EXHIBIT 10.15
EXECUTION
AMENDED AND RESTATED TANGIBLE ASSETS SECURITY AGREEMENT
THIS AMENDED AND RESTATED TANGIBLE ASSETS SECURITY AGREEMENT (this
"Agreement") is dated as of December 17, 1997 and entered into by and between
BENEDEK BROADCASTING CORPORATION, a Delaware corporation ("Grantor"), and
BANKERS TRUST COMPANY ("Bankers"), as agent for and representative of (in such
capacity herein called "Agent") Secured Parties referred to below.
PRELIMINARY STATEMENTS
▇. ▇▇▇▇▇▇▇ Communications Corporation and Grantor have entered into an
Amended and Restated Credit Agreement dated as of December 17, 1997 (said
Amended and Restated Credit Agreement, as it may hereafter be amended,
supplemented or otherwise modified from time to time, being the "Amended Credit
Agreement", the terms defined therein and not otherwise defined herein being
used herein as therein defined), by and among Benedek Communications
Corporation, Grantor, the financial institutions listed therein as Lenders
("Lenders"), and Bankers Trust Company, as Agent, which Amended Credit Agreement
amends and restates that certain Credit Agreement, dated as of June 6, 1996
(said Credit Agreement, as heretofore amended, supplemented or otherwise
modified, being the "Existing Credit Agreement"), with the financial
institutions listed therein, Pearl Street L.P., as Arranging Agent, ▇▇▇▇▇▇▇,
▇▇▇▇▇ & Co., as Syndication Agent, and Canadian Imperial Bank of Commerce, New
York Agency ("CIBC"), as Administrative Agent and Collateral Agent, pursuant to
which Lenders have made certain commitments, subject to the terms and conditions
set forth in the Amended Credit Agreement, to, among other things, convert and
continue certain credit facilities, including the Term Loans initially extended
as AXELs to Grantor pursuant to the Existing Credit Agreement.
B. Grantor has entered into that certain Indenture, dated as of March
1, 1995 (said Indenture, as amended, supplemented or otherwise modified from
time to time, being the "Existing Senior Note Indenture"), with Benedek
Broadcasting Company, L.L.C., a Delaware limited liability company and
subsidiary of Grantor, and The Bank of New York, as trustee (the "Senior Note
Trustee"), pursuant to which Grantor has issued $135,000,000 aggregate principal
amount of 11-7/8% Senior Secured Notes due 2005 (the "Existing Senior Notes"),
and it is a requirement under the Existing Senior Note Indenture that Grantor
secure such obligations equally and ratably with its other obligations secured
hereby.
C. Grantor may heretofore have entered into and may from time to time
hereafter enter into one or more Interest Rate Agreements (collectively, the
"Lender
Interest Rate Agreements") with one or more Lenders or Affiliates of Lenders (in
such capacity, collectively, "Interest Rate Exchangers") in accordance with the
terms of the Amended Credit Agreement, and it is desired that the obligations of
Grantor under the Lender Interest Rate Agreements, including without limitation
the obligation of Grantor to make payments thereunder in the event of early
termination thereof, together with all obligations of Grantor under the Amended
Credit Agreement and the other Loan Documents, be secured hereunder.
D. As a condition precedent to the Existing Credit Agreement, Grantor
executed and delivered that certain Tangible Assets Security Agreement dated as
of June 6, 1996 (the "Existing Tangible Assets Security Agreement") in favor of
CIBC, in its capacity as agent for and representative of the Secured Parties (as
defined in such Existing Tangible Assets Security Agreement).
E. The obligations of Grantor under the Existing Credit Agreement, the
Existing Senior Note Indenture, and the Existing Senior Notes have been secured
by security interests granted pursuant the Existing Tangible Assets Security
Agreement.
F. It is a condition precedent to the execution and delivery of the
Amended and Restated Credit Agreement by Lenders execution and delivery of the
Amended Credit Agreement that Grantor shall have amended and restated the
Existing Acquired Tangible Assets Security Agreement to modify the provisions
thereof as provided herein.
G. Grantor desires to amend and restate the Existing Tangible Assets
Security Agreement in order to confirm the continuation of, and to grant
security interests in all of the Collateral (as hereinafter defined) in favor of
Agent, on behalf of the Secured Parties (as hereinafter defined), as security
for Grantor's performance of its obligations under the Amended Credit Agreement,
the other Loan Documents, the Existing Senior Note Indenture and the Existing
Senior Notes.
H. Agent is willing to act as agent hereunder for the benefit of (i)
Agent, (ii) Lenders, (iii) the Senior Note Trustee, (iv) the holders of the
Existing Senior Notes (the "Noteholders"), and (v) Interest Rate Exchangers
(each of Agent, Lenders, the Senior Note Trustee, the Noteholders and Interest
Rate Exchangers is hereinafter referred to as a "Secured Party" and
collectively, as "Secured Parties").
NOW, THEREFORE, in consideration of the premises and in order to induce
Lenders to convert and continue the Loans initially made pursuant to the
Existing Credit Agreement and to make other extensions of credit under the
Amended Credit Agreement and to induce Interest Rate Exchangers to enter into
the Lender Interest Rate Agreements, and for other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged,
Grantor hereby agrees with Agent as follows:
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SECTION 1. Grant of Security.
Grantor hereby assigns to Agent, and hereby grants to Agent a security
interest in, all of Grantor's right, title and interest in and to the following,
in each case whether now or hereafter existing or in which Grantor now has or
hereafter acquires an interest and wherever the same may be located, but
excluding any of the following to the extent it constitutes "Collateral" as
defined in the Company Acquired Assets Security Agreement (the "Collateral"):
(a) all equipment in all of its forms, all parts thereof and
all accessions thereto (any and all such equipment, parts and
accessions being the "Equipment");
(b) all inventory in all of its forms (including, but not
limited to, (i) all goods held by Grantor for sale or lease or to be
furnished under contracts of service or so leased or furnished, (ii)
all raw materials, work in process, finished goods, and materials used
or consumed in the manufacture, packing, shipping, advertising,
selling, leasing, furnishing or production of such inventory or
otherwise used or consumed in Grantor's business, (iii) all goods in
which Grantor had an interest in mass or a joint or other interest or
right of any kind, and (iv) all goods which are returned to or
repossessed by Grantor) and all accessions thereto and products
thereof (all such inventory, accessions and products being the
"Inventory") and all negotiable documents of title (including without
limitation warehouse receipts, dock receipts and bills of lading)
issued by any Person covering any Inventory (any such negotiable
document of title being a "Negotiable Document of Title");
(c) all deposit accounts of Grantor;
(d) all plant fixtures, business fixtures and other fixtures
and storage and office facilities, and all accessions thereto and
products thereof;
(e) all books, records, ledger cards, files, correspondence,
computer programs, tapes, disks and related data processing software
that at any time evidence or contain information relating to any of the
Collateral or are otherwise necessary or helpful in the collection
thereof or realization thereupon; and
(f) all proceeds, products, rents and profits of or from any
and all of the foregoing Collateral and, to the extent not otherwise
included, all payments under insurance (whether or not Agent is the
loss payee thereof), or any indemnity, warranty or guaranty, payable by
reason of loss or damage to or otherwise with respect to any of the
foregoing Collateral. For purposes of this Agreement, the term
"proceeds" includes whatever is receivable or received when Collateral
or proceeds are sold, exchanged, collected or otherwise disposed of,
whether such disposition is voluntary or involuntary.
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The foregoing assignment and grant of security interest confirms the
assignment and grant of a first priority interest in the Collateral granted
pursuant to the Existing Tangible Assets Security Agreement and continues in all
respects the assignment and grant in the Existing Tangible Assets Security
Agreement with respect to the Collateral without in any way causing an
interruption in the continuity from such original assignment and grant.
SECTION 2. Security for Obligations.
This Agreement secures, and the Collateral is collateral security for,
the prompt payment or performance in full when due, whether at stated maturity,
by required prepayment, declaration, acceleration, demand or otherwise
(including the payment of amounts that would become due but for the operation of
the automatic stay under Section 362(a) of the Bankruptcy Code, 11 U.S.C.
'SS'362(a)), of all obligations and liabilities of every nature of Grantor now
or hereafter existing under or arising out of or in connection with (i) the
Amended Credit Agreement, the Notes and all other Loan Documents, (ii) the
Existing Senior Note Indenture and the Existing Senior Notes, and (iii) the
Lender Interest Rate Agreements, and all extensions or renewals thereof, whether
for principal, interest (including without limitation interest that, but for the
filing of a petition in bankruptcy with respect to Grantor, would accrue on such
obligations), payments for early termination of Lender Interest Rate Agreements,
fees, expenses, indemnities or otherwise, whether voluntary or involuntary,
direct or indirect, absolute or contingent, liquidated or unliquidated, whether
or not jointly owed with others, and whether or not from time to time decreased
or extinguished and later increased, created or incurred, and all or any portion
of such obligations or liabilities that are paid, to the extent all or any part
of such payment is avoided or recovered directly or indirectly from Agent or any
Secured Party as a preference, fraudulent transfer or otherwise and all
obligations of every nature of Grantor now or hereafter existing under this
Agreement (all such obligations of Grantor being the "Secured Obligations").
SECTION 3. Grantor Remains Liable.
Anything contained herein to the contrary notwithstanding, (a) Grantor
shall remain liable under any contracts and agreements included in the
Collateral, to the extent set forth therein, to perform all of its duties and
obligations thereunder to the same extent as if this Agreement had not been
executed, (b) the exercise by Agent of any of its rights hereunder shall not
release Grantor from any of its duties or obligations under the contracts and
agreements included in the Collateral, and (c) Agent shall not have any
obligation or liability under any contracts and agreements included in the
Collateral by reason of this Agreement, nor shall Agent be obligated to perform
any of the obligations or duties of Grantor thereunder or to take any action to
collect or enforce any claim for payment assigned hereunder.
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SECTION 4. Representations and Warranties.
Grantor represents and warrants as follows:
(a) Ownership of Collateral. Except for the security interest
created by this Agreement, Grantor owns, or with respect to Collateral
acquired after the date hereof will own, the Collateral free and clear
of any Lien except as permitted by the Amended Credit Agreement.
(b) Location of Equipment and Inventory. All of the Equipment
and Inventory is, as of the date hereof, located at certain of the
places specified in Schedule I annexed hereto.
(c) Office Locations; Other Names. The chief place of
business, the chief executive office and the office where Grantor keeps
its records regarding the Collateral is, and has been for the
four-month period preceding the date hereof, as set forth on Schedule
II annexed hereto. Grantor has not in the past done, and does not now
do, business under any other name (including any trade-name or
fictitious business name) except as specified on Schedule II annexed
hereto.
(d) Perfection. This Agreement, together with the filing of
UCC financing statements describing the Collateral with the filing
offices indicated on Schedule III annexed hereto, creates a valid,
perfected and, except for Liens permitted pursuant to the Amended
Credit Agreement, first priority security interest in all Collateral in
which a security interest may be perfected by the filing of a financing
statement, securing the payment of the Secured Obligations.
SECTION 5. Further Assurances.
(a) Grantor agrees that from time to time, at the expense of Grantor,
Grantor will promptly execute and deliver all further instruments and documents,
and take all further action, that may be necessary or desirable, or that Agent
may request, in order to perfect and protect any security interest granted or
purported to be granted hereby or to enable Agent to exercise and enforce its
rights and remedies hereunder with respect to any Collateral. Without limiting
the generality of the foregoing, Grantor will: (i) execute and file such
financing or continuation statements, or amendments thereto, and such other
instruments or notices, as may be necessary or desirable, or as Agent may
request, in order to perfect and preserve the security interests granted or
purported to be granted hereby, (ii) at Agent's request, promptly after the
acquisition by Grantor of any item of Equipment which is covered by a
certificate of title under a statute of any jurisdiction under the law of which
indication of a security interest on such certificate is required as a condition
of perfection thereof, execute and file with the registrar of motor vehicles or
other appropriate authority in such jurisdiction an application or other
document requesting the notation or other indication of the security interest
created hereunder on such certificate of title,
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(iii) within 30 days after the end of each calendar quarter, deliver to Agent
copies of all such applications or other documents filed during such calendar
quarter and copies of all such certificates of title issued during such calendar
quarter indicating the security interest created hereunder in the items of
Equipment covered thereby, (iv) at any reasonable time, upon request by Agent,
exhibit the Collateral to and allow inspection of the Collateral by Agent, or
persons designated by Agent, and (v) at Agent's request, appear in and defend
any action or proceeding that may affect Grantor's title to or Agent's security
interest in all or any part of the Collateral.
(b) Grantor hereby authorizes Agent to file one or more financing or
continuation statements, and amendments thereto, relative to all or any part of
the Collateral without the signature of Grantor. Grantor agrees that a carbon,
photographic or other reproduction of this Agreement or of a financing statement
signed by Grantor shall be sufficient as a financing statement and may be filed
as a financing statement in any and all jurisdictions.
(c) Grantor will furnish to Agent from time to time statements and
schedules further identifying and describing the Collateral and such other
reports in connection with the Collateral as Agent may reasonably request, all
in reasonable detail.
SECTION 6. Certain Covenants of Grantor.
Grantor shall:
(a) not use or permit any Collateral to be used
unlawfully or in violation of any provision of this Agreement or any
applicable statute, regulation or ordinance or any policy of insurance
covering the Collateral;
(b) notify Agent of any change in Grantor's name,
identity or corporate structure within 15 days of such change;
(c) keep its chief place of business and chief executive
office, the office where it keeps its records concerning Collateral,
and its Equipment and Inventory at the locations therefor specified in
Section 4 hereof, or, upon 30 days' prior written notice to Agent, at
such other locations in jurisdictions where all action that may be
necessary or desirable, or that Agent may request, in order to perfect
and protect any security interest granted or purported to be granted
hereby, or to enable Agent to exercise and enforce its rights and
remedies hereunder, with respect to the Collateral shall have been
taken. Grantor will hold and preserve such records and will permit
representatives of Agent at any time during normal business hours to
inspect and make abstracts from such records, and Grantor agrees to
render to Agent, at Grantor's cost and expense, such clerical and other
assistance as may be reasonably requested with regard thereto;
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(d) if Agent gives value to enable Grantor to acquire rights
in or the use of any Collateral, use such value for such purposes; and
(e) pay promptly when due all property and other taxes,
assessments and governmental charges or levies imposed upon, and all
claims (including claims for labor, materials and supplies) against,
the Collateral, except to the extent the validity thereof is being
contested in good faith; provided that Grantor shall in any event pay
such taxes, assessments, charges, levies or claims not later than five
days prior to the date of any proposed sale under any judgement, writ
or warrant of attachment entered or filed against Grantor or any of the
Collateral as a result of the failure to make such payment.
SECTION 7. Insurance.
Grantor shall, at its own expense, maintain insurance with respect to
the Equipment and Inventory in accordance with the terms of the Amended Credit
Agreement.
SECTION 8. Transfers, Other Liens and Release of Collateral.
(a) Grantor shall not:
(i) except as permitted by the Amended Credit Agreement,
sell, assign (by operation of law or otherwise) or otherwise dispose
of any of the Collateral; or
(ii) except for the security interest created by this
Agreement, create or suffer to exist any Lien upon or with respect to
any of the Collateral to secure the indebtedness or other obligations
of any Person.
(b) In the event Collateral is sold in an Asset Sale permitted under
the Amended Credit Agreement, Agent may release the Liens granted hereunder on
the Collateral that is the subject of such Asset Sale in accordance with the
provisions of the Amended Credit Agreement. The Noteholders hereby agree, by
their acceptance of the benefits of this Agreement, that the Agent may release
Collateral in accordance with this Section 8(b) and the Amended Credit Agreement
without the consent or approval of any Noteholder.
SECTION 9. Agent Appointed Attorney-in-Fact.
Grantor hereby irrevocably appoints Agent as Grantor's
attorney-in-fact, with full authority in the place and stead of Grantor and in
the name of Grantor, Agent or otherwise, from time to time in Agent's discretion
to take any action and to execute any instrument that Agent may deem necessary
or advisable to accomplish the purposes of this Agreement, including without
limitation:
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(a) to obtain and adjust insurance required to be maintained
by Grantor or paid to Agent pursuant to Section 7;
(b) upon the occurrence and during the continuation of an
Event of Default, to ask for, demand, collect, ▇▇▇ for, recover,
compound, receive and give acquittance and receipts for moneys due and
to become due under or in respect of any of the Collateral;
(c) upon the occurrence and during the continuation of an
Event of Default, to receive, endorse and collect any drafts or other
instruments, documents and chattel paper in connection with clauses (a)
and (b) above;
(d) upon the occurrence and during the continuation of an
Event of Default, to file any claims or take any action or institute
any proceedings that Agent may deem necessary or desirable for the
collection of any of the Collateral or otherwise to enforce the rights
of Agent with respect to any of the Collateral;
(e) to pay or discharge taxes or Liens (other than Liens
permitted under (i) this Agreement or the Amended Credit Agreement and
(ii) the Existing Senior Note Indenture) levied or placed upon or
threatened against the Collateral, the legality or validity thereof and
the amounts necessary to discharge the same to be determined by Agent
in its sole discretion, any such payments made by Agent to become
obligations of Grantor to Agent, due and payable immediately without
demand;
(f) upon the occurrence and during the continuation of an
Event of Default, to sign and endorse any invoices, freight or express
bills, bills of lading, storage or warehouse receipts, drafts against
debtors, assignments, verifications and notices in connection with
documents relating to the Collateral;
(g) upon the occurrence and during the continuation of an
Event of Default, to file, or cause to be filed, to the extent
permitted by law, such applications for approval and to take all other
and further actions required to obtain any approvals or consents from
the FCC required for the exercise of any right or remedy hereunder; and
(h) upon the occurrence and during the continuation of an
Event of Default, generally to sell, transfer, pledge, make any
agreement with respect to or otherwise deal with any of the Collateral
as fully and completely as though Agent were the absolute owner thereof
for all purposes, and to do, at Agent's option and Grantor's expense,
at any time or from time to time, all acts and things that Agent deems
necessary to protect, preserve or realize upon the Collateral and
Agent's security interest therein in order to effect the intent of this
Agreement, all as fully and effectively as Grantor might do.
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SECTION 10. Agent May Perform.
If Grantor fails to perform any agreement contained herein, Agent may
itself perform, or cause performance of, such agreement, and the expenses of
Agent incurred in connection therewith shall be payable by Grantor under Section
15(b).
SECTION 11. Standard of Care.
(a) The powers conferred on Agent hereunder are solely to protect its
interest in the Collateral and shall not impose any duty upon it to exercise any
such powers. Except for the exercise of reasonable care in the custody of any
Collateral in its possession and the accounting for moneys actually received by
it hereunder, Agent shall have no duty as to any Collateral or as to the taking
of any necessary steps to preserve rights against prior parties or any other
rights pertaining to any Collateral. Agent shall be deemed to have exercised
reasonable care in the custody and preservation of Collateral in its possession
if such Collateral is accorded treatment substantially equal to that which Agent
accords its own property.
(b) Neither Agent nor any Secured Party shall be liable to Grantor (i)
for any loss or damage sustained by it, or (ii) for any loss, damage,
depreciation or other diminution in the value of any of the Collateral that may
occur as a result of, in connection with or that is an any way related to (1)
any exercise by Agent or any Secured Party of any right or remedy under this
Agreement or (2) any other act of or failure to act by Agent or any Secured
Party, except to the extent that the same shall be determined by a final
judgment of a court of competent jurisdiction that is final and not subject to
review on appeal, to be the result of acts or omissions on the part of Agent or
such Secured Party constituting gross negligence or willful misconduct.
(c) NO CLAIM MAY BE MADE BY GRANTOR AGAINST AGENT, ANY SECURED PARTY OR
THEIR RESPECTIVE AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, ATTORNEYS OR AGENTS
FOR ANY SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES IN RESPECT OF ANY BREACH OR
WRONGFUL CONDUCT (WHETHER THE CLAIM THEREFOR IS BASED ON CONTRACT, TORT OR DUTY
IMPOSED BY LAW) IN CONNECTION WITH, ARISING OUT OF OR IN ANY WAY RELATED TO THE
TRANSACTIONS CONTEMPLATED AND RELATIONSHIP ESTABLISHED BY THIS AGREEMENT, OR ANY
ACT, OMISSION OR EVENT OCCURRING IN CONNECTION THEREWITH; AND GRANTOR HEREBY
WAIVES, RELEASES AND AGREES NOT TO ▇▇▇ UPON ANY SUCH CLAIM FOR ANY SUCH DAMAGES,
WHETHER OR NOT ACCRUED AND WHETHER OR NOT KNOWN OR SUSPECTED TO EXIST IN ITS
FAVOR.
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SECTION 12. Remedies.
(a) If any Event of Default shall have occurred and be continuing,
Agent may exercise in respect of the Collateral, in addition to all other rights
and remedies provided for herein or otherwise available to it, all the rights
and remedies of a secured party on default under the Uniform Commercial Code as
in effect in any relevant jurisdiction (the "Code") (whether or not the Code
applies to the affected Collateral), and also may (i) require Grantor to, and
Grantor hereby agrees that it will at its expense and upon request of Agent
forthwith, assemble all or part of the Collateral as directed by Agent and make
it available to Agent at a place to be designated by Agent that is reasonably
convenient to both parties, (ii) enter onto the property where any Collateral is
located and take possession thereof with or without judicial process, (iii)
prior to the disposition of the Collateral, store, process, repair or
recondition the Collateral or otherwise prepare the Collateral for disposition
in any manner to the extent Agent deems appropriate, (iv) take possession of
Grantor's premises or place custodians in exclusive control thereof, remain on
such premises and use the same and any of Grantor's equipment for the purpose of
completing any work in process, taking any actions described in the preceding
clause (iii) and collecting any Secured Obligation, and (v) without notice
except as specified below, sell the Collateral or any part thereof in one or
more parcels at public or private sale, at any of Agent's offices or elsewhere,
for cash, on credit or for future delivery, at such time or times and at such
price or prices and upon such other terms as Agent may deem commercially
reasonable. Agent or any Secured Party may be the purchaser of any or all of the
Collateral at any such sale and Agent, as agent for and representative of
Secured Parties (but not any Secured Party or Secured Parties in its or their
respective individual capacities unless Requisite Obligees (as defined in
Section 13) shall otherwise agree in writing), shall be entitled, for the
purpose of bidding and making settlement or payment of the purchase price for
all or any portion of the Collateral sold at any such public sale, to use and
apply any of the Secured Obligations as a credit on account of the purchase
price for any Collateral payable by Agent at such sale. Each purchaser at any
such sale shall hold the property sold absolutely free from any claim or right
on the part of Grantor, and Grantor hereby waives (to the extent permitted by
applicable law) all rights of redemption, stay and/or appraisal which it now has
or may at any time in the future have under any rule of law or statute now
existing or hereafter enacted. Grantor agrees that, to the extent notice of sale
shall be required by law, at least ten days' notice to Grantor of the time and
place of any public sale or the time after which any private sale is to be made
shall constitute reasonable notification. Agent shall not be obligated to make
any sale of Collateral regardless of notice of sale having been given. Agent may
adjourn any public or private sale from time to time by announcement at the time
and place fixed therefor, and such sale may, without further notice, be made at
the time and place to which it was so adjourned. Grantor hereby waives any
claims against Agent arising by reason of the fact that the price at which any
Collateral may have been sold at such a private sale was less than the price
which might have been obtained at a public sale, even if Agent accepts the first
offer received and does not offer such Collateral to more than one offeree. If
the proceeds of any sale or other disposition of the Collateral are insufficient
to pay all the Secured Obligations (other than inchoate indemnification
obligations with respect to claims, losses
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or liabilities which have not yet arisen), Grantor shall be liable for the
deficiency and the fees of any attorneys employed by Agent to collect such
deficiency.
(b) Notwithstanding anything to the contrary set forth herein, Agent,
on behalf of Secured Parties, agrees that to the extent prior FCC approval is
required pursuant to the Communications Act for (i) the operation and
effectiveness of any grant, right or remedy hereunder or under the other Loan
Documents or the Existing Senior Note Indenture or (ii) taking any action that
may be taken by Agent hereunder or under the other Loan Documents or the
Existing Senior Note Indenture, such grant, right, remedy or action will be
subject to such prior FCC approval having been obtained by or in favor of Agent,
on behalf of Secured Parties (and Grantor will use its best efforts to obtain
any such approval as promptly as possible). Grantor agrees that, upon the
occurrence and during the continuation of an Event of Default and at Agent's
request, Grantor will, and will cause its Subsidiaries to, immediately file, or
cause to be filed, such applications for approval and shall take all other
further actions required by Agent to obtain such Governmental Authorizations as
are necessary to transfer ownership and control to Agent on behalf of Secured
Parties, or their respective successors or assigns, of the FCC Licenses held by
it or its Subsidiaries, or its interest in any Person holding any such FCC
License. To enforce the provisions of this Section 12(b), Agent is empowered to
request the appointment of a receiver from any court of competent jurisdiction.
Such receiver shall be instructed to seek from the FCC an involuntary transfer
of control of any FCC License for the purpose of seeking a bona fide purchaser
to whom control will ultimately be transferred. Grantor hereby agrees to
authorize, and to cause each of its Subsidiaries to authorize, such an
involuntary transfer of control upon the request of the receiver so appointed,
and, if Grantor shall refuse to authorize or cause any of its Subsidiaries so to
authorize the transfer, its approval may be required by the court. Upon the
occurrence and during the continuation of an Event of Default, Grantor shall
further use its best efforts to assist in obtaining approval of the FCC, if
required, for any action or transactions contemplated by this Agreement or the
other Loan Documents or the Existing Senior Note Indenture, including, without
limitation, preparation, execution and filing with the FCC of the assignor's or
transferor's portion of any application or applications for consent to the
assignment of any FCC License or transfer of control necessary or appropriate
under FCC Regulations for approval of the transfer or assignment of any portion
of the Collateral, together with any FCC License or other authorization. Grantor
acknowledges that the assignment or transfer of FCC Licenses is integral to the
Secured Parties' realization of value for the Collateral, that there is no
adequate remedy at law for failure by Grantor to comply with the provisions of
this Section 12(b) and that such failure would not be adequately compensable in
damages, and therefore agrees that the agreements contained in this Section
12(b) may be specifically enforced.
Notwithstanding anything to the contrary contained in this Agreement or
any other Loan Documents or the Existing Senior Note Indenture, none of Agent
nor any Secured Party shall, without first obtaining the approval of the FCC,
take any action pursuant to this Agreement, the Amended Credit Agreement, or any
other Loan Document or the Existing Senior Note Indenture which would constitute
or result in any acquisition or transfer of
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ownership of Grantor or its assets, assignment of any FCC License or any change
of control of Grantor or any other Person if such assignment, acquisition,
transfer or change in control would require, under existing law (including FCC
Regulations), the prior approval of the FCC.
SECTION 13. Decisions Relating to Exercise of Remedies.
Agent shall exercise, or refrain from exercising, any remedy provided
for in Section 12 in accordance with the directions of Requisite Obligees. For
purposes of this Agreement "Requisite Obligees" means (i) with respect to the
decision of whether to exercise or refrain from exercising any remedy, either
(a) the Senior Note Trustee acting on behalf of the holders of the Existing
Senior Notes in accordance with the terms of the Existing Senior Note Indenture
or (b) the Agent acting on behalf of the Lenders in accordance with the terms of
the Amended Credit Agreement and (ii) with respect to the manner of exercising
any remedy, the holders of a majority in aggregate principal amount of the
Secured Obligations. For purposes of the definition of "Requisite Obligees" set
forth herein, (i) the Senior Note Trustee shall be deemed to hold or represent,
and shall be entitled to vote and give notice and directions to Agent with
respect to, the outstanding Existing Senior Notes in accordance with the
provisions of the Existing Senior Note Indenture and (ii) the Agent under the
Amended Credit Agreement shall be entitled to vote and give notice and
directions to Agent with respect to Obligations outstanding under the Amended
Credit Agreement in accordance with the terms of the Amended Credit Agreement.
SECTION 14. Application of Proceeds.
(a) Except as expressly provided elsewhere in this Agreement, all
proceeds received by Agent in respect of any sale of, collection from, or other
realization upon all or any part of the Collateral may, in the discretion of
Agent, be held by Agent as Collateral for, and/or then, or at any time
thereafter, applied in full or in part by Agent against, the Secured Obligations
in the following order of priority:
FIRST: To the payment of all costs and expenses of such sale,
collection or other realization, including all compensation due to
Agent and its agents and counsel, and all other expenses, liabilities,
and advances made or incurred by Agent in connection therewith, and all
amounts for which Agent is entitled to indemnification hereunder and
all advances made by Agent hereunder for the account of Grantor, and to
the payment of all costs and expenses paid or incurred by Agent in
connection with the exercise of any right or remedy hereunder, all in
accordance with subsection 9.2 of the Amended Credit Agreement;
SECOND: To the payment of interest on and fees, if any,
with respect to the Secured Obligations on an equal and ratable basis;
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THIRD: To the payment of the unpaid principal amount of all
Secured Obligations on an equal and ratable basis;
FOURTH: To the payment of all other amounts due with respect
to the Secured Obligations on an equal and ratable basis; and
FIFTH: To the payment to or upon the order of Grantor, or to
whosoever may be lawfully entitled to receive the same or as a court of
competent jurisdiction may direct, of any surplus then remaining from
such proceeds.
(b) Payments by Agent to Lenders in respect of Obligations shall be
made to Agent for distribution to Lenders in accordance with the Amended Credit
Agreement; any payments in respect of any obligations of Grantor under Lender
Interest Rate Agreements shall be made as directed by the Interest Rate
Exchanger to which such obligations are owed; and any payments in respect of any
obligations of Grantor under the Existing Senior Note Indenture and the Existing
Senior Notes shall be made to the Senior Note Trustee for the benefit of the
Noteholders.
SECTION 15. Indemnity and Expenses.
(a) Grantor agrees to indemnify Agent and each Secured Party from and
against any and all claims, losses and liabilities in any way relating to,
growing out of or resulting from this Agreement and the transactions
contemplated hereby (including, without limitation, enforcement of this
Agreement), except to the extent such claims, losses or liabilities result from
Agent's or such Secured Party's gross negligence or willful misconduct as
finally determined by a court of competent jurisdiction.
(b) Grantor shall pay to Agent upon demand the amount of any and all
costs and expenses, including the reasonable fees and expenses of its counsel
and of any experts and agents, that Agent may incur in connection with (i) the
custody or preservation of, or the sale of, collection from, or other
realization upon, any of the Collateral, (ii) the exercise or enforcement of any
of the rights of Agent hereunder, or (iii) the failure by Grantor to perform or
observe any of the provisions hereof.
(c) The obligations of Grantor in this Section 15 shall survive the
termination of this Agreement and the discharge of Grantor's other obligations
under this Agreement, the Lender Interest Rate Agreements, the Amended Credit
Agreement, the other Loan Documents and the Existing Senior Note Indenture.
SECTION 16. Continuing Security Interest; Transfer of Loans.
This Agreement shall create a continuing security interest in the
Collateral and shall (a) remain in full force and effect until the payment in
full of all the Secured Obligations
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(other than inchoate indemnification obligations with respect to claims, losses
or liabilities which have not yet arisen) existing under or arising out of or in
connection with the Amended Credit Agreement and the other Loan Documents and
the cancellation or termination of the Commitments, (b) be binding upon Grantor,
its successors and assigns, and (c) inure, together with the rights and remedies
of Agent hereunder, to the benefit of Agent and its successors, transferees and
assigns. Without limiting the generality of the foregoing clause (c), any holder
of Existing Senior Notes may assign or otherwise transfer any Existing Senior
Notes held by it to any other Person, and, subject to the provisions of
subsection 9.1 of the Amended Credit Agreement, any Lender may assign or
otherwise transfer any Loans held by it to any other Person, and in each case
such other Person shall thereupon become vested with all the benefits in respect
thereof granted to the holders of the Existing Senior Notes or Lenders,
respectively, herein or otherwise. Upon the payment in full of all Secured
Obligations (other than inchoate indemnification obligations with respect to
claims, losses or liabilities which have not yet arisen) existing under or
arising out of or in connection with the Amended Credit Agreement and the other
Loan Documents and the cancellation or termination of the Commitments, the
security interest granted hereby shall terminate and all rights to the
Collateral shall revert to Grantor. Upon any such termination Agent will, at
Grantor's expense, execute and deliver to Grantor such documents as Grantor
shall reasonably request to evidence such termination.
SECTION 17. Agent.
(a) Agent has been appointed to act as Agent hereunder by Lenders under
the Amended Credit Agreement. The Noteholders and Interest Rate Exchangers, by
their acceptance of the benefits hereunder, hereby appoint Agent to act as Agent
hereunder in accordance with the provisions of Section 8 of the Amended Credit
Agreement, including without limitation the provisions of subsection 8.2 of the
Amended Credit Agreement, and the Noteholders and the Interest Rate Exchangers
further hereby agree to indemnify Agent on a ratable basis in accordance with
subsection 8.4 of the Amended Credit Agreement. Agent shall be obligated, and
shall have the right hereunder, to make demands, to give notices, to exercise or
refrain from exercising any rights, and to take or refrain from taking any
action (including, without limitation, the release or substitution of
Collateral), solely in accordance with this Agreement and the Amended Credit
Agreement; provided that Agent shall exercise, or refrain from exercising, any
remedies hereunder in accordance with the directions of Requisite Obligees.
(b) Agent shall at all times be the same Person that is Agent under the
Amended Credit Agreement. Written notice of resignation by Agent pursuant to
subsection 8.5 of the Amended Credit Agreement shall also constitute notice of
resignation as Agent under this Agreement; and appointment of a successor Agent
pursuant to subsection 8.5 of the Amended Credit Agreement shall also constitute
appointment of a successor Agent under this Agreement. Upon the acceptance of
any appointment as Agent under subsection 8.5 of the Amended Credit Agreement by
a successor Agent, that successor Agent shall thereupon succeed to and become
vested with all the rights, powers, privileges and duties
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of the retiring or removed Agent under this Agreement, and the retiring or
removed Agent under this Agreement shall promptly (i) transfer to such successor
Agent all sums, securities and other items of Collateral held hereunder,
together with all records and other documents necessary or appropriate in
connection with the performance of the duties of the successor Agent under this
Agreement, and (ii) execute and deliver to such successor Agent such amendments
to financing statements, and take such other actions, as may be necessary or
appropriate in connection with the assignment to such successor Agent of the
security interests created hereunder, whereupon such retiring or removed Agent
shall be discharged from its duties and obligations under this Agreement. After
any retiring or removed Agent's resignation or removal hereunder as Agent, the
provisions of this Agreement shall inure to its benefit as to any actions taken
or omitted to be taken by it under this Agreement while it was Agent hereunder.
SECTION 18. Amendments; Etc.
No amendment, modification, termination or waiver of any provision of
this Agreement, and no consent to any departure by Grantor therefrom, shall in
any event be effective unless the same shall be in writing and signed by Agent
and, in the case of any such amendment or modification, by Grantor. Any such
waiver or consent shall be effective only in the specific instance and for the
specific purpose for which it was given. Agent may execute amendments and
waivers to this Agreement if directed to do so in writing by Requisite Lenders
or Supermajority Lenders as required in accordance with the terms of the Amended
Credit Agreement. The Noteholders hereby agree, by acceptance of the benefits of
this Agreement, that no consent or approval of any Noteholder shall be required
for any such amendment or waiver as long as, after giving effect to such
amendment or waiver, the Existing Senior Notes continue to be secured on an
equal and ratable basis with the Obligations under the Amended Credit Agreement
secured under this Agreement.
SECTION 19. Notices.
Any notice or other communication herein required or permitted to be
given shall be in writing and may be personally served, telexed or sent by
telefacsimile or United States mail or courier and shall be deemed to have been
given when delivered in person or by courier service, upon receipt of
telefacsimile or telex (with received answerback), or three Business Days after
depositing it in the United States mail with postage prepaid and properly
addressed; provided that notices to Agent shall not be effective until received.
For purposes hereof the address of each party shall be as set forth under such
party's name on the signature pages hereof or of the Amended Credit Agreement or
such other address as shall be designated by such party in a written notice
delivered to the other party hereto.
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SECTION 20. Severability.
In case any provision in or obligation under this Agreement shall be
invalid, illegal or unenforceable in any jurisdiction, the validity, legality
and enforceability of the remaining provisions or obligations, or of such
provision or obligation in any other jurisdiction, shall not in any way be
affected or impaired thereby.
SECTION 21. Headings.
Section and subsection headings in this Agreement are included herein
for convenience of reference only and shall not constitute a part of this
Agreement for any other purpose or be given any substantive effect.
SECTION 22. Governing Law; Terms.
THIS AGREEMENT 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, EXCEPT TO THE EXTENT THAT THE CODE PROVIDES
THAT THE PERFECTION OF THE SECURITY INTEREST HEREUNDER, OR REMEDIES HEREUNDER,
IN RESPECT OF ANY PARTICULAR COLLATERAL ARE GOVERNED BY THE LAWS OF A
JURISDICTION OTHER THAN THE STATE OF NEW YORK. Unless otherwise defined herein
or in the Amended Credit Agreement, terms used in Articles 8 and 9 of the
Uniform Commercial Code in the State of New York are used herein as therein
defined.
SECTION 23. Counterparts.
This Agreement may be executed in one or more 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.
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IN WITNESS WHEREOF, Grantor and Agent have caused this Agreement to be
duly executed and delivered by their respective officers thereunto duly
authorized as of the date first above written.
BENEDEK BROADCASTING CORPORATION
By:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Senior VP-Finance, CFO
Treasurer and Secretary
Notice Address:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: A. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Shack & ▇▇▇▇▇▇, P.C.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
S-1
BANKERS TRUST COMPANY,
as Agent
By:
Name:
Title:
Notice Address:
One Bankers Trust Plaza
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
S-2