BENEDEK BROADCASTING CORPORATION,
AS ISSUER
AND
CERTAIN SUBSIDIARIES OF BENEDEK BROADCASTING CORPORATION,
AS GUARANTORS
AND
THE BANK OF NEW YORK,
AS TRUSTEE
---------------------------------------------
THIRD SUPPLEMENTAL INDENTURE
DATED AS OF MAY 3, 1999
---------------------------------------------
$135,000,000
117/8% SENIOR SECURED NOTES DUE 2005
THIS THIRD SUPPLEMENTAL INDENTURE (this "Supplemental Indenture"),
dated as of May 3, 1999, is among BENEDEK BROADCASTING CORPORATION, a Delaware
corporation (the "Company"), certain of its subsidiaries (as more specifically
identified on the signature pages hereof, the "Guarantors"), and THE BANK OF NEW
YORK, a New York banking corporation, as trustee (the "Trustee"). All terms not
otherwise defined herein shall have the meaning ascribed thereto in the
Indenture (as hereinafter defined).
RECITALS
The Company, such of the Guarantors as were then subsidiaries of the
Company and the Trustee entered into an indenture dated as of March 1, 1995 (the
"Indenture") providing for the issuance by the Company of $135 million in an
aggregate principal amount of its 117/8% Senior Secured Notes (the "Securities")
as provided in the Indenture, the payment of which Securities was guaranteed by
such Guarantors in the manner provided in the Guarantee Agreements referred to
in the Indenture.
The Indenture was supplemented by that certain First Supplemental
Indenture dated as of June 6, 1996, to reflect that Benedek Broadcasting
Company, L.L.C. ("LLC"), which had guaranteed the Company's obligations in
respect of the Securities under the Indenture, was merged with and into Benedek
License Corporation ("BLC") and that BLC assumed all of the obligations of LLC
set forth in the Indenture.
Also, the Indenture was supplemented by that certain Second
Supplemental Indenture dated as of October 31, 1998, to reflect the transfer of
assets of Television Station WMTV by the Company to Xxxxxx X. Xxxxx, solely in
his capacity as trustee under The WMTV Trust (the "WMTV Trust") and the transfer
of the licenses and authorizations issued by the Federal Communications
Commission relating to Television Station WMTV from BLC to WMTV License Co., LLC
("License Co.") and each of WMTV Trust and License Co. became Guarantors
pursuant to the Second Supplemental Indenture.
The Company has offered, upon the terms and subject to the conditions
set forth in the Offer to Purchase and Consent Solicitation Statement dated
April 16, 1999 and the related Consent and Letter of Transmittal dated April 16,
1999 (collectively, the "Tender Offer Documents"), to purchase for cash any and
all of the outstanding Securities.
The Company, with the consent of the Holders of at least fifty-one
percent (51%) in aggregate principal amount of the outstanding Securities,
desires to further supplement the Indenture for the purpose of eliminating
substantially all the restrictive covenants contained therein.
NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE WITNESSETH:
For and in consideration of the premises and the mutual covenants
contained herein and in the Indenture, as the same has been supplemented from
time to time, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, it is hereby mutually
covenanted and agreed, for the equal and proportionate benefit of all Holders of
the Securities, as follows:
ARTICLE ONE
DEFINITIONS
Section 1.01. General. Capitalized terms that are used but not defined
herein shall have the meanings ascribed to them in the Indenture.
Section 1.02 Elimination. Pursuant to Section 9.02 of the Indenture,
Section 1.01 (captioned "Definitions") is hereby amended to delete the following
terms and the corresponding definitions thereof in their entirety:
"Bank Credit Agreement"
"Cash Flow Leverage Ratio"
"Change of Control"
"Consolidated Net Worth"
"Exchangeable Stock"
"Interest Rate Protection Agreement"
"Net Available Cash"
"Net Cash Proceeds"
"Non-Convertible Capital Stock"
"Permitted Holders"
"Restricted Holder"
"Senior Debt"
"Tax Amount"
"Voting Stock"
In addition the following definitions are hereby amended as follows:
a. "Affiliate" is amended to delete the second full sentence
in its entirety.
b. "Asset Disposition" is amended to delete the text of (iv)
and (v) in their entirety and the text of each is replaced with "Intentionally
omitted".
c. "Consolidated Net Income" is amended to delete the second
full paragraph in its entirety.
d. "Issue" is amended by deleting the second full sentence in
its entirety.
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Section 1.03 Elimination. Pursuant to Section 9.02 of the Indenture,
Section 1.02 (captioned "Other Definitions") is hereby amended to delete the
following terms and the corresponding definitions thereof in their entirety:
"Excluded Stock"
"Offer"
"Offer Amount"
"Offer Period"
"Purchase Date"
"Restricted Payment"
ARTICLE TWO
AMENDMENT TO TRANSFER AND EXCHANGE
Section 2.01 Elimination. Pursuant to Section 9.02 of the Indenture,
Article 2 of the Indenture (captioned "The Securities"), is hereby amended as
follows:
a. Section 2.06(i)(ii) is amended to delete the reference to
Section 4.08.
ARTICLE THREE
AMENDMENT TO NOTICE OF REDEMPTION
Section 3.01. Elimination. Pursuant to Section 9.02 of the Indenture,
Article 3 of the Indenture (captioned "Redemption"), is hereby amended as
follows:
a. Section 3.03 is amended by deleting the first sentence and
replacing it with the following:
"At least 30 days (or in the case of a redemption required
pursuant to paragraph 6 of the Securities, at least 10
Business Days but not more than 11 Business Days) before a
date of redemption of Securities, the Company shall mail a
notice of redemption by first-class mail to each Holder of
Securities to be redeemed."
ARTICLE FOUR
ELIMINATION OF CERTAIN COVENANTS
Section 4.01. Elimination. Pursuant to Section 9.02 of the Indenture,
Article 4 of the Indenture (captioned "Covenants"), is hereby amended as
follows:
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a. The text of each of the following Sections is deleted in
its entirety and replaced with "Intentionally omitted":
Section 4.02
Section 4.03
Section 4.04
Section 4.05
Section 4.06
Section 4.07
Section 4.08
Section 4.09
Section 4.12
Section 4.13
b. The text of Section 4.14 (i), (iii), (iv), (v), and (vi) is
deleted in its entirety and replaced with "Intentionally omitted".
ARTICLE FIVE
ELIMINATION OF SUCCESSOR COMPANY
Section 5.01. Elimination. Pursuant to Section 9.02 of the Indenture,
Article 5 of the Indenture (captioned "Successor Company"), is hereby amended as
follows:
a. The text of Section 5.01 is deleted in its entirety and
replaced with "Intentionally omitted".
ARTICLE SIX
ELIMINATION OF CERTAIN EVENTS OF DEFAULT
Section 6.01. Elimination. Pursuant to Section 9.02 of the Indenture,
Article 6 of the Indenture (captioned "Defaults and Remedies"), is hereby
amended as follows:
a. The text of Section 6.01(3)(i) is deleted in its entirety and
replaced with "Intentionally omitted".
b. The text of Section 6.01(4) is deleted in its entirety and
replaced with the following:
"the Company fails to comply with Section 4.11 or 4.15 or
any Pledgor fails to comply with any of its obligations
under the Security
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Documents and such failure continues for 30 days after the
notice specified below;"
c. The text of Section 6.01(5) text is deleted in its entirety
and replaced with the following:
"any representations and warranties of a Pledgor set forth
in the Security Documents proves to have been materially
false at the time it was made and is not cured within 60
days after the notice specified below;"
d. The text of each of Section 6.01(6) and 6.01(9) is deleted in
its entirety and replaced with "Intentionally omitted".
e. The last two paragraphs of Section 6.01 are deleted in
their entirety and replaced with the following:
"A Default under clause (4) or (5) is not an Event of
Default until the Trustee or the Holders of at least 25% in
principal amount of the Securities notify the Company of the
Default and the Company does not cure such Default within
the time specified after receipt of such Notice. Such Notice
must specify the Default, demand that it be remedied and
state that such notice is a "Notice of Default".
The Company shall deliver to the Trustee, within 30
days after the occurrence thereof, written notice in the
form of an Officers' Certificate of any event which with the
giving of notice and the lapse of time would become an Event
of Default under clause (4) or (5), its status and what
action the Company is taking or proposes to take with
respect thereto."
ARTICLE SEVEN
DISCHARGE OF INDENTURE; DEFEASANCE
Section 7.01. Elimination. Pursuant to Section 9.02 of the Indenture,
Article 8 of the Indenture (captioned "Discharge of Indenture; Defeasance"), is
hereby amended as follows:
a. The text of Section 8.01(b)(ii) is deleted in its entirety and
replaced with the following:
"their obligations under Sections 4.11, 4.14 or 4.15 and the
operation of Sections 6.01(3)(ii), 6.01(4), 6.01(7) (only
with respect to
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Significant Subsidiaries), 6.01(8) (only with respect to
Significant Subsidiaries), and 6.01(10) ("covenant
defeasance option")."
b. In the second full paragraph of Section 8.01(b), the
references to each of Section 6.01(6) and 6.01(9) in the second sentence are
deleted, and the phrase "or because of the failure of the Company to comply with
5.01(iii) or 5.01(iv)" is also deleted.
ARTICLE EIGHT
AMENDMENTS
Section 8.01. Elimination. Pursuant to Section 9.02 of the Indenture,
Article 9 of the Indenture (captioned "Amendments") is hereby amended as
follows:
a. The text of Section 9.01(2) is deleted in its entirety and
replaced with "Intentionally omitted".
ARTICLE NINE
MISCELLANEOUS
Section 9.01. Effect of Supplemental Indenture. This Supplemental
Indenture supplements the Indenture and shall be subject to all the terms
thereof. Except as supplemented hereby, the Indenture shall continue in full
force and effect.
Section 9.02. Confirmation and Preservation of Indenture. The Indenture
as supplemented by this Supplemental Indenture is in all respects confirmed and
preserved.
Section 9.03. Conflict With Trust Indenture Act. If any provision of
this Supplemental Indenture limits, qualifies or conflicts with another
provision which is required to be included in this Supplemental Indenture by the
TIA, the required provision shall control.
Section 9.04. Notices. Any notice or communication to be delivered to
the Company shall be delivered to the following address:
Benedek Broadcasting Corporation
000 Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Chief Financial Officer
Section 9.05. Severability. If any provision in this Supplemental
Indenture shall be invalid, illegal or otherwise unenforceable, then the
validity, legality or enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
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Section 9.06. Counterparts. This Supplemental Indenture may be executed
in any number of counterparts, each of which, when so executed and delivered,
shall be an original; such counterparts shall together constitute but one and
the same instrument.
Section 9.07. Effectiveness. This Supplemental Indenture shall be
effective as of the opening of business on the Payment Date (as defined in the
Tender Offer Documents).
Section 9.08. Recitals. The recitals contained herein shall be taken as
the statements of the Company. The Trustee assumes no responsibility for their
correctness. The Trustee makes no representations or warranties as to the
validity or sufficiency of this Supplemental Indenture.
Section 9.09. Governing Law. This Supplemental Indenture shall be
governed by and construed in accordance with the laws of the jurisdiction that
governs the Indenture and its construction.
[THE REST OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK.]
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed, all as of the day and year first above written.
BENEDEK BROADCASTING CORPORATION, as
Issuer
By: /s/ Xxxxxx X. Xxxxxxxx
----------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Senior Vice President-Finance
and Chief Financial Officer
BENEDEK LICENSE CORPORATION, as
Guarantor
By: /s/ Xxxxxx X. Xxxxxxxx
----------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Senior Vice President-Finance
and Chief Financial Officer
XXXXXX X. XXXXX, solely in his capacity
as Trustee under The WMTV Trust,
as Guarantor
By: /s/ Xxxxxx X. Xxxxxxxx
----------------------------------
Xxxxxx X. Xxxxx
WMTV LICENSE CO., LLC, as Guarantor
By: XXXXXX X. XXXXX, solely in his
capacity as Trustee under
The WMTV Trust, as Member
By: /s/ Xxxxxx X. Xxxxx
----------------------------------
Xxxxxx X. Xxxxx
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THE BANK OF NEW YORK, as Trustee
By: /s/ Xxxxxxx Xxxxxxx
----------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Vice President
9
STATE OF ILLINOIS )
) ss.
COUNTY OF WINNEBAGO )
This instrument was acknowledged before me on May 4, 1999 by Xxxxxx X.
Xxxxxxxx, Senior Vice President-Finance and Chief Financial Officer on behalf of
Benedek Broadcasting Corporation, a Delaware corporation. Given under my hand
and official seal this 4th day of May, 1999.
/s/
-----------------------------------------
Signature
Notary in and for the State of Illinois
[NOTARY SEAL APPEARS HERE]
10
STATE OF ILLINOIS )
) ss.
COUNTY OF WINNEBAGO )
This instrument was acknowledged before me on May 4, 1999 by Xxxxxx X.
Xxxxxxxx, Senior Vice President-Finance and Chief Financial Officer on behalf of
Benedek License Corporation, a Delaware corporation. Given under my hand and
official seal this 4th day of May, 1999.
/s/
----------------------------------------
Signature
Notary in and for the State of Illinois
[NOTARY SEAL APPEARS HERE]
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STATE OF KANSAS )
) ss.
COUNTY OF XXXXXXX )
This instrument was acknowledged before me on May 4, 1999 by Xxxxxx X.
Xxxxx, solely in his capacity as Trustee under The WMTV Trust, a Wisconsin
trust. Given under my hand and official seal this 4th day of May, 1999.
/s/
--------------------------------------
Signature
Notary in and for the State of Kansas
[NOTARY SEAL APPEARS HERE]
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STATE OF KANSAS )
) ss.
COUNTY OF XXXXXXX )
This instrument was acknowledged before me on May 4, 1999 by Xxxxxx X.
Xxxxx, solely in his capacity as Trustee under The WMTV Trust, on behalf of WMTV
License Co., LLC, as Member. Given under my hand and official seal this 4th day
of May, 1999.
/s/
--------------------------------------
Signature
Notary in and for the State of Kansas
[NOTARY SEAL APPEARS HERE]
00
XXXXX XX XXX XXXX )
) ss.
COUNTY OF NEW YORK )
This instrument was acknowledged before me on May 5, 1999 by Xxxxxxx
Xxxxxxx, Vice President, on behalf of The Bank of New York, a New York banking
corporation. Given under my hand and official seal this 5th day of May, 1999.
/s/
--------------------------------
Signature
Notary in and for the State of New York
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