[Conformed Copy]
AMENDMENT NO. 3
AMENDMENT NO. 3 dated as of December 18, 1996, between:
SINCLAIR BROADCAST GROUP, INC., a corporation duly organized
and validly existing under the laws of the State of Maryland (the
"Borrower");
each of the Subsidiaries of the Borrower identified under the
caption "SUBSIDIARY GUARANTORS" on the signature pages hereto
(individually, a "Subsidiary Guarantor" and, collectively, the
"Subsidiary Guarantors" and, together with the Borrower, the
"Obligors");
each of the lenders that is a signatory hereto (individually,
a "Lender" and, collectively, the "Lenders"); and
THE CHASE MANHATTAN BANK (as successor by merger to The Chase
Manhattan Bank (National Association)), a New York state banking
corporation, as agent for the Lenders (in such capacity, together with
its successors in such capacity, the "Agent").
The Borrower, the Subsidiary Guarantors, the Lenders and the
Agent are parties to a Second Amended and Restated Credit Agreement dated as of
May 31, 1996 (as heretofore modified and supplemented and in effect on the date
hereof, the "Credit Agreement"), providing, subject to the terms and conditions
thereof, for extensions of credit (by the making of loans and the issuance of
letters of credit) to be made by said Lenders to the Borrower in an aggregate
principal or face amount not exceeding $1,200,000,000. The Borrower, the
Subsidiary Guarantors, the Lenders and the Agent wish to amend the Credit
Agreement in certain respects, and accordingly, the parties hereto hereby agree
as follows:
Section 1. Definitions. Except as otherwise defined in this
Amendment No. 3, terms defined in the Credit Agreement are used herein as
defined therein.
Section 2. Amendments. Subject to the satisfaction of the
conditions precedent specified in Section 5 below, but effective as of the date
hereof, the Credit Agreement shall be amended as follows:
Amendment No. 3
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- 2 -
A. References in the Credit Agreement to "this Agreement" (and
indirect references such as "hereunder", "hereby", "herein" and "hereof") shall
be deemed to be references to the Credit Agreement as amended hereby.
B. The definition of "Film Cash Payments" in Section 1.01 of
the Credit Agreement is hereby amended by adding a new sentence at the end
thereof reading as follows:
"For the purposes of the definition of "EBITDA" in this Section 1.01
only, Film Cash Payments for any fiscal quarter shall be reduced by (a)
$630,000, if such fiscal quarter ends on March 31, 1996, (b) $764,000,
if such fiscal quarter ends on June 30, 1996, (c) $386,000, if such
fiscal quarter ends on September 30, 1996, and (d) $668,000, if such
fiscal quarter ends on December 31, 1996; provided that, if Film Cash
Payments are to be calculated for any portion of any such fiscal
quarter, the amount of the reduction specified in the foregoing clause
(a), (b), (c) or (d) as the case may be, for such fiscal quarter shall
be multiplied by a fraction, the numerator of which shall be the number
of days in the portion of such fiscal quarter for which Film Cash
Payments are to be calculated and the denominator of which shall be the
number of days in such fiscal quarter."
C. Section 9.05(d) of the Credit Agreement is hereby amended
by (i) deleting "and" at the end of clause (vii) thereof, (ii) replacing the
period at the end of clause (viii) thereof with "; and" and (iii) inserting a
new clause (ix) therein reading as follows:
"(ix) so long as no Default would result therefrom, (x) KDNL,
Inc. may merge into WPGH, Inc. in a transaction in which WPGH, Inc. is
the surviving corporation, (y) SCI - Indiana, Inc. may merge into WTTE,
Channel 28, Inc. in a transaction in which WTTE, Channel 28, Inc. is
the surviving corporation, and (z) KABB, Inc., SCI - Sacramento, Inc.
and WLOS, Inc. may merge into Chesapeake Television, Inc. in a
transaction in which Chesapeake Television, Inc. is the surviving
corporation."
D. Section 9.28(a) of the Credit Agreement is hereby amended
by replacing "December 31, 1996," therein with "January 31, 1997,".
Section 3. Authorization. Each Lender hereby authorizes the
Agent to enter into a Subordination, Non-Disturbance and Attornment Agreement
substantially in the form of Exhibit A hereto relating to certain real Property
owned by KIG and certain real Property owned by Cunningham.
Section 4. Representations and Warranties. The Borrower
represents and warrants to the Lenders that the representations and warranties
set forth in Section 8 of the Credit Agreement, and by each Credit Party and
Carolyn C. Smith in each of the other Basic Documents to which such Person is a
party, are true and complete on the date hereof as if
Amendment No. 3
---------------
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made on and as of the date hereof with the same force and effect as if made on
and as of such date (or, if any such representation and warranty is expressly
stated to have been made as of a specific date, as of such specific date) and as
if each reference in said Section 8 to "this Agreement" and each reference to
the "Credit Agreement" in the other Basic Documents included reference to this
Amendment No. 3.
Section 5. Conditions Precedent.
A. The amendments to the Credit Agreement set forth in Section
2 hereof shall become effective, as of the date hereof, upon the execution and
delivery of this Amendment No. 3 by the Borrower, the Subsidiary Guarantors, the
Majority Lenders and the Agent.
B. The authorization set forth in Section 3 hereof shall
become effective, as of the date hereof, upon the execution and delivery of this
Amendment No. 3 by each Lender.
Section 6. Miscellaneous. Except as herein provided, the
Credit Agreement shall remain unchanged and in full force and effect. This
Amendment No. 3 may be executed in any number of counterparts, all of which
taken together shall constitute one and the same amendatory instrument and any
of the parties hereto may execute this Amendment No. 3 by signing any such
counterpart. This Amendment No. 3 shall be governed by, and construed in
accordance with, the law of the State of New York.
[Remainder of Page Left Intentionally Blank]
Amendment No. 3
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment No. 3 to be duly executed and delivered as of the day and year first
above written.
SINCLAIR BROADCAST GROUP, INC.
By /s/ David D. Smith
---------------------------
Title: President
Amendment No. 3
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SUBSIDIARY GUARANTORS
CHESAPEAKE TELEVISION, INC.
KABB, INC.
KDNL, INC.
KDSM, INC.
KSMO, INC.
SCI - INDIANA, INC.
SCI - SACRAMENTO, INC.
SINCLAIR COMMUNICATIONS, INC.
SINCLAIR RADIO OF ALBUQUERQUE, INC.
SINCLAIR RADIO OF BUFFALO, INC.
SINCLAIR RADIO OF GREENVILLE, INC.
SINCLAIR RADIO OF LOS ANGELES, INC.
SINCLAIR RADIO OF MEMPHIS, INC.
SINCLAIR RADIO OF NASHVILLE, INC.
SINCLAIR RADIO OF NEW ORLEANS, INC.
SINCLAIR RADIO OF ST. LOUIS, INC.
SINCLAIR RADIO OF WILKES-BARRE,
INC.
SUPERIOR COMMUNICATIONS OF
OKLAHOMA, INC.
TUSCALOOSA BROADCASTING, INC.
WCGV, INC.
WDBB, INC.
WLFL, INC.
WLOS, INC.
WPGH, INC.
WPGH LICENSEE, INC.
WSMH, INC.
WSTR, INC.
WSTR LICENSEE, INC.
WTTE, CHANNEL 28, INC.
WTTE, CHANNEL 28 LICENSEE, INC.
WTTO, INC.
WTVZ, INC.
WTVZ LICENSEE, INC.
WYZZ, INC.
By /s/ David D. Smith
--------------------------------
Title: President
Amendment No. 3
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SUBSIDIARY GUARANTORS
CHESAPEAKE TELEVISION
LICENSEE, INC.
FSF TV, INC.
KABB LICENSEE, INC.
KDNL LICENSEE, INC.
KDSM LICENSEE, INC.
KSMO LICENSEE, INC.
SCI - INDIANA LICENSEE, INC.
SCI - SACRAMENTO LICENSEE, INC.
SINCLAIR RADIO OF ALBUQUERQUE
LICENSEE, INC.
SINCLAIR RADIO OF BUFFALO
LICENSEE, INC.
SINCLAIR RADIO OF GREENVILLE
LICENSEE, INC.
SINCLAIR RADIO OF LOS ANGELES
LICENSEE, INC.
SINCLAIR RADIO OF MEMPHIS
LICENSEE, INC.
SINCLAIR RADIO OF NASHVILLE
LICENSEE, INC.
SINCLAIR RADIO OF NEW ORLEANS
LICENSEE, INC.
SINCLAIR RADIO OF ST. LOUIS
LICENSEE, INC.
SINCLAIR RADIO OF WILKES-BARRE
LICENSEE, INC.
SUPERIOR COMMUNICATIONS GROUP,
INC.
SUPERIOR COMMUNICATIONS OF
KENTUCKY, INC.
SUPERIOR KY LICENSE CORP.
SUPERIOR OK LICENSE CORP.
WCGV LICENSEE, INC.
WLFL LICENSEE, INC.
WLOS LICENSEE, INC.
WSMH LICENSEE, INC.
WTTO LICENSEE, INC.
WYZZ LICENSEE, INC.
By /s/ David D. Smith
--------------------------------
Title: President
Amendment No. 3
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AGENT
THE CHASE MANHATTAN BANK,
as Agent
By /s/ Tracey A. Navin
---------------------------------
Title: Vice President
LENDERS
THE CHASE MANHATTAN BANK
By /s/ Tracey A. Navin
---------------------------------
Title: Vice President
ABN AMRO BANK N.V., NEW YORK
BRANCH
By /s/ David B. Martens
---------------------------------
Title: Vice President
By /s/ Mark S. Gronich
---------------------------------
Title: Vice President
BANK OF AMERICA ILLINOIS
By /s/ Carl F. Salas
---------------------------------
Title: Vice President
BANK OF HAWAII
By /s/ Elizabeth O. MacLean
---------------------------------
Title: Vice President
Amendment No. 3
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BANK OF IRELAND GRAND CAYMAN
By /s/ Joan Mitchell
--------------------------------
Title: Account Manager
THE BANK OF NEW YORK
By /s/ Edward F. Ryan, Jr.
--------------------------------
Title: Senior Vice President
BANK OF TOKYO-MITSUBISHI TRUST
COMPANY
By /s/ John P. Judge
--------------------------------
Title: Vice President
BANKERS TRUST COMPANY
By /s/ Patricia Hogan
--------------------------------
Title: Vice President
BANQUE FRANCAISE DU COMMERCE
EXTERIEUR
By /s/ Brian J. Cumberland
--------------------------------
Title: Assistant Treasurer
By /s/ Frederick K. Kammler
--------------------------------
Title: Vice President
Amendment No. 3
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BANQUE NATIONALE DE PARIS
By /s/ Serge Desrayaud
--------------------------------------
Title: Vice President/Team Leader
By /s/ Pamela Lucash
--------------------------------------
Title: Assistant Treasurer
BANQUE PARIBAS
By /s/ Eileen M. Burke
--------------------------------------
Title: Vice President
THE CANADA LIFE ASSURANCE COMPANY
By /s/ Brian J. Lynch
--------------------------------------
Title: Associate Treasurer
CERES FINANCE LTD.
By /s/ Darren P. Riley
--------------------------------------
Title: Director
CHL HIGH YIELD LOAN PORTFOLIO (A
UNIT OF THE CHASE MANHATTAN
BANK)
By /s/ Andrew D. Gordon
--------------------------------------
Title: Managing Director
Amendment No. 3
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CIBC, INC.
By /s/ Martin M. Friedman
--------------------------------------
Title: Managing Director, CIBC Wood
Gundy Securities Corp.
COMPAGNIE FINANCIERE DE CIC ET
DE L'UNION EUROPEENNE
By /s/ Marcus Edward
--------------------------------------
Title: Vice President
By /s/ Brian P. O'Leary
--------------------------------------
Title: Vice President
COOPERATIEVE CENTRALE RAIFFEISEN -
BOERENLEENBANK B.A., "RABOBANK
NEDERLAND," NEW YORK BRANCH
By /s/ Douglas W. Zylstra
--------------------------------------
Title: Vice President
By /s/ Robert S. Bucklin
--------------------------------------
Title: Deputy General Manager
CORESTATES BANK, N.A.
By /s/ Edward L. Kittrell
--------------------------------------
Title: Vice President
Amendment No. 3
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THE DAI-ICHI KANGYO BANK, LTD.
By /s/ Seiji Imai
--------------------------------------
Title: Vice President
DRESDNER BANK AG NEW YORK &
GRAND CAYMAN BRANCHES
By /s/ Robert Grella
--------------------------------------
Title: Vice President
By /s/ Jane A. Majeski
--------------------------------------
Title: Vice President
FIRST HAWAIIAN BANK
By /s/ Donald C. Young
--------------------------------------
Title: Assistant Vice President
THE FIRST NATIONAL BANK OF BOSTON
By /s/ David B. Herter
--------------------------------------
Title: Managing Director
THE FIRST NATIONAL BANK OF
MARYLAND
By /s/ W. Blake Hampson
--------------------------------------
Title: Vice President
Amendment No. 3
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FIRST UNION NATIONAL BANK OF NORTH
CAROLINA
By /s/ Jim F. Redman
--------------------------------------
Title: Senior Vice President
FLEET NATIONAL BANK
By /s/ Luyen Tran
--------------------------------------
Title: Assistant Vice President
THE FUJI BANK, LTD., NEW YORK
BRANCH
By /s/ Teiji Teramoto
--------------------------------------
Title: Vice President & Manager
GIROCREDIT BANK
By /s/ Anca Trifan
--------------------------------------
Title: Vice President
By /s/ Richard Stone
--------------------------------------
Title: Vice President
HIBERNIA NATIONAL BANK
By /s/ Troy J. Villafarra
--------------------------------------
Title: Vice President
Amendment No. 3
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KEYBANK NATIONAL ASSOCIATION
By /s/ Jason R. Weaver
--------------------------------------
Title: Assistant Vice President
KEYPORT LIFE INSURANCE COMPANY
By: Chancellor LGT Senior Secured
Management, Inc. as Portfolio Advisor
By /s/ Gregory L. Smith
--------------------------------------
Title: Vice President
LTCB TRUST COMPANY
By /s/ Satoru Otsubo
--------------------------------------
Title: Executive Vice President
KZH HOLDING CORPORATION
By /s/ Robert Goodwin
--------------------------------------
Title: Authorized Agent
LEHMAN COMMERCIAL PAPER INC.
By /s/ Michele Swanson
--------------------------------------
Title: Authorized Signatory
Amendment No. 3
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MEDICAL LIABILITY MUTUAL INSURANCE
CO.
By: Chancellor LGT Senior Secured
Management, Inc. as Investment Manager
By /s/ Gregory L. Smith
--------------------------------------
Title: Vice President
MELLON BANK, N.A.
By /s/ John T. Kranefuss
--------------------------------------
Title: Assistant Vice President
MERCANTILE BANK, NATIONAL
ASSOCIATION
By /s/ Ann C. Kelly
--------------------------------------
Title: Vice President
MERRILL LYNCH PRIME RATE PORTFOLIO
By: Merrill Lynch Asset Management, L.P.,
as Investment Advisor
By /s/ John W. Fraser
--------------------------------------
Title: Authorized Signatory
MERRILL LYNCH SENIOR FLOATING RATE
FUND, INC.
By /s/ John W. Fraser
--------------------------------------
Title: Authorized Signatory
Amendment No. 3
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MICHIGAN NATIONAL BANK
By /s/ Stephane E. Lubin
--------------------------------------
Title: Relationship Manager
THE MITSUBISHI TRUST AND BANKING
CORPORATION
By /s/ Hachiro Hosoda
--------------------------------------
Title: Senior Vice President
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK
By /s/ Colleen McCloskey
--------------------------------------
Title: Associate
NATIONSBANK, N.A.
By /s/ Roselyn Reid
--------------------------------------
Title: Vice President
NEW YORK LIFE INSURANCE COMPANY
By /s/ Adam G. Clemens
--------------------------------------
Title: Investment Vice President
THE NIPPON CREDIT BANK, LTD.
By /s/ David C. Carrington
--------------------------------------
Title: Vice President & Manager
Amendment No. 3
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THE NORTHWESTERN MUTUAL LIFE
INSURANCE COMPANY
By /s/ A. Kipp Koester
--------------------------------------
Title: Vice President
PARIBAS CAPITAL FUNDING LLC
By /s/ M. Steven Alexander
--------------------------------------
Title: Director
PNC BANK, NATIONAL ASSOCIATION
By /s/ Jeffrey E. Hauser
--------------------------------------
Title: Vice President
PROTECTIVE LIFE INSURANCE COMPANY
By /s/ James Dondero
--------------------------------------
Title: Authorized Signatory
RESTRUCTURED OBLIGATIONS BACKED
BY SENIOR ASSETS B.V.
By: Chancellor Senior Secured
Management, Inc.
as Portfolio Advisor
By /s/ Gregory L. Smith
--------------------------------------
Title: Vice President
Amendment No. 3
---------------
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THE ROYAL BANK OF SCOTLAND plc
By /s/ Grant F. Stoddart
--------------------------------------
Title: Senior Vice President & Manager
THE SAKURA BANK, LTD.
By /s/ Yoshikazu Nagura
--------------------------------------
Title: Vice President
THE SANWA BANK LTD.
By /s/ Christian Kambour
--------------------------------------
Title: Assistant Vice President
SENIOR DEBT PORTFOLIO
By: Boston Management and Research,
as Investment Advisor
By /s/ Payson F. Swaffield
--------------------------------------
Title: Vice President
SENIOR HIGH INCOME PORTFOLIO, INC.
By /s/ John W. Fraser
--------------------------------------
Title: Authorized Signatory
SOUTHERN PACIFIC THRIFT & LOAN
ASSOCIATION
By /s/ Charles D. Martorano
--------------------------------------
Title: Senior Vice President
Amendment No. 3
---------------
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SUNTRUST BANK, CENTRAL FLORIDA,
N.A.
By /s/ Christopher J. Aguilar
--------------------------------------
Title: First Vice President
TORONTO DOMINION (NEW YORK), INC.
By /s/ Debbie A. Greene
--------------------------------------
Title: Vice President
UNION BANK OF CALIFORNIA, N.A.
By /s/ Bill D. Gooch
--------------------------------------
Title: Vice President
VAN KAMPEN AMERICAN CAPITAL PRIME
RATE INCOME TRUST
By /s/ Jeffrey W. Maillet
--------------------------------------
Title: Senior Vice President
Amendment No. 3
---------------
Exhibit A
3900 Hooper Avenue
1200 North Rolling Road
2000-2008 W.41st St.
Baltimore, Maryland
SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT
-------------------------------------------------------
This Subordination, Non-Disturbance and Attornment Agreement
(this "Agreement") is made as of the ___ day of December, 1996 by and among
Cunningham Communications, Inc., a Maryland corporation, having an office at
2000 West 41st Street, Baltimore, Maryland 21211 ("Cunningham"), Chesapeake
Television, Inc., a Maryland corporation, having an office at 2000 West 41st
Street, Baltimore, Maryland 21211 ("CTI"), Keyser Investment Group, Inc., a
Maryland corporation, having an office at 2000 West 41st Street, Baltimore,
Maryland 21211 ("Keyser"), Provident Bank of Maryland, a banking corporation
organized under the laws of the State of Maryland, having an office at 114 East
Lexington Street, Baltimore, MD 21202, Attention: Frederick G. Botti
("Provident") and The Chase Manhattan Bank, a New York banking corporation (as
successor by merger to The Chase Manhattan Bank, N.A., a national banking
corporation), having an office at 1 Chase Manhattan Plaza, New York, New York
10081, as Agent for certain lenders (together with its successors and assigns,
the "Agent").
W I T N E S S E T H:
WHEREAS, Sinclair Broadcast Group, Inc., a corporation duly
organized and validly existing under the laws of the State of Maryland (the
"Borrower"), certain subsidiaries of the Borrower, certain lenders (the
"Lenders") and the Agent are parties to a Second Amended and Restated Credit
Agreement dated as of May 31, 1996 (as heretofore amended, modified and
supplemented and as further amended, modified and supplemented and in effect
from time to time the "Credit Agreement") which Credit Agreement provides for
extensions of credit (by making loans and issuing letters of credit) to be made
by the Lenders to the Borrower in an aggregate principal or face amount not
exceeding $1,200,000,000 (the "Loans") evidenced by and repayable with interest
thereon in accordance with various promissory notes executed and delivered to
the respective order of the Lenders (as modified, amended, extended,
supplemented, restated, split into multiple notes, exchanged or replaced and in
effect from time to time, collectively, being herein called the "Notes");
WHEREAS, Cunningham and Keyser, pursuant to a certain Second
Amended and Restated Affiliate Guarantee and Security Agreement dated as of May
31, 1996 by and among Keyser, Cunningham, Gerstell Development Limited
Partnership, and Agent (as heretofore amended, modified and supplemented and as
further amended, modified and supplemented and in effect from time to time, the
"Guarantee"), have guaranteed, inter alia, the prompt payment in full when due
of the principal of and interest on the Loans;
WHEREAS, to secure its obligations under the Guarantee,
Cunningham executed three Indemnity Deeds of Trust, Assignment of Rents,
Security Agreement and Fixture Filings, dated August 30, 1991 (collectively, the
"Indemnity Deeds of Trust"), in favor of the Agent and recorded among the Land
Records of Baltimore City and Baltimore County on January 13, 1992 in Liber
S.E.B. No. 3076, folio 488, Liber S.M. No. 9024, folio 735, and Liber S.M. No.
9024, folio 687, respectively, as amended by those certain Amendments No. 1 to
Indemnity Deed of Trust, Assignment of Rents, Security Agreement and Fixture
Filing dated May 24, 1994 and recorded among the Land Records of Baltimore City
and Baltimore County on June 16, 1994 in Liber S.E.B. No. 4308, folio 030, Liber
S.M. No. 010591, folio 159 and Liber S.M. No. 010591, folio 176, respectively,
and those certain Amendments No. 2 to Indemnity Deed of Trust, Assignment of
Rents, Security Agreement and Fixture Filing dated January 9, 1995 and recorded
among the Land Records of Baltimore City and Baltimore County on January 26,
1995 in Liber 10920, folio 295, and Liber 10920, folio 304, and in Baltimore
City in Liber 4685, folio 316 and Liber 4685, folio 333 (the Indemnity Deeds of
Trust, as amended, modified and supplemented and in effect from time to time,
collectively, the "Cunningham Deeds of Trust") covering the properties more
particularly described in Schedule I attached hereto (individually a "Cunningham
Property", collectively, the "Cunningham Properties");
WHEREAS, to secure its obligations under the Guarantee, Keyser
executed an Indemnity Deed of Trust, Assignment of Rents, Security Agreement and
Fixture Filing, dated August 30, 1991, in favor of the Agent and recorded in the
Land Records of Baltimore County on January 13, 1992 in Liber R.E.B. No. 3076,
folio 542, as amended by the Amendment No. 1 to Indemnity Deed of Trust,
Assignment of Rents, Security Agreement and Fixture Filing, dated May 24, 1994,
and recorded among the Land Records of Baltimore City on June 16, 1994 in Liber
S.E.B. No. 4308, folio 52, as amended by Amendment No. 2 to Indemnity Deed of
Trust, Assignment of Rents, Security Agreement and Fixture Filing, dated January
9, 1995, and recorded among the Land Records of Baltimore City on January 25,
1995 in Liber 4685 folio 316 and as amended by Amendment No. 3 to Indemnity Deed
of Trust, Assignment of Rents, Security Agreement and Fixture Filing dated
August 26, 1996 and recorded among the Land Records of Baltimore City on August
30, 1996 in Liber 5799 folio 776 (as amended, modified and supplemented and in
effect from time to time, collectively, the "Keyser Deed of Trust") covering the
property more particularly described in Schedule II attached hereto (the "Keyser
Property"; the Cunningham Properties and the Keyser Property, collectively the
"Property"). The lien of the Cunningham Deed of Trust and the lien of the Keyser
Deed of Trust are referred to herein collectively as the "Agent Liens."
WHEREAS, on August 30, 1988 Provident made a loan in the
original principal amount of Two Million Eight Hundred Thousand Dollars
($2,800,000.00) to David D. Smith, Robert L. Simmons, Robert E. Smith, J. Duncan
Smith and Frederick Smith (collectively, the "Smiths") (the "Smith Loan"), as
evidenced by that certain Note dated August 30, 1988 (the "Smith Note").
Cunningham unconditionally guaranteed the Smith Loan pursuant to the terms and
conditions of that certain Guaranty dated August 30, 1988
2
(the "Cunningham Guaranty"). The Cunningham Guaranty is secured by the two
Indemnity Deeds of Trust dated August 30, 1988, recorded among the Land Records
of Baltimore City in Liber 1822, folio 280, and among the Land Records of
Baltimore County in Liber 7961, folio 117 (collectively, the "Cunningham
Indemnity Deeds of Trust"), covering certain real property as more particularly
described therein;
WHEREAS, on August 30, 1993 Provident, the Smiths and
Cunningham modified certain terms and conditions of the Smith Note pursuant to
the terms and conditions of that certain First Amendment to Note dated August
30, 1993 (the "Smith Note Amendment"). The Cunningham Indemnity Deeds of Trust
were amended pursuant to the Deeds of Appointment of Substitute Trustees and
First Amendment to Indemnity Deed of Trust dated August 30, 1993 (the
"Cunningham Indemnity Deeds of Trust Amendments") recorded among the Land
Records of Baltimore City in Liber 3901, folio 254 and among the Land Records of
Baltimore County in Liber 10059, folio 76. The Cunningham Indemnity Deeds of
Trust, as amended by the Cunningham Indemnity Deeds of Trust Amendments are
collectively referred to herein as the "Provident/Cunningham Indemnity Deeds of
Trust"). The lien of the Provident/Cunningham Indemnity Deeds of Trust is
referred to herein as the "Provident/Cunningham Lien."
WHEREAS, pursuant to the Subordination Agreement, dated August
30, 1993, between the Agent and Provident, the Agent subordinated the liens of
the Cunningham Deeds of Trust to the Provident/Cunningham Lien with respect to
principal however to Two Million Eight Hundred Thousand Dollars ($2,800,000.00)
in the aggregate outstanding at any time, which Subordination Agreement is
recorded among the Land Records of Baltimore City in Liber ________, folio
_______ and the Land Records of Baltimore County in Liber ________, folio
_______ (the "Cunningham Subordination Agreement");
WHEREAS, Provident made loans to Keyser in the original
principal amount of Six Hundred Fifty Thousand Dollars ($650,000.00), as
evidenced by a Promissory Note dated March 9, 1990 (the "$650,000 Keyser Note")
and in the original principal amount of Two Hundred Twenty Thousand Dollars
($220,000.00), as evidenced by a Promissory Note dated December 30, 1988 (the
"$220,000 Keyser Note"). The $650,000 Keyser Note and the $220,000 Keyser Note
are secured by a Deed of Trust and Security Agreement dated March 9, 1990 (the
"1990 Provident/Keyser Deed of Trust") recorded among the Land Records of
Baltimore City Maryland in Liber S.E.B. 2424, folio 288, granting Provident a
lien on certain property known as 2000-2008 W. 41st Street, Baltimore, Maryland,
as more particularly described therein (the "Keyser Property");
WHEREAS, on April 12, 1991 Provident and Keyser consolidated,
amended and restated the $650,000 Keyser Note and the $220,000 Keyser Note,
together with new monies advanced by Provident to Keyser, as evidenced by a
Promissory Note dated April 12, 1991 in the original principal amount of
$959,000.00 (the "$959,000 Keyser Note"). The $959,000 Keyser Note is secured by
the 1990 Provident/Keyser Deed of Trust, as amended by that certain Amended and
Restated Deed of Trust and Security Agreement dated April 12,
3
1991 (the "Provident/Keyser Deed of Trust Amendment") recorded among the Land
Records of Baltimore City, Maryland in Liber S.E.B. 2842, folio 161. The 1990
Provident/Keyser Deed of Trust and the Provident/Keyser Deed of Trust Amendment
are collectively referred to herein as the "Provident/Keyser Deed of Trust");
WHEREAS, on April 14, 1995, Provident made a loan to Keyser in
the original principal amount of One Million Five Hundred Thousand Dollars
($1,500,000.00), as evidenced by a Promissory Note dated April 14, 1995 in the
original principal amount of One Million Five Hundred Thousand Dollars
($1,500,000.00) (the "$1,500,000 Keyser Note"). The $1,500,000 Keyser Note is
secured by a Deed of Trust and Security Agreement dated April 14, 1995 (the
"Second Provident/Keyser Deed of Trust") recorded among the Land Records of
Baltimore City, Maryland, in Liber S.E.B. No. 4842, folio 466, granting
Provident a lien of the Keyser Property;
WHEREAS, Provident has agreed with Keyser to consolidate,
amend and restate the $959,000 Keyser Note and $1,500,000 Keyser Note, as
evidenced by a Consolidated, Amended and Restated Deed of Trust Note dated
___________, 1996 in the original principal amount of One Million Nine Hundred
Twelve Thousand Five Hundred Dollars ($1,912,500.00) (the "$1,912,500 Keyser
Note"). The $1,912,500 Keyser Note is secured by a Consolidated, Amended and
Restated Deed of Trust, Assignment and Security Agreement on the Keyser Property
(the "New Provident/Keyser Deed of Trust"). The issuance of the $1,912,500
Keyser Note is conditioned upon the Provident/Keyser Lien (as hereinafter
defined) being superior to the lien of the Keyser Deed of Trust. The lien of the
New Provident/Keyser Deed of Trust is referred to herein as the
"Provident/Keyser Lien"; the Provident/Keyser Lien and the Provident/Cunningham
Lien are collectively referred to herein as the "Provident Liens";
WHEREAS, at the request of Provident, the Agent has agreed to
subordinate the lien of the Keyser Deed of Trust to the Keyser/Provident Lien
upon the terms, covenants and conditions contained herein;
WHEREAS, Cunningham, as Lessor, and CTI, as Lessee, have
entered into certain lease agreements more particularly described on Exhibit A
attached hereto (each a "Cunningham Lease Agreement"; collectively, the
"Cunningham Lease Agreements");
WHEREAS, Keyser, as Lessor, and CTI, as Lessee, have entered
into certain lease agreements more particularly described on Exhibit B attached
hereto (each a "Keyser Lease Agreement", collectively, the "Keyser Lease
Agreements"; the Cunningham Lease Agreements and the Keyser Lease Agreements,
collectively, the "Leases");
WHEREAS, pursuant to the terms of the Leases, CTI has agreed
to subordinate its rights as Lessee to any bona fide mortgage or deed of trust;
and
4
WHEREAS, upon the request of CTI, Provident has agreed to
forebear taking certain actions with respect to any Cunningham Lease Agreement
and any Keyser Lease Agreement as the case may be, so long as Keyser and the
Smiths are not in default of any obligations under the Provident Liens;
NOW, THEREFORE, in consideration of the premises and covenants
herein contained, and intending to be legally bound hereby, the parties hereto
covenant and agree as follows:
1. The Agent hereby subordinates the lien of the Keyser Deed
of Trust to the Provident/Keyser Lien with respect to principal, however, to One
Million Nine Hundred Twelve Thousand Five Hundred Dollars ($1,912,500.00) in the
aggregate outstanding at any time. The New Provident/Keyser Deed of Trust may be
extended, renewed or refinanced at any time or from time to time, provided that
no such extension, renewal or refinancing may increase the amount set forth in
this Paragraph 1 or extend the Provident/Keyser Lien to cover additional
property not theretofore covered by such lien.
2. The Agent hereby confirms the subordination of the of the
lien of the Cunningham Deeds of Trust to the Provident/Cunningham Lien with
respect to principal, however, to Two Million Eight Hundred Thousand Dollars
($2,800,000.00) in the aggregate outstanding at any time. The
Provident/Cunningham Indemnity Deeds of Trust may be extended, renewed or
refinanced at any time or from time to time, provided that no such extension,
renewal or refinancing may increase the amount set forth in the Cunningham
Subordination Agreement or extend the Provident/Cunningham Lien to cover
additional property not theretofore covered by such lien.
3. If a default shall at any time occur under any of the
Provident Liens, Provident shall, prior to exercising any of its remedies with
respect to the Provident Liens, give notice specifying the nature of such
default to the Agent. The Agent shall have forty-five (45) days after receipt of
such written notice to cure such default, and Provident shall forbear from
exercising any of its rights, powers or remedies under any such Provident Liens
available at law or in equity during such time.
4. CTI hereby subordinates its interests in the Leases to the
Provident Liens and the Agent Liens, respectively and to all renewals,
extensions, supplements, amendments, modifications, consolidations and
replacements thereof or thereto, substitution therefor, and advances made
thereunder from time to time. The provisions of this Paragraph 3 shall be
self-operative, and no further instrument of subordination shall be required to
make the interests of Provident and the Agent, or any successor in interest of
Provident and of the Agent, superior to the interest of CTI under the Leases.
CTI, Cunningham and Keyser agree that the Leases shall not be amended, modified,
restated, substituted or extended without Provident's and the Agent's prior
consent.
5
5. Provident agrees that, provided no default has occurred and
is continuing under any Cunningham Lease Agreement, if there shall be a
foreclosure of the Provident/Cunningham Lien covering the related Cunningham
Property, no foreclosure or any other proceeding shall divest, impair, modify or
abrogate or otherwise adversely affect any rights whatsoever of CTI as Lessee
under any Cunningham Lease Agreement, and, in particular, Provident shall not
make CTI a party defendant to such foreclosure, evict CTI, disturb CTI's
possession under any Cunningham Lease Agreement or terminate or disturb CTI's
leasehold estate or rights under such Cunningham Lease Agreement.
6. Provident agrees that, provided no default has occurred and
is continuing under any Keyser Lease Agreement, if there shall be a foreclosure
of the Provident/Keyser Lien covering the related Keyser Property, no
foreclosure or any other proceeding shall divest, impair, modify or abrogate or
otherwise adversely affect any rights whatsoever of CTI as Lessee under any
Keyser Lease Agreement and, in particular, Provident shall not make CTI a party
defendant to such foreclosure, evict CTI, disturb CTI's possession under any
Keyser Lease Agreement or terminate or disturb CTI's leasehold estate or rights
under such Keyser Lease Agreement.
7. If any time prior to the expiration of the term of any of
the Leases, Provident or the Agent, as the case may be, or any successor in
interest of Provident and the Agent or any Successor Landlord (defined below)
comes into possession of any Cunningham Property or any Keyser Property by
receiver or otherwise, CTI shall, at the election and upon demand of Provident
and the Agent or such successor or such Successor Landlord, attorn, from time to
time, to Provident and the Agent or such successor or such Successor Landlord,
upon the then executory terms and conditions of the Leases for the remainder of
the terms of the Leases, provided that Provident, the Agent, any successor in
interest of Provident and the Agent or any Successor Landlord, as the case may
be, or receiver caused to be appointed by any of the foregoing, shall then be
entitled to possession of any of the Properties. The provisions of this
Paragraph 7 shall inure to the benefit of Provident and the Agent, any successor
in interest of Provident and the Agent or any Successor Landlord, and shall be
self-operative upon any such demand, and no further instrument shall be required
to give effect to the above provisions. CTI, however, upon demand of Provident
and the Agent, any successor in interest of Provident and the Agent or any
Successor Landlord, shall execute, from time to time, instruments in
confirmation of the foregoing provisions of this Paragraph 7, satisfactory to
Provident and the Agent, any successor in interest of Provident and the Agent or
any Successor Landlord, acknowledging such attornment and setting forth the
terms and conditions of its tenancy. Nothing contained in this Paragraph 7 shall
be construed to impair any right otherwise exercisable by Provident and the
Agent, any successor in interest of Provident and the Agent or any Successor
Landlord.
"Successor Landlord" means: (a) a receiver appointed in any
action or proceeding to foreclose the Provident Liens or the Agent Liens or to
preserve any of the Cunningham Property or Keyser Property, (b) any person
acquiring (by foreclosure of the Provident Liens or the Agent Liens or
otherwise) title to all or any part of the Cunningham
6
Properties or the Keyser Properties or the interest of Cunningham or Keyser,
respectively, under the Leases, and (c) any successor or assign of any person
named in item (a) or (b) above.
8. Notwithstanding anything to the contrary contained in this
Agreement, neither Provident nor the Agent nor anyone claiming by, through or
under Provident and the Agent, as the case may be, including, without
limitation, a purchaser at a sale subsequent to foreclosure or other Successor
Landlord, shall be:
(a) liable for any act or omission of any prior landlord
(including, without limitation, the then defaulting landlord), or
(b) subject to any defenses or offsets which CTI may have
against any prior landlord (including, without limitation, the then
defaulting landlord), or
(c) bound by any payment of rental which CTI might have paid
for more than the current month (except for any installment of taxes
which covers a longer period) to any prior landlord (including, without
limitation, the then defaulting landlord), or
(d) bound by any obligation to make any payment to CTI which
was incurred prior to the time Provident or the Agent, as the case may
be, succeeded to any prior landlord's interest or to make payments on
account of CTI, or
(e) bound by any obligation to perform any work or to make
improvements to any of the Properties, including without limitation the
demised premises covered by the respective Leases;
(f) bound by any amendment or modification of any of the
Leases made without their respective consents, or
(g) bound to return CTI's security deposit, if any, until such
deposit has come into its actual possession, or
(h) bound to CTI beyond the date on which it shall transfer
its interest in the Cunningham Property or the Keyser Property to a
third party.
9. As long as the Provident Liens and the Agent Liens shall
exist, CTI shall not seek to terminate any of the Leases by reason of any act or
omission of landlord under the Leases until CTI shall have given written notice
of such act or omission to Provident and the Agent at their addresses set forth
herein, or at such other address as Provident or the Agent shall furnish to CTI,
and, if Provident or the Agent shall have notified CTI within ten (10) business
days following receipt of such notice of its intention to remedy such act or
omission, until a reasonable period of time shall have elapsed following
7
the giving of such notice, during which period Provident or the Agent shall have
the right, but not the obligation, to remedy such act or omission (whether or
not the exercise of such right has commenced).
10. All notices, consents and other communications (a
"notice") hereunder shall be in writing and personally delivered or sent by
certified mail, return receipt requested, to the addresses of the parties
hereinabove set forth, and if to Agent, attention Stephen Mumblow, or to such
other persons and addresses as may be specified from time to time in writing. A
notice shall be deemed given on the date personally delivered or on the third
business day after being deposited with the United States Postal Service.
11. This Agreement may not be modified or terminated orally,
and constitutes the entire agreement between the parties with respect to the
subject matter hereof.
12. The covenants and agreements herein contained shall be
deemed to be covenants running with the Properties, and shall inure to the
benefit of and be binding upon the parties hereto and their respective
successors, assigns and legal representatives.
13. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument and any of the parties hereto may execute this Agreement by signing
any such counterpart.
[signature page follows]
8
IN WITNESS WHEREOF, the undersigned have duly executed this
Subordination and Non-Disturbance Agreement on the day and year first above
written.
CUNNINGHAM COMMUNICATIONS, INC.
By: _______________________________
Name:
Title:
CHESAPEAKE TELEVISION, INC.
By: _______________________________
Name:
Title:
KEYSER INVESTMENT GROUP, INC.
By: _______________________________
Name:
Title:
PROVIDENT BANK OF MARYLAND
By: _______________________________
Name:
Title:
THE CHASE MANHATTAN BANK
By: _______________________________
Name:
Title:
9
[Cunningham]
STATE OF MARYLAND )
) ss.:
COUNTY OF BALTIMORE )
On this ___ day of December, 1996, before me, the undersigned,
a Notary Public in and for the State of Maryland, duly commissioned and sworn,
personally appeared ____________________________, to me known who, being by me
duly sworn, did depose and say that he is the ____________________ of Cunningham
Communications, Inc., the corporation described in and which executed the
foregoing instrument; and that he signed his name thereto under authority of the
board of directors of said bank.
WITNESS my hand and seal hereto affixed the day and year first
above written.
-----------------------------
NOTARY PUBLIC in and for
the State of Maryland.
My Commission expires:
[CTI]
STATE OF MARYLAND )
) ss.:
COUNTY OF BALTIMORE )
On this ___ day of December, 1996, before me, the undersigned,
a Notary Public in and for the State of Maryland, duly commissioned and sworn,
personally appeared ____________________________, to me known who, being by me
duly sworn, did depose and say that he is the ____________________ of Chesapeake
Television, Inc., the corporation described in and which executed the foregoing
instrument; and that he signed his name thereto under authority of the board of
directors of said bank.
WITNESS my hand and seal hereto affixed the day and year first
above written.
-----------------------------
NOTARY PUBLIC in and for
the State of Maryland.
My Commission expires:
[Keyser]
STATE OF MARYLAND )
) ss.:
COUNTY OF BALTIMORE )
On this ___ day of December, 1996, before me, the undersigned,
a Notary Public in and for the State of Maryland, duly commissioned and sworn,
personally appeared ____________________________, to me known who, being by me
duly sworn, did depose and say that he is the ____________________ of Keyser
Investment Group, Inc., the corporation described in and which executed the
foregoing instrument; and that he signed his name thereto under authority of the
board of directors of said bank.
WITNESS my hand and seal hereto affixed the day and year first
above written.
-----------------------------
NOTARY PUBLIC in and for
the State of Maryland.
My Commission expires:
[Provident]
STATE OF MARYLAND )
) ss.:
COUNTY OF BALTIMORE )
On this ___ day of December, 1996, before me, the undersigned,
a Notary Public in and for the State of Maryland, duly commissioned and sworn,
personally appeared ____________________________, to me known who, being by me
duly sworn, did depose and say that he is the ____________________ of Provident
Bank of Maryland, the bank described in and which executed the foregoing
instrument; and that he signed his name thereto under authority of the board of
directors of said bank.
WITNESS my hand and seal hereto affixed the day and year first
above written.
-----------------------------
NOTARY PUBLIC in and for
the State of Maryland.
My Commission expires:
[Agent]
STATE OF NEW YORK )
ss:
COUNTY OF NEW YORK )
On this ___ day of December, 1996, before me, the undersigned,
a Notary Public in and for the State of New York, duly commissioned and sworn,
personally appeared ____________________________, to me known who, being by me
duly sworn, did depose and say that he is the ____________________ of The Chase
Manhattan Bank, a New York banking corporation (as successor by merger to The
Chase Manhattan Bank, National Association), the bank described in and which
executed the foregoing instrument; and that he signed his name thereto under
authority of the board of directors of said bank.
WITNESS my hand and seal hereto affixed the day and year first
above written.
-----------------------------
NOTARY PUBLIC
SCHEDULE I
The Cunningham Property
SCHEDULE II
The Keyser Property
EXHIBIT A
Cunningham and CTI Lease Agreements
1. Lease Agreement, dated April 1, 1992, by and between Cunningham
Communications, Inc. ("Cunningham") and Chesapeake Television, Inc.
("CTI") for two transmission dishes on the Baltimore tower located at
3900 Hooper Avenue, Baltimore, Maryland, more particularly described on
Exhibit A-1.
2. Lease Agreement, dated June 1, 1991, by and between Cunningham and CTI
for two receivers on the Baltimore tower located at 3900 Hooper Avenue,
Baltimore, Maryland, more particularly described on Exhibit A-1.
3. Lease Agreement, dated March 16, 1988, by and between Cunningham and
CTI for space on the back-up Baltimore tower located at 1200 Rolling
Road, Baltimore, Maryland, more particularly described on Exhibit A-2.
4. Lease Agreement, dated April 2, 1987, by and between Cunningham and CTI
for space on primary Baltimore tower located at 3900 Hooper Avenue,
Baltimore, Maryland, more particularly described on Exhibit A-1.
5. Lease made June 1, 1991 by and between Cunningham and CTI for office
space located at 3500 Parkdale Avenue, Baltimore, Maryland, more
particularly described on Exhibit A-3.
EXHIBIT B
Keyser and CTI Lease Agreements
1. Lease, dated January 1, 1991, between Keyser Investment Group, Inc.
("Keyser") and Chesapeake Television, Inc. ("CTI") for office space at
2000 W. 41st Street, Baltimore, Maryland, more particularly described
on Exhibit B-1.
2. Lease, dated June 6, 1991, between Keyser and CTI for a parking lot at
2010 W. 41st Street, Baltimore, Maryland, more particularly described
on Exhibit B-2.