EXECUTION
LIMITED WAIVER AND CONSENT REGARDING
EXCHANGE OF ASSETS OF KCOY-TV AND KKTV AND COMPENSATION OF ▇▇▇▇▇▇▇
This LIMITED WAIVER AND CONSENT (this "Waiver") is dated as of
December 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 7
hereof, Benedek License Corporation, a Delaware corporation ("License Sub"), and
is made with reference to that certain Amended and Restated Credit Agreement
dated as of December 17, 1997, by and among BCC, the 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, the Company, the financial
institutions listed on the signature pages thereof as Lenders and Agent, and
solely with respect to Section 5 thereof, License Sub, and that certain Second
Amendment to Credit Agreement dated as of October 31, 1998, by and among BCC,
the Company, the financial institutions listed on the signature pages thereof as
Lenders and Agent, and solely with respect to Sections 3 and 4 thereof, ▇▇▇▇▇▇
▇. ▇▇▇▇▇, 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 (the
"Trustee"), and WMTV License Co., LLC, a Delaware limited liability company
("WMTV License Co.") and 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, the Lenders and the Company desire to waive certain
requirements in subsections 2.5B, 6.3, 6.7 and 6.11 to allow the Company to: (i)
acquire the television broadcast assets of KKTV, Colorado Springs, Colorado
("KKTV") from the AK Media Group, Inc. ("AK Media") in exchange for the assets
of KCOY-TV, Santa Maria, California ("KCOY") and a cash payment of $9,000,000
(the "KKTV Acquisition"), pursuant to that certain Exchange Agreement dated as
of December 31, 1998, by and between the Company and AK Media (such Exchange
Agreement, together with all other material documents, agreements or instruments
to be delivered under, pursuant to or in connection therewith, the "Exchange
Agreement"); (ii) pursuant to the Exchange Agreement, to enter into with AK
Media (a) that certain KCOY Time Brokerage Agreement dated as of December 31,
1998 (such KCOY Time Brokerage Agreement, together with all other material
documents, agreements or instruments to be delivered under, pursuant to or in
connection therewith, the "KCOY LMA"), that would grant AK Media a presence at
and certain approval rights regarding KCOY and (b) that certain KKTV Time
Brokerage Agreement dated as of December 31, 1998 (such KKTV Local Marketing
Agreement,
together with all other material documents, agreements or instruments to be
delivered under, pursuant to or in connection therewith, the "KKTV LMA"), that
would grant the Company a presence at and certain approval rights regarding
KKTV; and (iii) permit the Company to pay part of the compensation permitted to
be paid to ▇▇▇▇▇▇▇ under the Credit Agreement through loans rather than cash;
NOW, THEREFORE, in consideration of the premises and the
agreements, provisions and covenants herein contained, the parties hereto agree
as follows:
Section 1. WAIVERS AND CONSENTS
1.1 Waivers and Consents Relating to the KKTV Acquisition.
Subject to the terms and conditions set forth herein and in reliance on the
representations and warranties of the Company herein contained, the Lenders
hereby (i) consent to the KKTV Acquisition and the Company entering into the
Exchange Agreement, the KKTV LMA and the KCOY LMA and (ii) waive compliance with
certain provisions of subsections 2.5B and 6.7 of the Credit Agreement in
connection with the KKTV Acquisition as follows:
A. Use of Proceeds of Revolving Loans. The Lenders hereby waive
compliance with the provisions of subsection 2.5B of the Credit Agreement
to the extent, and only to the extent, necessary to allow the Company to
use the proceeds of Revolving Loans to make cash payments of up to
$9,000,000 to AK Media in connection with the KKTV Acquisition; provided,
however, that any such payments shall be made by the Company pursuant to
the express terms of the Exchange Agreement on or before the date of the
closing of the KKTV Acquisition (such date, the "KKTV Acquisition Closing
Date").
B. Restrictions on LMAs. The Lenders hereby waive the restriction
contained in subsection 6.7 of the Credit Agreement prohibiting the
Company from entering into any LMAs other than Permitted LMAs and Third
Party Permitted LMAs to the extent, and only to the extent, necessary to
allow the Company to enter into the KKTV LMA and the KCOY LMA; provided,
however, that for purposes of determining, pursuant to the Credit
Agreement, net income and Consolidated Adjusted EBITDA (without
duplication) amounts received under or pursuant to the KKTV LMA or the
KCOY LMA shall only be included as net income or Consolidated Adjusted
EBITDA, as the case may be, to the extent such amounts are fully received
and unconditionally retained for the Company's account; provided,
further, that within 30 (thirty) days of the Effective Date (as
hereinafter defined), Trustee and WMTV License Co. will execute and
deliver an acknowledgement and consent similar in substance to Sections 3
and 7 herein and otherwise satisfactory to Agent.
C. Restrictions on Swaps or Exchanges of Owned Television
Stations. The Lenders hereby waive the requirement in subsection 6.7(x)
of the Credit Agreement that neither BCC nor any of its Subsidiaries
shall incur any Indebtedness in connection with a swap or exchange of
Owned Television Station Asset Groups for one or more other Television
Station Asset Groups in order to finance such swap or exchange (other
than
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certain Indebtedness assumed by the Company in connection with such
swap or exchange that was incurred by the Person with whom such Owned
Television Asset Groups were swapped or exchanged) to the extent, and
only to the extent, necessary to allow the Company to use the proceeds of
Revolving Loans to finance the payment of up to $9,000,000 to AK Media in
connection with the KKTV Acquisition; provided, however, that any such
payments shall be made by the Company pursuant to the express terms of
the Exchange Agreement on or before the KKTV Acquisition Closing Date;
provided, further, that all other requirements set forth in subsection
6.7(x) of the Credit Agreement shall be complied with in connection with
the KKTV Acquisition; provided, further, that after the Effective Date,
the Company may only make Permitted Acquisitions pursuant to subsection
6.7(xi) of the Credit Agreement with an aggregate purchase price less
than or equal to $16,000,000.
1.2 Waivers Relating to Payment of Compensation to Benedek.
Subject to the terms and conditions set forth herein and in reliance on the
representations and warranties of the Company herein contained, Lenders hereby
waive compliance with the provisions of subsections 6.3 and 6.11 of the Credit
Agreement to the extent, and only to the extent, necessary to permit the Company
to make loans to ▇▇▇▇▇▇▇ in each Fiscal Year (such Fiscal Year, the "current
Fiscal Year") in an aggregate dollar amount not exceeding an amount equal to (x)
110% of the Compensation Limit for the prior Fiscal Year minus (y) all cash
payments made to Benedek pursuant to subsection 6.11 of the Credit Agreement in
the current Fiscal Year; provided, however, that, notwithstanding anything to
the contrary contained herein, the sum of (x) the aggregate amount of cash
compensation paid to Benedek pursuant to subsection 6.11 during any Fiscal Year
plus (y) such loans made to Benedek during such Fiscal Year shall not in any
such Fiscal Year exceed 110% of the Compensation Limit for the prior Fiscal
Year; provided, further, that all such loans shall be included as "cash
compensation" in any calculation of the Unutilized Compensation Amount under the
Credit Agreement.
Section 2. LIMITATION OF WAIVER
Without limiting the generality of the provisions of subsection
9.6 of the Credit Agreement, the waiver set forth above shall be limited
precisely as written and relates solely to the noncompliance by the Company with
the provisions of subsections 2.5B, 6.3, 6.7 and 6.11 of the Credit Agreement in
the manner and to the extent described above, and nothing in this Waiver shall
be deemed to:
(a) constitute a waiver of compliance by the Company with respect
to (i) subsections 2.5B, 6.3, 6.7 or 6.7 of the Credit Agreement
in any other instance or (ii) any other term, provision or
condition of the Credit Agreement or any other instrument or
agreement referred to therein (whether in connection with the
KKTV Acquisition, any payment or loans to Benedek or otherwise);
or
(b) prejudice any right or remedy that Agent or any Lender may
now have (except to the extent such right or remedy was based
upon existing defaults that will not exist after giving effect to
this Waiver) or may have in the future under
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or in connection with the Credit Agreement or any other
instrument or agreement referred to therein.
Except as expressly set forth herein, the terms, provisions and conditions of
the Credit Agreement and the other Loan Documents shall remain in full force and
effect and in all other respects are hereby ratified and confirmed.
Section 3. ACKNOWLEDGEMENT AND CONSENT REGARDING RELATED AGREEMENTS
The Lenders, Company, BCC and License Sub hereby expressly acknowledge
and agree that the Exchange Agreement, the KCOY LMA and the KKTV LMA shall be
considered "Related Agreements" for all purposes under the Credit Agreement and
any other Loan Document.
Section 4. REPRESENTATIONS AND WARRANTIES
In order to induce ▇▇▇▇▇▇▇ to enter into this Waiver, each of BCC
and the Company hereby represents and warrants that after giving effect to this
Waiver:
(a) as of the date hereof, there exists no Event of Default or
Potential Event of Default under the Credit Agreement;
(b) all representations and warranties contained in the Credit
Agreement and the other Loan Documents are true, correct and
complete in all material respects on and as of the date hereof
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;
(c) as of the date hereof, each of the BCC and the Company has
performed all agreements to be performed on its part as set forth
in the Credit Agreement;
(d) the Company and BCC have all requisite corporate power and
authority to enter into this Waiver, to consummate the
transactions contemplated by this Waiver and the transactions
contemplated by, and perform its obligations under, the Credit
Agreement;
(e) the execution of this Waiver, and the consummation of the
transactions contemplated by this Waiver, have been duly
authorized by all necessary corporate action on the part of the
Company and BCC; and
(f) the execution and delivery by Company and BCC of this Waiver,
and the consummation of the transactions contemplated by this
Waiver by the Company and BCC, does not and will not (i) violate
any provision of any law or any governmental rule or regulation
applicable to the Company, BCC or any of their respective
Subsidiaries, any constating documents of the Company, BCC or any
order, judgment or decree of any court or other agency of
government binding on
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the Company, BCC or any or their respective Subsidiaries, (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 the Company, BCC or any of their respective
Subsidiaries, (iii) result in or require the creation or
imposition of any Lien upon any of the properties or assets of
the Company, BCC or any of their respective Subsidiaries (other
than any Liens created under any of the Loan Documents in favor
of Agent on behalf of Lenders), or (iv) require any approval of
stockholders or any approval or consent of any Person under any
Contractual Obligation of the Company, BCC or any of their
respective Subsidiaries.
Section 5. COUNTERPARTS; EFFECTIVENESS
This Waiver may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which 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 Waiver shall become effective upon (i) the execution of a
counterpart hereof by BCC, the Company, License Sub, and Requisite Lenders and
receipt by the Company and Agent of written or telephonic notification of such
execution and authorization of delivery thereof and (ii) Agent's acknowledgement
that the Exchange Agreement, the KKTV LMA and the KCOY LMA are in form and
substance satisfactory to Agent in its sole discretion (the date of satisfaction
of both such conditions being referred to herein as the "Effective Date").
Section 6. GOVERNING LAW
THIS WAIVER 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.
Section 7. ACKNOWLEDGEMENT AND CONSENT BY GUARANTORS
Each of BCC and License Sub hereby acknowledges that it has read
this Waiver and consents to the terms hereof and further hereby confirms and
agrees that, notwithstanding the effectiveness of this Waiver, the obligations
of such Loan Party under each of the Loan Documents to which it is a party shall
not be impaired and each of the Loan Documents 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.
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IN WITNESS WHEREOF, the parties hereto have caused this
Waiver 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/
------------------------------------
Name:
Title:
COMPANY:
BENEDEK BROADCASTING CORPORATION
By: /s/
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Name:
Title:
S-1
ACKNOWLEDGED AND CONSENTED
TO AS OF DECEMBER 31, 1998:
BENEDEK LICENSE CORPORATION
By: /s/
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Name:
Title:
S-2
LENDERS:
BANKERS TRUST COMPANY,
individually and as Agent
By: /s/
--------------------------------
Name:
Title:
S-3
PILGRIM RATE TRUST
By: PILGRIM INVESTMENTS, INC.,
as its Investment Manager
By: /s/
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Name:
Title:
S-4
KZH III LLC
By: /s/
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Name:
Title:
S-5
THE NORTHWESTERN MUTUAL LIFE
INSURANCE COMPANY
By:
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Name:
Title:
S-6
SENIOR DEBT PORTFOLIO
By: BOSTON MANAGEMENT AND
RESEARCH, as Investment Advisor
By: /s/
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Name:
Title:
S-7
CANADIAN IMPERIAL BANK OF COMMERCE
By: /s/
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Name:
Title:
S-8
MASSACHUSETTS MUTUAL LIFE
INSURANCE COMPANY
By: /s/
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Name:
Title:
S-9
STRATA FUNDING LTD.
By:
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Name:
Title:
S-10
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ SENIOR FUNDING, INC.
By:
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Name:
Title:
S-11
HARVARD MANAGEMENT COMPANY INC.
By: /s/
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Name:
Title:
S-12
▇▇▇ ▇▇▇▇▇▇ PRIME RATE INCOME TRUST
By: /s/
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Name:
Title:
S-13
▇▇▇ ▇▇▇▇▇▇ CLO I, LIMITED
By: ▇▇▇ ▇▇▇▇▇▇ MANAGEMENT INC.,
as Collateral Manager
By: /s/
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Name:
Title:
S-14
KZH LANGDALE LLC
By: /s/
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Name:
Title:
S-15
▇▇▇▇▇ ▇▇▇▇▇ SENIOR INCOME TRUST
By: ▇▇▇▇▇ ▇▇▇▇▇ MANAGEMENT,
as Investment Advisor
By: /s/
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Name:
Title:
S-16
▇▇▇▇▇▇▇ ▇▇▇▇▇ SENIOR FLOATING RATE
FUND, INC.
By: /s/
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Name:
Title:
S-17
