EXECUTION
LIMITED WAIVER
AND FIRST AMENDMENT TO CREDIT AGREEMENT
This LIMITED WAIVER AND FIRST AMENDMENT TO CREDIT AGREEMENT (this
"AMENDMENT") is dated as of May 6, 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
Section 5 hereof, Benedek License Corporation, a Delaware corporation ("BLC"),
and is made with reference to that certain Amended and Restated Credit Agreement
dated as of December 17, 1997 (the "CREDIT AGREEMENT"), by and among BCC,
Company, Lenders and Agent. Capitalized terms used herein without definition
shall have the same meanings herein as set forth in the Credit Agreement.
RECITALS
WHEREAS, BCC, Company and Lenders desire to (i) amend the Credit
Agreement to permit BCC to issue $100,000,000 in aggregate principal amount of
__% Senior Exchangeable Preferred Stock, (ii) make certain other amendments as
set forth below and (iii) permit the net proceeds resulting from the sale of
such __% Senior Exchangeable Preferred Stock to be utilized to (a) redeem 100%
of the Exchangeable Preferred Stock and (b) for other general corporate
purposes.
NOW, THEREFORE, in consideration of the premises and the agreements,
provisions and covenants herein contained, the parties hereto agree as follows:
SECTION 1
AMENDMENTS TO THE CREDIT AGREEMENT
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:
"NEW EXCHANGE DEBENTURE INDENTURE" means the indenture pursuant to
which the New Exchange Indentures may be issued in the form described
in the draft Offering Memorandum dated April 28, 1998 and otherwise in
form and substance satisfactory to Agent and delivered to Lenders on or
before May 15, 1998, as such indenture may be amended from time to time
to the extent permitted under subsection 6.14.
"NEW EXCHANGE DEBENTURES" means the ___% Exchange Debentures due 2008
of BCC which may be issued pursuant to the New Exchange Debenture
Indenture in exchange for the New Exchangeable Preferred Stock.
"NEW EXCHANGEABLE PREFERRED CERTIFICATE OF DESIGNATION" means the
provisions of BCC's Certificate of Designation, Preferences Relative,
Participating, Optional and Other Special Rights of Preferred Stock and
Qualifications, Limitations and Restrictions Thereof relating to the
New Exchangeable Preferred Stock, in the form described in the draft
Offering Memorandum dated April 28, 1998 and otherwise in form and
substance satisfactory to Agent and delivered to Lenders on or before
May 15, 1998, and as such provisions may be amended from time to time
thereafter to the extent permitted under subsection 6.14.
"NEW EXCHANGEABLE PREFERRED STOCK" means the __% Exchangeable Preferred
Stock due 2008 of BCC, par value $.01 per share, with a liquidation
preference of $1,000 per share and with the other terms set forth in
the New Exchangeable Preferred Certificate of Designation.
"LIQUIDATED DAMAGES" means additional dividends or interest payable at
the rate of 0.5% per annum on the New Exchangeable Preferred Stock or
New Exchange Debentures, as the case may be, as a result of BCC's
failure to comply with the registration rights granted in connection
therewith.
B. Subsection 1.1 of the Credit Agreement is hereby further amended by
deleting the definition of "Related Agreements" therefrom in its entirety and
substituting the following therefor:
"RELATED AGREEMENTS" means, collectively, the Xxxxxxxxx Acquisition
Agreement, the Xxxxxxxx Acquisition Agreement, the Exchangeable
Preferred Certificate of Designation, the New Exchangeable Preferred
Certificate of Designation, the Seller Preferred Certificate of
Designation, the Existing Senior Note Indenture, the Senior
Subordinated Note Indenture, the Warrant Agreement, the Exchange
Debentures, the New Exchange Debentures, the Exchange Debenture
Indenture and the New Exchange Debenture Indenture.
C. Subsection 1.1 of the Credit Agreement is hereby further amended by
inserting the phrase "Liquidated Damages, if any," immediately following the
second reference to "including" in the definition of "Consolidated Interest
Expense" and immediately prior to the reference to "all commissions" in such
definition.
D. Subsection 1.1 of the Credit Agreement is hereby further amended by
deleting clause (ii) of the definition of "Subordinated Indebtedness" and
substituting the following therefor:
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"(ii) any Indebtedness of BCC evidenced by the Exchange Debentures or
the New Exchange Debentures and".
1.2 AMENDMENTS TO SECTION 4: COMPANY'S REPRESENTATIONS AND WARRANTIES
A. Subsection 4.2C of the Credit Agreement is hereby amended by
inserting the phrase ",New Exchangeable Preferred Stock" immediately after the
reference to "Exchangeable Preferred Stock" contained therein .
B. Subsection 4.2E(i) of the Credit Agreement is hereby amended by
deleting it in its entirety and substituting the following therefor:
"(i) Seller Preferred Stock, Exchangeable Preferred Stock, New
Exchangeable Preferred Stock and Warrants. The Seller Preferred Stock,
Exchangeable Preferred Stock and Warrants sold on or before the
Acquisition Date are duly and validly issued, fully paid and
nonassessable. The New Exchangeable Preferred Stock sold on or before
May 15, 1998 is or will be, as the case may be, duly and validly
issued, fully paid and non-assessable. No stockholder of BCC has or
will have any preemptive rights to subscribe for any additional equity
Securities of BCC, except that holders of the Warrants shall have the
right to exchange the Warrants for Class A Common Stock of BCC in
accordance with the terms thereof. The issuance and sale of such Seller
Preferred Stock, Exchangeable Preferred Stock, New Exchangeable
Preferred Stock and Warrants, have either (a) been registered or
qualified under applicable federal and state securities laws or (b) are
exempt therefrom.
1.3 AMENDMENTS TO SECTION 5: COMPANY'S AFFIRMATIVE COVENANTS
A. Subsection 5.1(x) of the Credit Agreement is hereby amended by
inserting the phrase "New Exchangeable Preferred Certificate of Designation"
immediately after the reference to "Exchangeable Preferred Certificate of
Designation," contained in clause (d) of subsection 5.1(x).
B. Subsection 5.2 of the Credit Agreement is hereby amended by
inserting the phrase ",New Exchangeable Preferred Stock" immediately following
the first reference to "Seller Preferred Stock" and immediately prior to the
reference to "and/or Exchangeable Preferred Stock".
C. Section 5 of the Credit Agreement is hereby further amended by
adding the following new subsection thereto:
"5.15 NEW EXCHANGEABLE PREFERRED STOCK.
On or before May 15, 1998, each of BCC and Company shall
deliver to Lenders a copy of each of the documents, agreements,
certificates and instruments executed and delivered or to be executed
and delivered in connection with the New
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Exchangeable Preferred Stock, including, without limitation, the New
Exchangeable Preferred Certificate of Designation, the New Exchange
Debentures, and the New Exchange Debenture Indenture (collectively, the
"NEW EXCHANGEABLE PREFERRED STOCK DOCUMENTS"), and such New
Exchangeable Preferred Stock Documents shall be in the form described
in that certain draft Offering Memorandum dated April 28, 1998 and
otherwise in form and substance satisfactory to Agent."
1.4 AMENDMENTS TO SECTION 6: COMPANY'S NEGATIVE COVENANTS
A. Subsection 6.5 of the Credit Agreement is hereby amended by deleting
the reference to "and" contained in clause (v) thereof, deleting the reference
to "." in clause (vi) thereof and substituting a reference to "; and" therefor
and inserting the following "(vii) BCC may pay any Liquidated Damages required
to be paid in connection with the New Exchangeable Preferred Stock."
B. Subsection 6.13 of the Credit Agreement is hereby amended by
inserting a reference to ", New Exchangeable Preferred Stock" immediately
following the reference to "Exchangeable Preferred Stock and Warrants" contained
therein.
SECTION 2
WAIVER
2.1 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 waive compliance with (i) the provisions of
subsections 5.12A of the Credit Agreement to the extent, and only to the extent,
necessary to permit (a) BCC to apply up to $97,000,000 of the net proceeds of
the New Exchangeable Preferred Stock (the "NET NEW SECURITIES PROCEEDS") to (1)
redeem all of the issued and outstanding Exchangeable Preferred Stock, (2) pay
any premium in connection with the redemption of the Exchangeable Preferred
Stock and (3) pay fees and expenses in connection with the issuance of New
Exchangeable Preferred Stock and the redemption of the Exchangeable Preferred
Stock and (b) BCC to apply the balance of such Net New Securities Proceeds (the
"NET SECURITIES PROCEEDS BALANCE") to its general corporate purposes; provided
that BCC will redeem all of the issued and outstanding Exchangeable Preferred
Stock on or before June 15, 1998, (ii) the provisions of subsection
2.4(B)(iii)(f) of the Credit Agreement to the extent, and only to the extent,
necessary to permit Company to apply the portion of the Net Securities Proceeds
Balance that constitute Net Contribution Proceeds, if any, to its general
corporate purposes, including to repay the Revolving Loans without permanently
reducing the Revolving Loan Commitments and (iii) the provisions of subsection
6.5 of the Credit Agreement to the extent, and solely to the extent, necessary
to permit BCC to redeem all of the issued and outstanding Exchangeable Preferred
Stock with, together with the payment of any premiums in connection with the
redemption of the Exchangeable Preferred Stock and any fees and expenses in
connection with the issuance of the New Exchangeable Preferred Stock and the
redemption of the Exchangeable Preferred Stock, up to $97,000,000 of the Net
New Securities Proceeds of the
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sale of the New Exchangeable Preferred Stock; provided that BCC shall have
redeemed all of the issued and outstanding Exchangeable Preferred Stock on or
before June 15, 1998.
2.2 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, as the
case may be, with the provisions of subsections 5.12A, 2.4B(iii)(f) and 6.5 of
the Credit Agreement in the manner and to the extent described above, and
nothing in this Section 2 shall be deemed to:
(a) constitute a waiver of compliance by BCC and Company, as the
case may be, with respect to (i) subsections 5.12A, 2.4B(iii)(f) and
6.5 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 issuance, sale or redemption described herein 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 Section 2) 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
CONDITIONS TO EFFECTIVENESS
Section 1 and Section 2 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 "FIRST AMENDMENT
EFFECTIVE DATE"):
A. On or before the First Amendment Effective Date, each of BCC,
Company and BLC 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 First
Amendment Effective Date:
(i) Resolutions of its Board of Directors approving and authorizing
the execution, delivery, and performance of this Amendment and each of
the New Exchangeable Preferred Stock Documents, certified as of the
First Amendment Effective Date by its corporate secretary or an
assistant secretary as being in full force and effect without
modification or amendment;
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(ii) Signature and incumbency certificates of its officers
executing this Amendment; and
(iii) Executed copies of this Amendment.
B. On or before the First 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 (other than New Exchangeable Preferred Stock Documents to be
executed and delivered after the First Amendment Effective Date) as Agent may
reasonably request.
SECTION 4
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 and Company
represents and warrants to each Lender that the following statements are true,
correct and complete:
A. CORPORATE POWER AND AUTHORITY. Each of BCC and Company has all
requisite corporate power and authority to enter into this Amendment and to
carry out the transactions contemplated by, and perform its obligations under,
the Credit Agreement as amended by this Amendment (the "AMENDED AGREEMENT") and
the New Exchangeable Preferred Stock Documents.
B. AUTHORIZATION OF AGREEMENTS. The execution and delivery of this
Amendment and the New Exchangeable Preferred Stock Documents have been duly
authorized by all necessary corporate action on the part of Company and BCC, as
the case may be.
C. NO CONFLICT. The execution and delivery by each of BCC and Company
of this Amendment and the New Exchangeable Preferred Stock Documents and the
performance by each of BCC and Company of the Amended Agreement and the New
Exchangeable Preferred Documents 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, the Certificate or Articles of Incorporation or Bylaws of BCC
or any of its Subsidiaries or any order, judgment or decree of any court or
other agency of government binding on BCC or any of its 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 or any of its
Subsidiaries, (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, or (iv)
require any approval of stockholders or any approval or consent of any Person
under any Contractual Obligation of BCC or any of its Subsidiaries,
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except for such approvals or consents which have been obtained on or before the
First Amendment Effective Date and disclosed in writing to Lender.
D. GOVERNMENTAL CONSENTS. The execution and delivery by each of BCC and
Company of this Amendment and the New Exchangeable Preferred Stock Documents and
the performance by each of BCC and Company of the Amended Agreement and the New
Exchangeable Preferred Stock Documents 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 New Exchangeable Preferred
Stock Documents will be, duly executed and delivered by each of BCC and Company
and this Amendment and the Amended Agreement are and, upon their execution and
delivery, the New Exchangeable Preferred Stock Documents will be, 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 Amendment
that would constitute an Event of Default or a Potential Event of Default.
H. ORGANIZATIONAL DOCUMENTS. None of the Certificate of Incorporation,
Bylaws or any other constating document of any of BCC, Company or BLC has been
amended, modified or otherwise supplemented since December 17, 1997 and the
Certificates of Incorporation, Bylaws and other constating documents of each of
BCC, Company and BLC 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.
SECTION 5
ACKNOWLEDGMENT AND CONSENT
BLC 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 BLC under the License
Sub Guaranty and each of the other
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Loan Documents to which it is a party shall not be impaired and the License Sub
Guaranty and each of the other 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.
SECTION 6
MISCELLANEOUS
A. REFERENCE TO AND EFFECT ON THE CREDIT AGREEMENT AND THE OTHER LOAN
DOCUMENTS.
(i) 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 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
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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 3 hereof) shall become
effective upon the execution of a counterpart hereof by BCC, Company, BLC and
Requisite Lenders and receipt by Company and Agent of written or telephonic
notification of such execution and authorization of delivery thereof.
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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/ Xxxxxx X. Xxxxxxxx
_________________________
Title:
COMPANY:
BENEDEK BROADCASTING CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxx
_________________________
Title:
LENDERS:
BANKERS TRUST COMPANY,
individually and as Agent
By: /s/_______________________
Title:
NORTHWESTERN MUTUAL LIFE
INSURANCE COMPANY
By: /s/_______________________
Title:
S-1
PILGRIM AMERICA PRIME RATE TRUST
By: PILGRIM AMERICA INVESTMENTS, INC.,
as its Investment Manager
By: /s/ XXXXXX X. XXXX
__________________________________
Xxxxxx X. Xxxx
Title: Assistant Portfolio Manager
PRIME INCOME TRUST
By: /s/ _______________________
Title: Authorized Signatory
KZH HOLDING CORPORATION III
By: _________________________
Title:
SENIOR DEBT PORTFOLIO
BY: BOSTON MANAGEMENT RESEARCH, AS
Investment Advisor
By: /s/ Xxxxx X. Page
______________________
Xxxxx X. Page
Title: Vice President
CANADIAN IMPERIAL BANK OF COMMERCE
By: _________________________
Title:
XXX XXXXXX CLO I, LIMITED
By: XXX XXXXXX AMERICAN CAPITAL
MANAGEMENT, INC.,
as Collateral Manager
By: /s/ Xxxxxxx X. Xxxxxx
_________________________
Xxxxxxx X. Xxxxxx
Title: Senior Vice President
& Director
S-2
XXX XXXXXX CLO I, LIMITED
By: XXX XXXXXX AMERICAN CAPITAL
MANAGEMENT, INC.,
as Collateral Manager
By: _________________________
Title:
XXX XXXXXX AMERICAN CAPITAL
PRIME RATE INCOME TRUST
By: /s/ Xxxxxxx X. Xxxxxx
_________________________
Xxxxxxx X. Xxxxxx
Title: Senior Vice President
MASSACHUSETTS MUTUAL LIFE
INSURANCE COMPANY
By: /s/
________________________
Title: Manager Director
STRATA FUNDING LTD.
By: /s/
__________________________
Title: Director
S-3
ACKNOWLEDGED AND CONSENTED
TO AS OF MAY 6, 1998:
BENEDEK LICENSE CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxx
_________________________
Title:
S-4
