EXECUTION
BENEDEK BROADCASTING CORPORATION
BENEDEK COMMUNICATIONS CORPORATION
LIMITED WAIVER AND FIRST AMENDMENT TO CREDIT AGREEMENT
This LIMITED WAIVER AND FIRST AMENDMENT TO CREDIT AGREEMENT (this
"WAIVER AND AMENDMENT") is dated as of October 31, 1996, and entered into by and
among Benedek Broadcasting Corporation, a Delaware corporation ("COMPANY"),
Benedek Communications Corporation, a Delaware corporation ("BCC"), Xxxxxxx
Xxxxx Credit Partners L.P. (as successor to Pearl Street L.P.; "GSCP") and the
other financial institutions listed on the signature pages hereof ("LENDERS"),
and Canadian Imperial Bank of Commerce, New York Agency ("CIBC-NYA"), as
Administrative Agent, and for purposes of Section 11 hereof, Benedek License
Corporation, a Delaware corporation ("LICENSE SUB"), and is made with reference
to that certain Credit Agreement dated as of June 6, 1996 (the "CREDIT
AGREEMENT"), by and among Company, BCC, Lenders, GSCP, as Arranging Agent,
Xxxxxxx, Xxxxx & Co., as Syndication Agent, and CIBC-NYA, as Administrative
Agent and Collateral Agent. Capitalized terms used herein without definition
shall have the same meanings herein as set forth in the Credit Agreement.
RECITALS
WHEREAS, BCC and Company have requested Lenders to waive compliance
with the leverage ratio covenants in the Credit Agreement and Lenders desire to
grant such waiver; and
WHEREAS, BCC, Company and Lenders desire to amend the Credit Agreement
to increase the interest rate applicable to the Loans, subject to reduction
under certain conditions;
NOW, THEREFORE, in consideration of the premises and the agreements,
provisions and covenants herein contained, the parties hereto agree as follows:
SECTION 1. WAIVER
Subject to the terms and conditions set forth herein and in reliance on
the representations and warranties of BCC and Company herein contained, Lenders
hereby
1
waive compliance with certain provisions of subsection 6.6 of the Credit
Agreement as follows:
(A) MINIMUM FIXED CHARGE COVERAGE RATIO. Lenders hereby waive
compliance with the provisions of subsection 6.6B with respect to the
Fixed Charge Coverage Ratio for the Fiscal Quarter ended September 30,
1996; provided that the Fixed Charge Coverage Ratio for such Fiscal
Quarter is not less than 1.08:1.00.
(B) MAXIMUM LEVERAGE RATIO. Lenders hereby waive compliance
with the provisions of subsection 6.6C with respect to the Leverage
Ratio as of September 30, 1996; provided that the Leverage Ratio as of
such date is not greater than 7.65:1.00.
(C) MAXIMUM CREDIT FACILITIES LEVERAGE RATIO. Lenders hereby
waive compliance with the provisions of subsection 6.6D with respect to
the Credit Facilities Leverage Ratio as of September 30, 1996; provided
that the Credit Facilities Leverage Ratio as of such date is not
greater than 2.80:1.00.
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 BCC and Company with the
provisions of subsections 6.6B, 6.6C and 6.6D of the Credit Agreement in the
manner and to the extent described above, and nothing in this Waiver and
Amendment shall be deemed to:
(A) constitute a waiver of compliance by BCC or Company with
respect to (i) subsection 6.6 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; or
(B) prejudice any right or remedy that Agents 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 and Amendment) or may have in the future under 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. AMENDMENTS TO CREDIT AGREEMENT
2
Subsection 1.1 of the Credit Agreement is hereby amended by deleting
the definitions of "Applicable Margin" and "Pricing Reduction" in their entirety
and substituting the following therefor:
"APPLICABLE MARGIN" means, for each AXEL Series A, AXEL Series
B and Revolving Loan, as of any date of determination, a percentage per
annum as set forth below less the Pricing Reduction, if any:
==============================================================================================================
AXELS SERIES A AXELS SERIES B REVOLVING LOANS
--------------------------------------------------------------------------------------------------------------
BASE RATE EURODOLLAR BASE RATE EURODOLLAR BASE RATE EURODOLLAR
LOANS RATE LOANS LOANS RATE LOANS LOANS RATE LOANS
==============================================================================================================
2.25% 3.25% 2.75% 3.75% 2.25% 3.25%
==============================================================================================================
After October 1, 1996, any change in the Applicable Margin resulting
from a Pricing Reduction shall become effective on the day following
delivery of the relevant Compliance Certificate to Administrative Agent
and Lenders and shall remain in effect through the next scheduled date
for delivery of a Compliance Certificate.
"PRICING REDUCTION" means (i) from the Closing Date to (but not
including) October 1, 1996, a pricing reduction equal to 0.25%; (ii) if
at any time after October 1, 1996 the Leverage Ratio as of the end of
any Fiscal Quarter is less than 7.00:1.00, a pricing reduction equal to
0.25%; and (iii) if at any time after the first anniversary of the
Closing Date the Leverage Ratio as of the end of any Fiscal Quarter is
equal to or less than 5.75:1.00, a pricing reduction equal to 0.50%.
After October 1, 1996, the Pricing Reduction shall be determined by
reference to the Leverage Ratio set forth in the most recent financial
statements delivered by Company to Administrative Agent and Lenders
pursuant to clause (ii) or (iii) of subsection 5.1 (accompanied by a
Compliance Certificate delivered by Company pursuant to clause (iv) of
subsection 5.1). It is understood and agreed that the Pricing Reduction
set forth in clause (ii) and the Pricing Reduction set forth in clause
(iii) of this definition are not cumulative. Notwithstanding anything
herein to the contrary, at any time an Event of Default shall have
occurred and be continuing, the Pricing Reduction shall be zero.
SECTION 4. CONDITIONS TO EFFECTIVENESS
Notwithstanding anything to the contrary herein, this Waiver and
Amendment shall become effective only upon the satisfaction of the following
conditions precedent (the date of satisfaction of such conditions being referred
to herein as the "FIRST AMENDMENT EFFECTIVE DATE"):
3
(A) BCC, Company and License Sub shall have delivered to
Administrative Agent sufficient originally executed copies for each
Lender and its counsel of this Waiver and Amendment; Administrative
Agent and Lenders constituting Requisite Lenders shall each have
executed a counterpart of this Waiver and Amendment; and Company and
Administrative Agent shall have received written or telephonic
notification of such execution by Requisite Lenders and authorization
of delivery thereof; and
(B) Administrative Agent shall have received from Company, for
distribution to each Lender that has executed and delivered a
counterpart of this Waiver and Amendment on or prior to 5:00 p.m. (New
York City time) on November 7, 1996, an amendment fee in an amount
equal to 0.05% of the combined AXEL Exposure and Revolving Loan
Exposure of such Lender.
SECTION 5. REPRESENTATIONS AND WARRANTIES
In order to induce Lenders to enter into this Waiver and Amendment and
to amend the Credit Agreement in the manner provided herein, each of BCC and
Company hereby represents and warrants that after giving effect to this Waiver
and Amendment:
(A) CORPORATE POWER AND AUTHORITY. Each of BCC, Company and
License Sub has all requisite corporate power and authority to enter
into this Waiver and Amendment, and each of BCC and Company has all
requisite corporate power and authority to carry out the transactions
contemplated by, and perform its obligations under, the Credit
Agreement as amended by this Waiver and Amendment.
(B) AUTHORIZATION OF AGREEMENTS. The execution and delivery of
this Waiver and Amendment and the performance of the Credit Agreement
as amended by this Waiver and Amendment (as so amended, the "AMENDED
AGREEMENT") have been duly authorized by all necessary corporate action
on the part of BCC, Company and License Sub.
(C) NO CONFLICT. The execution and delivery by each of BCC and
Company of this Waiver and Amendment and the performance by Company of
the Amended Agreement do not and will not (i) violate any provision of
any law or any governmental rule or regulation applicable to BCC,
Company or any of their respective Subsidiaries, the Certificate or
Articles of Incorporation or Bylaws of BCC or Company or any of their
respective Subsidiaries or any order, judgment or decree of any court
or other agency or government binding on BCC, Company or any of 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 BCC, Company or any of their
respective Subsidiaries, (iii) result in or require the creation or
imposition of any Lien upon any of the
4
properties or assets of BCC, Company or any of their respective
Subsidiaries (other than Liens created under any of the Loan Documents
in favor of Collateral 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 BCC, Company or any of their respective
Subsidiaries.
(D) GOVERNMENTAL CONSENTS. The execution and delivery by each
of BCC and Company of this Waiver and Amendment and the performance by
BCC and Company of the Amended Agreement 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 Waiver and Amendment and the
Amended Agreement have been duly executed and delivered by each of BCC
and Company and are the legally valid and binding obligations of BCC
and Company, enforceable against BCC and Company 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 First 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 Waiver and Amendment that would constitute an Event of Default
or a Potential Event of Default.
(H) NO CHANGE TO ORGANIZATIONAL DOCUMENTS. Neither the
Certificate of Incorporation nor the Bylaws of BCC or of Company has
been amended, supplemented or otherwise modified since the Closing
Date.
SECTION 6. REFERENCE TO AND EFFECT ON THE CREDIT AGREEMENT
AND THE OTHER LOAN DOCUMENTS.
(A) On and after the First 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 or like
5
import referring to the Credit Agreement shall mean and be a reference to the
Amended Agreement.
(B) Except as specifically amended by this Waiver and Amendment, the
Credit Agreement and the other Loan Documents shall remain in full force and
effect and are hereby ratified and confirmed.
(C) The execution, delivery and performance of this Waiver and
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.
SECTION 7. FEES AND EXPENSES.
Each of BCC and Company acknowledges that all costs, fees and expenses
as described in subsection 9.2 of the Credit Agreement incurred by Agents and
their respective counsel with respect to this Waiver and Amendment and the
documents and transactions contemplated hereby shall be for the account of BCC
and Company.
SECTION 8. HEADINGS.
Section and subsection headings in this Waiver and Amendment are
included herein for convenience of reference only and shall not constitute a
part of this Waiver and Amendment for any other purpose or be given any
substantive effect.
SECTION 9. COUNTERPARTS
This Waiver and Amendment 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.
6
SECTION 10. GOVERNING LAW
THIS WAIVER AND 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.
SECTION 11. ACKNOWLEDGEMENT AND CONSENT BY CREDIT SUPPORT PARTIES
BCC is a party to the BCC Pledge Agreement and the BCC Security
Agreement (collectively, the "BCC COLLATERAL DOCUMENTS") and the BCC Guaranty,
in each case as amended through the First Amendment Effective Date, pursuant to
which BCC has (a) guarantied the Obligations and (b) created Liens in favor of
Collateral Agent on certain Collateral and pledged certain Collateral to
Collateral Agent to secure the obligations of BCC under the BCC Guaranty.
License Sub is a party to the License Sub Guaranty, as amended through the First
Amendment Effective Date, pursuant to which License Sub has guarantied the
Obligations. BCC and License Sub are collectively referred to herein as the
"CREDIT SUPPORT PARTIES", and the BCC Guaranty, the BCC Collateral Documents and
the License Sub Guaranty are collectively referred to herein as the "CREDIT
SUPPORT DOCUMENTS".
Each Credit Support Party hereby acknowledges that it has reviewed the
terms and provisions of the Credit Agreement and this Waiver and Amendment and
consents to the amendment of the Credit Agreement effected pursuant to this
Waiver and Amendment. Each Credit Support Party hereby confirms that each Credit
Support Document to which it is a party or otherwise bound and all Collateral
encumbered thereby will continue to guaranty or secure, as the case may be, to
the fullest extent possible the payment and performance of all "Guarantied
Obligations" and "Secured Obligations", as the case may be (in each case as such
terms are defined in the applicable Credit Support Document), including without
limitation the payment and performance of all such "Guarantied Obligations" or
"Secured Obligations", as the case may be, in respect of the Obligations of
Company now or hereafter existing under or in respect of the Amended Agreement
and the Notes defined therein.
Each Credit Support Party acknowledges and agrees that any of the
Credit Support Documents to which it is a party or otherwise bound shall
continue in full force and effect and that all of its obligations thereunder
shall be valid and enforceable and shall not be impaired or limited by the
execution or effectiveness of this Waiver and Amendment. Each Credit Support
Party represents and warrants that all representations and warranties contained
in the Amended Agreement and the Credit Support Documents to which it is a
7
party or otherwise bound are true, correct and complete in all material
respects on and as of the First 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.
Each Credit Support Party acknowledges and agrees that (i)
notwithstanding the conditions to effectiveness set forth in this Waiver and
Amendment, such Credit Support Party is not required by the terms of the Credit
Agreement or any other Loan Document to consent to the amendments to the Credit
Agreement effected pursuant to this Waiver and Amendment and (ii) nothing in the
Credit Agreement, this Waiver and Amendment or any other Loan Document shall be
deemed to require the consent of such Credit Support Party to any future
amendments to the Credit Agreement.
[Remainder of page intentionally left blank]
8
IN WITNESS WHEREOF, the parties hereto have caused this Waiver and
Amendment to be duly executed and delivered by their respective officers
thereunto duly authorized as of the date first written above.
LENDERS:
XXXXXXX XXXXX CREDIT PARTNERS
L.P.,
as a Lender
By: ________________________________________
Authorized Signatory
CANADIAN IMPERIAL BANK OF
COMMERCE, NEW YORK AGENCY,
as a Lender and as Administrative Agent
By: CIBC Wood Gundy Securities Corp.,
as agent
By: ____________________________________
Managing Director
CIBC INC.,
as a Lender
By: CIBC Wood Gundy Securities Corp.,
as agent
By: ____________________________________
Managing Director
S-1
BANQUE FRANCAISE DU COMMERCE
EXTERIEUR,
as a Lender
By: ________________________________________
Name:
Title:
CHL HIGH YIELD LOAN PORTFOLIO, A
UNIT OF THE CHASE MANHATTAN
BANK,
as a Lender
By: ________________________________________
Name:
Title:
ING CAPITAL ADVISORS, INC.,
AS AGENT FOR BANK SYNDICATION
ACCOUNT,
as a Lender
By: ________________________________________
Name:
Title:
S-2
MASSACHUSETTS MUTUAL LIFE
INSURANCE COMPANY,
as a Lender
By: ________________________________________
Name:
Title:
XXXXXXX XXXXX SENIOR FLOATING
RATE FUND, INC.,
as a Lender
By: Xxxxxxx Xxxxx Asset Management, L.P.,
as Investment Advisor
By: ____________________________________
Name:
Title:
THE NORTHWESTERN MUTUAL LIFE
INSURANCE COMPANY,
as a Lender
By: ________________________________________
Name:
Title:
S-3
PILGRIM AMERICA PRIME RATE
TRUST,
as a Lender
By: ________________________________________
Name:
Title:
PRIME INCOME TRUST,
as a Lender
By: ________________________________________
Name:
Title:
PROTECTIVE LIFE INSURANCE
COMPANY,
as a Lender
By: ________________________________________
Name:
Title:
SENIOR DEBT PORTFOLIO,
as a Lender
By: ________________________________________
Name:
Title:
S-4
RESTRUCTURED OBLIGATIONS
BACKED BY SENIOR ASSETS B.V.,
as a Lender
By: ________________________________________
Name:
Title:
STRATA FUNDING LTD.,
as a Lender
By: ________________________________________
Name:
Title:
XXX XXXXXX AMERICAN CAPITAL
PRIME RATE INCOME TRUST,
as a Lender
By: ________________________________________
Name:
Title:
S-5
BCC AND COMPANY:
BENEDEK BROADCASTING
CORPORATION
By: ________________________________________
Name:
Title:
BENEDEK COMMUNICATIONS
CORPORATION
By: ________________________________________
Name:
Title:
BENEDEK LICENSE CORPORATION
By: ________________________________________
Name:
Title:
S-6
