manner such that the operation of the Station on or before the Proration Date shall be for the account of Time Broker and, thereafter for the account of Licensee.


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(b) No expiration or termination hereof shall limit or impair any party' s rights to receive payments due and owing hereunder on or before the effective date of such termination.


17. MODIFICATION AND WAIVER. No modification or waiver of any provision of this Agreement shall in any event be effective unless the same shall be in writing signed by the party against whom the waiver is sought to be enforced, and then such waiver and consent shall be effective only in the specific instance and for the purpose for which given.


18. NO WAIVER; REMEDIES CUMMULATIVE. No failure or delay on the part of Licensee or Time Broker in exercising any right or power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of Licensee and Time Broker herein provided are cumulative and are not exclusive of any rights or remedies which they may otherwise have.


19. CONSTRUCTION. This Agreement shall be construed in accordance with the laws of the Delaware without reference to confiict of laws principles, and the obligations of the parties hereto are subject to all federal, state or municipal laws or regulations now or hereafter in force and to the regulations of the FCC and all other governmental bodies or authorities presentiy or hereafter duly constituted.


20. REP ...