EXECUTION
SECOND AMENDMENT TO CREDIT AGREEMENT
This SECOND AMENDMENT TO CREDIT AGREEMENT (this "AMENDMENT") is
dated as of October 31, 1998 and entered into by and among BENEDEK
COMMUNICATIONS CORPORATION, a Delaware corporation ("BCC"), BENEDEK BROADCASTING
CORPORATION, a Delaware corporation ("COMPANY"), THE FINANCIAL INSTITUTIONS
LISTED ON THE SIGNATURE PAGES HEREOF (each individually referred to herein as a
"LENDER" and collectively as "LENDERS"), and Bankers Trust Company ("BTCO"), as
agent for Lenders (in such capacity, "AGENT"), and solely with respect to
Sections 3 and 4 hereof, Benedek License Corporation, a Delaware corporation
("LICENSE SUB"), ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, solely in his capacity as Trustee under The
WMTV Trust ("WMTV TRUST"), a Wisconsin trust created pursuant to a Trust
Agreement dated as of September 21, 1998 (the "TRUSTEE") and WMTV License Co.,
LLC, a Delaware limited liability company ("WMTV LICENSE CO.") and is made with
reference to that certain Amended and Restated Credit Agreement dated as of
December 17, 1997, by and among BCC, Company, Lenders and Agent, as amended by
that certain Limited Waiver and First Amendment to Credit Agreement, dated as of
May 6, 1998, by and among BCC, Company, the financial institutions listed on the
signature pages thereof as Lenders and Agent, and solely with respect to Section
5 thereof, License Sub (such Amended and Restated Credit Agreement, as so
amended, the "CREDIT AGREEMENT"). Capitalized terms used herein without
definition shall have the same meanings herein as set forth in the Credit
Agreement.
RECITALS
WHEREAS, Company owns and operates Stations WIFR (TV),
Rockford, Illinois ("WIFR"), and WMTV (TV), Madison, Wisconsin ("WMTV"). The FCC
Licenses for WIFR and WMTV are owned by License Sub. Company has been the
licensee of WIFR since 1986. In June 1996, Company acquired WMTV as part of
Company's acquisition of all of the outstanding stock of ▇▇▇▇▇▇▇▇▇. The
Communications Act does not permit Company to own and operate both WMTV and
WIFR. Pursuant to a temporary waiver of such rules by the FCC, Company has
continued to own both WMTV and WIFR since the acquisition of WMTV;
WHEREAS, subsection 6.7(xii) of the Credit Agreement provides
that, in the event that the FCC requires Company to divest itself of either WIFR
or WMTV in order to comply with the FCC duopoly rules, Company may assign (x)
the assets associated with either such Station to a grantor trust and (y) the
FCC Licenses associated with such Station to a limited liability company
wholly-owned by such grantor trust; provided that such grantor trust shall grant
a First Priority Lien in favor of Agent or the Senior Note Trustee, as the case
may be, on such assets and the equity interests in such limited liability
company pursuant to
documentation substantially similar to certain of the Collateral Documents as
collateral security for the Obligations of Company and obligations of Company
pursuant to the Existing Senior Note Indenture, as the case may be;
WHEREAS, in order to comply with the Communications Act,
Company has applied for and received the approval of the FCC to (a) transfer the
assets of WMTV (other than the FCC Licenses associated with WMTV) to the Trustee
for the benefit of Company and (b) cause License Sub to transfer the FCC
Licenses associated with WMTV to WMTV License Co., in each case pending the sale
of WMTV or WIFR. The Trustee is the sole member of WMTV License Co.;
WHEREAS, in connection with Company's transfer of the assets of
WMTV (other than the FCC Licenses associated with WMTV) to the Trustee for the
benefit of Company, the Trustee will execute and deliver (v) that certain WMTV
Trust Guaranty dated as of October 31, 1998 (the "WMTV TRUST GUARANTY"), (w)
that certain WMTV Trust Acquired Assets Security Agreement dated as of October
31, 1998 (the "WMTV TRUST ACQUIRED ASSETS SECURITY AGREEMENT"), (x) that certain
WMTV Trust Accounts Receivable Security Agreement dated as of October 31, 1998
(the "WMTV TRUST ACCOUNTS RECEIVABLE SECURITY AGREEMENT"), (y) that certain WMTV
Trust Pledge and Security Agreement dated as of October 31, 1998 (the "WMTV
TRUST PLEDGE AND SECURITY AGREEMENT") and (z) that certain WMTV Trust Tangible
Assets Security Agreement dated as of October 31, 1998 (the "WMTV TRUST TANGIBLE
ASSETS SECURITY AGREEMENT"; and together with the WMTV Trust Acquired Assets
Security Agreement, the WMTV Trust Accounts Receivable Security Agreement and
the WMTV Trust Pledge and Security Agreement, the "WMTV TRUST SECURITY
DOCUMENTS");
WHEREAS, in connection with License Sub's transfer of the FCC
Licenses associated with WMTV to WMTV License Co., WMTV License Co. will enter
into that certain Additional License Sub Guaranty dated as of October 31, 1998
(the "ADDITIONAL LICENSE SUB GUARANTY"; and together with the WMTV Trust
Guaranty, the WMTV Acquired Assets Security Agreement, the WMTV Trust Accounts
Receivable Agreement, the WMTV Trust Pledge and Security Agreement, the WMTV
Trust Tangible Assets Security Agreement and the Mortgage Amendment (as defined
below), the "TRANSFER SUPPORT DOCUMENTS"); and
WHEREAS, BCC, Company and Lenders desire to make certain (x)
amendments to the Credit Agreement in connection with (i) the Trustee's
execution and delivery of the WMTV Trust Guaranty and the WMTV Trust Security
Documents and (ii) WMTV License Co.'s execution and delivery of the Additional
License Sub Guaranty and (y) other amendments as set forth below.
NOW, THEREFORE, in consideration of the premises and the
agreements, provisions and covenants herein contained, the parties hereto agree
as follows:
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SECTION 1
AMENDMENTS TO THE CREDIT AGREEMENT
AND CERTAIN LOAN DOCUMENTS
SECTION 1.1 AMENDMENTS TO SECTION 1: PROVISIONS RELATING TO DEFINED TERMS
A. Subsection 1.1 of the Credit Agreement is hereby amended by
adding thereto the following definitions, which shall be inserted in proper
alphabetical order:
"ADDITIONAL LICENSE SUB GUARANTY" means the Additional License
Sub Guaranty executed and delivered by WMTV License Co. on the Second
Amendment Effective Date, substantially in the form of Exhibit XXV
annexed hereto, as such Additional License Sub Guaranty may thereafter
be amended, supplemented or otherwise modified from time to time.
"SECOND AMENDMENT EFFECTIVE DATE" means October 31, 1998.
"TRUSTEE" means ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, solely in his capacity as
Trustee under The WMTV Trust, a Wisconsin trust created pursuant to a
Trust Agreement dated as of September 21, 1998.
"TRUST AGREEMENT" means that certain Trust Agreement dated as
of September 21, 1998 by and among the Trustee and Company, as amended
from time to time pursuant to subsection 6.14.
"WMTV LICENSE CO." means WMTV License Co., LLC, a Delaware
limited liability company.
"WMTV TRUST" means The WMTV Trust, a Wisconsin trust.
"WMTV TRUST ACQUIRED ASSETS SECURITY AGREEMENT" means the WMTV
Trust Acquired Assets Security Agreement executed and delivered by the
Trustee and Agent on or before the Second Amendment Effective Date,
substantially in the form of Exhibit XXVI annexed hereto, as such WMTV
Trust Acquired Assets Security Agreement may thereafter be amended,
supplemented or otherwise modified from time to time.
"WMTV TRUST ACCOUNTS RECEIVABLE SECURITY AGREEMENT" means the
WMTV Trust Accounts Receivable Security Agreement executed and
delivered by the Trustee and Agent on or before the Second Amendment
Effective Date, substantially in the form of Exhibit XXVII annexed
hereto, as such WMTV Trust Accounts Receivable Security Agreement may
thereafter be amended, supplemented or otherwise modified from time to
time.
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"WMTV TRUST GUARANTY" means the WMTV Trust Guaranty executed
and delivered by the Trustee on or before the Second Amendment
Effective Date, substantially in the form of Exhibit XXVIII annexed
hereto, as such WMTV Trust Guaranty may thereafter be amended,
supplemented or otherwise modified from time to time.
"WMTV TRUST PLEDGE AND SECURITY AGREEMENT" means the WMTV Trust
Pledge and Security Agreement executed and delivered by the Trustee and
The Bank of New York, a New York banking corporation, on or before the
Second Amendment Effective Date, substantially in the form of Exhibit
XXIX annexed hereto, as amended from time to time to the extent
permitted under subsection 6.14.
"WMTV TRUST SECURITY AGREEMENTS" means the WMTV Trust Acquired
Assets Security Agreement, the WMTV Trust Accounts Receivable Security
Agreement, the WMTV Trust Pledge and Security Agreement and the WMTV
Trust Tangible Assets Security Agreement.
"WMTV TRUST TANGIBLE ASSETS SECURITY AGREEMENT" means the WMTV
Trust Tangible Assets Security Agreement executed and delivered by the
Trustee and Agent on or before the Second Amendment Effective Date,
substantially in the form of Exhibit XXX annexed hereto, as such WMTV
Trust Tangible Assets Security Agreement may thereafter be amended,
supplemented or otherwise modified from time to time.
B. Subsection 1.1 of the Credit Agreement is hereby further
amended by amending the definition of "Borrowing Base" by inserting the phrase
"and the Trustee" after the reference to "Company" contained therein.
C. Subsection 1.1 of the Credit Agreement is hereby further
amended by amending the definition of "Collateral Documents" by inserting the
phrase ", the WMTV Trust Security Agreements" immediately following the
reference to "Mortgages" contained therein.
D. Subsection 1.1 of the Credit Agreement is hereby further
amended by amending the definition of "Guaranties" by deleting the word "and"
immediately following the reference to "BCC Guaranty" contained therein and
substituting "," therefor and by inserting the phrase ", the Additional License
Sub Guaranty and the WMTV Trust Guaranty" immediately after the reference to
"the License Sub Guaranty" contained therein.
E. Subsection 1.1 of the Credit Agreement is hereby further
amended by amending the definition of "Loan Party" by inserting the phrase ",
the Trustee and WMTV License Co." immediately following the reference to
"License Sub" contained therein.
F. Subsection 1.1 of the Credit Agreement is hereby further
amended by amending the definition of "Pledged Collateral" by inserting the
phrase ", the WMTV Trust
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Pledge and Security Agreement" immediately after the reference to "BCC Pledge
Agreement" contained therein.
G. Subsection 1.1 of the Credit Agreement is hereby further
amended by amending the definition of "Program Obligations" by deleting the
phrase "the Company" contained therein and substituting the phrase "each of
Company and the Trustee" therefor.
H. Subsection 1.1 of the Credit Agreement is hereby further
amended by amending the definition of "Related Agreements" by inserting the
phrase ", Existing Company Pledge Agreement, WMTV Trust Pledge and Security
Agreement, the Trust Agreement" after the reference to "▇▇▇▇▇▇▇▇ Acquisition
Agreement" contained therein.
I. Subsection 1.1 of the Credit Agreement is hereby further
amended by amending the definition of "Restricted Junior Payment" by inserting
the phrase "or any membership interests" after the first, third and fourth
reference to "class of stock" contained therein.
J. Subsection 1.1 of the Credit Agreement is hereby further
amended by amending the definition of "Subsidiaries" by inserting the sentence
"It is expressly acknowledged and agreed that each of the Trustee, WMTV Trust
and WMTV License Co. shall be deemed to be a Subsidiary of each of Company and
BCC for all purposes under this Agreement; provided that Lenders acknowledge and
agree that the Trustee shall be deemed to be a "Subsidiary" under this Agreement
solely in his capacity as trustee under the WMTV Trust and not in his individual
capacity" immediately following the last sentence thereof.
SECTION 1.2 AMENDMENTS TO SECTION 2: CONVERSION; AMOUNTS AND TERMS OF REVOLVING
LOAN COMMITMENTS AND LOANS
Subsection 2.4D of the Credit Agreement is hereby amended by
deleting the reference to "either" contained in clause (ii) thereof and
substituting "any" therefor and by inserting the phrase ", the Additional
License Sub Guaranty, the WMTV Trust Guaranty" immediately after the reference
to "the BCC Guaranty" contained in clause (iii) thereof.
SECTION 1.3 AMENDMENTS TO SECTION 4: REPRESENTATIONS AND WARRANTIES
Subsection 4.1E of the Credit Agreement is hereby amended by
inserting the phrase "and except, from and after the Second Amendment Effective
Date, for the FCC Licenses related to WMTV, which are held by WMTV License Co.,"
immediately following the phrase "Except as set forth on Schedule 4.1E" in the
penultimate sentence of Section 4.1E(i).
SECTION 1.4 AMENDMENTS TO SECTION 5: COMPANY'S AFFIRMATIVE COVENANTS
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A. Subsection 5.11B of the Credit Agreement is hereby amended
by deleting the reference to "Company's" contained therein and substituting
"either Company's or the Trustee's" therefor.
SECTION 1.5 AMENDMENTS TO SECTION 6: COMPANY'S NEGATIVE COVENANTS
A. Subsection 6.4(i) of the Credit Agreement is hereby amended
by inserting the phrase ", WMTV License Co. may become and remain liable with
respect to Contingent Obligations in respect of the Additional License Sub
Guaranty and the Existing Senior Note Indenture and the Trustee may become and
remain liable with respect to Contingent Obligations in respect of the WMTV
Guaranty and the Existing Senior Note Indenture" immediately following the
reference to "Existing Senior Note Indenture" contained therein.
B. Subsection 6.7(v) of the Credit Agreement is hereby amended
by inserting the phrase "and the Trustee may make Asset Sales of the Television
Station Asset Group with respect to WMTV" immediately following the first
reference to "Television Station Asset Group" contained therein and is hereby
further amended by inserting the phrase "provided that the foregoing clause (e)
shall not apply in the event that the Company elects (and delivers an Officer's
Certificate to Agent in form and substance satisfactory to Agent certifying as
to such election and the reasons therefor) to sell the Television Station Asset
Group with respect to WMTV held by the Trustee in order to comply with the
Communications Act;" immediately after the reference to "sale;" contained in
clause (e) of Subsection 6.7(v).
C. Subsection 6.12 of the Credit Agreement is hereby amended by
inserting the phrase ", the Trustee or WMTV License Co." immediately following
the reference to "License Sub" contained therein.
D. Subsection 6.13 of the Credit Agreement is hereby amended by
(i) inserting the following sentence immediately after the second sentence
thereof: "WMTV License Co. shall engage in no business other than the holding of
FCC Licenses related to WMTV and the performance of its obligations under the
Additional License Sub Guaranty and its guaranty of the Existing Senior Notes
and shall own no material assets other than FCC Licenses related to WMTV.", (ii)
inserting the following phrase after the first sentence of Section 6.13 "From
and after the Second Amendment Effective Date, the Trustee and the Trust, as the
case may be, shall not engage in any business other than the business engaged in
by the Trustee and the Trust, as the case may be, on the Second Amendment
Effective Date; provided that Lenders acknowledge and agree that the preceding
references to the Trustee in this sentence shall be a reference solely to the
Trustee in his capacity as trustee under the WMTV Trust and not in his
individual capacity" and (iii) inserting the phrase "and WMTV License Co."
immediately after the reference to "License Sub" contained in the penultimate
sentence of Section 6.13.
SECTION 1.6 AMENDMENTS TO SECTION 7: EVENTS OF DEFAULT
Subsection 7.13 of the Credit Agreement is hereby amended by
deleting the reference to "or" immediately preceding the reference to "(v)"
contained therein and
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substituting "," therefor and by inserting the following phrase immediately
after the reference to "License Sub" contained therein ", (vi) (a) Company shall
cease to own 100% of the beneficial interests in the WMTV Trust or (b) the
Trustee (or a successor thereto reasonably acceptable to Agent, such acceptance
to be acknowledged in writing by Agent) shall cease to be the trustee under the
Trust Agreement or (vii) (a) the Trustee (or a successor thereto reasonably
acceptable to Agent, such acceptance to be acknowledged in writing by Agent)
shall cease to be the sole member of WMTV License Co. or (b) the Trustee (or a
successor thereto reasonably acceptable to Agent, such acceptance to be
acknowledged in writing by Agent) shall cease to hold 100% of the membership
interests in WMTV License Co.; provided that the occurrence of any of the events
described in the foregoing clauses (vi) and (vii) of this Subsection 6.13 shall
not constitute an Event of Default if (x) such event occurs following a transfer
or other disposition of all of (i) the assets related to WMTV held by the
Trustee and (ii) the FCC Licenses held by WMTV License Co. that is permitted
pursuant to, and complies with, the terms of this Agreement and the other Loan
Documents and (y) prior to the occurrence of such event, BCC and its
Subsidiaries (including, without limitation, the Trust, the Trustee and WMTV
License Co.) shall have complied with all of their respective obligations,
covenants and agreements under this Agreement and the other Loan Documents
(including, without limitation, the application of the proceeds received by any
of the BCC and its Subsidiaries (including, without limitation, the Trustee, the
Trust and WMTV License Co.) in connection with such transfer or other
disposition in accordance with the terms of this Agreement) in connection with
such transfer or other disposition and otherwise; provided further that,
notwithstanding anything to the contrary contained herein, this subsection 6.13
shall not be deemed to be a consent to a transfer or other disposition of (x)
the assets related to WMTV held by the Trustee or (y) the FCC Licenses held by
WMTV License Co; or"
SECTION 1.7 AMENDMENTS TO SECTION 8: AGENT
A. Subsection 8.6 of the Credit Agreement is hereby amended by
inserting the following phrase at the end of the first sentence therein:
"; provided, however in connection with any Loan
Party's entering into any lease of equipment permitted pursuant to this
Agreement (including, without limitation, a Capital Lease permitted
under subsection 6.1(iii)), at the request of the lessor under such
equipment lease, from and after the Restatement Date, Agent, in its
sole discretion, may enter into a collateral waiver agreement with such
lessor pursuant to which Agent acknowledges that Agent, on behalf of
Lenders, waives any interests it has in the leased equipment to the
extent the lessor of the leased equipment has any rights or interest in
such equipment"
B. Subsection 8.6 of the Credit Agreement is hereby amended by
inserting the following phrase at the end of the seventh sentence thereof:
"and each Lender having Term Loans hereunder hereby
authorizes Agent to be the agent for and representative of Lenders
having Term Loans under the WMTV Trust Pledge and Security Agreement".
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SECTION 1.8 AMENDMENTS TO SECTION 9: MISCELLANEOUS
Section 9 of the Credit Agreement is hereby amended by
inserting the following new subsection:
"9.22 ADDITIONAL LICENSE SUB GUARANTY
Any amendment, modification, termination or waiver of
any provision of this Agreement or of the Notes, and any consent to any
departure by any Loan Party therefrom, that releases the WMTV License
Co. from its obligations under the Additional License Sub Guaranty or
releases the Trustee from its obligation under the WMTV Trust Guaranty,
in each case other than in accordance with the Loan Documents, shall be
effective only if evidenced by a writing signed by or on behalf of all
Lenders; provided that WMTV License Co. shall be released from its
obligations under the Additional License Sub Guaranty and the Trustee
shall be released from its obligations under the WMTV Trust Guaranty
following a transfer or other disposition of all of the assets related
to WMTV held by the Trustee and the FCC Licenses held by WMTV License
Co. that is permitted pursuant to, and complies with, the terms of this
Agreement and the other Loan Documents if, prior to such release each
of BCC and its Subsidiaries (including, without limitation, the Trust,
the Trustee and WMTV License Co.) shall have complied with all of their
respective obligations, covenants and agreements under this Agreement
and the other Loan Documents (including, without limitation, the
application of the proceeds received by any of BCC and its Subsidiaries
(including, without limitation, the Trustee, the Trust and WMTV License
Co.) in connection with such transfer or other disposition in
accordance with the terms of this Agreement) in connection with such
transfer or other disposition and otherwise; provided, further that,
notwithstanding anything to the contrary contained herein, this
Subsection 9.22 shall not be deemed to be a consent to a transfer or
other disposition of (x) the assets related to WMTV held by the Trustee
or (y) the FCC Licenses held by WMTV License Co."
SECTION 1.9 ADDITION OF EXHIBITS
A. Exhibit XXV: Form of Additional License Sub Guaranty. The
Credit Agreement is hereby amended by adding thereto a new Exhibit XXV in the
form of Annex A to this Amendment.
B. Exhibit XXVI: Form of WMTV Trust Acquired Assets Security
Agreement. The Credit Agreement is hereby amended by adding thereto a new
Exhibit XXVI in the form of Annex B to this Amendment.
C. Exhibit XXVII: Form of WMTV Trust Accounts Receivable
Security Agreement. The Credit Agreement is hereby amended by adding thereto a
new Exhibit XXVII in the form of Annex C to this Amendment.
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D. Exhibit XXVIII: Form of WMTV Trust Guaranty. The Credit
Agreement is hereby amended by adding thereto a new Exhibit XXVIII in the form
of Annex D to this Amendment.
E. Exhibit XXIX: Form of WMTV Trust Pledge and Security
Agreement. The Credit Agreement is hereby amended by adding thereto a new
Exhibit XXIX in the form of Annex E to this Amendment.
F. Exhibit XXX: Form of WMTV Trust Tangible Assets Security
Agreement. The Credit Agreement is hereby amended by adding thereto a new
Exhibit XXX in the form of Annex F to this Amendment.
SECTION 1.10 AMENDMENTS TO CERTAIN LOAN DOCUMENTS
A. Notwithstanding anything to the contrary contained herein,
Lenders hereby consent to the amendment of the Existing Company Pledge Agreement
pursuant to the letter agreement in the form of Annex I hereto.
B. Notwithstanding anything to the contrary contained herein,
the Company Accounts Receivable Security Agreement is hereby amended by amending
the proviso to Section 2 thereof by deleting the reference to "hereunder" and
substituting the phrase "hereunder and under the WMTV Trust Accounts Receivable
Security Agreement" therefor as by inserting the phrase ",the Trust and the
Trustee on a consolidated basis" immediately after the reference to "Grantor"
contained therein.
SECTION 2
CONDITIONS TO EFFECTIVENESS
Section 1 of this Amendment shall become effective only upon
the satisfaction of all of the following conditions precedent (the date of
satisfaction of such conditions being referred to herein as the "SECOND
AMENDMENT EFFECTIVE DATE"):
A. On or before the Second Amendment Effective Date, each of
BCC, Company, License Sub, the Trustee and WMTV License Co. shall deliver to
Lenders (or to Agent for Lenders with sufficient originally executed copies,
where appropriate, for each Lender and its counsel) the following, each, unless
otherwise noted, dated the Second Amendment Effective Date:
(i) Resolutions of its Board of Directors or such other
governing body, as the case may be, approving and authorizing the
execution, delivery, and performance of each of this Amendment, the
Transfer Support Documents and the WMTV Documents (as hereinafter
defined) to which it is a party, certified as of the Second Amendment
Effective Date by its corporate secretary or an assistant secretary or
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manager, as the case may be, as being in full force and effect without
modification or amendment;
(ii) Signature and incumbency certificates of its officers or
other responsible party, as the case may be, executing this Amendment
and the Transfer Support Documents to which it is a party;
(iii) originally executed copies of one or more favorable
written opinions of Shack & ▇▇▇▇▇▇, P.C., counsel for Company, in form
and substance reasonably satisfactory to Agent and its counsel, dated
as of the Second Amendment Effective Date and setting forth the matters
in the opinions designated in Annex G to this Amendment and as to such
other matters as Agent acting on behalf of Lenders may reasonably
request; and
(iv) Executed copies of this Amendment and the Transfer Support
Documents.
B. The delivery to Agent of originals of each of the documents,
agreements, certificates and instruments executed and delivered or to be
executed and delivered in connection with the formation of, and transfer by
Company and License Sub, as the case may be, of the assets and the FCC Licenses
relating to WMTV to the Trustee and WMTV License Co., as the case may be,
including, without limitation, the WMTV License Co. Certificate of Formation,
the Trust Agreement (as defined in Section 1.1) and the WMTV License Co.
Operating Agreement (collectively, the "WMTV DOCUMENTS"), in form and substance
reasonably satisfactory to Agent and its counsel.
C. The delivery to Agent of (a) (i) a fully executed and
notarized First Amendment to Open-End Mortgage, Fixture Filing, and Assignment
of Rents (the "MORTGAGE AMENDMENT"), substantially in the form in Annex H to
this Amendment, in proper form for recording in all appropriate places in all
applicable jurisdictions and (ii) endorsements to the existing ALTA mortgagee
title insurance policies issued in respect of the Mortgage encumbering the
property described in the Mortgage Amendment, all of the foregoing in form and
substance reasonably satisfactory to Agent; and (b) evidence satisfactory to
Agent of (1) delivery to the Title Company of all certificates and affidavits
required by the Title Company in connection with the issuance of the Title
Endorsements and (2) payment to the Title Company or to the appropriate
governmental authorities of all expenses and premiums of the Title Company in
connection with the issuance of the Title Endorsements and all recording and
stamp taxes (including mortgage recording, documentary stamp and intangible
taxes) payable in connection with recording the Mortgage Amendment in the
appropriate real estate records.
D. Agent shall have received evidence satisfactory to it that
each Loan Party shall have taken or caused to be taken all such actions,
executed and delivered or caused to be executed and delivered all such
agreements, documents and instruments, and made or caused to be made all such
filings and recordings (other than the filing or recording of items
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described in clauses (iii) and (iv) below) that may be necessary or, in the
opinion of Agent, desirable in order to create in favor of Agent, for the
benefit of Lenders, a valid and (upon such filing and recording) perfected First
Priority security interest in the entire personal and mixed property Collateral.
Such actions shall include the following:
(i) Delivery to Agent of accurate and complete schedules to all
of the applicable Collateral Documents;
(ii) Delivery to Agent or Pledgee under the Existing Company
Pledge Agreement of (a) certificates (which certificates shall be
accompanied by irrevocable undated stock powers, duly endorsed in blank
and otherwise satisfactory in form and substance to Agent) representing
all capital stock pledged pursuant to the Existing Company Pledge
Agreement and (b) all promissory notes or other instruments (duly
endorsed, where appropriate, in a manner satisfactory to Agent)
evidencing any Collateral; and
(iii) Delivery to Agent of UCC financing statements and, where
appropriate, fixture filings (including, where applicable, amendments
with respect to UCC financing statements and fixture filings), duly
executed by each applicable Loan Party with respect to all personal and
mixed property Collateral of such Loan Party, for filing in all
jurisdictions as may be necessary or, in the opinion of Agent,
desirable to perfect the security interests created in such Collateral
pursuant to the applicable Collateral Documents.
E. On or before the Second Amendment Effective Date, all
corporate and other proceedings taken or to be taken in connection with the
transactions contemplated hereby and all documents incidental thereto not
previously found acceptable by Agent, acting on behalf of Lenders, and its
counsel shall be satisfactory in form and substance to Agent and such counsel,
and Agent and such counsel shall have received all such counterpart originals or
certified copies of such documents as Agent may reasonably request.
SECTION 3
COMPANY'S REPRESENTATIONS AND WARRANTIES
In order to induce Lenders to enter into this Amendment and to
amend the Credit Agreement in the manner provided herein, each of BCC, Company,
License Sub, the Trustee (as to each of the following subsections other than F
and G) and WMTV License Co. (as to each of the following subsections other than
F and G) represents and warrants to each Lender that the following statements
are true, correct and complete:
A. CORPORATE POWER AND AUTHORITY. Each of BCC, Company, License
Sub, the Trustee and WMTV License Co. has all requisite corporate or other
organizational power and authority to enter into this Amendment, each of the
Transfer Support Documents and each of the WMTV Documents to which it is a party
and to carry out the transactions contemplated
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by, and perform its obligations under, the Credit Agreement as amended by this
Amendment (the "AMENDED AGREEMENT"), the Transfer Support Documents and the WMTV
Documents to which it is a party.
B. AUTHORIZATION OF AGREEMENTS. The execution and delivery of
this Amendment, the Transfer Support Documents and the WMTV Documents have been
duly authorized by all necessary corporate or other action on the part of BCC,
Company, License Sub, the Trustee and WMTV License Co., as the case may be.
C. NO CONFLICT. The execution and delivery by each of BCC,
Company, License Sub, the Trustee and WMTV License Co. of each of this
Amendment, the Transfer Support Documents and the WMTV Documents to which it is
a party and the performance by each of BCC, Company, License Sub, the Trustee
and WMTV License Co. of each of the Amended Agreement, the Transfer Support
Documents and the WMTV Documents to which it is a party do not and will not (i)
violate any provision of any law or any governmental rule or regulation
applicable to BCC or any of its Subsidiaries (including, without limitation, the
Trustee and the WMTV License Co.), the Certificate or Articles of Incorporation
or Certificate of Formation, as the case may be, or Bylaws, Operating Agreement
or Trust Agreement, as the case may be, of BCC or any of its Subsidiaries
(including, without limitation, the Trustee and the WMTV License Co.) or any
order, judgment or decree of any court or other agency of government binding on
BCC or any of its Subsidiaries (including, without limitation, the Trustee and
the WMTV License Co.), (ii) conflict with, result in a breach of or constitute
(with due notice or lapse of time or both) a default under any Contractual
Obligation of BCC or any of its Subsidiaries (including, without limitation, the
Trustee and the WMTV License Co.), (iii) result in or require the creation or
imposition of any Lien upon any of the properties or assets of BCC or any of its
Subsidiaries (including, without limitation, the Trustee and the WMTV License
Co.), or (iv) require any approval of stockholders or any other equityholders or
any approval or consent of any Person under any Contractual Obligation of BCC or
any of its Subsidiaries (including, without limitation, the Trustee and the WMTV
License Co.), except for such approvals or consents which have been obtained on
or before the Second Amendment Effective Date and disclosed in writing to
Lender.
D. GOVERNMENTAL CONSENTS. The execution and delivery by each of
BCC, Company, License Sub, the Trustee and WMTV License Co. of this Amendment,
the Transfer Support Documents and the WMTV Documents to which it is a party and
the performance by each of BCC, Company, License Sub, the Trustee and WMTV
License Co. of the Amended Agreement, the Transfer Support Documents and the
WMTV Documents to which it is a party do not and will not require any
registration with, consent or approval of, or notice to, or other action to,
with or by, any federal, state or other governmental authority or regulatory
body.
E. BINDING OBLIGATION. This Amendment and the Amended Agreement
have been and, upon their execution and delivery, the Transfer Support Documents
and the WMTV Documents to which it is a party will be, duly executed and
delivered by each of BCC,
12
Company, License Sub, the Trustee and WMTV License Co. and this Amendment and
the Amended Agreement are and, upon their execution and delivery, the Transfer
Support Documents and the WMTV Documents to which it is a party will be, the
legally valid and binding obligations of BCC, Company, License Sub, the Trustee
and WMTV License Co., enforceable against BCC, Company, License Sub, the Trustee
and WMTV License Co. in accordance with their respective terms, except as may be
limited by bankruptcy, insolvency, reorganization, moratorium or similar laws
relating to or limiting creditors' rights generally or by equitable principles
relating to enforceability.
F. INCORPORATION OF REPRESENTATIONS AND WARRANTIES FROM CREDIT
AGREEMENT. The representations and warranties contained in Section 4 of the
Credit Agreement are and will be true, correct and complete in all material
respects on and as of the Second Amendment Effective Date to the same extent as
though made on and as of that date, except to the extent such representations
and warranties specifically relate to an earlier date, in which case they were
true, correct and complete in all material respects on and as of such earlier
date.
G. ABSENCE OF DEFAULT. No event has occurred and is continuing
or will result from the consummation of the transactions contemplated by this
Amendment that would constitute an Event of Default or a Potential Event of
Default.
H. ORGANIZATIONAL DOCUMENTS. None of the Articles or
Certificate of Incorporation or Certificate of Formation, as the case may be,
Bylaws or Operating Agreement, as the case may be, or any other constating
document of any of BCC, Company or License Sub has been amended, modified or
otherwise supplemented since December 17, 1997 and the Articles or Certificates
of Incorporation or Certificate of Formation, as the case may be, Bylaws or
Operating Agreement, as the case may be, and other constating documents of each
of BCC, Company and License Sub delivered to Agent and Lenders in connection
with execution and delivery of the Credit Agreement on December 19, 1997 are
true, correct and complete copies of such Certificate of Incorporation, Bylaws
or other constating documents as in effect as of the date hereof. The
Certificate of Formation, Operating Agreement or Trust Agreement, as the case
may be, and other constating documents of each of the Trustee and WMTV License
Co. delivered to Agent and Lenders in connection with execution and delivery of
this Amendment are true, correct and complete copies of such Certificate of
Formation, Operating Agreement or Trust Agreement, as the case may be, or other
constating documents as in effect as of the date hereof.
SECTION 4
ACKNOWLEDGMENT AND CONSENT
Each of License Sub, the Trustee and WMTV License Co. hereby
acknowledges that it has read this Amendment and consents to the terms hereof
and further hereby confirms and agrees that, notwithstanding the effectiveness
of this Amendment, the obligations of such Loan Party under each of the Loan
Documents to which it is a party (including Loan Documents executed and
delivered by such Loan Party as of the date hereof) shall not be
13
impaired and each of the Loan Documents (including Loan Documents executed and
delivered by such Loan Party as of the date hereof) to which it is a party are,
and shall continue to be, in full force and effect and are hereby confirmed and
ratified in all respects.
SECTION 5
MISCELLANEOUS
A. REFERENCE TO AND EFFECT ON THE CREDIT AGREEMENT AND THE
OTHER LOAN DOCUMENTS.
(i) On and after the Second Amendment Effective Date, each
reference in the Credit Agreement to "this Agreement", "hereunder",
"hereof", "herein" or words of like import referring to the Credit
Agreement, and each reference in the other Loan Documents to the
"Credit Agreement", "thereunder", "thereof" or words of like import
referring to the Credit Agreement shall mean and be a reference to the
Amended Agreement.
(ii) Except as specifically amended by this Amendment, the
Credit Agreement and the other Loan Documents shall remain in full
force and effect and are hereby ratified and confirmed.
(iii) The execution, delivery and performance of this Amendment
shall not, except as expressly provided herein, constitute a waiver of
any provision of, or operate as a waiver of any right, power or remedy
of Agent or any Lender under, the Credit Agreement or any of the other
Loan Documents.
B. FEES AND EXPENSES. Company acknowledges that all costs, fees
and expenses as described in subsection 9.2 of the Credit Agreement incurred by
Agent and its counsel with respect to this Amendment and the documents and
transactions contemplated hereby shall be for the account of Company.
C. HEADINGS. Section and subsection headings in this Amendment
are included herein for convenience of reference only and shall not constitute a
part of this Amendment for any other purpose or be given any substantive effect.
D. APPLICABLE LAW. THIS AMENDMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW
YORK (INCLUDING WITHOUT LIMITATION SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW
OF THE STATE OF NEW YORK), WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES.
E. COUNTERPARTS; EFFECTIVENESS. This Amendment may be executed
in any number of counterparts and by different parties hereto in separate
counterparts, each of which
14
when so executed and delivered shall be deemed an original, but all such
counterparts together shall constitute but one and the same instrument;
signature pages may be detached from multiple separate counterparts and attached
to a single counterpart so that all signature pages are physically attached to
the same document. This Amendment (other than the provisions of Sections 1 and 2
hereof, the effectiveness of which is governed by Section 2 hereof) shall become
effective upon the execution of a counterpart hereof by BCC, Company, License
Sub, the Trustee, WMTV License Co. and Supermajority Lenders and receipt by
Company and Agent of written or telephonic notification of such execution and
authorization of delivery thereof.
15
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed and delivered by their respective officers
thereunto duly authorized as of the date first written above.
BCC:
BENEDEK COMMUNICATIONS CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Senior Vice President, Chief
Financial Officer, Secretary
and Treasurer
COMPANY:
BENEDEK BROADCASTING CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Senior Vice President, Chief
Financial Officer, Secretary
and Treasurer
S-1
ACKNOWLEDGED AND CONSENTED
TO AS OF OCTOBER 31, 1998:
BENEDEK LICENSE CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Senior Vice President, Chief
Financial Officer, Secretary
and Treasurer
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, SOLELY IN HIS
CAPACITY AS TRUSTEE UNDER THE
WMTV TRUST, A WISCONSIN TRUST
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
WMTV TRUST LICENSE CO., LLC.
By: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, SOLELY IN HIS
CAPACITY AS TRUSTEE UNDER THE
WMTV TRUST, A WISCONSIN TRUST,
ITS MEMBER
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
S-2
LENDERS:
BANKERS TRUST COMPANY,
individually and as Agent
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
_________________________
▇▇▇▇ ▇▇▇▇▇▇▇
Vice President
S-3
STRATA FUNDING LTD.
By: /s/ ▇▇▇▇▇ EGGLLSHAW
_________________________
▇▇▇▇▇ Eggllshaw
Title: Director
S-4
PILGRIM AMERICA PRIME RATE TRUST
By: PILGRIM AMERICA INVESTMENTS, INC.,
as its Investment Manager
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
_________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
S-5
KZH III LLC
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
_________________________
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Authorized Agent
S-6
KZH CNC LLC
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
_________________________
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Authorized Agent
S-7
SENIOR DEBT PORTFOLIO
By: BOSTON MANAGEMENT AND RESEARCH,
as Investment Advisor
By: /s/ PAYSON ▇. ▇▇▇▇▇▇▇▇▇
_________________________
Name: Payson ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
S-8
CANADIAN IMPERIAL BANK OF COMMERCE
By: /s/ ▇▇▇▇▇ ▇▇▇▇
_________________________
Name: ▇▇▇▇▇ ▇▇▇▇
Title: Authorized Signatory
S-9
MASSACHUSETTS MUTUAL LIFE
INSURANCE COMPANY
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
_________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Managing Director
S-10
TORONTO DOMINION (TEXAS), INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
_________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Director
Vice President
S-11
HARVARD MANAGEMENT COMPANY INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Authorized Signatory
S-12
