Exhibit 10.12


 


THIRD
AMENDMENT TO


TIME
BROKERAGE AGREEMENT


 


THIS THIRD AMENDMENT TO TIME BROKERAGE AGREEMENT (this
“Third Amendment”), made as of July 19, 2005 (the “Amendment
Date”), is by and between SAGAMOREHILL OF CAROLINA
LLC, a Delaware limited liability company (together with its
successors and permitted assigns, “SagamoreHill”), and BARRINGTON
BROADCASTING SOUTH CAROLINA CORPORATION, a Delaware corporation
(together with its successors and permitted assigns, “Barrington”).


 


WITNESSETH:


 


WHEREAS, reference is made to that certain Time
Brokerage Agreement, dated April 28, 1994, between Atlantic Media Group, Inc.
(“Atlantic”), and Diversified Communications (“Diversified”),
itself assignee of Vision Communications, Inc., as amended by that certain
Amendment to and Extension of Time Brokerage Agreement, dated as of December 9,
2003, between Diversified and Atlantic, and that certain Second Amendment to
Time Brokerage Agreement between Diversified and Atlantic (the “TBA”), pursuant
to which Diversified provides programming for television station WWMB-TV, Myrtle
Beach (“WWMB”);


 


WHEREAS,
reference is made to (i) that certain Asset Purchase Agreement, by
and between Diversified and Atlantic, dated as of July 19, 2005, relating
to the purchase and sale of substantially all of the assets of Atlantic
relating to WWMB, including the rights and interests of Atlantic in and to the TBA
(the “Atlantic Purchase Agreement”), and (ii) that certain Asset
Purchase Agreement, by and among Diversified and Grand Strand Communications
(Diversified and Grand Strand Communications, the “Sellers”) and Barrington
and SagamoreHill (as partial assignee of Barrington), dated as of the date
hereof, relating to the sale of substantially all of the assets of Sellers
relating to television station WPDE-TV, Florence, South Carolina and certain
other assets of Sellers relating to WWMB (the “Diversified Purchase
Agreement”);


 


WHEREAS, the closings of the transactions
contemplated by each of the Atlantic Purchase Agreement and the Diversified Purchase
Agreement (the “Closings”) will occur simultaneously, and upon and
simultaneous with the Closings (i) Barrington will acquire and assume the
rights, interests and obligations of Diversified in and to the TBA, and (ii) SagamoreHill
will acquire and assume the rights, interests and obligations of Atlantic in
and to the TBA;


 


WHEREAS,
effective upon, and simultaneously with, the Closings, and pursuant to and in
accordance with Section 29 of the TBA, the parties hereto desire to amend
certain of the terms and conditions of the TBA, all as provided in this Third
Amendment;


 


NOW, THEREFORE, in
consideration of the premises and the mutual covenants and agreements set forth
herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby mutually acknowledged, the parties hereto,
intending to be legally bound, hereby agree as follows:


 

















 


1.                 Definitions. Capitalized terms not otherwise defined
herein shall have the meaning ascribed thereto in the TBA.


 


2.                 Amendments. The TBA shall, subject to Section 4
below, be amended as follows:


 


2.1  The TBA shall be amended by substituting
for the defined term “Atlantic” the term “Licensee,” and all
references to “Atlantic” in the TBA shall be deemed to be references to “Licensee.”  Licensee shall be deemed to mean SagamoreHill;
Broker shall be deemed to mean Barrington Broadcasting South Carolina Corporation.


 


2.2  Section 1 of the TBA shall be
amended by deleting the second paragraph thereof in its entirety and inserted
in lieu thereof shall be the following:


 


Broker shall begin its time brokerage activities
with regard to the Station pursuant to this Agreement, and the term hereof
shall be deemed to commence, upon the commencement of Station program tests,
and said date shall be referred to herein as the “Commencement Date.”   Upon the date of the closing of the
transactions pursuant to that certain Asset Purchase Agreement, by and among
Broker, as buyer, and Diversified Communications, Inc. and Grand Strand
Communications, Inc., as sellers (the date of such acquisition, the “Effective
Date”), the term hereof shall be deemed to continue for a period of eight
years from such Effective Date; provided, that Broker shall have the option to
extend this Agreement and the term hereof for an additional eight-year period
on the same terms and conditions set forth in this Agreement, by
delivery to Licensee of written notice of such extension at any time no earlier
than the seventh anniversary of the Effective Date and no later than 30 days
prior to the eighth anniversary of the Effective Date.


 


2.3  Section 4 of the TBA shall be
deleted in its entirety and inserted in lieu thereof shall be the following:


 


As
consideration for Licensee’s permitting Broker to air its programming on the
Station pursuant to this Agreement, from and after the Effective Date, Broker
shall pay Licensee as follows:


 


A.                     Broker shall pay to Licensee an amount equal to $5,000
(the “Base Fee”) on the first day of each calendar month during the term
of this Agreement. The Base Fee will be prorated on a daily basis for the first
and last months during which this Agreement is in effect following the
Effective Date.


 


B.                       On the first day of each calendar month
during the term of this Agreement, Broker shall pay to Licensee the Reimbursable
Expenses (as defined in Exhibit 4(B)), which shall be calculated and
payable in accordance with Exhibit 4(B) hereof.


 


2.4  The exhibit attached hereto as Exhibit 4(B) shall
be deemed to be Exhibit 4(B) of the Agreement.


 


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2.5  Section 26 and Section 27.B. of
the TBA shall each be deleted in their entirety and inserted in lieu of each
thereof shall be the following:


 


[Reserved]


 


2.6  Section 28 of the TBA shall be
deleted in its entirety and inserted in lieu thereof shall be the following:


 


Notices. All notices, requests, demands and
other communications which are required or may be given pursuant to the terms
of this Agreement shall be in written or electronic form, and shall be deemed
delivered (a) on the date of delivery when (i) delivered by hand or (ii) sent
by reputable overnight courier maintaining records of receipt and (b) on
the date of transmission when sent by facsimile or other electronic
transmission during normal business hours with confirmation of transmission by
the transmitting equipment; provided,
however, that any such communication delivered by facsimile or other
electronic transmission shall only be effective if such communication is also
delivered by hand or deposited with a reputable overnight courier maintaining
records of receipt within two business days after its delivery by facsimile or
other electronic transmission. All such communications shall be addressed to
the parties at the address set forth below, or at such other address as a party
may designate upon ten days’ prior written notice to the other party.


 


If to
Broker, to:


 


Barrington
Broadcasting South Carolina Corporation


745
Fifth Avenue


24th
Floor


New
York, NY  10151


Attention:  Paul
McNicol


Fax:  (212)
486-2896


 


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


 


Barrington Broadcasting LLC


2500 West Higgins Road, Suite 880


Hoffman Estates, IL 60195


Attention:  K.
James Yager


Fax: 
847-755-3045


 


and


 


Covington & Burling


1201 Pennsylvania Ave., N.W.


Washington,
D.C. 20004-2401


Fax:  202-662-6291


Attention:  Eric
Dodson Greenberg, Esq.


 


If to
Licensee to:


 


SagamoreHill
of Carolina LLC


3825
Inverness Way


Augusta, Georgia  30907


Attention: Louis Wall


Telecopy:    (706) 855-8747


 


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


 


Wiley Rein & Fielding


1776 K
Street, NW


Washington,
DC 20006


Attention:  Brook A. Edinger


Telecopy:   
(202) 719-7049


 


2.7  Section 30 of the TBA shall be deleted
in its entirety and inserted in lieu thereof shall be the following:


 


Governing Law. This Agreement shall be governed by,
and construed in accordance with, the laws of the State of New York, without
regard to the conflicts of law rules of such State


 


2.8  Section 32 of the TBA shall be
deleted in its entirety and inserted in lieu thereof shall be the following:


 


Assignability. This Agreement shall inure to the
benefit of and be binding upon Licensee and Broker and their respective
successors and assigns. Broker shall have the right to assign this Agreement in
connection with an assignment of license or transfer of control by Broker of broadcast
station WPDE-TV, Florence, South Carolina; Broker shall further 


 


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have
the right to assign this Agreement to any affiliate of Broker or to any third
party in connection with a sale of all or substantially all of its assets.


 


3.                 Reaffirmation of the TBA. Except as expressly provided herein, the TBA is not
amended, modified or affected by this Third Amendment, and the TBA and the
rights and obligations of the parties hereto thereunder are hereby ratified and
confirmed by the parties in all respects.


 


4.                 Effectiveness of
Amendments. Each
of the amendments of the TBA set forth in this Third Amendment shall take
effect, without any further action or consent of the parties hereto, upon and simultaneously
with the consummation of the Closings.


 


5.                 Representations and
Warranties. Each
party represents and warrants to the other party as follows:  (a) it is a duly organized and validly
existing corporation or limited liability company (“LLC”), as the case
may be, under the laws of its jurisdiction of incorporation or organization; (b) it
has full corporate or LLC power and authority and has taken all corporate or
LLC action necessary to enter into and perform this Agreement; (c) the
execution and delivery of this Agreement and the transactions contemplated
herein do not violate, conflict with, or constitute a default under its
organizational documents or the terms or provisions of any material agreement
or other instrument to which it is a party or by which it is bound, or any
order, award, judgment or decree to which it is a party or by which it is
bound; and (d) this Agreement is its legal, valid and binding obligation,
enforceable in accordance with the terms and conditions hereof.


 


6.                 Counterparts. This Third Amendment may be executed
contemporaneously in two or more counterparts, each of which shall be deemed an
original, and it shall not be necessary in making proof of this Third Amendment
to produce or account for more than one such counterpart. Each party will
receive by delivery or facsimile transmission a duplicate original of the Third
Amendment executed by each party, and each party agrees that the delivery of
the Third Amendment by facsimile transmission will be deemed to be an original
of the Third Amendment so transmitted.


 


[Signature page follows.]


 


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IN WITNESS WHEREOF, the parties have caused this Third
Amendment to be duly executed and delivered as of the date above.


 


	
   

  	
  SAGAMOREHILL
  OF CAROLINA LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Louis S.
  Well

  	
   

  
	
   

  	
   

  	
  Name: Louis S.
  Well

  
	
   

  	
   

  	
  Title: President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  BARRINGTON
  BROADCASTING SOUTH

  
	
   

  	
  CAROLINA
  CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ K. James
  Yager

  	
   

  
	
   

  	
   

  	
  Name: K. James
  Yager

  
	
   

  	
   

  	
  Title: President

  



 


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EXHIBIT 4(B)


 


Reimbursable Expenses


 


1.                                For purposes of this Agreement, the Reimbursable
Expenses shall equal the sum of the Variable Expenses and the Fixed Expenses:


 


(a)                    “Variable Expenses” shall mean the sum of the actual
out-of-pocket payments and expenses of Licensee or its wholly-owned
subsidiaries for the following: (i) utilities associated with the Station’s
transmitting facilities (pursuant to the Transmission Facilities and Studio
Construction and Lease Agreement (the “Lease”)) together with all other
expenses payable by Licensee under the Lease, (ii) salaries for the
Station’s General Manager and Chief Operator and hourly rates for accounting
and human resource services at reasonable and customary rates for such services,
(iii) expenses related to maintenance and filings with respect to the FCC licenses
in respect of the Station and other expenses of compliance with FCC regulations
in connection with the operation of the Station, including reasonable and
customary attorneys’ fees of Licensee incurred in connection therewith, (iv) property
taxes on any real property, personal property and leased property on which the
Station is located or used exclusively for the operation of the Station, (v) in
the event that Licensee shall have elected to borrow the purchase price with
respect to its acquisition of the Station under the Purchase Agreement pursuant
to a credit agreement or other borrowing arrangement, the terms and conditions
of which have been consented to in writing by Broker and, if applicable, the
performance of Licensee has been guaranteed by Broker or an affiliate thereof
(an “Acquisition Financing Arrangement”), the payments due by Licensee pursuant
to such Acquisition Financing Arrangement, other than those payments due
pursuant to such Acquisition Financing Agreement to the extent arising out of
the failure of Licensee to make a timely payment thereunder for which
Licensee had received timely payment hereunder or otherwise to the extent
arising out of actions
or omissions of Licensee in breach of such Acquisition Financing Arrangement, (vi) reasonable
travel expenses incurred by Licensee in connection with its performance under
the TBA, the Lease or the Option Agreement between the parties with respect to
the assets of the Station (the “Option Agreement”), (vii) premiums and
other out-of-pockets costs and expenses relating to any insurance that Licensee
is required to maintain pursuant to the terms of the Option Agreement, (viii) costs
and expenses incurred in connection with the performance by Licensee of the
Atlantic Contracts (as such term is defined in the Purchase Agreement) and (ix) Other
Expenses.


 


(b)                   “Fixed Expenses” shall be an amount equal to rental
fees payable by Licensee under the Lease.


 


(c)                    “Other Expenses” shall mean expenses that are
reasonably necessary or customary in the operation and maintenance of the
Station, which have been consented to in advance by Programmer, provided that
Licensee shall have no obligation under this Agreement to incur any Other
Expenses in the absence of such consent and agreement to reimburse under this
paragraph 1.


 


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2.                                The Reimbursable Expenses shall be paid
by Broker for each month in advance based on (and subject to) an operating
budget jointly agreed to by Licensee and Broker.


 


3.                                Each month, Licensee shall deliver
reasonably satisfactory evidence of the actual Variable Expenses incurred by Licensee
for the prior month.


 


4.                                The payment of Reimbursable Expenses for
each following month shall be adjusted (up or down) by the amount by which the
estimated payment of Reimbursable Expenses for the prior month exceeded or was
less than the actual amount of Reimburse able Expenses for such month.


 


5.                                The Reimbursable Expenses shall be
prorated on a daily basis for the first and last months during which this
Agreement is in effect following the Effective Date and shall be paid by Broker
within fifteen days of the Effective Date for the first month or portion
thereof after the Effective Date.


 


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