EXHIBIT 10.13
EXECUTION
AMENDED AND RESTATED ACCOUNTS RECEIVABLE SECURITY AGREEMENT
THIS AMENDED AND RESTATED ACCOUNTS RECEIVABLE 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") the financial institutions ("LENDERS") party to
the Credit Agreement 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, and
Bankers, 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, as Administrative Agent and
Collateral Agent, pursuant to which Lenders have made 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, pursuant to which
Grantor has issued $135,000,000 aggregate principal amount of the 11-7/8% Senior
Secured Notes due 2005. The Existing Senior Note Indenture permits Grantor to
incur indebtedness under a bank credit agreement in an amount not to exceed the
greater of $5 million and 75% of the book value of
accounts receivable of Grantor and its Subsidiaries and to grant first priority
Liens on its accounts receivable to secure such indebtedne'SS'
C. Grantor may heretofore have entered and may from time to time
hereafter enter into one or more Interest Rate Agreements (collectively, the
"LENDER INTEREST RATE AGREEMENTS") with or 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.
D. As a condition precedent to the Existing Credit Agreement, Grantor
executed and delivered that certain Accounts Receivable Security Agreement dated
as of June 6, 1996 (the "EXISTING ACCOUNTS RECEIVABLE SECURITY AGREEMENT") in
favor of CIBC, in its capacity as collateral agent under the Existing Credit
Agreement.
E. The obligations of Grantor under the Existing Credit Agreement have
been secured by security interests granted pursuant the Existing Accounts
Receivable Security Agreement.
F. It is a condition precedent to the execution and delivery of the
Amended Credit Agreement by Lenders that Grantor shall have amended and restated
the Existing Accounts Receivable Security Agreement to modify the provisions
thereof as provided herein.
G. Grantor desires to amend and restate the Existing Accounts
Receivable Security Agreement in order to confirm the continuation of, and to
pledge and grant security interests in all of the Collateral (as hereinafter
defined) in favor of Agent, on behalf of Agent, Lenders and Interest Rate
Exchangers, as security for Grantor's performance of its obligations under the
Credit Agreement and the other Loan Documents.
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 in each case
under the Amended Credit Agreement and for other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged,
Grantor hereby agrees with Agent as follows:
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 (the
"COLLATERAL"):
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(a) all accounts, chattel paper, instruments, and other rights
and obligations of any kind arising out of accounts receivable of
Grantor, but excluding any of such accounts, chattel paper, instruments
and other obligations to the extent they constitute rights of Grantor
to receive moneys due or to become due under or proceeds of "Assigned
Agreements" as defined in the Existing Company Pledge Agreement (any
and all such accounts, chattel paper, instruments and other obligations
being the "ACCOUNTS");
(b) all agreements and contracts to which Grantor is a party
as of the date hereof or becomes a party after the date hereof relating
to the sale of advertising time by Grantor or the Stations, as each
such agreement may be amended, supplemented or otherwise modified from
time to time (said agreements, as so amended, supplemented or otherwise
modified, being referred to herein individually as an "ASSIGNED
ADVERTISING AGREEMENT" and collectively as the "ASSIGNED ADVERTISING
AGREEMENTS"), including without limitation (i) all rights of Grantor to
receive moneys due or to become due under or pursuant to the Assigned
Advertising Agreements, (ii) all rights of Grantor to receive proceeds
of any insurance, indemnity, warranty, guaranty or security with
respect to the Assigned Advertising Agreements, (iii) all claims of
Grantor for damages arising out of any breach of or default under the
Assigned Advertising Agreements, and (iv) all rights of Grantor to
terminate, amend, supplement, modify or exercise rights or options
under the Assigned Advertising Agreements, to perform thereun- der and
to compel performance and otherwise exercise all remedies thereunder;
(c) 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
Accounts or Assigned Advertising Agreements or are otherwise necessary
or helpful in the collection thereof or realization thereupon; and
(d) 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), any indemnity, warranty or guaranty, payable by
reason of loss 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.
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 Accounts Receivable Security Agreement and continues in
all respects the assignment and grant in the Existing Accounts Receivable
Security Agreement with respect to the Collateral without in any way causing an
interruption in the continuity from such original assignment and grant.
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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 the Amended
Credit Agreement and the other Loan Documents 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), 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 Lender 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"); provided that the aggregate amount of Secured
Obligations secured hereunder shall not at any time exceed the greater of (i)
$5,000,000 and (ii) 75% of the book value of the accounts receivable of Grantor.
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.
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.
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(b) OFFICE LOCATIONS; OTHER NAMES. The chief place of
business, the chief executive office and the office where Grantor keeps
its records regarding the Collateral and all originals of all chattel
paper that evidence Collateral is, and has been for the four-month
period preceding the date hereof, as set forth on Schedule I annexed
hereto and 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 I annexed hereto.
(c) DELIVERY OF CERTAIN COLLATERAL. All notes and other
instruments (excluding checks) comprising any and all items of
Collateral have been, or with respect to Collateral acquired after the
date hereof and chattel paper requested by Agent pursuant to Section
5(a)(ii) will be, delivered to Agent duly endorsed and accompanied by
duly executed instruments of transfer or assignment in blank.
(d) PERFECTION. This Agreement, together with the filing of
UCC financing statements describing the Collateral with the filing
offices indicated on Schedule II annexed hereto, UCC-3 assignments to
existing financing statements and UCC-3 amendments to existing
financing statements, if any, 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) at the request of Agent, ▇▇▇▇
conspicuously each item of chattel paper included in the Accounts, each Assigned
Advertising Agreement and, at the request of Agent, each of its records
pertaining to the Collateral, with a legend, in form and substance satisfactory
to Agent, indicating that such Collateral is subject to the security interest
granted hereby, (ii) at the request of Agent, deliver and pledge to Agent
hereunder all promissory notes and other instruments (including checks) and all
original counterparts of chattel paper constituting Collateral, duly endorsed
and accompanied by duly executed instruments of transfer or assignment, all in
form and substance satisfactory to Agent, (iii) 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, (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
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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 and the office where it keeps its records concerning the
Collateral and all originals of all chattel paper that evidence
Accounts at the location therefor specified in subsection 4(b) hereof,
or, upon 30 days' prior written notice to Agent, at such other location
in a jurisdiction 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 chattel paper and will permit representatives of Agent
at any time during normal business hours to inspect and make abstracts
from such records and chattel paper, 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;
(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
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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. SPECIAL COVENANTS WITH RESPECT TO ACCOUNTS.
(a) Grantor shall, for not less than 5 years from the date on which
such Account arose, maintain (i) complete records of each Account, including
records of all payments received and credits granted, and (ii) all documentation
relating thereto.
(b) Except as otherwise provided in this subsection (c), Grantor shall
continue to collect, at its own expense, all amounts due or to become due to
Grantor under the Accounts. In connection with such collections, Grantor may
take such action as Grantor may deem necessary or advisable to enforce
collection of amounts due or to become due under the Accounts; provided,
however, that Agent shall have the right at any time, upon the occurrence and
during the continuation of an Event of Default and upon written notice to
Grantor of its intention to do so, to notify the account debtors or obligors
under any Accounts of the assignment of such Accounts to Agent and to direct
such account debtors or obligors to make payment of all amounts due or to become
due to Grantor thereunder directly to Agent, to notify each Person maintaining a
lockbox or similar arrangement to which account debtors or obligors under any
Accounts have been directed to make payment to remit all amounts representing
collections on checks and other payment items from time to time sent to or
deposited in such lockbox or other arrangement directly to Agent and, upon such
notification and at the expense of Grantor, to enforce collection of any such
Accounts and to adjust, settle or compromise the amount or payment thereof, in
the same manner and to the same extent as Grantor might have done. After receipt
by Grantor of the notice from Agent referred to in the proviso to the preceding
sentence, (i) all amounts and proceeds (including checks and other instruments)
received by Grantor in respect of the Accounts shall be received in trust for
the benefit of Agent hereunder, shall be segregated from other funds of Grantor
and shall be forthwith paid over or delivered to Agent in the same form as so
received (with any necessary endorsement) to be held as cash Collateral and
applied as provided by Section 14, and (ii) Grantor shall not adjust, settle or
compromise the amount or payment of any Account, or release wholly or partly any
account debtor or obligor thereof, or allow any credit or discount thereon.
SECTION 8. SPECIAL PROVISIONS WITH RESPECT TO ASSIGNED ADVERTISING AGREEMENTS.
(a) Grantor shall at its expense perform and observe all material terms
and provisions of the Assigned Advertising Agreements to be performed or
observed by it,
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maintain the Assigned Advertising Agreements in full force and effect, and
enforce the Assigned Advertising Agreements in accordance with their terms.
(b) Grantor shall not cancel, terminate, amend or otherwise modify any
of the Assigned Advertising Agreements, consent to or accept any cancellation or
termination thereof, give any consent, waiver or approval thereunder, or take
any other action in connection therewith except to the extent such cancellation,
termination, amendment, modification, consent, waiver, approval or other action
would not have a Material Adverse Effect.
SECTION 9. TRANSFERS AND OTHER LIENS.
Grantor shall not:
(a) 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
(b) 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 of other obligations
of any Person.
SECTION 10. 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:
(a) 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;
(b) 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 clause (a)
above;
(c) 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;
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(d) to pay or discharge taxes or Liens (other than Liens
permitted under this Agreement or the Amended Credit Agreement) 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;
(e) upon the occurrence and during the continuation of an
Event of Default, to sign and endorse any invoices, drafts against
debtors, assignments, verifications and notices in connection with the
Accounts and other documents relating to the Collateral;
(f) 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
(g) 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.
SECTION 11. 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 12. 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
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in its possession if such Collateral is accorded treatment substantially equal
to that which Agent accords its own property.
(b) Neither Agent nor any Lender 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 Lender of any right or remedy under this Agreement or (2) any
other act of or failure to act by Agent or any Lender, 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 Lender constituting gross
negligence or willful misconduct.
(c) NO CLAIM MAY BE MADE BY GRANTOR AGAINST AGENT, ANY LENDER 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.
SECTION 13. 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 or process, 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 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
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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 Lender may be the purchaser of any or all of the
Collateral at any such sale and Agent, as agent for and representative of
Lenders (but not any Lender or Lenders in its or their respective individual
capacities unless Requisite Lenders 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 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 Lenders, 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 (ii)
taking any action that may be taken by Agent hereunder or under the other Loan
Documents, 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 Lenders (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 Lenders, or their 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 13(b),
Agent is empowered to request the appoint-
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ment 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,
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 Lenders' 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 13(b) and that such failure would not be adequately
compensa- ble in damages, and therefore agrees that the agreements contained in
this Section 13(b) may be specifically enforced.
Notwithstanding anything to the contrary contained in this Agreement or
any other Loan Document, none of Agent nor any Lender 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 which would constitute
or result in any acquisition or transfer of 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 of control would
require, under existing law (including FCC Regulations), the prior approval of
the FCC.
SECTION 14. APPLICATION OF PROCEEDS.
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 shall be applied as provided
in subsection 2.4D of the Amended Credit Agreement.
SECTION 15. INDEMNITY AND EXPENSES.
(a) Grantor agrees to indemnify Agent and each Lender 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
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liabilities result from Agent's or such Lender'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 under this Section 15 shall survive the
termination of this Agreement and the discharge of Grantor's other obligations
under this Agreement.
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 the Secured Obligations (other than inchoate indemnification obligations
with respect to claims, losses or liabilities which have not yet arisen) 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), but
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 such other Person shall thereupon become vested with all the
benefits in respect thereof granted to Lenders 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) 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.
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.
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(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 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.
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:
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Senior VP-Finance, CFO
Treasurer and Secretary
Notice Address:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: A. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Shack & ▇▇▇▇▇▇, P.C.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
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BANKERS TRUST COMPANY,
as Agent
By:
-----------------------------
Name:
Title:
Notice Address:
One Bankers Trust Plaza
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
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