1
EXHIBIT 10.30
EXECUTION COPY
--------------
--------------------------------------------------------------------------------
CREDIT AGREEMENT
Dated as of November 30, 1994
As Amended and Restated as of September 26, 1996
Among
LWWI BROADCASTING INC.
LIN TELEVISION CORPORATION
THE BANKS LISTED ON THE SIGNATURE PAGES HEREOF
BARCLAYS BANK, PLC,
FLEET NATIONAL BANK,
NATIONSBANK OF TEXAS, N.A.
and
THE BANK OF NOVA SCOTIA,
as Co-Agents
THE BANK OF NEW YORK,
THE CHASE MANHATTAN BANK,
CITICORP SECURITIES, INC.
and
TORONTO DOMINION (NEW YORK), INC.,
as Arranging Agents
THE BANK OF NEW YORK,
as Documentation Agent
THE CHASE MANHATTAN BANK,
as Syndication Agent
and
TORONTO DOMINION (TEXAS), INC.,
as Administrative Agent
--------------------------------------------------------------------------------
2
TABLE OF CONTENTS
PAGE
----
ARTICLE 1
CREDIT FACILITY
1.01. Commitment to Lend................................ 1
(a) RC Loans.................................. 1
(b) Incremental Facility...................... 1
(c) Type of Loans............................. 2
1.02. Manner of Borrowing............................... 2
1.03. Interest.......................................... 4
(a) Rates..................................... 4
(b) Payment................................... 4
(c) Conversion and Continuation............... 4
(d) Maximum Interest Rate..................... 5
1.04. Repayment......................................... 6
1.05. Prepayments....................................... 6
(a) Optional Prepayments...................... 6
(b) Mandatory Prepayments..................... 6
(i) Asset Disposition Mandatory
Prepayments.......................... 6
(ii) Insurance Proceeds Mandatory
Prepayments.......................... 7
(iii) Excess Loans Mandatory
Prepayments.......................... 8
(c) Application to Types of Loans............. 8
1.06. Limitation on Types of Loans...................... 8
1.07. Reduction and Termination of Commitments.......... 8
(a) Optional Reduction of Commitments......... 8
(b) Mandatory Reduction of Commitments........ 9
1.08. Fees............................................. 10
(a) Commitment Fees.......................... 10
(b) Agents' Fees............................. 10
(c) Fees Non-Refundable...................... 10
1.09. Computation of Interest and Fees................. 11
1.10. Evidence of Indebtedness......................... 11
1.11. Payments by the Borrower......................... 11
(a) Time, Place and Manner................... 11
(b) No Reductions............................ 11
(c) Extension of Payment Dates............... 12
1.12. Distribution of Payments by the Administrative
Agent.............................................. 12
-i-
3
1.13. Taxes............................................ 13
(a) Taxes Payable by the Borrower............ 13
(b) Taxes Payable by any Agent or any Bank... 13
(c) Exemption from U.S. Withholding and
Backup Withholding Taxes................. 13
1.14. Pro Rata Treatment............................... 14
ARTICLE 2
CONDITIONS TO EFFECTIVENESS; CONDITIONS TO LOANS
2.01. Conditions to Effectiveness...................... 15
2.02. Conditions to Each Loan.......................... 16
ARTICLE 3
CERTAIN REPRESENTATIONS AND WARRANTIES
3.01. Organization; Power; Qualification............... 17
3.02. Subsidiaries..................................... 17
3.03. Authorization; Enforceability; Required
Consents; Absence of Conflicts..................... 17
3.04. Taxes............................................ 18
3.05. Litigation....................................... 19
3.06. Burdensome Provisions............................ 19
3.07. No Adverse Change or Event; Additional Adverse
Facts.............................................. 19
3.08. Investment Company Act........................... 20
3.09. Substance Release and Disposal................... 20
3.10. Compliance with Law.............................. 20
3.11. No Catastrophic Events........................... 20
3.12. Condition of Broadcast Stations.................. 21
3.13. Public Utility Holding Company Act............... 21
3.14. Capital Stock.................................... 21
3.15. No Limitations on Dividends...................... 21
3.16. FCC Licenses..................................... 21
3.17. Regulation of the Banks.......................... 22
3.18. Existing Indebtedness............................ 22
3.19. Material Agreements.............................. 22
3.20. Title to Property................................ 22
3.21. Network Affiliation Agreements................... 23
ARTICLE 4
CERTAIN COVENANTS
A. ..................................................... 23
4.01. Preservation of Existence; Maintenance of
Corporate Separateness............................. 23
4.02. Preservation of Rights and Properties............ 24
4.03. Business Activities.............................. 24
-ii-
4
4.04. Payment of Taxes and Liabilities................. 24
4.05. Compliance With Applicable Laws and Contracts;
Maintenance of Material Agreements................. 24
4.06. Preservation of Loan Document Enforceability..... 25
4.07. Insurance........................................ 25
4.08. Use of Proceeds.................................. 25
4.09. Ownership of Subsidiaries; Additional
Subsidiaries....................................... 25
4.10. [Reserved]....................................... 26
4.11. [Reserved]....................................... 26
B. ..................................................... 26
4.12. Indebtedness..................................... 26
4.13. Guaranties....................................... 28
4.14. Liens............................................ 28
4.15. Restricted Payments.............................. 28
4.16. Merger or Consolidation.......................... 29
4.17. Disposition of Assets............................ 30
4.18. Acquisitions..................................... 31
4.19. Taxes of Other Persons........................... 31
4.20. Benefit Plans.................................... 31
4.21. Transactions with Affiliates..................... 31
4.22. Limitation on Restrictive Covenants.............. 31
4.23. Issuance of Capital Securities................... 32
4.24. Substance Storage and Disposal................... 32
4.25. [Reserved]....................................... 32
4.26. Amendments, Etc.................................. 32
4.27. Limitations with respect to Certain Other
Indebtedness....................................... 33
C. ..................................................... 33
4.28. Ratio of Consolidated Operating Cash Flow to
Consolidated Interest Expense...................... 33
4.29. Ratio of Consolidated Free Cash Flow to
Consolidated Pro Forma Debt Service................ 33
4.30. Leverage Ratio................................... 33
ARTICLE 5
INFORMATION
5.01. Information to Be Furnished...................... 34
(a) Quarterly Financial Statements........... 34
(b) Year End Financial Statements;
Accountants' Certificate................. 34
(c) Officer's Certificate as to Financial
Statements and Defaults.................. 35
(d) Reports and Filings...................... 35
(e) Requested Information.................... 36
(f) Notice of Defaults, Material Adverse
Changes and Other Matters................ 36
5.02. Accuracy of Financial Statements and
Information ....................................... 37
-iii-
5
(a) Historical Financial Statements.......... 37
(b) Future Financial Statements.............. 38
(c) Information.............................. 38
5.03. Additional Covenants Relating to Disclosure...... 39
(a) Accounting Methods and Financial Records. 39
(b) Fiscal Year.............................. 39
(c) Visits, Inspections and Discussions...... 39
ARTICLE 6
DEFAULT
6.01. Events of Default................................ 40
6.02. Remedies Upon Event of Default................... 44
ARTICLE 7
ADDITIONAL CREDIT FACILITY PROVISIONS
7.01. Mandatory Suspension and Conversion of
Eurodollar Rate Loans.............................. 44
7.02. Increased Costs, Etc............................. 46
7.03. Capital Requirements............................. 46
7.04. Funding Losses................................... 46
7.05. Certain Determinations........................... 47
7.06. Change of Lending Office......................... 47
ARTICLE 8
THE AGENTS
8.01. Appointment and Powers........................... 48
8.02. Limitation on Agents' Liability.................. 48
8.03. Defaults......................................... 49
8.04. Rights as a Bank................................. 49
8.05. Indemnification.................................. 50
8.06. Non Reliance on Agents and Other Banks........... 50
8.07. Execution and Amendment of Loan Documents on
Behalf of the Banks................................ 50
8.08. Resignation of an Agent.......................... 51
ARTICLE 9
MISCELLANEOUS
9.01. Notices and Deliveries........................... 51
(a) Manner of Delivery....................... 51
(b) Addresses................................ 51
(c) Effectiveness............................ 53
-iv-
6
(d) Reasonable Notice........................ 54
9.02. Expenses; Indemnification........................ 54
9.03. Amounts Payable Due Upon Request for Payment..... 55
9.04. Remedies of the Essence.......................... 55
9.05. Rights Cumulative................................ 55
9.06. Confidentiality; Disclosures..................... 55
9.07. Amendments; Waivers.............................. 56
9.08. Set-Off; Suspension of Payment and Performance... 57
9.09. Sharing of Recoveries............................ 58
9.10. Assignments and Participations................... 58
(a) Assignments.............................. 58
(b) Participations........................... 59
9.11. Governing Law.................................... 60
9.12. Judicial Proceedings; Waiver of Jury Trial....... 60
9.13. Reference Banks.................................. 61
9.14. Severability of Provisions....................... 61
9.15. Counterparts..................................... 62
9.16. Survival of Obligations.......................... 62
9.17. Entire Agreement................................. 62
9.18. Successors and Assigns........................... 62
9.19. Termination and Release; Further Assurances...... 62
ARTICLE 10
INTERPRETATION
10.01. Defined Terms................................... 62
10.02. Other Interpretive Provisions................... 93
10.03. Accounting Matters.............................. 94
10.04. Representations and Warranties.................. 94
10.05. Captions........................................ 95
10.06. Interpretation of Related Documents............. 95
ANNEX A Banks, Lending Offices and Notice Addresses
Schedule 1.02 Notice of Borrowing
Schedule 1.03(c)(iv) Notice of Conversion or Continuation
Schedule 1.05(a) Notice of Prepayment
Schedule 2.01(a)(i) Certificate as to Resolutions, Etc.
Annex A Resolutions of Board of Directors
Annex A-1 Resolutions of Shareholders
Schedule 2.01(a)(iv) Opinion of Counsel for each Loan Party
Schedule 2.01(a)(v) Opinion of Counsel for the Arranging
Agents
Schedule 3.02 Schedule of Subsidiaries
Schedule 3.03 Schedule of Required Consents and
Governmental Approvals
Schedule 3.05 Schedule of Material Litigation
Schedule 3.07 Schedule of Additional Material Adverse
Facts
Schedule 3.16 Schedule of FCC Licenses
Schedule 3.19 Schedule of Material Agreements
-v-
7
Schedule 3.21 Schedule of Network Affiliation
Agreements
Schedule 4.12(c) Schedule of Existing Indebtedness
Schedule 4.13 Schedule of Existing Guaranties
Schedule 4.14 Schedule of Existing Liens
Schedule 4.15 Schedule of Existing Investments
Schedule 4.20 Schedule of Existing Benefit Plans
Schedule 4.21 Transactions with Affiliates
Schedule 4.22 Schedule of Existing Restrictive
Covenants
Schedule 5.01(b) Accountants' Certificate
Schedule 5.01(c)-1 Certificate as to Financial Statements
and Defaults (LIN Television)
Schedule 5.01(c)-2 Certificate as to Financial Statements
and Defaults (Borrower)
Schedule 5.02(a) Schedule of Historical Financial
Information
Schedule 9.10(a) Notice of Assignment
Exhibit A Form of Promissory Note
Exhibit B Guaranty Agreement
-vi-
8
CREDIT AGREEMENT
Dated as of November 30, 1994
As Amended and Restated as of September 26, 1996
LWWI BROADCASTING INC., a Delaware corporation, LIN TELEVISION
CORPORATION, a Delaware corporation, the BANKS listed on the signature pages
hereof, THE BANK OF NOVA SCOTIA, BARCLAYS BANK PLC, FLEET NATIONAL BANK and
NATIONSBANK OF TEXAS, N.A., as Co-Agents, THE BANK OF NEW YORK, THE CHASE
MANHATTAN BANK, CITICORP SECURITIES, INC. and TORONTO DOMINION (NEW YORK), INC.,
as Arranging Agents, THE BANK OF NEW YORK, as Documentation Agent, TORONTO
DOMINION (TEXAS), INC., as Administrative Agent, and THE CHASE MANHATTAN BANK,
as Syndication Agent, agree that the Credit Agreement among them dated as of
November 30, 1994, as previously amended, shall be amended and restated,
effective, subject to the conditions to effectiveness set forth in Section 2.01,
as of the Restated Agreement Date, to read in its entirety as follows (with
certain terms used herein being defined in Article 10):
ARTICLE 1
CREDIT FACILITY
---------------
Section 1.01. COMMITMENT TO LEND. (a) RC LOANS. Upon the terms and
subject to the conditions of this Agreement, each RC Bank severally but not
jointly agrees to make, from time to time during the period from the Restated
Agreement Date through the Maturity Date, one or more RC Loans to the Borrower
in an aggregate unpaid principal amount not exceeding at any time such RC Bank's
RC Commitment at such time. The aggregate amount of the Commitments on the
Restated Agreement Date is $600,000,000.
(b). INCREMENTAL FACILITY. (i) At any time prior to December 31, 1998,
but only with prior notice to the Administrative Agent, the Borrower may request
one or more of the Banks to provide commitments, in the amount of $10,000,000 or
any integral multiple of $1,000,000 in excess thereof and in the aggregate in an
amount not in excess of $300,000,000, for an additional revolving credit
facility (an "Incremental Facility") to be provided hereunder on the terms and
conditions as are set forth for the Incremental Commitments in this Agreement
and the other Loan Documents (including but not limited to sharing on a PARI
PASSU basis the Guaranty provided pursuant to the Guaranty Agreement), as they
may be amended with the consent of the Borrower and the Required Banks to
provide for such Incremental
9
Facility; PROVIDED that, in any event, the mandatory commitment reductions for
such Incremental Facility shall be as set forth in Section 1.07(b)(ii). No Bank,
by virtue of its being a party hereto, shall have any obligation to provide
commitments for the Incremental Facility, and each Bank may determine in its
sole and absolute discretion whether to provide such commitments.
(ii) So long as the Borrower shall have given the Administrative Agent
no less than 5 Business Days' prior notice of the effectiveness thereof, an
Incremental Facility shall become effective hereunder upon the Borrower's
receipt of commitments with respect thereto from Banks in the amount requested
by, or otherwise acceptable to, the Borrower. Upon such effectiveness, Annex A
shall be deemed amended to reflect such commitments. In the event that an
Incremental Facility shall have become effective, the Incremental Banks shall be
deemed to have agreed, severally and not jointly, upon the terms and subject to
the conditions of this Agreement, to make from time to time during the period
from the date of such effectiveness through the Maturity Date, one or more
Incremental Loans to the Borrower in an aggregate unpaid principal amount not
exceeding at any time such Incremental Bank's Incremental Commitment at such
time; PROVIDED, HOWEVER, that no Incremental Loans shall be made at any time
that the aggregate principal amount of the RC Loans at such time is less than
the aggregate amount of the RC Commitments at such time.
(c) TYPE OF LOANS. Subject to Section 1.06 and the other terms and
conditions of this Agreement, the Loans may, at the option of the Borrower, be
made as, and from time to time continued as or converted into, Base Rate or
Eurodollar Rate Loans of any permitted Type, or any combination thereof.
Secition 1.02. MANNER OF BORROWING. (a) The Borrower shall give the
Administrative Agent notice (which shall be irrevocable) no later than 10:00
a.m. (New York time) on, (i) in the case of Base Rate Loans, the Business Day
before the requested date for the making of such Loans, and (ii) in the case of
Eurodollar Rate Loans, the third Eurodollar Business Day, before the requested
date for the making of such Loans. Each such notice shall be in the form of
SCHEDULE 1.02 and shall specify (i) whether the requested Loans are RC Loans or
Incremental Loans, (ii) the requested date for the making of the requested
Loans, which shall be, in the case of Base Rate Loans, a Business Day and, in
the case of Eurodollar Rate Loans, a Eurodollar Business Day, (iii) the Type or
Types of Loans requested and (iv) the amount of each such Type of Loan, the
aggregate of which amounts for all Types of Loans requested shall be not less
than the lesser of (x) (1) in the case of Base Rate Loans, $5,000,000 and (2) in
the case of Eurodollar Rate Loans, $10,000,000 and (y) the aggregate amount of
the applicable unused Commitments, and which amount, if in excess of the amount
specified in clause (iv)(x)(1) or (2), as the case may be, for such Type of
Loan, shall be in integral multiples of $1,000,000.
-2-
10
Upon receipt of any such notice, the Administrative Agent shall promptly notify
each Bank of the contents thereof and of the amount and Type of each Loan to be
made by such Bank on the requested date specified therein.
(b) Not later than 12:00 noon (New York time) on each requested date
for the making of Loans, each Bank shall, if it has received the notice
contemplated by Section 1.02(a) in a timely fashion, make available to the
Administrative Agent, in Dollars in funds immediately available to the
Administrative Agent at the address of the Administrative Agent determined in
accordance with the provisions of Section 9.01(a)(ii), the Loans to be made by
such Bank on such date. Any Bank's failure to make any Loan to be made by it on
the requested date therefor shall not relieve any other Bank of its obligation
to make any Loan to be made by such other Bank on such date, but such other Bank
shall not be liable for such failure.
(c) Unless the Administrative Agent shall have received notice from a
Bank prior to 10:00 a.m. (New York time) on the requested date for the making of
any Loans that such Bank will not make available to the Administrative Agent the
Loans requested to be made by such Bank on such date, the Administrative Agent
may assume that such Bank has made such Loans available to the Administrative
Agent on such date in accordance with Section 1.02(b) and the Administrative
Agent in its sole discretion may, in reliance upon such assumption, make
available to the Borrower on such date a corresponding amount on behalf of such
Bank. If and to the extent such Bank shall not have so made available to the
Administrative Agent the Loans requested to be made by such Bank on such date
and the Administrative Agent shall have so made available to the Borrower a
corresponding amount on behalf of such Bank, such Bank shall, on demand, pay to
the Administrative Agent such corresponding amount together with interest
thereon, for each day from the date such amount shall have been so made
available by the Administrative Agent to the Borrower until the date such amount
shall have been repaid to the Administrative Agent, at the Federal Funds Rate
until (and including) the third Business Day after demand is made and thereafter
at the Base Rate. If such Bank does not pay such corresponding amount promptly
upon the Administrative Agent's demand therefor, the Administrative Agent shall,
within five Business Days after the date on which the Administrative Agent, on
behalf of such Bank, shall have made available to the Borrower such
corresponding amount, notify the Borrower and the Borrower shall immediately
repay such corresponding amount to the Administrative Agent together with
accrued interest thereon at the applicable rate or rates provided in Section
1.03(a).
(d) All Loans made available to the Administrative Agent in accordance
with Section 1.02(b) shall be disbursed by the Administrative Agent not later
than 1:00 p.m. (New York time) on the requested date therefor in Dollars in
funds immediately
-3-
11
available to the Borrower by credit to an account of the Borrower at the
depositary specified in writing by the Borrower to the Administrative Agent from
time to time or in such other manner as may have been specified in the
applicable notice and as shall be acceptable to the Administrative Agent.
Secition 1.03. INTEREST. (a) RATES. Each Loan shall bear interest on
the outstanding principal amount thereof until due at a rate per annum equal to,
(i) so long as it is a Base Rate Loan, the Base Rate as in effect from time to
time and (ii) so long as it is a Eurodollar Rate Loan, the applicable Adjusted
Eurodollar Rate plus the Applicable Margin in effect from time to time during
the Interest Period for such Loan. If all or any part of a Loan or any other
amount due and payable under the Loan Documents is not paid when due (whether at
maturity, by reason of notice of prepayment or acceleration or otherwise), each
Loan (whether or not due) and, to the maximum extent permitted by Applicable
Law, each other amount payable (whether or not due) under the Loan Documents
shall, to the maximum extent permitted by Applicable Law, bear interest for each
day during the period from the date such amount became so due until it shall be
paid in full (whether before or after judgment) at a rate per annum equal to the
Post-Default Rate.
(b) PAYMENT. Interest shall be payable, (i) in the case of Base Rate
Loans, on each Interest Payment Date, (ii) in the case of Eurodollar Rate Loans,
on the last day of each applicable Interest Period (and, in the case of a
Eurodollar Rate Loan having an Interest Period longer than three months, at
intervals of three months after the first day of such Interest Period), (iii) in
the case of any Loan, when such Loan shall be due (whether at maturity, by
reason of notice of prepayment or acceleration or otherwise) or converted, but
only to the extent then accrued on the amount then so due or converted. Interest
at the Post-Default Rate shall be payable on demand.
(c) CONVERSION AND CONTINUATION. (i) Loans of any Type may, on any
Business Day, be converted into any other Type or Types of Loans, PROVIDED that
(A) Eurodollar Rate Loans may be converted only on the last day of an applicable
Interest Period, (B) Base Rate Loans may be converted into Eurodollar Rate Loans
only on a Eurodollar Business Day and (C) the amount of all Types of Loans to be
converted may not be less than the lesser of (x) (1) in the case of Base Rate
Loans, $5,000,000 and (2) in the case of Eurodollar Rate Loans, $10,000,000 and
(y) the aggregate amount of the Loans outstanding at such time, and such amount,
if in excess of the amount specified in clause (C)(x)(1) or (2), as the case may
be, for such Type of Loan, shall be in integral multiples of $1,000,000.
(ii) Base Rate Loans shall continue as Base Rate Loans unless and
until such Loans are converted into Loans of another Type. Eurodollar Rate Loans
of any Type shall continue as Loans of such Type until the end of the then
current Interest
-4-
12
Period therefor, at which time they shall be automatically converted into Base
Rate Loans unless the Borrower shall have given the Administrative Agent notice
in accordance with Section 1.03(c)(iv) requesting either that such Loans
continue as Loans of such Type for another Interest Period or that such Loans be
converted into Loans of another Type at the end of such Interest Period.
(iii) Notwithstanding anything to the contrary contained in
Section 1.03(c)(i) or (ii), during an Event of Default, the Administrative Agent
may and, upon the instructions of the Required Banks, shall notify the Borrower
that Loans may only be converted into or continued as Loans of certain specified
Types (which, if the Required Banks shall have specified a Type or Types of
Loans in any instructions given to the Administrative Agent pursuant to this
Section 1.03(c)(iii), shall be such Type or Types of Loans specified by the
Required Banks) and, thereafter, until no Default shall continue to exist, Loans
may not be converted into or continued as Loans of any Type other than one or
more of such specified Types.
(iv) The Borrower shall give the Administrative Agent notice
(which shall be irrevocable) of each conversion of Loans or continuation of
Eurodollar Rate Loans no later than 10:00 a.m. (New York time) on, in the case
of a conversion into or a continuation of Base Rate Loans, the Business Day,
and, in the case of a conversion into or continuation of Eurodollar Rate Loans,
the third Eurodollar Business Day, before the requested date of such conversion
or continuation. Each notice of conversion or continuation shall be in the form
of SCHEDULE 1.03(C)(IV) and shall specify (A) whether the Loans to be converted
or continued are RC Loans or Incremental Loans, (B) the requested date of such
conversion or continuation, (C) the amount and Type and, in the case of
Eurodollar Rate Loans, the last day of the applicable Interest Period of the
Loans to be converted or continued and (D) the amount and Type or Types of Loans
into which such Loans are to be converted or as which such Loans are to be
continued. Upon receipt of any such notice, the Administrative Agent shall
promptly notify each Bank of (x) the contents thereof, (y) the amount and Type
and, in the case of Eurodollar Rate Loans, the last day of the applicable
Interest Period of each Loan to be converted or continued by such Bank and (z)
the amount and Type or Types of Loans into which such Loans are to be converted
or as which such Loans are to be continued.
(d) MAXIMUM INTEREST RATE. Nothing contained in the Loan Documents
shall require the Borrower at any time to pay interest at a rate exceeding the
Maximum Permissible Rate. If interest payable by the Borrower on any date would
exceed the maximum amount permitted by the Maximum Permissible Rate, such
interest payment shall automatically be reduced to such maximum permitted
amount, and interest for any subsequent period, to the extent less than the
maximum amount permitted for such period by the Maximum Permissible Rate, shall
be increased by the unpaid
-5-
13
amount of such reduction. Any interest actually received for any period in
excess of such maximum amount permitted for such period shall be deemed to have
been applied as a prepayment of the Loans.
Secition 1.04 REPAYMENT. The Loans shall mature and become due and
payable, and shall be repaid by the Borrower, in full on the Maturity Date.
Secition 1.05 PREPAYMENT. (a) OPTIONAL PREPAYMENTS. The Borrower may,
at any time and from time to time, prepay the Loans in whole or in part, without
premium or penalty (but subject to Section 7.04), except that (i) any partial
prepayment pursuant to this Section 1.05(a) of Base Rate Loans shall be in an
aggregate principal amount of at least $5,000,000 and integral multiples of
$1,000,000 in excess thereof and any partial prepayment of Eurodollar Rate Loans
shall be in an aggregate principal amount of at least $10,000,000 and integral
multiples of $1,000,000 in excess thereof and (ii) the Borrower may not pursuant
to this Section 1.05(a) prepay RC Loans at any time that Incremental Loans are
outstanding. The Borrower shall give the Administrative Agent notice of each
prepayment pursuant to this Section 1.05(a) no later than 10:00 a.m. (New York
time) on, in the case of a prepayment of Base Rate Loans, the Business Day, and,
in the case of a prepayment of Eurodollar Rate Loans, the second Eurodollar
Business Day, before the date of such prepayment. Each such notice of prepayment
shall be in the form of SCHEDULE 1.05(A) and shall specify (i) whether the Loans
to be prepaid are RC Loans or Incremental Loans, (ii) the date such prepayment
is to be made and (iii) the amount and Type and, in the case of Eurodollar Rate
Loans, the last day of the applicable Interest Period of the Loans to be
prepaid. Upon receipt of any such notice, the Administrative Agent shall
promptly notify each Bank of the contents thereof and the amount and Type and,
in the case of Eurodollar Rate Loans, the last day of the applicable Interest
Period of each Loan of such Bank to be prepaid. Amounts to be prepaid pursuant
to this Section 1.05(a) shall irrevocably be due and payable on the date
specified in the applicable notice of prepayment, together with interest thereon
as provided in Section 1.03(b).
(b) Mandatory Prepayments.
---------------------
(i) Asset Disposition Mandatory Prepayments.
---------------------------------------
(A) On each First Anniversary, the Borrower shall prepay the
Loans in an amount equal to 100% of any Asset Disposition Net Cash Proceeds
less the sum of (x) the amount of such Asset Disposition Net Cash Proceeds
used by the Borrower, either directly or through any Restricted Subsidiary,
to effect any acquisition or other transaction that is contemplated and
permitted by Section 4.18 within the preceding year and (y) the amount of
such Asset Disposition Net Cash Proceeds proposed to be used by the
-6-
14
Borrower, either directly or through any Restricted Subsidiary, to effect
any Delayed Transaction, as set forth in a certificate delivered to the
Administrative Agent by a senior financial officer of the Borrower on the
First Anniversary; PROVIDED, HOWEVER, that no such prepayment will be
required to be made if the Leverage Ratio is less than 4.50 to 1 on the
date such prepayment would otherwise have been due. Each such prepayment
shall be apportioned between the RC Loans and the Incremental Loans on a
pro rata basis, and if any portion of such prepayment remains unapplied
after the RC Loans or Incremental Loans have been prepaid in full, such
remaining portion shall be applied to the Loans that remain outstanding.
(B) On the date which is eighteen months after the date of
receipt by the Borrower and/or any of the Restricted Subsidiaries of any
Asset Disposition Net Cash Proceeds, the Borrower shall prepay the Loans in
an amount equal to the amount of such Asset Disposition Net Cash Proceeds
set forth in the certificate of a senior financial officer delivered
pursuant to clause (A)(y) above as proposed to be used to effect such
Delayed Transaction, to the extent (if any) that such Asset Disposition Net
Cash Proceeds were not in fact so used; PROVIDED, HOWEVER, that no such
prepayment will be required to be made if the Leverage Ratio is less than
4.50 to 1 on the date such prepayment would otherwise have been due. Each
such prepayment shall be apportioned between the RC Loans and the
Incremental Loans on a pro rata basis, and if any portion of such
prepayment remains unapplied after the RC Loans or Incremental Loans have
been prepaid in full, such remaining portion shall be applied to the Loans
that remain outstanding.
(ii) INSURANCE PROCEEDS MANDATORY PREPAYMENTS. On the first
anniversary of the date of receipt by the Borrower and/or any of the
Restricted Subsidiaries of any amounts paid pursuant to insurance policies
by reason of theft, condemnation, physical destruction or damage or any
other similar event with respect to any properties or assets of the
Borrower or any of the Restricted Subsidiaries, the Borrower shall prepay
the Loans in an amount equal to 100% of the amounts paid by reason of any
such event, less any part of such amounts used by the Borrower, either
directly or through the Restricted Subsidiaries, to construct, acquire,
restore or replace the properties or assets so stolen, condemned, destroyed
or damaged within the preceding year (or repay Indebtedness secured by such
properties or assets), PROVIDED that (A) no such prepayment shall be
required if the amount to be prepaid as the result of any one occurrence of
theft, condemnation, physical destruction or damage or other similar event
is less than $1,000,000 and (B) no such prepayment shall be required to be
made out of proceeds paid under business interruption insurance policies.
Each such prepayment shall be apportioned between
-7-
15
the RC Loans and the Incremental Loans on a pro rata basis, and if any
portion of such prepayment remains unapplied after the RC Loans or
Incremental Loans have been prepaid in full, such remaining portion shall
be applied to the Loans that remain outstanding.
(iii) EXCESS LOANS MANDATORY PREPAYMENTS. The Borrower shall, on
each date that a reduction in the RC Commitments or Incremental Commitments
causes the aggregate principal amount of the RC Loans or Incremental Loans
to exceed the applicable Commitments, prepay the applicable Loans in an
aggregate amount not less than the amount of such excess.
(c) APPLICATION TO TYPES OF LOANS. Amounts prepaid pursuant to
Section 1.05(b) shall be applied first to prepay Base Rate Loans and then to
prepay Eurodollar Rate Loans in the order that the Interest Periods for such
Loans end. Amounts to be prepaid pursuant to Section 1.05(b) shall be paid on
the day or within the time period specified therefor, whether or not such
payment would require a prepayment of Eurodollar Rate Loans prior to the last
day of an applicable Interest Period or would result in losses, costs or
expenses compensable under Section 7.04.
Section 1.06 LIMITATION ON TYPES OF LOANS. Notwithstanding anything to
the contrary contained in this Agreement, the Borrower shall borrow, prepay,
convert and continue Loans in a manner such that (a) the aggregate principal
amount of Eurodollar Rate Loans of the same Type and having the same Interest
Period shall at all times be not less than $10,000,000, (b) there shall not be,
at any one time, more than ten Interest Periods in effect with respect to
Eurodollar Rate Loans of all Types, (c) there shall not be, at any one time,
more than ten Eurodollar Rate Loans of all Types outstanding and (d) no payment
of Eurodollar Rate Loans will have to be made prior to the last day of an
applicable Interest Period in order to repay the Loans in the amounts and
(subject to Section 1.11(c)) on the dates specified in Sections 1.04 and
1.05(b)(ii).
Section 1.07 REDUCTION AND TERMINATION OF COMMITMENTS. (a) OPTIONAL
REDUCTION OF COMMITMENTS. The Borrower may reduce the RC Commitments or
Incremental Commitments by giving the Administrative Agent notice (which shall
be irrevocable) thereof no later than 10:00 a.m. (New York time) on the fifth
Business Day before the requested date of such reduction, except that, (i) no
partial reduction of the Commitments shall be in an aggregate amount less than
$10,000,000; (ii) no reduction may reduce the RC Commitments or Incremental
Commitments to an amount less than the aggregate amount of, respectively, the RC
Loans or Incremental Loans outstanding; and (iii) no reduction pursuant to this
Section 1.07(a) may reduce the RC Commitments unless the Incremental Commitments
have been reduced to zero or otherwise terminated. Each such reduction pursuant
to this Section 1.07(a) shall be
-8-
16
applied to each of the remaining scheduled reductions pursuant to Section
1.07(b)(i) or (ii), as applicable, on a pro rata basis. Upon receipt of any such
notice, the Administrative Agent shall promptly notify each Bank of the contents
thereof and the amount to which such Bank's Commitment is to be reduced.
(b) MANDATORY REDUCTION OF COMMITMENTS. (i) The aggregate RC
Commitments shall be automatically and permanently reduced, in equal semi-annual
amounts within each of the years set forth below, on the last day of June and
December in each of the years 1999 through and including 2004, commencing with
June 30, 1999 and ending on the Maturity Date, in an amount equal to the amount
set forth below for the appropriate year, except that, in any event, the final
reduction shall be in an amount such that the aggregate RC Commitments shall be
reduced to zero on the Maturity Date.
Amount of
Each Semi-Annual
Reduction of
YEAR RC COMMITMENTS
---- ----------------
1999 $15,000,000
2000 60,000,000
2001 60,000,000
2002 60,000,000
2003 60,000,000
2004 45,000,000
(ii) The aggregate Incremental Commitments shall be automatically and
permanently reduced, in equal semi-annual amounts within each of the years 2001,
2002, 2003 and 2004, on the last day of June and December in each of such years,
commencing with June 30, 2001 and ending on the Maturity Date, in an amount
equal to, in the case of each such reduction, one-eighth of the aggregate
Incremental Commitments on December 31, 1998, except that, in any event, the
final reduction shall be in an amount such that the Incremental Commitment shall
be reduced to zero on the Maturity Date.
(iii) The aggregate Commitments shall be automatically and permanently
reduced at the time of each mandatory prepayment required to be made (or, if no
Loans are outstanding, that would have been required to be made) pursuant to
Section 1.05(b)(i) and (ii) in an amount equal to (A) in the case of Section
1.05(b)(i), the amount of the applicable Net Cash Proceeds and (B) in the case
of Section 1.05(b)(ii), the amount of the applicable amounts received. Each such
reduction pursuant to this Section 1.07(b)(iii) shall be apportioned between the
RC Commitments and the Incremental Commitments on a pro rata basis and, as so
apportioned, shall be applied to each of the remaining scheduled reductions
pursuant to Sections 1.07(b)(i) and (ii) on a pro rata basis.
-9-
17
Section 1.08. FEES. (a) COMMITMENT FEES. The Borrower shall pay to the
Administrative Agent for the account of each Bank a commitment fee on the daily
unused amount of such Bank's Commitment for each day (i) prior to the Restated
Agreement Date at a rate per annum of 0.500% and (ii) from the Restated
Agreement Date through the Maturity Date at a rate per annum set forth below
opposite the applicable Leverage Ratio (it being understood that each commitment
fee shall be in effect from the third Business Day after the day the respective
Section 5.01 Financials are delivered to the Banks until the third Business Day
after the day the next such Section 5.01 Financials are delivered to the Banks
at which time the commitment fee shall be reset in accordance with the foregoing
provisions of this Section):
Commitment
LEVERAGE RATIO FEE
-------------- ----------
Greater than 3.00 to 1 0.2500%
Less than or equal to 0.1875%
3.00 to 1
; PROVIDED that, during any period in which an Event of Default shall have
occurred and be continuing as a result of the failure of the Borrower to deliver
Section 5.01 Financials to each Bank when required pursuant to Section 5.01(a)
or (b), as the case may be, the commitment fee shall be 0.2500%, and PROVIDED
FURTHER that for the sole purposes of calculating the commitment fee, (i) no
Event of Default shall be deemed to have occurred and be continuing if the
Borrower shall have delivered the Section 5.01 Financials to the Administrative
Agent when required pursuant to Section 5.01(a) or (b), as the case may be, even
if such Section 5.01 Financials shall not have been delivered to each Bank when
required pursuant to Section 5.01(a) or (b), as the case may be, and (ii) the
Required Banks shall not unreasonably withhold their consent to any request by
the Borrower to extend the time periods of 60 days or 90 days, as the case may
be, set forth in Section 5.01(a) or (b). The commitment fee shall, in each case,
be payable on successive Interest Payment Dates occurring prior to the Maturity
Date, on the Maturity Date and on the date occurring prior to the Maturity Date
of any reduction of such Commitment (to the extent accrued and unpaid on the
amount of the reduction).
(b) AGENTS' FEES. The Borrower shall pay to each Agent, for its own
account, such fees, if any, as may be separately agreed in writing between the
Borrower and such Agent. Such fees shall be payable in the amounts and at the
times so agreed between the Borrower and such Agent.
(c) FEES NON-REFUNDABLE. None of the fees payable under this Section
1.08 shall be refundable in whole or in part.
-10-
18
Section 1.09. COMPUTATION OF INTEREST AND FEES. Interest and the
commitment fees shall be computed on the basis of a year of 360 days and paid
for the actual number of days elapsed. Interest for any period shall be
calculated from and including the first day thereof to but excluding the last
day thereof.
Section 1.10. EVIDENCE OF INDEBTEDNESS. Each Bank's Loans and the
Borrower's obligation to repay such Loans with interest in accordance with the
terms of this Agreement shall be evidenced by this Agreement and the records of
such Bank. The records of each Bank shall be prima facie evidence of such Bank's
Loans and accrued interest thereon and of all payments made in respect thereof,
absent manifest error. Upon the request of any Bank, the Borrower will provide a
promissory note, substantially in the form of Exhibit A, evidencing the Loans of
such Bank so long as (a) such Bank has requested such note in order to grant a
security interest in such Loans to a Federal Reserve Bank and (b) such Federal
Reserve Bank requires such a note in connection therewith.
Section 1.11. PAYMENTS BY THE BORROWER. (a) TIME, PLACE AND MANNER.
All payments due to any Agent under the Borrower Loan Documents shall be made
to the Administrative Agent at the Administrative Agent's Office or to such
other Person or at such other address as the Administrative Agent may
designate by notice to the Borrower. All payments due to any Bank under the
Borrower Loan Documents shall, in the case of payments on account of principal
of or interest on the Loans or fees, be made to the Administrative Agent at the
Administrative Agent's Office and, in the case of all other payments, be made
directly to such Bank at its Domestic Lending Office or at such other address
as such Bank may designate by notice to the Borrower. All payments due to any
Agent or any Bank under the Borrower Loan Documents, whether made to the
Administrative Agent or directly to such Agent or such Bank, shall be made for
the account of, in the case of payments in respect of Eurodollar Rate Loans,
such Bank's Eurodollar Lending Office and, in the case of all other payments,
such Bank's Domestic Lending Office (or, in the case of payments due to an
Agent, to the Domestic Lending Office of such Agent acting in its capacity as a
Bank). A payment shall not be deemed to have been made on any day unless such
payment has been received by the required Person, at the required place of
payment, in Dollars in funds immediately available to such Person at such
place, no later than 12:00 noon (New York time) on such day.
(b) NO REDUCTIONS. All payments due to any Agent or any Bank under the
Borrower Loan Documents, and all other terms, conditions, covenants and
agreements to be observed and performed by the Borrower thereunder, shall be
made, observed or performed by the Borrower without any reduction or deduction
whatsoever, including any reduction or deduction for any set-off, recoupment,
counterclaim (whether sounding in tort, contract or otherwise) or
-11-
19
Tax, except, subject to the provisions of Section 1.13, for any withholding or
deduction for Taxes required to be withheld or deducted under Applicable Law.
(c) EXTENSION OF PAYMENT DATES. Whenever any payment to any Agent or
any Bank under the Borrower Loan Documents would otherwise be due (except by
reason of acceleration) on a day that is not a Business Day, or, in the case of
payments of the principal of Eurodollar Rate Loans, a Eurodollar Business Day,
such payment shall instead be due on the next succeeding Business or Eurodollar
Business Day, as the case may be, unless, in the case of a payment of the
principal of Eurodollar Rate Loans, such extension would cause payment to be due
in the next succeeding calendar month, in which case such due date shall be
advanced to the next preceding Eurodollar Business Day. If the date any payment
under the Borrower Loan Documents is due is extended (whether by operation of
any Borrower Loan Document, Applicable Law or otherwise), such payment shall
bear interest for such extended time at the rate of interest applicable
hereunder.
Section 1.12. DISTRIBUTION OF PAYMENTS BY THE ADMINISTRATIVE AGENT.
(a) The Administrative Agent shall promptly distribute to each Bank or each
Agent, as the case may be, its ratable share of each payment received by the
Administrative Agent under the Loan Documents for the account of the Banks or
the Agents, as the case may be, by credit to an account of such Bank or such
Agent, as the case may be, at the Administrative Agent's Office or by wire
transfer to an account of such Bank or such Agent, as the case may be, at an
office of any other commercial bank located in the United States.
(b) Unless the Administrative Agent shall have received notice from
the applicable Loan Party prior to the date on which any payment is due to the
Banks or the Agents, as the case may be, under the Loan Documents that such Loan
Party will not make such payment in full, the Administrative Agent may assume
that such Loan Party has made such payment in full to the Administrative Agent
on such date and the Administrative Agent in its sole discretion may, in
reliance upon such assumption, cause to be distributed to each Bank or each
Agent, as the case may be, on such due date a corresponding amount with respect
to the amount then due such Bank or such Agent. If and to the extent such Loan
Party shall not have so made such payment in full to the Administrative Agent
and the Administrative Agent shall have so distributed to any Bank or any Agent
a corresponding amount, such Bank or such Agent shall, on demand, repay to the
Administrative Agent the amount so distributed, together with interest thereon,
for each day from the date such amount is distributed to such Bank or such Agent
until the date such Bank or such Agent repays such amount to the Administrative
Agent, at the Federal Funds Rate until (and including) the third Business Day
after demand is made and thereafter at the Base Rate.
-12-
20
Section 1.13. TAXES (a) TAXES PAYABLE BY THE BORROWER. If any Tax is
required to be withheld or deducted from, or is otherwise payable by the
Borrower in connection with, any payment to any Agent or any Bank under the Loan
Documents, the Borrower (i) shall, if required, withhold or deduct the amount of
such Tax from such payment and, in any case, pay such Tax to the appropriate
taxing authority in accordance with Applicable Law and (ii) shall pay to such
Agent or such Bank, as applicable, such additional amounts as may be necessary
so that the net amount received by such Agent or such Bank with respect to such
payment, after withholding or deducting all Taxes required to be withheld or
deducted, is equal to the full amount payable under the Loan Documents. If any
Tax is withheld or deducted from, or is otherwise payable by the Borrower in
connection with, any payment payable to any Agent or any Bank under the Loan
Documents, the Borrower shall, as soon as possible, and in any event within five
days, after the date of such payment, furnish to such Agent or such Bank, as
applicable, the original or a certified copy of a receipt for such Tax from the
applicable taxing authority. If any payment due to any Agent or any Bank under
the Loan Documents is or is expected to be made without withholding or deducting
therefrom, or otherwise paying in connection therewith, any Tax payable to any
taxing authority, the Borrower shall, within 30 days after any request from such
Agent or such Bank, as applicable, furnish to such Agent or such Bank a
certificate from such taxing authority, or an opinion of counsel acceptable to
such Agent or such Bank, in either case stating that no Tax payable to such
taxing authority was or is, as the case may be, required to be withheld or
deducted from, or otherwise paid by the Borrower in connection with, such
payment.
(b) TAXES PAYABLE BY ANY AGENT OR ANY BANK. The Borrower shall,
promptly upon request by any Agent or any Bank for the payment thereof, pay to
such Agent or such Bank, as the case may be, (i) all Taxes (other than Bank
Taxes) payable by such Agent or such Bank, as the case may be, with respect to
any payment due to such Agent or such Bank under the Loan Documents and (ii) all
Taxes (including Bank Taxes) payable by such Agent or such Bank as a result of
payments made by the Borrower (whether made to a taxing authority or to such
Agent or such Bank) pursuant to Section 1.13(a) or (b).
(c) EXEMPTION FROM U.S. WITHHOLDING AND BACKUP WITHHOLDING TAXES. (i)
Each Bank that is not a "United States person" (as such term is defined in
Section 7701(a)(30) of the Code) shall submit to the Borrower and the
Administrative Agent (A) on or before the Restated Agreement Date, (1) two duly
completed and signed copies of Internal Revenue Service Form 1001 or 4224 or any
successor form, in each case entitling such Bank to a complete exemption from
withholding of any United States federal income taxes on all amounts to be
received by such Bank under the Loan Documents, and (2) a duly completed and
signed copy of Internal Revenue Service Form W-8 or W-9 or any successor form,
in each case entitling such Bank to a complete exemption
-13-
21
from United States backup withholding tax on all amounts to be received by such
Bank under the Loan Documents, and (B) from time to time thereafter, prior to
the expiration or obsolescence of any previously delivered form or upon any
previously delivered form becoming inaccurate or inapplicable, such further duly
completed and signed copies of such forms or such other forms or certificates,
in each case entitling such Bank to exemption from withholding of United States
federal income taxes and from United States backup withholding tax to the
maximum extent to which such Bank is then entitled under Applicable Law. Each
Bank shall promptly notify the Borrower and the Administrative Agent if (A) it
is required to withdraw or cancel any form or certificate previously submitted
by it or any such form or certificate has otherwise become ineffective or
inaccurate or (B) payments to it are or will be subject to withholding of United
States federal income taxes or United States backup withholding tax to a greater
extent than the extent to which payments to it were previously subject. Upon the
request of the Borrower or the Administrative Agent, each Bank that is a United
States person (as defined above) shall from time to time submit to the Borrower
and the Administrative Agent a certificate to the effect that it is such a
United States person.
(ii) Notwithstanding anything to the contrary contained herein, the
Borrower shall not be required to pay any additional amount in respect of
withholding of United States income taxes or United States backup withholding
tax pursuant to Section 1.13 or Section 7.02 to any Bank (A) except to the
extent United States federal income taxes or United States backup withholding
tax, as the case may be, is required to be withheld as a result of a Regulatory
Change or (B) to the extent such withholding is required because such Bank has
failed to submit any form or certificate that it is entitled to so submit under
Applicable Law.
Section 1.14. PRO RATA TREATMENT. Except to the extent otherwise
provided herein, (a) RC Loans and Incremental Loans of each Type to be made on
any day shall be made by the Banks pro rata in accordance with their respective
RC Commitments or Incremental Commitments, as applicable, (b) RC Loans or
Incremental Loans of the Banks shall be converted and continued pro rata in
accordance with their respective amounts of RC Loans or Incremental Loans, as
the case may be of the Type and, in the case of Eurodollar Rate Loans, having
the Interest Period being so converted or continued, (c) each reduction in the
RC Commitments or Incremental Commitments shall be made pro rata in accordance
with the respective amounts thereof and (d) each payment of the principal of or
interest on the Loans or of fees shall be made for the account of the Banks pro
rata in accordance with the respective amounts thereof then due and payable.
-14-
22
ARTICLE 2
CONDITIONS TO EFFECTIVENESS; CONDITIONS TO LOANS
------------------------------------------------
Section 2.01. CONDITIONS TO EFFECTIVENESS. This Agreement, as amended
and restated as of the Restated Agreement Date, and the rights and obligations
of the parties hereunder, shall become effective upon the fulfillment of each of
the following conditions:
(a) the Administrative Agent shall have received each of the
following, in form and substance satisfactory to each Arranging Agent:
(i) a certificate of the Secretary or an Assistant Secretary of
each Loan Party, dated the Restated Agreement Date, substantially in the
form of SCHEDULE 2.01(A)(I), to which shall be attached copies of the
resolutions and by-laws referred to in such certificate;
(ii) a copy of the certificate of incorporation of each Loan
Party, certified, as of a recent date, by the Secretary of State or other
appropriate official of such Loan Party's jurisdiction of incorporation;
(iii) a good standing certificate with respect to each Loan Party,
issued as of a recent date by the Secretary of State or other appropriate
official of such Person's jurisdiction of incorporation, together with (in
jurisdictions where it is available) a telegram from such Secretary of
State or other official, updating the information in such certificate;
(iv) an opinion of counsel for each Loan Party, which opinion
shall be dated the Restated Agreement Date and shall be substantially in
the form of SCHEDULE 2.01(A)(IV);
(v) an opinion of counsel for the Arranging Agents, which opinion
shall be dated the Restated Agreement Date and shall be substantially in
the form of SCHEDULE 2.01(A)(V);
(vi) a duly executed copy of the Guaranty Agreement;
(vii) such additional materials as any Bank may have reasonably
requested pursuant to Section 5.01(e); and
(vi) a duly executed copy of this Agreement; and
(b) all fees payable on or prior to the Restated Agreement Date
pursuant to Section 1.08, and all amounts payable pursuant to Section 9.02 for
which invoices have been delivered to the Borrower on or prior to the Restated
Agreement Date, shall
-15-
23
have been paid in full or arrangements reasonably satisfactory to each Arranging
Agent shall have been made to cause them to be paid in full on the Restated
Agreement Date.
Section 2.02. CONDITIONS TO EACH LOAN. The obligation of each Bank to
make each Loan requested to be made by it is subject to the fulfillment of each
of the following conditions:
(a) the Administrative Agent shall have received a notice of borrowing
with respect to such Loan complying with the requirements of Section 1.02;
(b) each Loan Document Representation and Warranty shall be true and
correct at and as of the time such Loan is to be made, both with and without
giving effect to such Loan and all other Loans to be made at such time and to
the application of the proceeds thereof, except to the extent that any such Loan
Document Representation and Warranty by its terms expressly relates to a
specified prior date;
(c) no Default shall have occurred and be continuing at the time such
Loan is to be made or would result from the making of such Loan and all other
Loans to be made at such time or from the application of the proceeds thereof;
(d) each Bank shall have received such Information as it may have
reasonably requested pursuant to Section 5.01(e); and
(e) such Loan will not contravene any Applicable Law applicable to any
Bank.
Except to the extent that the Borrower shall have disclosed in the
notice of borrowing, or in a subsequent notice given to the Banks prior to 5:00
p.m. (New York time) on the Business Day before the requested date for the
making of the requested Loans, that a condition specified in clause (b) or (c)
of this Section 2.02 will not be fulfilled as of the requested time for the
making of such Loans, the Borrower shall be deemed to have made a Representation
and Warranty as of the time of the making of such Loans that the conditions
specified in such clauses have been fulfilled as of such time. The inclusion by
the Borrower of any such disclosure in any notice of borrowing, or in any such
subsequent notice, shall not affect the right of each Bank to not make the Loans
requested to be made by it if the conditions set forth in Section 2.02 have not
been fulfilled as of the requested time for the making of the requested Loans.
ARTICLE 3
CERTAIN REPRESENTATIONS AND WARRANTIES
--------------------------------------
In order to induce each Bank to enter into this Agreement and to make
each Loan requested to be made by it, LIN
-16-
24
Television and the Borrower, on a joint and several basis, represent and warrant
as follows:
Section 3.01. ORGANIZATION; POWER; QUALIFICATION. LIN Television, the
Borrower and each Restricted Subsidiary are corporations duly organized,
validly existing and in good standing under the laws of their respective
jurisdictions of incorporation, have the corporate power and authority to own
their respective properties and to carry on their respective businesses as now
being and hereafter proposed to be conducted and are duly qualified and in good
standing as foreign corporations, and are authorized to do business, in all
jurisdictions in which the character of their respective properties or the
nature of their respective businesses requires such qualification or
authorization, except for qualifications and authorizations the lack of which,
singly or in the aggregate, has not had and will not have a Materially Adverse
Effect on the Borrower and the Restricted Subsidiaries taken as a whole.
Section 3.02. SUBSIDIARIES. SCHEDULE 3.02 sets forth, as of the
Restated Agreement Date, all of the Subsidiaries of LIN Television, their
jurisdictions of incorporation and the percentages of the various classes of
their Capital Securities owned by LIN Television, the Borrower or another
Subsidiary of LIN Television and indicates which Subsidiaries of LIN Television
are Consolidated Subsidiaries of LIN Television. LIN Television, the Borrower or
another Restricted Subsidiary, as the case may be, has the unrestricted right to
vote, and (subject to limitations imposed by Applicable Law) to receive
dividends and distributions on, all Capital Securities issued by Restricted
Subsidiaries indicated on SCHEDULE 3.02 as owned by LIN Television, the Borrower
or such Restricted Subsidiary. All the Capital Securities issued by Restricted
Subsidiaries listed on SCHEDULE 3.02 have been duly authorized and issued and
are fully paid and nonassessable.
Section 3.03. AUTHORIZATION; ENFORCEABILITY; REQUIRED CONSENTS;
ABSENCE OF CONFLICTS. (a) Each Loan Party has the power, and has taken all
necessary action (including, if a corporation, any necessary stockholder action)
to authorize it, to execute, deliver and perform in accordance with their
respective terms the Loan Documents to which it is a party and, in the case of
the Borrower, to borrow hereunder in the amount of the Commitments.
(b) This Agreement has been, and each of the other Loan Documents to
which each Loan Party is a party when delivered to the Administrative Agent will
have been, duly executed and delivered by each Loan Party that is a party
thereto and is, or when so delivered will be, a legal, valid and binding
obligation of such Loan Party, enforceable against such Loan Party in accordance
with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization,
-17-
25
moratorium or similar laws affecting the enforcement of creditors' rights
generally.
(c) (i) The execution, delivery and performance in accordance with
their respective terms by each Loan Party of the Loan Documents to which it is
party, (ii) each borrowing hereunder, whether or not in the amount of the unused
Commitments and (iii) the operation of the Broadcast Business of LIN Television,
the Borrower and the Restricted Subsidiaries do not and will not require any
Governmental Approval or any other consent or approval, including any consent or
approval of any Subsidiary or of the stockholders of LIN Television, the
Borrower or any Subsidiary, other than (A) Governmental Approvals and other
consents and approvals that have been duly obtained, are final and not subject
to review on appeal or to collateral attack, are in full force and effect and,
in the case of any such Governmental Approval or other consent or approval
required under any Applicable Law or Contract as in effect on the Restated
Agreement Date, are listed on SCHEDULE 3.03, and (B) in the case of the
operation of the Broadcast Business of LIN Television, the Borrower and the
Restricted Subsidiaries, Governmental Approvals the lack of which, singly or in
the aggregate, has not had and could not have a Materially Adverse Effect on the
Borrower and the Restricted Subsidiaries taken as a whole.
(d) (i) The execution, delivery and performance in accordance with
their respective terms by each Loan Party of the Loan Documents to which it is a
party, and (ii) each borrowing hereunder, whether or not in the amount of the
unused Commitments, do not and will not violate, conflict with, result in a
breach of, constitute a default under, or result in or require the creation of
any Lien upon any assets of LIN Television, the Borrower or any Restricted
Subsidiary under, (A) any Material Agreement to which LIN Television, the
Borrower or any Restricted Subsidiary is a party or by which LIN Television, the
Borrower or any Restricted Subsidiary or any of their respective properties may
be bound or (B) any Applicable Law.
Section 3.04. TAXES. LIN Television, the Borrower and each Restricted
Subsidiary have (a) filed all Tax returns required to have been filed by it
under Applicable Law, (b) paid all Taxes that are shown thereon to be due,
together with applicable interest and penalties, or have been assessed against
it except for Taxes the failure to have paid which does not contravene Section
4.04 and (c) to the extent required by GAAP, reserved against all Taxes that are
payable by it but are not yet due or that are shown to be due on any Tax return
filed by it or have been assessed against it but have not yet been paid. The
Private Letter Ruling is in full force and effect and has not been revoked or
modified for any reason. To the knowledge of LIN Television, the Borrower or any
Restricted Subsidiary, (a) no action has been proposed by the Internal Revenue
Service that would result in, or threaten to result in, the Spin-Off or any
related transaction being treated other than as described in the
-18-
26
Private Letter Ruling and (b) no facts or circumstances exist that would
constitute grounds for revocation or modification of the Private Letter Ruling,
including, without limitation, any such grounds described in 26 CFR [Section]
601.201(l) or Rev. Proc. 92-1, sec. 11 (or any superseding Revenue Procedure or
other Internal Revenue Service pronouncement), except for any such actions,
revocations or modifications that, alone or in conjunction with all other such
actions, revocations or modifications, would not have a Materially Adverse
Effect on (i) the Borrower and the Restricted Subsidiaries taken as a whole or
(ii) any Loan Document.
Section 3.05. LITIGATION. Except as set forth on SCHEDULE 3.05, there
are not, in any court or before any arbitrator of any kind or before or by any
governmental or non-governmental body, any actions, suits or proceedings pending
or threatened (nor, to the knowledge of LIN Television, the Borrower or any
Restricted Subsidiary, is there any basis therefor) against or in any other way
relating to or affecting (a) LIN Television, the Borrower or any Restricted
Subsidiary or any of their respective businesses or properties or (b) any Loan
Document, except actions, suits or proceedings that, if adversely determined,
would not, singly or in the aggregate, have a Materially Adverse Effect on (i)
the Borrower and the Restricted Subsidiaries taken as a whole or (ii) any Loan
Document.
Section 3.06. BURDENSOME PROVISIONS. None of LIN Television, the
Borrower or any Restricted Subsidiary is a party to or bound by any Contract or
Applicable Law, compliance with which, singly or in the aggregate, could have a
Materially Adverse Effect on (a) the Borrower and the Restricted Subsidiaries
taken as a whole or (b) any Loan Document.
Section 3.07. NO ADVERSE CHANGE OR EVENT; ADDITIONAL ADVERSE FACTS.
(a) Except for facts and circumstances disclosed on SCHEDULE 3.05 or SCHEDULE
3.07 or in the notes to the financial statements referred to in Section 5.02(a),
no fact or circumstance is known to LIN Television, the Borrower or any
Restricted Subsidiary, as of the Restated Agreement Date, and (b) since December
31, 1995, no change in the business, assets, Liabilities, financial condition,
results of operations or business prospects of LIN Television, the Borrower or
any Restricted Subsidiary has occurred, and no event has occurred or failed to
occur, in each case that has had or could have, either alone or in conjunction
with all other such facts, circumstances, changes, events and failures, a
Materially Adverse Effect on (i) the Borrower and the Restricted Subsidiaries
taken as a whole or (ii) any Loan Document. Such an adverse change may have
occurred, and such an event may have occurred or failed to occur, at any
particular time notwithstanding the fact that at such time no Default shall have
occurred and be continuing. If a fact or circumstance disclosed on SCHEDULE 3.05
or SCHEDULE 3.07 or in the notes to the financial statements referred to in
Section 5.02(a) should in the future have a Materially Adverse Effect on
-19-
27
(x) the Borrower and the Restricted Subsidiaries taken as a whole or (y) any
Loan Document, such Materially Adverse Effect shall be a change or event subject
to this Section 3.07 notwithstanding such disclosure.
Section 3.08. INVESTMENT COMPANY ACT. None of LIN Television, the
Borrower or any Restricted Subsidiary of either of them is an "investment
company" or a Person "controlled" by an "investment company", within the meaning
of the Investment Company Act of 1940.
Section 3.09. SUBSTANCE RELEASE AND DISPOSAL. There have been no
releases or disposals of hazardous wastes, environmental contaminants or other
substances in quantities or locations that, singly or in the aggregate, could
result in the incurrence by LIN Television, the Borrower or any of the
Restricted Subsidiaries of remedial obligations under Applicable Law (including
but not limited to any Environmental Law) that could have a Materially Adverse
Effect on the Borrower and the Restricted Subsidiaries taken as a whole. None of
LIN Television, the Borrower or any of the Restricted Subsidiaries has received
any notice or order advising it that it has or may have any remedial obligation
with respect to any such releases or disposals or that it is or may be
responsible for the costs of any remedial action taken or to be taken by any
other Persons with respect to any such releases or disposals, which obligation
or cost, if fully payable, could, singly or in the aggregate, have a Materially
Adverse Effect on the Borrower and the Restricted Subsidiaries taken as a whole.
The operations and properties of LIN Television, the Borrower and each of the
Restricted Subsidiaries comply in all material respects with all Environmental
Laws and neither utilize, contain, nor are affected by any Hazardous Materials
that are not treated in compliance with all Environmental Laws, and none of LIN
Television, the Borrower or any of the Restricted Subsidiaries has any material
liability, contingent or otherwise, under any Environmental Law.
Section 3.10. COMPLIANCE WITH LAW. No Loan Party and no other
Restricted Subsidiary is in violation of any Applicable Law (including, without
limitation, ERISA and each FCC License and other Governmental Approval held by
LIN Television, the Borrower or any Restricted Subsidiary), or in breach of any
Contract, the violation or breach of which, singly or in the aggregate, could
have a Materially Adverse Effect on the Borrower and the Restricted Subsidiaries
taken as a whole.
Section 3.11. NO CATASTROPHIC EVENTS. Neither the business nor the
properties of LIN Television, the Borrower or any of the Restricted Subsidiaries
are affected by any fire, explosion, accident, strike, lockout or other labor
dispute, drought, storm, hail, earthquake, embargo, act of God or of the public
enemy or other casualty (whether or not covered by insurance) that could have a
Materially Adverse Effect on the Borrower and the Restricted Subsidiaries taken
as a whole.
-20-
28
Section 3.12. CONDITION OF BROADCAST STATIONS. All of the material
properties, equipment and systems of LIN Television, the Borrower and the
Restricted Subsidiaries are, and all material properties, equipment and systems
to be added in connection with any contemplated Broadcast Station expansion or
construction will be, in good repair, working order and condition (ordinary wear
and tear excepted) and are and will be in material compliance with all
applicable standards, rules or requirements imposed by (a) any governmental
agency or authority (including, without limitation, the FCC) and (b) any FCC
License.
Section 3.13. PUBLIC UTILITY HOLDING COMPANY ACT. No Loan Party is a
"holding company," or a "subsidiary company" of a "holding company," or an
"affiliate" of a "holding company," or of a "subsidiary company" of a "holding
company," as such terms are defined in the Public Utility Holding Company Act of
1935.
Section 3.14. CAPITAL STOCK. On the Restated Agreement Date, the
authorized capital stock of the Borrower consists of 1,000 shares of common
stock, of which 1,000 shares are issued and outstanding. On the Restated
Agreement Date, there are no commitments by the Borrower for the sale or other
disposition of, and no outstanding options to purchase, the Capital Securities
of the Borrower or any Restricted Subsidiary. None of LIN Television, the
Borrower or any of the Restricted Subsidiaries is subject to any obligation
(contingent or otherwise) to repurchase or otherwise acquire or retire any of
the Capital Securities of the Borrower or any Restricted Subsidiary.
3.15. NO LIMITATIONS ON DIVIDENDS. Neither the Borrower nor any of the
Restricted Subsidiaries is subject or party to any Contract, Applicable Law or
Lien (except for applicable statutory corporate law and the Loan Documents)
restricting, directly or indirectly, the making of Restricted Payments, the
payment of dividends by the Borrower or any such Restricted Subsidiary or the
making of distributions, advances or other cash payments by the Borrower or any
such Restricted Subsidiary.
Section 3.16. FCC LICENSES. SCHEDULE 3.16 sets forth as of the
Restated Agreement Date all FCC Licenses held by LIN Television, the Borrower or
any Restricted Subsidiary at such time and, with respect to each such FCC
License, the community of license and the call sign, frequency and expiration
date thereof. With respect to the Broadcast Stations of LIN Television, the
Borrower and the Restricted Subsidiaries, LIN Television, the Borrower and the
Restricted Subsidiaries (a) have duly obtained all FCC Licenses that are
required for the ownership and operation of the Broadcast Stations, (b) have
filed all required registrations, applications, reports and other documents with
the FCC, and (c) have paid all fees required to be paid by the FCC or the
Communications Act. Each such FCC License is valid and in full force and effect,
no event has occurred that would be
-21-
29
reasonably likely to (i) result in the revocation, termination or adverse
modification of any such FCC License or (ii) affect materially and adversely any
rights of LIN Television, the Borrower or any of the Restricted Subsidiaries
thereunder, and no Loan Party and no other Restricted Subsidiary has reason to
believe or knowledge that any of such FCC Licenses will not be renewed in the
ordinary course. None of LIN Television, the Borrower nor any of the Restricted
Subsidiaries of either of them is the subject of any outstanding citation,
order, petition, suspension, notice or, to the knowledge of LIN Television, the
Borrower or any of the Restricted Subsidiaries, investigation by the FCC that
would have a Materially Adverse Effect on (A) the Borrower and the Restricted
Subsidiaries taken as a whole, or (B) any Loan Document, and no such citation,
order, petition, suspension, notice or investigation, to the knowledge of LIN
Television, the Borrower or any of the Subsidiaries, is contemplated by the FCC.
Section 3.17. REGULATION OF THE BANKS. To the best knowledge of LIN
Television, the Borrower and each Restricted Subsidiary, after due inquiry,
neither any Agent nor any Bank will, by reason of the execution, delivery and
performance (other than the enforcement of remedies) of any of the Loan
Documents, be subject to the regulation or control of the FCC.
Section 3.18. EXISTING INDEBTEDNESS. Set forth in SCHEDULE 4.12(C)
hereto is a complete and accurate list of all Existing Indebtedness, showing as
of the Restated Agreement Date the principal amount outstanding thereunder.
Section 3.19. MATERIAL AGREEMENTS. Set forth in SCHEDULE 3.19 is a
complete and accurate list of all Material Agreements of LIN Television, the
Borrower and each of the Restricted Subsidiaries as of the Restated Agreement
Date, showing the parties, subject matter and term thereof. Each Material
Agreement set forth in such SCHEDULE 3.19 has been duly authorized, executed and
delivered by all parties thereto, has not been amended or otherwise modified
(except to the extent permitted in accordance with the terms of Section 4.26
hereof), is in full force and effect and is binding upon and enforceable against
all parties thereto in accordance with its terms, and, to the best of LIN
Television's, the Borrower's or such Restricted Subsidiary's knowledge after due
investigation, there exists no default under any Material Agreement by any party
thereto, except for (i) any failure to be in full force and effect and binding
and enforceable that would not have a Materially Adverse Effect on the Borrower
and the Restricted Subsidiaries taken as a whole, or (ii) any default that would
not have a Materially Adverse Effect on the Borrower and the Restricted
Subsidiaries taken as a whole. Each such Material Agreement, as applicable,
complies with all applicable rules, regulations and standards of the FCC.
Section 3.20. TITLE TO PROPERTY. LIN Television, the Borrower and each
of the Restricted Subsidiaries have good and
-22-
30
sufficient title to and is the sole owner of its respective properties and
assets free and clear of all Liens and all right, title and interest of any
third Person, other than Permitted Liens.
Section 3.21. NETWORK AFFILIATION AGREEMENTS. Set forth on SCHEDULE
3.21 hereto is a list of each Network Affiliation Agreement in effect as of the
Restated Agreement Date and the expiration dates therefor.
ARTICLE 4
CERTAIN COVENANTS
-----------------
From the Restated Agreement Date and until the Repayment Date,
A. (I) IN THE CASE OF SECTION 4.01 THROUGH AND INCLUDING SECTION 4.07, LIN
TELEVISION SHALL, (II) IN THE CASE OF SECTION 4.01 THROUGH AND INCLUDING SECTION
4.09, LIN TELEVISION SHALL CAUSE THE BORROWER AND EACH RESTRICTED SUBSIDIARY TO,
AND (III) IN THE CASE OF SECTIONS 4.01(B) AND (C) AND 4.09 HEREOF, LIN
TELEVISION SHALL ALSO CAUSE EACH OTHER SUBSIDIARY OF LIN TELEVISION TO:
Section 4.01. PRESERVATION OF EXISTENCE; MAINTENANCE OF CORPORATE
SEPARATENESS. (a) Preserve and maintain its corporate existence, except that
this Section 4.01 shall not apply to termination of its corporate existence
pursuant to a merger or consolidation to which Section 4.16 does not apply; (b)
conduct its business and operations separately from that of AT&T and its
Subsidiaries (other than LIN Television, the Borrower and their respective
Subsidiaries), including, but not limited to, (i) not commingling funds or other
assets of AT&T and its Subsidiaries (other than LIN Television, the Borrower and
its Subsidiaries) with the funds or other assets of LIN Television, the Borrower
or any of their respective Subsidiaries, (ii) maintaining separate corporate and
financial records and observing all corporate formalities, (iii) paying its
liabilities from its assets, (iv) maintaining capitalization adequate to meet
its business needs and (v) conducting dealings with third parties in LIN
Television's, the Borrower's or such Subsidiaries' own name and as a separate
and independent entity; and (c) ensure that no payment is made or required to be
made by LIN Television, the Borrower or a Restricted Subsidiary to a creditor of
an Unrestricted Subsidiary in respect of any Liability of such Unrestricted
Subsidiary, keep the bank accounts of LIN Television, the Borrower and the
Restricted Subsidiaries separate from and not commingled with the bank accounts
of any Unrestricted Subsidiary, and ensure that no action is taken by it, and
that its affairs are not conducted in a manner, which is likely to result in the
corporate existence of any Unrestricted Subsidiary that is a direct Subsidiary
of LIN Television, the
-23-
31
Borrower or any Restricted Subsidiary being ignored, or in the assets or
Liabilities of LIN Television, the Borrower or any Restricted Subsidiary being
substantively consolidated with those of any Unrestricted Subsidiary in a
bankruptcy, reorganization or other insolvency proceeding.
Section 4.02. PRESERVATION OF RIGHTS AND PROPERTIES. (a) Preserve and
maintain all of its franchises, licenses (including but not limited to all FCC
licenses held by LIN Television, the Borrower or a Restricted Subsidiary),
rights and privileges under Applicable Law material to the proper conduct of its
business; and (b) preserve and maintain in good repair, working order and
condition, excepting ordinary wear and tear and damage due to casualty, all of
its tangible property material to the proper conduct of its business, keep all
systems and equipment that are then subject to compliance with any standards or
rules imposed by any governmental agency or authority (including, but not
limited to, the FCC) in material compliance with such standards or rules,
install and maintain all equipment and systems in compliance with any material
requirement (i) imposed under FCC regulations, permits, or licenses or (ii)
under Contracts affecting LIN Television, the Borrower or any of the Restricted
Subsidiaries; and maintain, preserve, protect and renew all FCC Licenses and all
Intellectual Property that are useful or necessary to operate the Broadcast
Stations, and do all things necessary to ensure that all such Intellectual
Property is at all times subsisting, valid and enforceable against third
Persons, except for any such Intellectual Property the lack of which, singly or
in the aggregate, could not have a Materially Adverse Effect on such Broadcast
Station.
Section 4.03. BUSINESS ACTIVITIES. Engage only in (a) the business of
owning and operating Broadcast Stations or owning part or all of the Capital
Securities of any Person engaged in the business of owning and operating
Broadcast Stations, (b) businesses related to the Broadcast Business and (c)
other businesses duly obtained pursuant to the provisions of the definition of
Permitted Acquisition set forth herein.
Section 4.04. PAYMENT OF TAXES AND LIABILITIES. Pay or discharge
before they become delinquent all Taxes and all Liabilities (except for any
Liability which, together with all other Liabilities then due and payable by LIN
Television, the Borrower or any Restricted Subsidiary, does not exceed
$5,000,000) that are or might by virtue of any Applicable Law become a Lien on
any of its properties, except that this Section 4.04 shall not apply to Taxes
and Liabilities that are being contested in good faith by appropriate
proceedings and for which adequate reserves, in an amount not less than the
amount required by GAAP, have been provided.
Section 4.05. COMPLIANCE WITH APPLICABLE LAWS AND CONTRACTS;
MAINTENANCE OF MATERIAL AGREEMENTS. (a) Comply with all Applicable Laws and the
terms of all Contracts to which it is
-24-
32
a party or by which it or any of its properties may be bound, except that this
Section 4.05 shall not apply to any non-compliance that (i) has been excused or
waived under the relevant Applicable Law or Contract or (ii) either alone or
when aggregated with all other such non-compliances, would not have a Materially
Adverse Effect on the Borrower and the Restricted Subsidiaries taken as a whole;
and (b) maintain each Material Agreement in full force and effect, except that
this Section 4.05 shall not apply to any failure to maintain any Material
Agreement that would not have a Materially Adverse Effect on the Borrower and
the Restricted Subsidiaries taken as a whole; PROVIDED that this clause (b)
shall not prevent, restrict or otherwise limit any amendment, modification or
change of, or any consent, waiver or approval under, any Material Agreement
permitted by Section 4.26.
Section 4.06. PRESERVATION OF LOAN DOCUMENT ENFORCEABILITY. Take all
actions (including obtaining and maintaining in full force and effect consents
and Governmental Approvals) that are required so that its obligations under the
Loan Documents will at all times be legal, valid and binding and enforceable in
accordance with their respective terms.
Section 4.07. INSURANCE. Without limiting any requirement, covenant or
agreement set forth in any other Loan Document with respect to insurance,
maintain insurance with responsible insurance companies against at least such
risks and in at least such amounts as is customarily maintained by similar
businesses, or as may be required by Applicable Law.
Section 4.08. USE OF PROCEEDS. Use the proceeds of the Loans only (i)
to refinance existing indebtedness of LIN Television and the Borrower, (ii) to
pay transaction expenses related to such refinancing or to the Loan Documents,
(iii) to finance (A) Permitted Acquisitions and (B) Restricted Payments
permitted by Section 4.15 consisting of repurchases, retirements or redemptions
of any of LIN Television's or the Borrower's Capital Securities and (iv) for
general corporate purposes. None of the proceeds of any of the Loans shall be
used to purchase or carry, or to reduce or retire or refinance any credit
incurred to purchase or carry, any margin stock (within the meaning of
Regulations G, T, U and X of the Board of Governors of the Federal Reserve
System) or to extend credit to others for the purpose of purchasing or carrying
any margin stock. If requested by any Bank, the Borrower shall complete and sign
Part I of a copy of Federal Reserve Form U-1 referred to in Regulation U and
deliver such copy to such Bank.
Section 4.09. OWNERSHIP OF SUBSIDIARIES; ADDITIONAL SUBSIDIARIES.
(a) In the case of the Borrower and each Restricted Subsidiary which
directly owns the issued and outstanding Capital Securities of any Restricted
Subsidiary, whether such Restricted
-25-
33
Subsidiary (i) is owned by the Borrower or such Restricted Subsidiary as of the
Restated Agreement Date, (ii) is formed or acquired by the Borrower or any
Subsidiary after the Restated Agreement Date and is not designated by the
Borrower as an Unrestricted Subsidiary prior to or substantially
contemporaneously with such formation or acquisition or (iii) was an
Unrestricted Subsidiary which is designated by the Borrower as a Restricted
Subsidiary, for so long as such Restricted Subsidiary is a direct Subsidiary of
the Borrower or such Restricted Subsidiary, own 100% of the issued and
outstanding Capital Securities of such Restricted Subsidiary.
(b) On or prior to the date that the Borrower or any Subsidiary forms
or acquires any new Subsidiary which is designated by the Borrower as an
Unrestricted Subsidiary prior to or substantially contemporaneously with such
formation or acquisition, deliver to the Administrative Agent a tax sharing
agreement, in form and substance reasonably satisfactory to the Arranging
Agents, duly executed by such new Unrestricted Subsidiary, on the one hand, and
the corporation with respect to which such Unrestricted Subsidiary is a
Consolidated Subsidiary, on the other hand.
Section 4.10. [Reserved]
----------
Section 4.11. [Reserved]
----------
B. (i) IN THE CASE OF SECTION 4.12 THROUGH AND INCLUDING SECTION 4.27, LIN
TELEVISION SHALL NOT PERMIT THE BORROWER OR ANY RESTRICTED SUBSIDIARY TO,
DIRECTLY OR INDIRECTLY (OTHER THAN THROUGH AN UNRESTRICTED SUBSIDIARY) AND (II)
IN THE CASE OF SECTIONS 4.12, 4.13, 4.14, 4.16, 4.17 AND 4.19 THROUGH AND
INCLUDING SECTION 4.27, LIN TELEVISION SHALL NOT:
Section 4.12. INDEBTEDNESS. Have any Indebtedness, at any time, except
that this Section 4.12 shall not apply to
(a) the Loans;
(b) Indebtedness under Interest Rate Protection Agreements entered
into in the ordinary course of business;
(c) Existing Indebtedness;
(d) Purchase Money Indebtedness or Capital Leases of LIN Television,
the Borrower or any Restricted Subsidiary and Indebtedness of the Borrower
or any Restricted Subsidiary in respect of Capital Leases of the Borrower
or any Restricted Subsidiary in an aggregate principal amount not exceeding
$20,000,000 outstanding at any time in the aggregate for the Borrower and
the Restricted Subsidiaries;
(e) Indebtedness of LIN Television or the Borrower, PROVIDED that (i)
such Indebtedness is not secured by assets
-26-
34
of LIN Television, the Borrower or any Restricted Subsidiary, (ii) both
before and after giving effect to the incurrence of such Indebtedness, on a
PRO FORMA basis, no Default shall exist hereunder or under any other Loan
Document and (iii) the terms and conditions of such Indebtedness shall
include each of the following: (A) the stated maturity of such Indebtedness
shall not occur prior to the first anniversary of the Maturity Date, (B) no
principal payments or commitment reductions with respect to such
Indebtedness shall be required to be made prior to the Maturity Date, and
(C) the covenants, events of default, prepayment provisions and other
restrictions imposed on LIN Television, the Borrower and the Restricted
Subsidiaries in connection with such Indebtedness shall not be more
restrictive than, and shall not conflict with, those imposed on LIN
Television, the Borrower and the Restricted Subsidiaries hereunder and
under the other Loan Documents;
(f) Indebtedness of a Restricted Subsidiary to the Borrower or another
Restricted Subsidiary and Indebtedness of the Borrower to a Restricted
Subsidiary, PROVIDED that (i) such Indebtedness shall not be secured and
(ii) such Indebtedness shall be subordinated, on the terms set forth in the
intercompany promissory note evidencing such Indebtedness, to the
Indebtedness of the Loan Parties under the Loan Documents.
(g) (i) Indebtedness of any Restricted Subsidiary that was outstanding
at the time such Restricted Subsidiary was acquired by the Borrower or
another Restricted Subsidiary, in an aggregate principal amount not
exceeding $60,000,000 outstanding at any time for the Borrower and the
Restricted Subsidiaries, PROVIDED that (A) such Indebtedness was not
incurred and the terms of such Indebtedness were not amended in
anticipation of such Restricted Subsidiary's acquisition by the Borrower or
such other Restricted Subsidiary (except if the terms of such Indebtedness,
as so amended, (x) are no less favorable in the aggregate to such
Restricted Subsidiary than the terms of such Indebtedness prior to such
amendment and (y) are consented to by the Arranging Agents (such consent
not to be unreasonably withheld)) and (B) the purchase price paid by the
Borrower or such other Restricted Subsidiary for such new Restricted
Subsidiary was equal to or less than the fair market value of such new
Restricted Subsidiary, and (ii) Indebtedness incurred to refinance any
Indebtedness permitted pursuant to clause (g)(i) of this Section 4.12,
PROVIDED that (A) at the time such Indebtedness is incurred and after
giving effect thereto, no Default would exist, (B) the principal amount of
the Indebtedness being refinanced is not increased, (C) the terms of any
Indebtedness incurred pursuant to this clause (g)(ii) shall not be less
favorable to the Agents, the Banks and such Restricted Subsidiary than the
terms of the Indebtedness being refinanced, and the interest rate, any
-27-
35
fees and any prepayment premium applicable thereto shall not exceed the
interest rate, fees and prepayment premium applicable to the Indebtedness
being refinanced (except for any increase in any thereof that is
commercially reasonable at the time of such increase) and (D) such
Indebtedness shall have a weighted average life to maturity at least equal
to the then remaining weighted average life to maturity of the outstanding
Indebtedness being refinanced; and
(h) Indebtedness of LIN Television, the Borrower or any Restricted
Subsidiary to which this Section 4.12 is not otherwise inapplicable by
reason of any other clause, in an aggregate principal amount not exceeding
$20,000,000 outstanding at any time in the aggregate for the Borrower and
the Restricted Subsidiaries; PROVIDED that such Indebtedness shall not be
secured by assets of LIN Television, the Borrower or any Restricted
Subsidiary.
Section 4.13. GUARANTIES. Be obligated, at any time, in respect of any
Guaranty, except that this Section 4.13 shall not apply to (a) Existing
Guaranties and (b) Permitted Guaranties.
Section 4.14. LIENS. Permit to exist, at any time, any Lien upon any
of its properties or assets of any character, whether now owned or hereafter
acquired, or upon any income or profits therefrom, except that this Section 4.14
shall not apply to Permitted Liens, PROVIDED, HOWEVER, that if, notwithstanding
this Section 4.14, any Lien to which this Section is applicable shall be created
or arise, the Liabilities of the Loan Parties under the Loan Documents shall
automatically be secured by such Lien equally and ratably with the other
Liabilities secured thereby, and the holder of such other Liabilities, by
accepting such Lien, shall be deemed to have agreed thereto and to share with
the Banks, on that basis, the proceeds of such Lien, whether or not the Banks'
security interest shall be perfected, PROVIDED FURTHER, HOWEVER, that
notwithstanding such equal and ratable securing and sharing, the existence of
such Lien shall constitute a Default by the Borrower in the performance or
observance of this Section 4.14.
Section 4.15. RESTRICTED PAYMENTS. Make, acquire, declare or otherwise
become obligated to make or acquire any Restricted Payment or have any
Restricted Payment outstanding, except that this Section 4.15 shall not apply to
(a) any Permitted Investment, (b) any Permitted Distribution or (c) any other
Restricted Payment, PROVIDED that, in the case of clause (c), (i) either (x) the
amount thereof, together with the amounts of all Restricted Payments that the
Borrower and the Restricted Subsidiaries have made, acquired, declared,
designated or otherwise become obligated to make or acquire, or have
outstanding, pursuant to this clause (c) since the Restated Agreement Date,
would not exceed an amount equal to the sum of
-28-
36
the following (without duplication): (A) $100,000,000, (B) the Net Cash Proceeds
or the fair market value of other consideration, as determined by the Board of
Directors of the Borrower or the applicable Restricted Subsidiary in its good
faith judgment, received by the Borrower from the sale, pledge or other
disposition (whether voluntary or involuntary) after the Restated Agreement Date
of stock issued by or assets of any Unrestricted Subsidiary, (C) cash dividends
or other distributions in respect of Capital Securities received by the Borrower
or a Restricted Subsidiary from an Unrestricted Subsidiary after the Restated
Agreement Date and (D) the Net Cash Proceeds received by LIN Television or the
Borrower from the issuance and sale after the Restated Agreement Date of any
common or preferred equity securities of such Person, or (y) both before and
after giving effect thereto, the Leverage Ratio on the date of the declaration,
designation or other incurrence of the obligation to make or acquire, or have
outstanding, such Restricted Payment and at the time of the making or
acquisition thereof, or at the time of such Restricted Payment becoming
outstanding, is less than 4.50 to 1.00, and (ii) at both the time of the
declaration, designation or other incurrence of the obligation to make or
acquire or have outstanding such Restricted Payment, if any, and the time of the
making or acquisition thereof, or the time of such Restricted Payment becoming
outstanding, and immediately after giving effect thereto, on a PRO FORMA basis,
a Default would not exist. Notwithstanding the foregoing, this Section 4.15
shall not prohibit the payment of a dividend that constitutes a Restricted
Payment if such Restricted Payment is made within 30 days of the declaration
thereof and if this Section 4.15 did not prohibit such Restricted Payment at the
time of its declaration.
Section 4.16. MERGER OR CONSOLIDATION. Merge or consolidate with or
into any Person, except that this Section 4.16 shall not apply to (a) any merger
or consolidation of LIN Television with or into any one or more Persons (other
than the Borrower or a Restricted Subsidiary), PROVIDED that LIN Television
shall be the continuing Person, (b) any merger or consolidation of the Borrower
with or into any one or more Persons (other than LIN Television), PROVIDED that
the Borrower shall be the continuing Person, and (c) any merger or consolidation
of any Restricted Subsidiary with or into any other Person (other than LIN
Television), PROVIDED that (i) in the case of a merger or consolidation of any
Restricted Subsidiary with or into the Borrower, the Borrower is the continuing
Person and (ii) in the case of a merger or consolidation of any Restricted
Subsidiary with or into any one or more Persons other than LIN Television or the
Borrower, either (A) a Restricted Subsidiary is the continuing Person or (B) if
a Restricted Subsidiary is not the continuing Person, such merger or
consolidation involves only, and is consummated only in order to effect, the
disposition of a Restricted Subsidiary which is permitted pursuant to Section
4.17, PROVIDED that in the case of clause (a), clause (b) and clause (c), both
before and after giving effect to such merger or
-29-
37
consolidation, on a PRO FORMA basis, no Default shall exist and the
Administrative Agent shall have received (x) a certificate from a senior
financial officer of the Borrower to that effect and (y) except in the case of a
merger involving only the Borrower and one or more Restricted Subsidiaries, a
Compliance Certificate illustrating (in sufficient detail to enable
recalculation thereof) that both before and after giving effect to such merger
or consolidation, on a PRO FORMA basis, no Default shall exist.
Section 4.17. DISPOSITION OF ASSETS. Sell, lease, license, transfer or
otherwise dispose of any asset or any interest therein, except that this Section
4.17 shall not apply to
(a) any disposition of any asset or any interest therein in the
ordinary course of business,
(b) dispositions of assets comprising a Broadcast Station (including
Capital Securities issued by a Person that owns a Broadcast Station) for
cash in an amount not less than the fair value thereof, as determined in
the good faith judgment of the Board of Directors of LIN Television, the
Borrower, or the applicable Restricted Subsidiary, or in exchange for one
or more Broadcast Stations (including the Capital Securities issued by a
Person that owns a Broadcast Station) of equal or greater value, as
determined in the good faith judgment of the Board of Directors of LIN
Television, the Borrower, or the applicable Restricted Subsidiary, so long
as (i) the Cash Flow Percentage attributable to such Broadcast Station so
sold or exchanged, together with the Cash Flow Percentages (determined,
with respect to prior sales or exchanges, at the time of each such sale or
exchange) of all other Broadcast Stations so sold or exchanged (A) within
the prior twelve calendar month period does not exceed 25% and (B) within
the prior 60 calendar month period (or, if shorter, the period from the
Agreement Date) does not exceed 50%, and (ii) both before and after giving
effect to any such disposition, no Default exists or would exist,
(c) any disposition of any obsolete or retired property not used or
useful in its business,
(d) any transaction to which any of the other provisions of this
Agreement (other than Section 4.21) is by its express terms inapplicable,
(e) any disposition of any interest in any Subsidiary of LIN
Television (other than any Restricted Subsidiary), including without
limitation any Unrestricted Subsidiary, or any assets of any such
Subsidiary, and
-30-
38
(f) any disposition by LIN Television of any Capital Securities or
other assets (or any interest therein), except for Capital Securities
issued by or assets of the Borrower or any Restricted Subsidiary.
Section 4.18. ACQUISITIONS. Except in connection with any merger or
consolidation to which Section 4.16 is by its express terms inapplicable, except
in connection with any Investment to which Section 4.15 is by its express terms
inapplicable and except for Permitted Acquisitions and Permitted Local Marketing
Agreements, purchase or otherwise acquire for value all or substantially all of
the Capital Securities of, or any other interest in any other Person, or all or
substantially all of the assets constituting the business of any other Person or
the business of a division, branch or other unit of operation of any other
Person.
Section 4.19. TAXES OF OTHER PERSONS. (a) File a consolidated tax
return with any other Person other than, in the case of LIN Television or the
Borrower, a Consolidated Subsidiary of LIN Television or the Borrower, as the
case may be and, in the case of any such Subsidiary, LIN Television, the
Borrower or a Consolidated Subsidiary of LIN Television or the Borrower, as the
case may be, or (b) pay or enter into any Contract to pay any Taxes owing by any
Person other than pursuant to (i) a tax sharing agreement entered into pursuant
to Section 4.09(b) or (ii) any tax sharing agreement between LIN Broadcasting
Corporation and LIN Television, PROVIDED that such tax sharing agreement is in
form and substance reasonably satisfactory to the Arranging Agents.
Section 4.20. BENEFIT PLANS. (a) Have, or permit any of its ERISA
Affiliates to have, any Benefit Plan other than an Existing Benefit Plan; (b)
permit any Existing Benefit Plan to be amended in any manner that would cause
the aggregate Unfunded Benefit Liabilities under all Existing Benefit Plans to
exceed $10,000,000; or (c) permit any Existing Benefit Plan to have a Funded
Current Liability Percentage of less than 60%.
Section 4.21. TRANSACTIONS WITH AFFILIATES. Except (a) as set forth on
SCHEDULE 4.21 and (b) for transactions among the Borrower and the Restricted
Subsidiaries only, effect any transaction with any Affiliate that is (a) outside
the ordinary course of business or (b) on a basis less favorable than would at
the time be obtainable for a comparable transaction in arms-length dealing with
an unrelated third party.
Section 4.22. LIMITATION ON RESTRICTIVE COVENANTS. Permit to exist, at
any time, any consensual restriction limiting the ability (whether by covenant,
event of default, subordination or otherwise) of any Restricted Subsidiary to
(a) pay dividends or make any other distributions on its Capital Securities held
by LIN Television, the Borrower or any Restricted Subsidiary, (b) pay any
obligation owed to LIN Television, the Borrower or any
-31-
39
Restricted Subsidiary, (c) make any loans or advances to or investments in LIN
Television, the Borrower or any Restricted Subsidiary, (d) other than in the
ordinary course of business, transfer any of its property or assets to LIN
Television, the Borrower or any Restricted Subsidiary or (e) create any Lien
upon its property or assets whether now owned or hereafter acquired or upon any
income or profits therefrom, except that this Section 4.22 shall not apply to
Permitted Restrictive Covenants.
Section 4.23. ISSUANCE OF CAPITAL SECURITIES. Issue any of its Capital
Securities except that this Section 4.23 shall not apply to any issuance by LIN
Television of any of its Capital Securities.
Section 4.24. SUBSTANCE STORAGE AND DISPOSAL. Permit any Hazardous
Materials, environmental contaminants or other substances the improper release
or disposal of which could result in the incurrence (x) by LIN Television, the
Borrower or any of the Restricted Subsidiaries of remedial obligations under
Applicable Law or (y) by any of the Unrestricted Subsidiaries of remedial
obligations that could have a Materially Adverse Effect on the Borrower and the
Restricted Subsidiaries taken as a whole, to be brought onto, stored, released
or disposed of on the properties owned or leased by it except that (a)
substances to be used in accordance with all Applicable Laws in connection with
the business of LIN Television, the Borrower or the Restricted Subsidiaries, may
be brought onto and stored on such properties pending and during such use, and
(b) substances that were generated or used in accordance with all Applicable
Laws in connection with such business, may be brought onto and stored on such
properties pending their disposal.
Section 4.25. [Reserved]
----------
Section 4.26. AMENDMENTS, ETC. Amend, modify, or change in any manner
any term or condition of, give any consent, waiver or approval under or waive
any default under or breach of any term or condition of any Material Agreement,
except for (a) any amendments, modifications, changes, consents, waivers or
approvals of any Material Agreement (other than any agreement or other document
evidencing or governing any Indebtedness permitted pursuant to Section 4.12(e)
or any certificate of incorporation, any charter, any by-law or any other
constitutive document of LIN Television, the Borrower or any Restricted
Subsidiary) that would not have a Materially Adverse Effect on (i) the Borrower
and the Restricted Subsidiaries taken as a whole, or (ii) any Loan Document and
(b) any amendments, modifications, changes, consents, waivers or approvals of
any agreement or other document evidencing or governing any Indebtedness
permitted pursuant to Section 4.12(e) the terms of which (i) are in the
aggregate no more restrictive to LIN Television, the Borrower and the Restricted
Subsidiaries than the provisions of such agreement or other document in effect
on the date of its execution and (ii)
-32-
40
have been consented to by the Administrative Agent (such consent not to be
unreasonably withheld).
Section 4.27. LIMITATIONS WITH RESPECT TO CERTAIN OTHER INDEBTEDNESS.
Purchase, redeem, retire or otherwise acquire for value, or set apart any money
for a sinking, defeasance or other analogous fund for, the purchase, redemption,
retirement or other acquisition of, or make any voluntary payment or prepayment
of the principal of or interest on, or any other amount owing in respect of, (i)
Mandatorily Redeemable Stock of LIN Television, the Borrower or any Restricted
Subsidiary, and (ii) if a Default has occurred and is continuing, any
Indebtedness permitted pursuant to Section 4.12(e), except in each case to the
extent required by the terms thereof.
C. The Borrower Shall Not:
Section 4.28. RATIO OF CONSOLIDATED OPERATING CASH FLOW TO
CONSOLIDATED INTEREST EXPENSE. Permit the ratio of (a) Consolidated Operating
Cash Flow (before any adjustments thereto to exclude the Consolidated Operating
Cash Flow attributable to any asset or business that was disposed of (either
directly or as part of an exchange) by the Borrower or any Restricted Subsidiary
during the period of calculation or to include the Consolidated Operating Cash
Flow attributable to any asset or business that was acquired (either directly or
as part of an exchange) by the Borrower or any Restricted Subsidiary during the
period of calculation) to (b) Consolidated Interest Expense, in each case for
each period of four consecutive fiscal quarters ending during the measurement
periods set forth below to be less than the ratio set forth below opposite such
measurement period:
Measurement Period Ratio of COCF to CIE
------------------ --------------------
From the Restated Agreement
Date to and including
December 31, 1999 2.00 to 1.00
Thereafter 2.50 to 1.00
Section 4.29. RATIO OF CONSOLIDATED FREE CASH FLOW TO CONSOLIDATED PRO
FORMA DEBT SERVICE. Permit the ratio of (a) Consolidated Free Cash Flow to (b)
Consolidated Pro Forma Debt Service to be less than 1.10 to 1.00 as at the end
of any fiscal quarter.
Section 4.30. LEVERAGE RATIO. Permit the Leverage Ratio at any time
during the measurement periods set forth below to be greater than the ratio set
forth below opposite such measurement period:
-33-
41
Measurement Period Leverage Ratio
------------------ --------------
From the Restated Agreement 5.50 to 1.00
Date to and including
December 30, 1998
From December 31, 1998 to and 5.00 to 1.00
including December 30, 1999
From December 31, 1999 to and 4.50 to 1.00
including December 30, 2000
Thereafter 4.00 to 1.00
ARTICLE 5
INFORMATION
-----------
Section 5.01. INFORMATION TO BE FURNISHED. From the Agreement Date and
until the Repayment Date, LIN Television and the Borrower shall furnish to the
Administrative Agent at the Administrative Agent's Office and to each Bank at
the address of such Bank specified or determined in accordance with the
provisions of Section 9.01(a)(ii):
(a) QUARTERLY FINANCIAL STATEMENTS. As soon as available and in any
event within 60 days after the close of each of the first three quarterly
accounting periods in each fiscal year of LIN Television or the Borrower, as
applicable, a consolidated balance sheet of LIN Television and its Consolidated
Subsidiaries and consolidated and consolidating balance sheets of the Borrower
and the Restricted Subsidiaries, in each case as at the end of such quarterly
period and the related consolidated and consolidating (as applicable) statements
of income and cash flows of, in the case of LIN Television, LIN Television and
its Consolidated Subsidiaries, and, in the case of the Borrower, the Borrower
and the Restricted Subsidiaries, in each case for such quarterly period and for
the elapsed portion of the fiscal year ended with the last day of such quarterly
period, setting forth in each case in comparative form the figures for the
corresponding periods of the previous fiscal year.
(b) YEAR-END FINANCIAL STATEMENTS; ACCOUNTANTS' CERTIFICATE. As soon
as available and in any event within 90 days after the end of each fiscal year
of LIN Television or the Borrower, as applicable:
(i) a consolidated balance sheet of LIN Television and its
Consolidated Subsidiaries and consolidated and consolidating balance sheets
of the Borrower and the Restricted Subsidiaries, in each case as at the end
of such fiscal year and the related consolidated and
-34-
42
consolidating (as applicable) statements of income and cash flows of, in
the case of LIN Television, LIN Television and its Consolidated
Subsidiaries, and, in the case of the Borrower, the Borrower and the
Restricted Subsidiaries, in each case for such fiscal year, in each case
setting forth in comparative form the figures as at the end of and for the
previous fiscal year;
(ii) an audit report of Ernst & Young, or other independent
certified public accountants of recognized standing satisfactory to the
Required Banks, on such of the financial statements referred to in clause
(i) as are consolidated financial statements, which report shall be in
scope and substance satisfactory to the Required Banks; and
(iii) a certificate, in the form of SCHEDULE 5.01(B) from Ernst &
Young or other independent certified public accountants of recognized
standing satisfactory to the Required Banks.
(c) OFFICER'S CERTIFICATE AS TO FINANCIAL STATEMENTS AND DEFAULTS. At
the time that financial statements are furnished pursuant to Section 5.01(a) or
(b), a certificate of the president or a senior financial officer of LIN
Television or the Borrower, as applicable, in the form of, in the case of LIN
Television, SCHEDULE 5.01(C)-1 and, in the case of the Borrower, SCHEDULE
5.01(C)-2, to which shall be attached such Information relating to each
Broadcast Station owned by the Borrower or any Restricted Subsidiary, each Local
Marketing Agreement to which the Borrower or any Restricted Subsidiary is a
party and each other separate business unit of the Borrower or any Restricted
Subsidiary as any Arranging Agent may reasonably request, including but not
limited to Information relating to income and cash flow.
(d) REPORTS AND FILINGS. (i) Promptly upon receipt thereof, copies of
all reports, if any, submitted to LIN Television, the Borrower or any Restricted
Subsidiary of either of them, or the Board of Directors of LIN Television, the
Borrower or any Restricted Subsidiary of either of them, by its independent
certified public accountants, including (unless the opinions of the independent
certified public accountants who are at such time opining on the financial
statements of LIN Television and the Borrower shall be unqualified) any
management letter; (ii) as soon as practicable, copies of all such proxy
statements, financial statements and reports as LIN Television, the Borrower or
any Restricted Subsidiary shall send to the stockholders of any of them and of
all registration statements and all regular, periodic or special reports that
LIN Television, the Borrower or any Restricted Subsidiary shall file, or may be
required to file, with, and any comments or correspondence (other than those of
a routine nature) received by LIN Television, the Borrower or any of the
Restricted Subsidiaries from, the
-35-
43
Securities and Exchange Commission or any successor commission or any national
securities exchange.
(e) REQUESTED INFORMATION. From time to time and promptly upon
request of any Bank, such Information regarding the Loan Documents to which LIN
Television or the Borrower is a party, the Loans or the business, assets,
Liabilities, financial condition, results of operations or business prospects of
LIN Television, the Borrower, the Subsidiaries of either of them and the
Permitted Joint Ventures of the Borrower or the Restricted Subsidiaries as such
Bank may reasonably request, in each case in form and substance and, other than
in the case of an Unrestricted Subsidiary, certified in a manner satisfactory to
the requesting Bank.
(f) NOTICE OF DEFAULTS, MATERIAL ADVERSE CHANGES AND OTHER MATTERS.
Promptly, and in any event within three Business Days after LIN Television or
the Borrower obtains knowledge thereof, notice of:
(i) any Default,
(ii) the acquisition or formation of a new Subsidiary and, in the
case of each such new Subsidiary, its name, jurisdiction of incorporation,
the percentages of the various classes of its Capital Securities owned by
the Borrower or another Subsidiary, whether or not such new Subsidiary is a
Consolidated Subsidiary and whether or not such new Subsidiary is a
Restricted Subsidiary,
(iii) any change in the name of any Restricted Subsidiary, its
jurisdiction of incorporation, the percentages of the various classes of
its Capital Securities owned by the Borrower or another Restricted
Subsidiary or its status as a Consolidated, non-Consolidated or
Unrestricted Subsidiary,
(iv) the threatening or commencement of, or the occurrence or
nonoccurrence of any change or event relating to, any action, suit or
proceeding that would cause the Representation and Warranty contained in
Section 3.05 to be incorrect if made at such time,
(v) the occurrence or nonoccurrence of any event or change the
occurrence or nonoccurrence of which has had or could have, either alone or
in conjunction with all other such occurrences or nonoccurrences, a
Materially Adverse Effect on (x) the Borrower and the Restricted
Subsidiaries taken as a whole or (y) any Loan Document,
(vi) any change in the rating given by any nationally recognized
rating agency to any securities issued by LIN Television, the Borrower or
any Restricted Subsidiary
-36-
44
of either of them, following receipt by such Person of notification of any
such change by any such rating agency,
(vii) any event or condition referred to in clauses (i) through
(vii) of Section 6.01(i), whether or not such event or condition shall
constitute an Event of Default,
(viii) any amendment of the certificate of incorporation or
by-laws of LIN Television or the Borrower or, to the extent that any such
amendment could have a Materially Adverse Effect on any Loan Document, of
any Restricted Subsidiary,
(ix) any (A) refusal or failure by any instrumentality to renew
or extend any FCC License with respect to any of the Broadcast Businesses
of LIN Television, the Borrower and the Restricted Subsidiaries, (B)
proposed abandonment or proposed or actual revocation, termination or
materially adverse modification of any FCC License or any dispute related
thereto, (C) denial or threatened denial or revocation or material
modification by the FCC of any FCC License, (D) notice from the FCC of the
imposition of any fines or penalties or forfeitures or (E) threats, notices
or requests by the FCC with respect to any of the foregoing, or with
respect to any proceeding or hearing relating to the foregoing, that might
have, either alone or in conjunction with all other such events and
occurrences, a Materially Adverse Effect on (y) the Borrower and the
Restricted Subsidiaries taken as a whole, or (z) any Loan Document, and
(x) each Material Event under the Private Market Value
Guarantee.
Section 5.02. Accuracy of Financial Statements and Information.
(a) HISTORICAL FINANCIAL STATEMENTS. Each of LIN Television and the
Borrower hereby represents and warrants that (i) SCHEDULE 5.02(a) sets forth a
complete and correct list of the financial statements submitted by LIN
Television and the Borrower to the Banks in order to induce them to execute and
deliver this Agreement, (ii) such financial statements present fairly, in all
material respects, in accordance with Generally Accepted Accounting Principles
(except, in the case of quarterly financial statements, for ordinary year-end
audit adjustments), the consolidated and consolidating financial position of (A)
LIN Television and its Consolidated Subsidiaries, (B) the Borrower and the
Consolidated Subsidiaries and (C) the Borrower and the Restricted Subsidiaries,
as the case may be, as at their respective dates and the consolidated and
consolidating results of operations, retained earnings and, as applicable,
changes in financial position or cash flows of (x) LIN Television and its
Consolidated Subsidiaries, (y) the Borrower and the Consolidated
-37-
45
Subsidiaries and (z) the Borrower and the Restricted Subsidiaries, as the case
may be, for the respective periods to which such statements relate, and (iii)
except as disclosed or reflected in such financial statements, as at December
31, 1995, neither LIN Television, the Borrower nor any Restricted Subsidiary had
any Liability, contingent or otherwise, or any unrealized or anticipated loss,
that, singly or in the aggregate, has had or could have a Materially Adverse
Effect on the Borrower and the Restricted Subsidiaries taken as a whole.
(b) FUTURE FINANCIAL STATEMENTS. The financial statements delivered
pursuant to Section 5.01(a) or (b) shall present fairly in all material
respects, in accordance with Generally Accepted Accounting Principles (except
for changes therein or departures therefrom that are described in the
certificate or report accompanying such statements and that have been approved
in writing by the then current independent certified public accountants of LIN
Television or the Borrower, as the case may be, and except, in the case of
quarterly financial statements, for ordinary year-end audit adjustments), the
consolidated financial position of LIN Television and its Consolidated
Subsidiaries and consolidated and consolidating financial position of the
Borrower and the Restricted Subsidiaries, as the case may be, as at their
respective dates and the consolidated and consolidating results of operations,
retained earnings and cash flows of LIN Television and its Consolidated
Subsidiaries and the Borrower and the Restricted Subsidiaries, as the case may
be, for the respective periods to which such statements relate, and the
furnishing of the same to the Banks shall constitute a representation and
warranty by each of LIN Television and the Borrower made on the date the same
are furnished to the Banks to that effect and to the further effect that, except
as disclosed or reflected in such financial statements, as at the respective
dates thereof, none of LIN Television, the Borrower nor any Restricted
Subsidiary had any Liability, contingent or otherwise, or any unrealized or
anticipated loss, that, singly or in the aggregate, has had or could have a
Materially Adverse Effect on the Borrower and the Restricted Subsidiaries taken
as a whole.
(c) INFORMATION. Each of LIN Television and the Borrower hereby
represents and warrants that no information, exhibit or report furnished by any
Loan Party to any Agent or any Bank in connection with or pursuant to the Loan
Documents or any transaction contemplated thereby contains, as of the date
thereof or, if none, the date furnished, any untrue statement of a material fact
or omits to state a material fact necessary to make the statements made therein,
in light of the circumstances under which they were made, not misleading;
PROVIDED that, with respect to financial projections and forecasts included
therein, each of LIN Television and the Borrower hereby represents and warrants
that such projections and forecasts were prepared in good faith based on the
assumptions stated therein, which assumptions were reasonable in light of the
conditions existing at the time of
-38-
46
delivery of such projections and forecasts, and represented, at the time of
delivery, LIN Television's and the Borrower's best estimate of the future
financial performance of LIN Television and its Consolidated Subsidiaries or the
Borrower and the Restricted Subsidiaries, as the case may be.
Section 5.03. ADDITIONAL COVENANTS RELATING TO DISCLOSURE. From the
Agreement Date and until the Repayment Date, LIN Television shall cause the
Borrower to, and, in the case of clauses (a) and (b), shall cause each
Subsidiary of either of them to and, in the case of clause (c), shall cause each
Restricted Subsidiary to:
(a) ACCOUNTING METHODS AND FINANCIAL RECORDS. Maintain a system of
accounting, and keep such books, records and accounts (which shall be true and
complete), as may be required or necessary to permit (i) the preparation of
financial statements required to be delivered pursuant to Section 5.01(a) and
(b) and (ii) the determination of the compliance of LIN Television, the Borrower
and the Subsidiaries of either of them with the terms of the Loan Documents.
(b) FISCAL YEAR. Maintain the same opening and closing dates for each
fiscal year as for the fiscal year reflected in the Base Financial Statements
or, if the opening and closing dates for the fiscal year reflected in the Base
Financial Statements were determined pursuant to a formula, determine the
opening and closing dates for each fiscal year pursuant to the same formula.
(c) VISITS, INSPECTIONS AND DISCUSSIONS. Permit, or, in the case of
premises, property, books, records or Persons not within its immediate control,
promptly take such actions as are necessary or desirable in order to permit,
representatives (whether or not officers or employees) of any Bank, at any
reasonable time, from time to time, as often as may be reasonably requested, and
(except during an Event of Default) after giving reasonable prior notice to the
Borrower, to (i) visit any of its premises or property or any premises or
property of others on which any of its property or books and records (or books
and records of others relating to it) may be located, (ii) inspect, and verify
the amount, character and condition of, any of its property, (iii) review and
make extracts from its books and records and books and records of others
relating to it, including (unless the opinions of the independent certified
public accountants who are at such time opining on the financial statements of
LIN Television and the Borrower shall be unqualified) management letters
prepared by its independent certified public accountants, and (iv) discuss with
its principal officers, directors and independent certified public accountants,
its business, assets, Liabilities, financial condition, results of operation and
business prospects.
-39-
47
ARTICLE 6
DEFAULT
-------
Section 6.01. EVENTS OF DEFAULT. Each of the following shall
constitute an Event of Default, whatever the reason for such event and whether
it shall be voluntary or involuntary, or within or without the control of the
Borrower, any Restricted Subsidiary or any other Loan Party, or be effected by
operation of law or pursuant to any judgment or order of any court or any order,
rule or regulation of any governmental or nongovernmental body:
(a) Any payment of principal of or interest on any of the Loans or of
fees shall not be made when and as due (whether at maturity, by reason of notice
of prepayment or acceleration or otherwise) and in accordance with the terms of
this Agreement;
(b) Any Loan Document Representation and Warranty shall at any time
prove to have been incorrect in any material respect when made or deemed made
under the express terms of any Loan Document or shall prove to have omitted to
state a material fact necessary in order to make the statements contained
therein not misleading in the light of the circumstances under which they were
made;
(c) (i) The Borrower shall default in the performance or observance
of:
(A) any term, covenant, agreement or other provision
contained in Section 4.01 (insofar as such Section requires the
preservation of the corporate existence of LIN Television, the Borrower or
any Restricted Subsidiary), 4.06, 4.08, 4.12 through 4.30, 5.01(f)(i),
5.03(b) or 9.19; or
(B) any term, covenant, agreement or other provision
contained in this Agreement (other than a term, covenant, agreement or
other provision a default in the performance or observance of which is
elsewhere in this Section specifically dealt with) and such default shall
continue for a period of 30 days after notice of such default shall have
been given by the Administrative Agent to the Borrower; or
(ii) Any Loan Party shall default in the performance or
observance of any term, covenant, condition or agreement or other provision
contained in any Loan Document (other than any term, covenant, agreement or
other provision a default in the performance or observance of which is elsewhere
in this Section specifically dealt with) and such default shall continue for a
period of 30 days after notice of such default shall have been given by the
Administrative Agent to such Loan Party;
-40-
48
(d) (i) (A) Any Loan Party or any Restricted Subsidiary shall fail to
pay, in accordance with its terms and when due and payable, any of the principal
of or interest on any of its Indebtedness (other than the Loans) having a then
outstanding principal amount in excess of $10,000,000 and such failure shall
continue after the applicable grace period, if any, (B) the maturity of any such
Indebtedness shall, in whole or in part, have been accelerated, or any such
Indebtedness shall, in whole or in part, have been required to be prepaid prior
to the stated maturity thereof (other than pursuant to a regularly scheduled
required prepayment or redemption or a mandatory prepayment provision that is
not triggered by a breach or default), in accordance with the provisions of any
Contract evidencing, providing for the creation of or concerning such
Indebtedness, or (C) (x) any event shall have occurred and be continuing that
permits (or, with the passage of time or the giving of notice or both, would
permit) any holder or holders of such Indebtedness, any trustee or agent acting
on behalf of such holder or holders or any other Person so to accelerate such
maturity or require any such prepayment and (y) if the Contract evidencing,
providing for the creation of or concerning such Indebtedness provides for a
cure or grace period for such event, such event shall be continuing at the end
of such cure or grace period; or
(ii) Any Loan Party or any Restricted Subsidiary shall fail to
pay, in accordance with its terms and when due and payable, any amount due under
any Interest Rate Protection Agreement to which LIN Television, the Borrower or
any Restricted Subsidiary, on the one hand, and any Bank, on the other hand, is
a party, and such failure shall continue after the applicable grace period, if
any;
(e) A default shall be continuing under any Contract (other than a
Contract relating to Indebtedness to which clause (a) or (d) of this Section
6.01 is applicable) binding upon any Loan Party or any Restricted Subsidiary,
except a default that, together with all other such defaults, has not had and
will not have a Materially Adverse Effect on (i) the Borrower and the Restricted
Subsidiaries taken as a whole or (ii) any Loan Document;
(f) Since December 31, 1995 any change in the business, assets,
Liabilities, financial condition, results of operations or business prospects of
LIN Television, the Borrower or any Restricted Subsidiary shall have occurred,
or any event shall have occurred or failed to occur, that has had or could have,
either alone or in conjunction with all other such changes, events and failures,
a Materially Adverse Effect on (i) the Borrower and the Restricted Subsidiaries
taken as a whole or (ii) any Loan Document;
(g) (i) Any Loan Party or any Restricted Subsidiary shall (A)
commence a voluntary case under the Federal bankruptcy
-41-
49
laws (as now or hereafter in effect), (B) file a petition seeking to take
advantage of any other laws, domestic or foreign, relating to bankruptcy,
insolvency, reorganization, winding up or composition or adjustment of debts,
(C) consent to or fail to contest in a timely and appropriate manner any
petition filed against it in an involuntary case under such bankruptcy laws or
other laws, (D) apply for, or consent to, or fail to contest in a timely and
appropriate manner, the appointment of, or the taking of possession by, a
receiver, custodian, trustee, liquidator or the like of itself or of a
substantial part of its assets, domestic or foreign, (E) admit in writing its
inability to pay, or generally not be paying, its debts (other than those that
are the subject of bona fide disputes) as they become due, (F) make a general
assignment for the benefit of creditors, or (G) take any corporate action to
authorize any of the foregoing;
(ii) (A) A case or other proceeding shall be commenced against any
Loan Party or any Restricted Subsidiary seeking (1) relief under the Federal
bankruptcy laws (as now or hereafter in effect) or under any other laws,
domestic or foreign, relating to bankruptcy, insolvency, reorganization, winding
up or composition or adjustment of debts, or (2) the appointment of a trustee,
receiver, custodian, liquidator or the like of any Loan Party or any Restricted
Subsidiary, or of all or any substantial part of the assets, domestic or
foreign, of any Loan Party or any Restricted Subsidiary, and such case or
proceeding shall continue undismissed and unstayed for a period of 45 days, or
(B) an order granting the relief requested in such case or proceeding against
any Loan Party or any Restricted Subsidiary (including an order for relief under
such Federal bankruptcy laws) shall be entered;
(h) A judgment or order shall be entered against any Loan Party or
any Restricted Subsidiary by any court, and (i) in the case of a judgment or
order for the payment of money, the amount thereof, together with the amount of
all other such judgments or orders outstanding at such time against any Loan
Party or any Restricted Subsidiary, exceeds $5,000,000, either (A) such judgment
or order shall continue undischarged and unstayed for a period of 60 consecutive
days or (B) enforcement proceedings shall have been commenced upon such judgment
or order and such proceedings shall continue undischarged and unstayed for a
period of 20 consecutive days and (ii) in the case of any judgment or order for
other than the payment of money, such judgment or order shall continue
undischarged and unstayed for a period of 20 consecutive days and could, in the
reasonable judgment of the Required Banks, together with all other such
judgments or orders contemplated by this clause (ii), have a Materially Adverse
Effect on (A) the Borrower and the Restricted Subsidiaries taken as a whole, or
(B) any Loan Document;
(i) (i) any Termination Event shall occur with respect to any Benefit
Plan of any Loan Party or any of their respective ERISA Affiliates, (ii) any
Accumulated Funding Deficiency,
-42-
50
whether or not waived, shall exist with respect to any such Benefit Plan, (iii)
any Person shall engage in any Prohibited Transaction involving any such Benefit
Plan, (iv) any Loan Party or any of their respective ERISA Affiliates shall be
in "default" (as defined in ERISA Section 4219(c)(5)) with respect to payments
owing to any such Benefit Plan that is a Multiemployer Benefit Plan as a result
of such Person's complete or partial withdrawal (as described in ERISA Section
4203 or 4205) therefrom, (v) any Loan Party or any of their respective ERISA
Affiliates shall fail to pay when due an amount that is payable by it to the
PBGC or to any such Benefit Plan under Title IV of ERISA, (vi) a proceeding
shall be instituted by a fiduciary of any such Benefit Plan against any Loan
Party or any of their respective ERISA Affiliates to enforce ERISA Section 515
and such proceeding shall not have been dismissed within 30 days thereafter, or
(vii) any other event or condition shall occur or exist with respect to any such
Benefit Plan, except that no event or condition referred to in clauses (i)
through (vii) shall constitute an Event of Default if it, together with all
other such events or conditions at the time existing, has not subjected, and in
the reasonable determination of the Required Banks will not subject, any Loan
Party or any Restricted Subsidiary to any Liability that, alone or in the
aggregate with all such Liabilities for all such Persons, exceeds $10,000,000;
(j) Any Loan Party or any Affiliate of any Loan Party asserts, or any
Loan Party or any Affiliate of any Loan Party or any other Person institutes any
proceedings seeking to establish, that (i) any provision of the Loan Documents
is invalid, not binding or unenforceable or (ii) the Guaranty under the Guaranty
Agreement is limited in amount pursuant to Section 1.02 thereof;
(k) the Guaranty Agreement shall cease to be in full force and effect
for any reason other than repayment, release or partial release;
(l) a Change of Control shall occur and the Required Banks shall not
have consented to such Change of Control within 10 days thereafter;
(m) LIN Television shall fail to own, directly, of record and
beneficially, 100% of the issued and outstanding Capital Securities of the
Borrower and the economic interests and voting power relating thereto, free and
clear of any Liens (other than Permitted Liens);
(n) the FCC shall have designated a hearing, or added an issue to such
hearing, or shall have issued an order to show cause, to determine whether any
FCC License or permit held by the Borrower or any of the Restricted Subsidiaries
should be revoked or not renewed on character or other basic qualification
grounds; or
-43-
51
(o) (i) The Private Letter Ruling shall be revoked or modified, for
any reason, with retroactive effect on the Spin-Off or any of the other
transactions to which the Private Letter Ruling is applicable, or the Internal
Revenue Service proposes in writing an adjustment or deficiency (including, but
not limited to, a preliminary notice of deficiency or a statutory notice of
deficiency) that would result in, or could be expected to result in, the
Spin-Off or any related transaction being treated other than as described in the
Private Letter Ruling, and as a result thereof the Borrower or any Subsidiary
shall have incurred or reasonably could incur a Tax or other Liability
(including a Liability under any tax indemnification or tax allocation agreement
between (A) LIN Television, the Borrower or any Restricted Subsidiary, on the
one hand, and (B) any other Person, on the other hand) that, alone or in the
aggregate, has had or could have a Materially Adverse Effect on (y) the Borrower
and the Restricted Subsidiaries taken as a whole or (z) any Loan Document, or
(ii) LIN Television, the Borrower, any Subsidiary or any of their respective
Affiliates shall have breached any of the terms or provisions of any tax
indemnification or tax allocation agreement between (A) LIN Television, the
Borrower or any Restricted Subsidiary, on the one hand, and (B) any other
Person, on the other hand, except for any such breach that (x) has been waived
by the proper party or parties or (y) together with all such other breaches, has
not had and could not have a Materially Adverse Effect on (1) the Borrower and
the Restricted Subsidiaries taken as a whole or (2) any Loan Document.
Section 6.02. REMEDIES UPON EVENT OF DEFAULT. During the continuance
of any Event of Default (other than one specified in Section 6.01(g)) and in
every such event, the Administrative Agent, upon notice to the Borrower, may,
subject to the penultimate sentence of Section 8.03, do either or both of the
following: (a) declare, in whole or, from time to time, in part, the principal
of and interest on the Loans and all other amounts owing under the Borrower Loan
Documents to be, and the Loans and all such other amounts shall thereupon and to
that extent become, due and payable and (b) terminate, in whole or, from time to
time, in part, the Commitments. Upon the occurrence of an Event of Default
specified in Section 6.01(g), automatically and without any notice to the
Borrower, (a) the principal of and interest on the Loans and all other amounts
owing under the Borrower Loan Documents shall be due and payable and (b) the
Commitments shall terminate. Presentment, demand, protest or notice of any kind
(other than the notice provided for in the first sentence of this Section 6.02)
are hereby expressly waived.
ARTICLE 7
ADDITIONAL CREDIT FACILITY PROVISIONS
-------------------------------------
Section 7.01. MANDATORY SUSPENSION AND CONVERSION OF EURODOLLAR RATE
LOANS. A Bank's obligations to make, continue or
-44-
52
convert into Eurodollar Rate Loans of any Type shall be suspended, all such
Bank's outstanding Loans of that Type shall be converted on the last day of
their applicable Interest Periods (or, if earlier, in the case of clause (c)
below, on the last day such Bank may lawfully continue to maintain Loans of that
Type or, in the case of clause (d) below, on the day determined by such Bank to
be the last Business Day before the effective date of the applicable
restriction) into, and all pending requests for the making or continuation of or
conversion into Loans of such Type by such Bank shall be deemed requests for,
Base Rate Loans, if:
(a) on or prior to the determination of an interest rate for a
Eurodollar Rate Loan of that Type for any Interest Period, the
Administrative Agent determines that for any reason appropriate information
is not available to it for purposes of determining the Adjusted Eurodollar
Rate for such Interest Period;
(b) on or prior to the first day of any Interest Period for a
Eurodollar Rate Loan of that Type, the Required Banks determine that the
Adjusted Eurodollar Rate as determined by the Administrative Agent for such
Interest Period would not accurately reflect the cost to such Required
Banks of making, continuing or converting into a Eurodollar Rate Loan of
such Type for such Interest Period;
(c) at any time such Bank determines that any Regulatory Change
makes it unlawful or impracticable for such Bank or its applicable Lending
Office to make, continue or convert into any Eurodollar Rate Loan of that
Type, or to comply with its obligations hereunder in respect thereof; or
(d) such Bank determines that, by reason of any Regulatory
Change, such Bank or its applicable Lending Office is restricted, directly
or indirectly, in the amount that it may hold of (i) a category of
liabilities that includes deposits by reference to which, or on the basis
of which, the interest rate applicable to Eurodollar Rate Loans of that
Type is directly or indirectly determined or (ii) the category of assets
that includes Eurodollar Rate Loans of that Type.
If, as a result of this Section 7.01, any Loan of any Bank that would otherwise
be made or maintained as or converted into a Eurodollar Rate Loan of any Type
for any Interest Period is instead made or maintained as or converted into a
Base Rate Loan, then, unless the corresponding Loan of each of the other Banks
is also to be made or maintained as or converted into a Base Rate Loan, such
Loan of such Bank shall be treated as being a Eurodollar Rate Loan of such Type
for such Interest Period for all purposes of this Agreement (including the
timing, application and proration among the Banks of interest payments,
conversions and prepayments) except for the calculation of the interest rate
-45-
53
borne by such Loan. The Administrative Agent shall promptly notify the Borrower
and each Bank of the existence or occurrence of any condition or circumstance
specified in clause (a) above, and each Bank shall promptly notify the Borrower
and the Administrative Agent of the existence or occurrence of any condition or
circumstance specified in clause (b), (c) or (d) above applicable to such Bank's
Loans, but the failure by the Administrative Agent or such Bank to give any such
notice shall not affect such Bank's rights hereunder.
Section 7.02. INCREASED COSTS, ETC. If, due to either (a) the
introduction of or any change (other than any change by way of imposition or
increase of reserve requirements included in the Adjusted Eurodollar Rate) in or
in the interpretation of any Applicable Law or (b) the compliance with any
guideline or request from any central bank or other governmental authority
(whether or not having the force of law), there shall be any increase in cost to
any Bank of agreeing to make or making, funding or maintaining Eurodollar Rate
Loans, then the Borrower shall from time to time, upon demand by such Bank (with
a copy of such demand to the Administrative Agent), pay to the Administrative
Agent for the account of such Bank additional amounts sufficient to compensate
such Bank for such increased cost. A certificate as to the amount of such
increased cost, submitted to the Borrower by such Bank, shall be conclusive and
binding for all purposes, absent manifest error.
Section 7.03. CAPITAL REQUIREMENTS. If any Bank determines that
compliance with any Applicable Law or any guideline or request from any central
bank or other governmental authority (whether or not having the force of law)
affects or would affect the amount of capital required or expected to be
maintained by such Bank or any corporation controlling such Bank and that the
amount of such capital is increased by or based upon the existence of such
Bank's Commitment or Loans hereunder and other commitments of this type, then,
upon demand by such Bank (with a copy of such demand to the Administrative
Agent), the Borrower shall pay to the Administrative Agent for the account of
such Bank, from time to time as specified by such Bank, additional amounts
sufficient to compensate such Bank in the light of such circumstances, to the
extent that such Bank reasonably determines such increase in capital to be
allocable to the existence of such Bank's Commitment or Loans hereunder. A
certificate as to such amounts submitted to the Borrower by such Bank shall be
conclusive and binding for all purposes, absent manifest error.
Section 7.04. FUNDING LOSSES. If (a) any payment of principal of, or
conversion of, any Eurodollar Rate Loan is made by the Borrower to or for the
account of a Bank other than on the last day of the Interest Period for such
Loan, as a result of a payment pursuant to Section 1.05, acceleration of the
maturity of the Loans pursuant to Section 6.02 or for any other reason, or (b) a
Eurodollar Rate Loan for any reason is not made or
-46-
54
converted, or any payment with respect thereto for any reason is not made, on
the date therefor determined in accordance with the applicable provisions of
this Agreement, the Borrower shall, upon demand by such Bank (with a copy of
such demand to the Administrative Agent), pay to the Administrative Agent for
the account of such Bank any amounts required to compensate such Bank for any
additional losses, costs or expenses that it may reasonably incur as a result of
such payment or conversion, such failure to make such Loan, convert such Loan,
or make any payment with respect thereto, or any such other occurrence or
non-occurrence, including, without limitation, any loss (including loss of
anticipated profits), cost or expense incurred by reason of the liquidation or
reemployment of deposits or other funds acquired by any Bank to fund or maintain
such Loan.
Section 7.05. CERTAIN DETERMINATIONS. In making the determinations
contemplated by Sections 7.01, 7.02, 7.03 and 7.04, each Bank will use
reasonable efforts to make such estimates, assumptions, allocations and the like
that such Bank in good faith determines to be accurate, and such Bank's use and
employment of such estimates, assumptions, allocations and the like, its
selection thereof in accordance with this Section 7.05, and the determinations
made by such Bank on the basis thereof, shall be final, binding and conclusive
upon the Borrower, except, in the case of such determinations, for manifest
errors. Each Bank shall furnish to the Borrower upon request a certificate
outlining in reasonable detail the basis for, and (if applicable) computation
of, any amounts claimed by it under Sections 7.01, 7.02, 7.03 and 7.04 and the
assumptions underlying any such computations. Each Bank shall, in connection
with making such determinations, treat the Borrower in a manner consistent with
its treatment of other comparable borrowers.
Section 7.06. CHANGE OF LENDING OFFICE. If an event occurs with
respect to a Lending Office of any Bank that obligates the Borrower to pay any
amount under Section 1.13, makes operable the provisions of clause (c) or (d) of
Section 7.01 or entitles such Bank to make a claim under Section 7.02 or 7.03,
such Bank shall, if requested by the Borrower, use reasonable efforts to
designate another Lending Office or Offices the designation of which will reduce
the amount the Borrower is so obligated to pay, eliminate such operability or
reduce the amount such Bank is so entitled to claim, provided that such
designation would not, in the sole and absolute discretion of such Bank, be
disadvantageous to such Bank in any manner or contrary to such Bank's policies.
Each Bank may at any time and from time to time change any Lending Office and
shall give notice of any such change to the Administrative Agent and the
Borrower. Except in the case of a change in Lending Offices made at the request
of the Borrower, the designation of a new Lending Office by any Bank shall not
obligate the Borrower to pay any amount to such Bank under Section 1.13, make
operable the provisions of clause (c) or (d) of Section 7.01 or entitle such
Bank to make a claim under Section 7.02 or 7.03 if such obligation, the
-47-
55
operability of such clause or such claim results solely from such designation
and not from a subsequent Regulatory Change, PROVIDED that if an event occurs
with respect to a new Lending Office of any Bank (other than a new Lending
Office designated by such Bank after a request by the Borrower) that entitles
such Bank to make a claim under Section 7.02, such Bank shall, if requested by
the Borrower, use reasonable efforts to designate another Lending Office or
Offices the designation of which will reduce the amount such Bank is so entitled
to claim.
ARTICLE 8
THE AGENTS
----------
Section 8.01. APPOINTMENT AND POWERS. Each Bank hereby irrevocably
appoints and authorizes each of The Bank of New York, Toronto Dominion (New
York), Inc., Toronto Dominion (Texas), Inc., Citicorp Securities, Inc. and The
Chase Manhattan Bank, and each of The Bank of New York, Toronto Dominion (New
York), Inc., Toronto Dominion (Texas), Inc., Citicorp Securities, Inc. and The
Chase Manhattan Bank hereby agrees, to act as agent for and representative
(within the meaning of Section 9-105(m) of the Uniform Commercial Code) of such
Bank under the Loan Documents with such powers as are delegated to, in the case
of Toronto Dominion (Texas), Inc., the Administrative Agent, in the case of The
Bank of New York, the Documentation Agent and an Arranging Agent, in the case of
The Chase Manhattan Bank, the Syndication Agent and an Arranging Agent, and, in
the case of Toronto Dominion (New York), Inc., and Citicorp Securities, Inc., an
Arranging Agent by the terms thereof, together with such other powers as are
reasonably incidental thereto. Each Agent's duties shall be purely ministerial
and it shall have no duties or responsibilities except those expressly set forth
in the Loan Documents. No Agent shall be required under any circumstances to
take any action that, in its judgment, (a) is contrary to any provision of the
Loan Documents or Applicable Law or (b) would expose it to any Liability or
expense against which it has not been indemnified to its satisfaction. No Agent
shall, by reason of its serving as an Agent, be a trustee or other fiduciary for
any Bank.
Section 8.02. LIMITATION ON AGENTS' LIABILITY. Neither any Agent nor
any director, officer, employee or agent of any of them shall be liable or
responsible for any action taken or omitted to be taken by it or them under or
in connection with the Loan Documents, except for its or their own gross
negligence, willful misconduct or knowing violations of law. No Agent shall be
responsible to any Bank for (a) any recitals, statements, representations or
warranties contained in the Loan Documents or in any certificate or other
document referred to or provided for in, or received by any of the Banks under,
the Loan Documents, (b) the validity, effectiveness or enforceability of the
Loan Documents or any such certificate or other document or (c) any
-48-
56
failure by the Loan Parties to perform any of their obligations under the Loan
Documents. Each Agent may employ agents and attorneys-in-fact and shall not be
responsible for the negligence or misconduct of any such agents or
attorneys-in-fact. Each Agent shall be entitled to rely upon any certification,
notice or other communication (including any thereof by telephone, telex,
telecopier, telegram or cable) believed by it to be genuine and correct and to
have been signed or given by or on behalf of the proper Person or Persons, and
upon advice and statements of legal counsel, independent accountants and other
experts selected by any Agent. As to any matters not expressly provided for by
the Loan Documents, each Agent shall in all cases be fully protected in acting,
or in refraining from acting, under the Loan Documents in accordance with
instructions signed by the Required Banks, and such instructions of the Required
Banks and any action taken or failure to act pursuant thereto shall be binding
on all of the Banks.
Section 8.03. DEFAULTS. No Agent shall be deemed to have knowledge of
the occurrence of a Default (other than, in the case of the Administrative
Agent, the non-payment to it of principal of or interest on Loans or fees)
unless such Agent has received notice from a Bank or the Borrower specifying
such Default and stating that such notice is a "Notice of Default". In the event
that the Administrative Agent has knowledge of such a non-payment or receives
such a notice of the occurrence of a Default, the Administrative Agent shall
give prompt notice thereof to the Banks. In the event of any Default, the
Administrative Agent shall (a) in the case of a Default that constitutes an
Event of Default, take either or both of the actions referred to in clauses (a)
and (b) of the first sentence of Section 6.02 if so directed by the Required
Banks and (b) in the case of any Default, take such other action with respect to
such Default as shall be reasonably directed by the Required Banks. Unless and
until the Administrative Agent shall have received such directions, in the event
of any Default, the Administrative Agent may (but shall not be obligated to)
take such action, or refrain from taking such action, with respect to such
Default as it shall deem advisable in the best interests of the Banks.
Section 8.04. RIGHTS AS A BANK. Each Person acting as an Agent that is
also a Bank shall, in its capacity as a Bank, have the same rights and powers
under the Loan Documents as any other Bank and may exercise the same as though
it were not acting as an Agent, and the term "Bank" or "Banks" shall include
such Person in its individual capacity. Each Person acting as an Agent (whether
or not such Person is a Bank) and its Affiliates may (without having to account
therefor to any Bank) accept deposits from, lend money to and generally engage
in any kind of banking, trust or other business with the Loan Parties and their
Affiliates as if it were not acting as an Agent, and such Person and its
Affiliates may accept fees and other consideration from the Loan Parties and
their Affiliates for services in connection
-49-
57
with the Loan Documents or otherwise without having to account for the same to
the Banks.
Section 8.05. INDEMNIFICATION. The Banks agree to indemnify each Agent
(to the extent not reimbursed by the Loan Parties under the Loan Documents),
ratably on the basis of the respective principal amounts of the Loans
outstanding made by the Banks (or, if no Loans are at the time outstanding,
ratably on the basis of their respective Commitments), for any and all
Liabilities, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind and nature whatsoever that may be imposed
on, incurred by or asserted against such Agent (including the costs and expenses
that the Loan Parties are obligated to pay under the Loan Documents) in any way
relating to or arising out of the Loan Documents or any other documents
contemplated thereby or referred to therein or the transactions contemplated
thereby or the enforcement of any of the terms thereof or of any such other
documents, provided that no Bank shall be liable for any of the foregoing to the
extent they arise from gross negligence or willful misconduct by such Agent.
Section 8.06. NON-RELIANCE ON AGENTS AND OTHER BANKS. Each Bank agrees
that it has made and will continue to make, independently and without reliance
on any Agent or any other Bank, and based on such documents and information as
it deems appropriate, its own credit analysis of the Loan Parties and its own
decision to enter into the Loan Documents and to take or refrain from taking any
action in connection therewith. No Agent shall be required to keep itself
informed as to the performance or observance by the Loan Parties of the Loan
Documents or any other document referred to or provided for therein or to
inspect the properties or books of any Loan Party or any Subsidiary thereof.
Except for notices, reports and other documents and information expressly
required to be furnished to the Banks by an Agent under the Loan Documents, no
Agent shall have any obligation to provide any Bank with any information
concerning the business, status or condition of any Loan Party or any Subsidiary
thereof or the Loan Documents that may come into the possession of any Agent or
any Affiliate of any of them.
Section 8.07. EXECUTION AND AMENDMENT OF LOAN DOCUMENTS ON BEHALF OF
THE BANKS. Each Bank hereby authorizes the Administrative Agent to execute and
deliver, in the name of and on behalf of such Bank, (a) the Guaranty Agreement
and (b) any other Loan Document (other than the Credit Agreement) requiring
execution by or on behalf of such Bank. The Administrative Agent shall consent
to any amendment of any term, covenant, agreement or condition of the Guaranty
Agreement, or to any waiver of any right thereunder, if, but only if, the
Administrative Agent is directed to do so in writing by the Required Banks;
PROVIDED, HOWEVER, that (i) the Administrative Agent shall not be required to
consent to any such amendment or waiver that affects its rights or duties and
(ii) the
-50-
58
Administrative Agent shall not, unless directed to do so in writing by each
Bank, (A) consent to any assignment by any Loan Party of any of its rights or
obligations under the Guaranty Agreement, except as required or contemplated by
the Loan Documents or (B) release LIN Television from its obligations under
Section 1.01 of the Guaranty Agreement. Any release of LIN Television from its
obligations under Section 1.01 of the Guaranty Agreement which is effectuated
otherwise than in accordance with the terms of this Section 8.07, shall be
invalid.
Section 8.08. RESIGNATION OF AN AGENT. Any Agent may at any time give
notice of its resignation to the Banks and the Borrower. Upon receipt of any
such notice of resignation, the Required Banks may, after consultation with the
Borrower, appoint a successor Agent to such Agent. If no successor Agent shall
have been so appointed by the Required Banks and shall have accepted such
appointment within 30 days after the retiring Agent's giving of notice of
resignation, then the retiring Agent may, on behalf of the Banks and after
consultation with the Borrower, appoint a successor Agent to such Agent. Upon
the acceptance by any Person of its appointment as a successor Agent, such
Person shall thereupon succeed to and become vested with all the rights, powers,
privileges, duties and obligations of the retiring Agent and the retiring Agent
shall be discharged from its duties and obligations as Agent under the Loan
Documents. After any retiring Agent's resignation as Agent, the provisions of
this Article 8 shall continue in effect for its benefit in respect of any
actions taken or omitted to be taken by it while it was acting as the Agent.
ARTICLE 9
MISCELLANEOUS
-------------
Section 9.01. NOTICES AND DELIVERIES. (A) MANNER OF DELIVERY. All
notices, communications and materials (including all Information) to be given or
delivered pursuant to the Borrower Loan Documents shall, except in those cases
where giving notice by telephone is expressly permitted, be given or delivered
in writing (which shall include telecopy transmissions). Notices under Sections
1.02, 1.03(c), 1.05, 1.07 and 6.02 may be by telephone, promptly, in the case of
each notice other than one under Section 6.02, confirmed in writing. In the
event of a discrepancy between any telephonic notice and any written
confirmation thereof, such written confirmation shall be deemed the effective
notice except to the extent that the Administrative Agent has acted in reliance
on such telephonic notice.
(b) ADDRESSES. All notices, communications and materials to be given
or delivered pursuant to the Loan Documents shall be given or delivered at the
following respective addresses and telecopier and telephone numbers and to the
attention of the following individuals or departments:
-51-
59
(i) if to the Borrower or LIN Television, to it
at:
0 Xxxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxx Xxxxxx 00000
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Vice President-Treasurer
with a copy to:
LIN Television Corporation
0000 X Xxxxxx, X.X.
Xxxxx 000 Xxxx
Xxxxxxxxxx, X.X. 00000
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: General Counsel
and to
Xxxxxxxx & Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Xxxxxx X. Xxxxx
(ii) if to the Administrative Agent, to it at:
Toronto Dominion (Texas), Inc.
000 Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Telecopier No.: 000-000-0000
Telephone No.: 000-000-0000
Attention: Agency Department
(iii) if to any Bank, to it at the address or
telecopier or telephone number and to
the attention of the individual or
department, set forth below such Bank's
name under the heading "Notice Address"
on ANNEX A or, in the case of a Bank
that becomes a Bank pursuant to an
assignment, set forth under the heading
"Notice
-52-
60
Address" in the Notice of Assignment
given to the Borrower and the
Administrative Agent with respect to
such assignment;
or at such other address or telecopier or telephone number or to the attention
of such other individual or department as the party to which such information
pertains may hereafter specify for the purpose in a notice specifically
captioned "Notice of Change of Address" given to (x) if the party to which such
information pertains is LIN Television or the Borrower, the Administrative Agent
and each Bank, (y) if the party to which such information pertains is an Agent,
LIN Television, the Borrower, each Agent and each Bank and (z) if the party to
which such information pertains is a Bank, LIN Television, the Borrower and the
Administrative Agent.
(c) EFFECTIVENESS. Each notice and communication and any material to
be given or delivered pursuant to the Borrower Loan Documents shall be deemed so
given or delivered (i) if sent by registered or certified mail, postage prepaid,
return receipt requested, on the fourth Business Day after such notice,
communication or material, addressed as above provided, is delivered to a United
States post office and a receipt therefor is issued thereby, (ii) if sent by any
other means of physical delivery, when such notice, communication or material is
delivered to the appropriate address as above provided, (iii) if sent by
telecopier, when such notice, communication or material is transmitted to the
appropriate telecopier number as above provided and is received at such number
and (iv) if given by telephone, when communicated to the individual or any
member of the department specified as the individual or department to whose
attention notices, communications and materials are to be given or delivered,
or, in the case of notice by the Administrative Agent to the Borrower under
Section 6.02 given by telephone as above provided, if any individual or any
member of the department to whose attention notices, communications and
materials are to be given or delivered is unavailable at the time, to any other
officer of the Borrower or to any general manager of any Broadcast Station owned
by LIN Television, the Borrower or any Restricted Subsidiary (other than any
such Broadcast Station which is operated pursuant to a Local Marketing
Agreement), except that (x) notices of a change of address, telecopier or
telephone number or individual or department to whose attention notices,
communications and materials are to be given or delivered shall not be deemed
given until received and (y) notices, communications and materials to be given
or delivered to the Administrative Agent or any Bank pursuant to Sections 1.02,
1.03(c), 1.05, 1.07 and 1.12(b) and Article 5 shall not be deemed given or
delivered until received by the officer of the Administrative Agent or such Bank
responsible, at the time, for the administration of the Loan Documents.
-53-
61
(d) REASONABLE NOTICE. Any requirement under Applicable Law of
reasonable notice by the Agents or the Banks to LIN Television or the Borrower
of any event in connection with, or in any way related to, the Loan Documents or
the exercise by the Agents or the Banks of any of their rights thereunder shall
be met if notice of such event is given to LIN Television or the Borrower, as
the case may be, in the manner prescribed above at least 10 days before (A) the
date of such event or (B) the date after which such event will occur.
Section 9.02. EXPENSES; INDEMNIFICATION. (a) The Borrower agrees to
pay on demand: (i) all costs and expenses of the Agents in connection with the
preparation, execution, delivery, administration, modification and amendment of
this Agreement and the other Loan Documents, including, without limitation, (A)
all due diligence, transportation, computer, duplication, appraisal, audit,
consultant, search, filing and recording fees and expenses and (B) the
reasonable fees and expenses of counsel for the Agents with respect thereto and
with respect to advising any of the Agents as to their respective rights and
responsibilities, or the perfection, protection or preservation of rights or
interests, under this Agreement and the other Loan Documents and with respect to
negotiations with the Borrower regarding any Default or any events or
circumstances that may give rise to a Default and (ii) all costs and expenses of
the Agents and the Banks in connection with the enforcement of this Agreement
and the other Loan Documents whether in any action, suit or litigation, any
bankruptcy, insolvency or other similar proceeding affecting creditors' rights
generally or otherwise (including, without limitation, the reasonable fees and
expenses of counsel for any Agent or any Banks with respect thereto).
(b) The Borrower agrees to indemnify and hold harmless each
Indemnified Person from and against any and all claims, damages, losses,
liabilities and expenses (including, without limitation, reasonable fees and
expenses of counsel for the Banks as a group; PROVIDED that any Bank or group of
Banks that has determined in good faith that due to potential conflicts of
interest such Bank or group of Banks cannot be adequately represented by such
counsel may retain separate counsel to represent such Bank or group of Banks,
such representation to be limited, to the extent practicable, to the issues to
which such potential conflict relates) that may be incurred by or asserted or
awarded against any Indemnified Person, in each case arising out of or in
connection with or by reason of, or in connection with the preparation for a
defense of, any investigation, litigation or proceeding arising out of, related
to or in connection with any acquisition or proposed acquisition by LIN
Television, the Borrower or any of the Subsidiaries or Affiliates of all or any
part of the stock or substantially all the assets of any Person and any of the
other transactions contemplated by any Loan Document, whether or not an
Indemnified Person is a party thereto and whether or not the transactions
contemplated
-54-
62
hereby are consummated, except to the extent such claim, damage, loss, liability
or expense is found in a final, nonappealable judgment by a court of competent
jurisdiction to have resulted from such Indemnified Person's gross negligence or
willful misconduct.
Section 9.03. AMOUNTS PAYABLE DUE UPON REQUEST FOR PAYMENT. All
amounts payable by the Borrower under Section 9.02 and by LIN Television or the
Borrower under the other provisions of the Loan Documents shall, except as
otherwise expressly provided, be immediately due upon request for the payment
thereof.
Section 9.04. REMEDIES OF THE ESSENCE. The various rights and remedies
of the Agents and the Banks under the Borrower Loan Documents are of the essence
of those agreements, and the Agents and the Banks shall be entitled to obtain a
decree requiring specific performance of each such right and remedy.
Section 9.05. RIGHTS CUMULATIVE. Each of the rights and remedies of
the Agents and the Banks under the Loan Documents shall be in addition to all of
their other rights and remedies under the Loan Documents and Applicable Law, and
nothing in the Loan Documents shall be construed as limiting any such rights or
remedies.
Section 9.06. CONFIDENTIALITY; DISCLOSURES. Each Agent and each Bank
agrees to use reasonable efforts to keep confidential, in accordance with its
customary procedures for handling confidential information of this nature, any
Information supplied to it by LIN Television, the Borrower or any Subsidiary of
either of them pursuant to this Agreement or the other Loan Documents (and not
otherwise known to such Person), PROVIDED that nothing contained herein shall
limit or impair the right of any Agent and any Bank, and each Agent and each
Bank shall be entitled to, disclose to, and exchange and discuss with, any other
Person (each Agent, each Bank and each such other Person being hereby authorized
to do so) any Information (including but not limited to any such non-public
Information) concerning LIN Television, the Borrower or any Subsidiary (whether
received by the Agents, the Banks or such other Person in connection with or
pursuant to the Loan Documents or otherwise) (a) to the extent required by
Applicable Law, (b) to the employees, auditors or counsel of or for any Agent or
any Bank, or to the accountants for any Agent or any Bank, (c) to bank
examiners, auditors, accountants or other regulatory or administrative bodies
having or claiming to have jurisdiction over any Agent or any Bank or to the
Federal Reserve Board or the Federal Deposit Insurance Corporation or similar
organizations (whether in the United States or elsewhere), (d) to any other
Agent or any other Bank, (e) in connection with any litigation, (f) to the
extent required for the purpose of protecting, preserving, exercising or
enforcing any of the rights of the Agents or the Banks in, under or related to
the Loan Documents, performing any of the
-55-
63
obligations of the Agents or the Banks under or related to the Loan Documents
and consulting with respect to any of the foregoing matters, (g) to any
Affiliate or Subsidiary of any Agent or any Bank so long as such Agent or such
Bank causes such Affiliate or Subsidiary to adhere to the provisions of this
Section 9.06 as though it were legally bound thereby, (h) to any prospective
assignee of, or actual or prospective participant in, all or any part of any
Bank's interest in its Loans, Commitments and other rights or obligations
hereunder, so long as each such prospective assignee or actual or prospective
participant has agreed that it will comply with the restrictions contained in
this Section 9.06 to the same extent as if it were a Bank, (i) to the extent
that such Information has become generally available to the public other than by
a breach of this Section 9.06 or has been provided to any Agent or any Bank by a
third Person not known to such Agent or such Bank to be subject to a duty of
confidentiality with respect to such Information, or (j) to the extent permitted
in writing by LIN Television, the Borrower or the Subsidiary of either of them
that delivered such Information; PROVIDED, FURTHER, that in no event shall any
Agent or any Bank be obligated or required to return any materials furnished by
LIN Television, the Borrower, any Subsidiary of either of them or any of their
agents or representatives. The determination by any Agent or any Bank as to the
application of the circumstances described in the foregoing clauses (a) through
(j) shall be conclusive if made in good faith.
Section 9.07. AMENDMENTS; WAIVERS. Any term, covenant, agreement or
condition of the Borrower Loan Documents may be amended, and any right under the
Borrower Loan Documents may be waived, if, but only if, such amendment or waiver
is in writing and is signed by (a) in the case of an amendment or waiver with
respect to any Borrower Loan Document, the Required Banks and, if the rights and
duties of any Agent are affected thereby, by such Agent, (b) in the case of an
amendment with respect to any Borrower Loan Document, by the Borrower and (c) in
the case of an amendment with respect to this Agreement, by LIN Television;
PROVIDED, HOWEVER, that no amendment or waiver shall be effective, unless in
writing and signed by each Bank directly affected thereby, to the extent it (i)
increases the amount or extends the term of such Bank's RC Commitment or
Incremental Commitment, (ii) reduces the principal of or the rate of interest on
such Bank's Loans or the fees payable to such Bank hereunder (other than in
connection with any waiver of any increase in the Applicable Margin which would
otherwise take effect due to the continuance of an Event of Default as a result
of the failure of the Borrower to deliver Section 5.01 Financials in accordance
with the proviso to the definition of "Applicable Margin" set forth herein or in
connection with any waiver of the applicability of the Post-Default Rate), (iii)
constitutes an amendment to or waiver of the provisions of Section 1.04 which
postpones any date fixed for, or reduces the amount of, any payment of principal
of such Bank's Loans, or any reduction of the Commitments, (iv) constitutes an
amendment to or waiver of
-56-
64
the provisions of Section 1.03 which postpones any date fixed for, or reduces
the amount of, any payment of interest on such Bank's Loans (other than in
connection with any waiver of any increase in the Applicable Margin which would
otherwise take effect due to the continuance of an Event of Default as a result
of the failure of the Borrower to deliver Section 5.01 Financials in accordance
with the proviso to the definition of "Applicable Margin" set forth herein or in
connection with any waiver of the applicability of the Post-Default Rate), (v)
constitutes an amendment to or waiver of the provisions of Section 1.08 which
postpones any date fixed for, or reduces the amount of, any payment of fees
payable to such Bank hereunder, (vi) constitutes an amendment to or waiver of
the provisions of Section 1.05(a)(ii) or 1.07(a)(iii), (vii) reduces the
percentage specified in the definition of "Required Banks" or (viii) amends
Section 1.14, this Section 9.07 or any other provision of this Agreement
requiring the consent or other action of all of the Banks. Unless otherwise
specified in such waiver, a waiver of any right under the Borrower Loan
Documents shall be effective only in the specific instance and for the specific
purpose for which given. No election not to exercise, failure to exercise or
delay in exercising any right, nor any course of dealing or performance, shall
operate as a waiver of any right of any Agent or any Bank under the Borrower
Loan Documents or Applicable Law, nor shall any single or partial exercise of
any such right preclude any other or further exercise thereof or the exercise of
any other right of any Agent or any Bank under the Borrower Loan Documents or
Applicable Law.
Section 9.08. SET-OFF; SUSPENSION OF PAYMENT AND PERFORMANCE. Each
Agent and each Bank is hereby authorized by LIN Television and the Borrower, at
any time and from time to time, without notice, (a) during the continuance of
any Event of Default, to set off against, and to appropriate and apply to the
payment of, the Liabilities of LIN Television or the Borrower, as the case may
be, under the Borrower Loan Documents (whether owing to such Person or to any
other Person that is an Agent or a Bank and whether matured or unmatured, fixed
or contingent or liquidated or unliquidated) any and all Liabilities owing by
such Person or any of its Affiliates to LIN Television or the Borrower, as the
case may be, or any Restricted Subsidiary (whether payable in Dollars or any
other currency, whether matured or unmatured and, in the case of Liabilities
that are deposits, whether general or special, time or demand and however
evidenced and whether maintained at a branch or office located within or
without the United States) and (b) during the continuance of any Event of
Default, to suspend the payment and performance of such Liabilities owing by
such Person or its Affiliates and, in the case of Liabilities that are
deposits, to return as unpaid for insufficient funds any and all checks and
other items drawn against such deposits. Each Agent and each Bank agrees
promptly to notify LIN Television or the Borrower, as the case may be, after
any such set-off and application and suspension of payment and performance,
PROVIDED that the failure
-57-
65
to give such notice shall not affect the validity of such set-off and
application or suspension of payment and performance, as the case may be.
Section 9.09. SHARING OF RECOVERIES. Each Bank agrees that, if, for
any reason, including as a result of (a) the exercise of any right of
counterclaim, set-off, banker's lien or similar right, (b) its claim in any
applicable bankruptcy, insolvency or other similar law being deemed secured by a
Debt owed by it to any Loan Party, including a claim deemed secured under
Section 506 of the Bankruptcy Code, or (c) the allocation of payments by any
Agent or any Loan Party in a manner contrary to the provisions of Section 1.14,
such Bank shall receive payment of a proportion of the aggregate amount due and
payable to it hereunder as principal of or interest on the Loans or fees that is
greater than the proportion received by any other Bank in respect of the
aggregate of such amounts due and payable to such other Bank hereunder, then the
Bank receiving such proportionately greater payment shall purchase
participations (which it shall be deemed to have done simultaneously upon the
receipt of such payment) in the rights of the other Banks hereunder so that all
such recoveries with respect to such amounts due and payable hereunder (net of
costs of collection) shall be pro rata; provided that if all or part of such
proportionately greater payment received by the purchasing Bank is thereafter
recovered by or on behalf of any Loan Party from such Bank, such purchases shall
be rescinded and the purchase prices paid for such participations shall be
returned to such Bank to the extent of such recovery, but without interest
(unless the purchasing Bank is required to pay interest on the amount recovered
to the Person recovering such amount, in which case the selling Bank shall be
required to pay interest at a like rate). Each of LIN Television and the
Borrower expressly consents to the foregoing arrangements and agrees that any
holder of a participation in any rights hereunder so purchased or acquired
pursuant to this Section 9.09 shall, with respect to such participation, be
entitled to all of the rights of a Bank under Sections 7.02, 9.02 and 9.08
(subject to any condition imposed on a Bank hereunder with respect thereto) and
may exercise any and all rights of set-off with respect to such participation as
fully as though the Borrower were directly indebted to the holder of such
participation for Loans in the amount of such participation.
Section 9.10. ASSIGNMENTS AND PARTICIPATIONS. (a) ASSIGNMENTS (i) No
Loan Party may assign any of its rights or obligations under the Loan Documents
without the prior written consent of (A) in the case of the Loan Documents
referred to in Section 8.07(a) and subject to the provisions of Section 8.07,
the Administrative Agent and (B) in the case of any of the other Loan
Documents, each Bank, and no assignment of any such obligation shall release
such Loan Party therefrom unless the Administrative Agent or each Bank, as
applicable, shall have consented to such release in a writing specifically
referring to the obligation from which such Loan Party is to be released.
-58-
66
(ii) Each Bank may from time to time assign any or all of its
rights and obligations under the Loan Documents to one or more Persons; PROVIDED
that, except in the case of the grant of a security interest to a Federal
Reserve Bank (which may be made without condition or restriction), no such
assignment shall be effective unless (A) the assignment is consented to by the
Borrower (unless either (i) the assignment is to an Affiliate of the assigning
Bank or (ii) an Event of Default specified in Section 6.01(g) with respect to
the Borrower exists) (such consent not to be unreasonably withheld), (B) in the
case of a partial assignment (other than a partial assignment to another Bank or
to an Affiliate of the assigning Bank), the assignment shall involve the
assignment of not less than $10,000,000 (or, with the prior written consent of
the Borrower, $5,000,000) of the assignor Bank's Commitment and, if in excess of
such amount, an integral multiple of $1,000,000, (C) a Notice of Assignment with
respect to the assignment, duly executed by the assignor and the assignee, shall
have been given to the Borrower and the Administrative Agent at least three
Eurodollar Business Days prior to the date on which such assignment is to become
effective and (D) except in the case of (x) an assignment by the Bank that is
the Administrative Agent, (y) an assignment to an Affiliate of the assigning
Bank or (z) an assignment to another Bank, the Administrative Agent shall have
been paid an assignment fee of $2,500. Upon any effective assignment, the
assignee shall be obligated to perform the obligations so assigned and shall
have all of the rights of a Bank; PROVIDED, HOWEVER, that no assignee shall be
entitled to any amounts that would otherwise be payable to it with respect to
its assignment under Section 1.13 or 7.02 unless (x) such amounts are payable in
respect of Regulatory Changes that are enacted, adopted or issued after the date
the applicable assignment agreement was executed or (y) such amounts would have
been payable to the Bank that made such assignment if such assignment had not
been made.
(b) PARTICIPATIONS. Each Bank may from time to time sell or otherwise
grant participations in any or all of its rights and obligations under the Loan
Documents without the consent of the Borrower, the Administrative Agent, any
other Agent or any other Bank. In the event of any such grant by a Bank of a
participation, such Bank's obligations under the Loan Documents to the other
parties thereto shall remain unchanged, such Bank shall remain solely
responsible for the performance thereof, and the Borrower, the Agents and the
other Banks may continue to deal solely and directly with such Bank in
connection with such Bank's rights and obligations thereunder. A Bank may not
grant to any holder of a participation the right to require such Bank to take or
omit to take any action under the Loan Documents, except that a Bank may grant
to any such holder the right to require such holder's consent to (i) increase
the amount or extend the term of such Bank's Commitment, (ii) reduce the
principal of or the rate of interest on such Bank's Loans or the fees payable to
such Bank hereunder (other than in connection with any waiver of any increase in
the Applicable Margin which
-59-
67
would otherwise take effect due to the continuance of an Event of Default as a
result of the failure of the Borrower to deliver Section 5.01 financials in
accordance with the proviso to the definition of "Applicable Margin" set forth
herein or in connection with any waiver of the applicability of the Post-Default
Rate), (iii) amend or waive the provisions of Sections 1.04 in a manner which
postpones any date fixed for, or reduces the amount of, any payment of principal
of such Bank's Loans, or any reduction of the Commitments, (iv) amend or waive
the provisions of Section 1.03 in a manner which postpones any date fixed for,
or reduces the amount of, any payment of interest on such Bank's Loans (other
than in connection with any waiver of any increase in the Applicable Margin
which would otherwise take effect due to the continuance of an Event of Default
as a result of the failure of the Borrower to deliver Section 5.01 financials in
accordance with the proviso to the definition of "Applicable Margin" set forth
herein or in connection with any waiver of the applicability of the Post-Default
Rate), (v) amend or waive the provisions of Section 1.08 in a manner which
postpones any date fixed for, or reduces the amount of, any payment of fees
payable to such Bank hereunder, (vi) amend or waive the provisions of Sections
1.05(a)(ii) or 1.07(a)(iii), (vii) reduce the percentage specified in the
definition of "Required Banks," (viii) amend Section 1.14, Section 9.07 or any
other provision of this Agreement requiring the consent or other action of all
of the Banks, (ix) permit any Loan Party to assign any of its rights or
obligations under the Loan Documents to any other Person, except as required or
contemplated by the Loan Documents or (x) release LIN Television from its
obligations under Section 1.01 of the Guaranty Agreement. Each holder of a
participation in any rights under the Loan Documents, if and to the extent the
applicable participation agreement so provides, shall, with respect to such
participation, be entitled to all of the rights of a Bank as fully as though it
were a Bank and may exercise any and all rights of set-off with respect to such
participation as fully as though the Borrower were directly indebted to the
holder of such participation for Loans in the amount of such participation;
PROVIDED, HOWEVER, that no holder of a participation shall be entitled to any
amounts that would otherwise be payable to it with respect to its participation
under Section 1.13, 7.02 or 7.03 unless such amounts would have been payable to
the Bank that granted such participation if such participation had not been
granted.
Section 9.11. GOVERNING LAW. This Agreement (including matters
relating to the Maximum Permissible Rate) shall be construed in accordance with
and governed by the law of the State of New York (without giving effect to its
choice of law principles).
Section 9.12. JUDICIAL PROCEEDINGS; WAIVER OF JURY TRIAL. Any
judicial proceeding brought against LIN Television or the Borrower with
respect to any Loan Document Related Claim may be brought in any court of
competent jurisdiction in the City of
-60-
68
New York, and, by execution and delivery of this Agreement, each of LIN
Television and the Borrower (a) accepts, generally and unconditionally, the
nonexclusive jurisdiction of such courts and any related appellate court and
irrevocably agrees to be bound by any judgment rendered thereby in connection
with any Loan Document Related Claim and (b) irrevocably waives any objection it
may now or hereafter have as to the venue of any such proceeding brought in such
a court or that such a court is an inconvenient forum. Each of LIN Television
and the Borrower hereby waives personal service of process and consents that
service of process upon it may be made by certified or registered mail, return
receipt requested, at its address specified or determined in accordance with the
provisions of Section 9.01(a)(ii), and service so made shall be deemed completed
on the fourth Business Day after such service is deposited in the mail. Nothing
herein shall affect the right of any Agent, any Bank or any other Indemnified
Person to serve process in any other manner permitted by law or shall limit the
right of any Agent, any Bank or any other Indemnified Person to bring
proceedings against LIN Television or the Borrower in the courts of any other
jurisdiction. To the extent permitted in accordance with Applicable Law
(including Applicable Law relating to jurisdiction and venue), any judicial
proceeding by LIN Television or the Borrower against any Agent or any Bank
involving any Loan Document Related Claim shall be brought only in a court
located in, in the case of the Administrative Agent, the City and State of New
York and, in the case of a Bank or any other Agent, the jurisdiction in which
such Bank's or such other Agent's, as the case may be, principal United States
office is located. LIN TELEVISION, THE BORROWER, EACH AGENT AND EACH BANK HEREBY
WAIVE TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING ANY LOAN DOCUMENT
RELATED CLAIM.
Section 9.13. REFERENCE BANKS. Each Reference Bank shall furnish to
the Administrative Agent timely information for the purpose of determining the
Eurodollar Rate. If any Reference Bank shall notify the Administrative Agent
that thenceforth it shall not be able to furnish such information in a timely
manner or shall assign all of its Loans or Commitment to a Person that is not an
Affiliate of such Reference Bank, the Administrative Agent shall, with the
consent of the Required Banks and after consultation with the Borrower, appoint
another Bank as a Reference Bank in place of such Reference Bank.
Section 9.14. SEVERABILITY OF PROVISIONS. Any provision of the
Borrower Loan Documents that is prohibited or unenforceable in any jurisdiction
shall, as to such jurisdiction, be ineffective to the extent of such prohibition
or unenforceability without invalidating the remaining provisions thereof or
affecting the validity or enforceability of such provision in any other
jurisdiction. To the extent permitted by Applicable Law, each of LIN Television
and the Borrower hereby waives any provision of Applicable Law that renders any
provision
-61-
69
of the Borrower Loan Documents prohibited or unenforceable in any respect.
Section 9.15. COUNTERPARTS. This Agreement may be signed in any number
of counterparts, each of which shall be an original, with the same effect as if
the signatures thereto were upon the same instrument.
Section 9.16. SURVIVAL OF OBLIGATIONS. Except as otherwise expressly
provided therein, the rights and obligations of the Borrower, the Agents, the
Banks and the other Indemnified Persons under the Borrower Loan Documents shall
survive the Repayment Date.
Section 9.17. ENTIRE AGREEMENT. This Agreement embodies the entire
agreement among LIN Television, the Borrower, the Agents and the Banks relating
to the subject matter hereof and supersede all prior agreements, representations
and understandings, if any, relating to the subject matter hereof.
Section 9.18. SUCCESSORS AND ASSIGNS. All of the provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns.
Section 9.19. TERMINATION AND RELEASE; FURTHER ASSURANCES. Upon the
effectiveness of the amendment and restatement of this Agreement as of the
Restated Agreement Date, the Notes, the Guaranty Agreements, the Security
Agreements and the Subsidiary Set-Off Consents (each as defined in this
Agreement immediately prior to such effectiveness) shall terminate and be of no
further force and effect, and the Security Interest (as so defined) shall
terminate and be released. The Administrative Agent shall return to the
Borrower any and all items of Collateral (as so defined) in its possession and
shall execute and deliver to the Borrower such instruments and other documents,
including UCC-3 termination statements, as shall be reasonably requested by
the Borrower to effectuate such termination and release.
ARTICLE 10
INTERPRETATION
--------------
Section 10.01. Defined Terms. For the purposes of this Agreement:
-------------
"ACCUMULATED FUNDING DEFICIENCY" has the meaning ascribed to that term
in Section 302 of ERISA.
"ADJUSTED EURODOLLAR RATE" means, for any Interest Period, a rate per
annum (rounded upward, if not 1/16 of 1% or an integral multiple thereof, to the
next higher 1/16 of 1%) equal
-62-
70
to the rate obtained by dividing (a) the Eurodollar Rate for such Interest
Period by (b) a percentage equal to 1 minus the Reserve Requirement in effect
from time to time during such Interest Period.
"ADMINISTRATIVE AGENT" means Toronto Dominion (Texas), Inc., as agent
for and representative (within the meaning of Section 9-105(m) of the Uniform
Commercial Code) of the Banks under the Loan Documents, and any successor
Administrative Agent appointed pursuant to Section 8.08.
"ADMINISTRATIVE AGENT'S OFFICE" means the address of the
Administrative Agent specified in or determined in accordance with the
provisions of Section 9.01(a)(ii).
"AFFILIATE" means, with respect to a Person, any other Person that,
directly or indirectly through one or more intermediaries, controls, or is
controlled by, or is under common control with, such first Person; unless
otherwise specified, "Affiliate" means an Affiliate of the Borrower.
"AGENTS" means, collectively, the Administrative Agent, the
Documentation Agent, the Syndication Agent and the Arranging Agents.
"AGREEMENT" means this Agreement, including all schedules, annexes
and exhibits hereto.
"AGREEMENT DATE" means November 30, 1994, being the date this
Agreement (prior to the amendment and restatement hereof as of the Restated
Agreement Date) originally became effective.
"APPLICABLE LAW" means, anything in Section 9.11 to the contrary
notwithstanding, (a) all applicable common law and principles of equity and (b)
all applicable provisions of all (i) constitutions, statutes, rules, regulations
and orders of governmental bodies, (ii) Governmental Approvals and (iii) orders,
decisions, judgments and decrees of all courts (whether at law or in equity or
admiralty) and arbitrators.
"APPLICABLE MARGIN" means, for each Eurodollar Rate Loan, at any time,
the percentage per annum set forth below opposite the applicable Leverage Ratio
(it being understood that each Applicable Margin shall be in effect from the
third Business Day after the day the respective Section 5.01 Financials are
delivered to the Banks until the third Business Day after the day the next such
Section 5.01 Financials are delivered to the Banks at which time the Applicable
Margin shall be reset in accordance with the foregoing provisions of this
definition):
-63-
71
Eurodollar
Rate
LEVERAGE RATIO LOANS
-------------- ---------
Greater than 5.00 to 1 1.000%
Greater than 4.50 to 1 0.900%
but less than or equal
to 5.00 to 1
Greater than 4.00 to 1 0.750%
but less than or equal
to 4.50 to 1
Greater than 3.50 to 1 0.625%
but less than or equal
to 4.00 to 1
Greater than 3.00 to 1 0.500%
but less than or equal
to 3.50 to 1
Less than or equal to 0.400%
3.00 to 1
; PROVIDED that, during any period in which an Event of Default shall have
occurred and be continuing as a result of the failure of the Borrower to deliver
Section 5.01 Financials to each Bank when required pursuant to Section 5.01(a)
or (b), as the case may be, the Applicable Margin shall be 1.000%, and PROVIDED
FURTHER that for the sole purpose of calculating the Applicable Margin, (i) no
Event of Default shall be deemed to have occurred and be continuing if the
Borrower shall have delivered the Section 5.01 Financials to the Administrative
Agent when required pursuant to Section 5.01(a) or (b), as the case may be, even
if such Section 5.01 Financials shall not have been delivered to each Bank when
required pursuant to Section 5.01(a) or (b), as the case may be, and (ii) the
Required Banks shall not unreasonably withhold their consent to any request by
the Borrower to extend the time periods of 60 days or 90 days, as the case may
be, set forth in Section 5.01(a) or (b).
"ARRANGING AGENTS" means, collectively, The Bank of New York, The
Chase Manhattan Bank, Citicorp Securities, Inc. and Toronto Dominion (New York),
Inc., as agents for and representatives (within the meaning of Section 9-105(m)
of the Uniform Commercial Code) of the Banks under the Loan Documents, and any
successor Arranging Agents appointed pursuant to Section 8.08.
"ASSET DISPOSITION NET CASH PROCEEDS" means the Net Cash Proceeds from
any disposition (whether voluntary or involuntary) of any asset of the Borrower
or the Restricted Subsidiaries (other than the incurrence of a Permitted Lien or
-64-
72
any disposition of any asset, including any asset subject to a Permitted Lien,
or any interest therein in the ordinary course of business).
"AT&T" means AT&T Corp., a New York corporation.
----
"AVAILABLE CASH" means, on any date of determination, the lesser of
(a) $20,000,000 and (b) the lesser of (i) the average daily amount of Cash
Equivalents measured over the two previous fiscal quarters most recently ended
and (ii) the amount of Cash Equivalents on the date of determination.
"BANK" means (a) any Person listed on the signature pages hereof as
such and (b) any Person that has been assigned any or all of the rights or
obligations of a Bank pursuant to Section 9.10(a).
"BANK TAX" means any Tax based on or measured by net income, any
franchise Tax and any doing business Tax (including any gross receipts Tax in
the nature of a doing business Tax), in each case imposed upon any Bank or any
Agent by any jurisdiction (or political subdivision thereof) in which such Bank,
such Agent or any Lending Office is located.
"BASE FINANCIAL STATEMENTS" means the most recent, audited,
consolidated balance sheet of the Borrower and the Consolidated Subsidiaries
referred to in SCHEDULE 5.02(a) and the related statements of income, retained
earnings and, as applicable, changes in financial position or cash flows for the
fiscal year ended with the date of such balance sheet.
"BASE RATE" means, for any day, a rate per annum equal to the higher
of (a) the Prime Rate in effect on such day and (b) the sum of the Federal Funds
Rate in effect on such day plus 1/2%.
"BASE RATE LOAN" means any Loan the interest on which is, or is to be,
as the context may require, computed on the basis of the Base Rate.
"BENEFIT PLAN" of any Person, means, at any time, any employee benefit
plan (including a Multiemployer Benefit Plan), the funding requirements of which
(under Section 302 of ERISA or Section 412 of the Code) are, or at any time
within six years immediately preceding the time in question were, in whole or in
part, the responsibility of such Person.
"Borrower" means LWWI Broadcasting Inc., a Delaware corporation.
--------
"BORROWER LOAN DOCUMENTS" means the Loan Documents to which the
Borrower is a party.
-65-
73
"BROADCAST BUSINESS" means the business of operating one or more
Broadcast Stations and other businesses directly related thereto.
"BROADCAST STATION" means all the assets used and useful for operating
a full service commercial radio or television broadcast station pursuant to an
FCC License, including but not limited to such FCC License and the right to use
the same.
"BUSINESS DAY" means any day other than a Saturday, Sunday or other
day on which banks in New York City are authorized to close.
"CAPITAL LEASE" means any lease that has been, or should be, in
accordance with Generally Accepted Accounting Principles, recorded as a capital
lease.
"CAPITAL SECURITY" means, (i) with respect to any Person that is a
corporation, (A) any share of capital stock of such Person or (B) any security
convertible into, or any option, warrant or other right to acquire, any share of
capital stock of such Person and (ii) with respect to any Person that is a
partnership, limited liability company or other entity, (A) any partnership or
other ownership interest in such Person or (B) any security convertible into, or
any option, warrant or other right to acquire, any partnership or other
ownership interest in such Person.
"CASH EQUIVALENTS" means any of the following, to the extent owned by
the Borrower and the Restricted Subsidiaries, determined on a Consolidated
basis, free and clear of all Liens: (a) Dollars on hand and in federally insured
demand deposit accounts; (b) direct obligations of the Government of the United
States or any agency or instrumentality thereof or obligations unconditionally
guaranteed by the full faith and credit of the Government of the United States,
in each case having a remaining maturity of not more than one year; (c)
certificates of deposit or bankers' acceptances that become payable within one
year after the date of issuance and that are issued by (i) any Bank or (ii) any
other commercial bank organized under the laws of the United States or any state
thereof or any other country that is a member of the OECD or any political
subdivision of such country and having combined capital and surplus of at least
$1,000,000,000; (d) commercial paper issued by any corporation organized under
the laws of any state or the United States with a rating of at least "Prime-1"
(or the then equivalent grade) by Xxxxx'x Investors Service, Inc. or "A-1" (or
the then equivalent grade) by Standard & Poor's Ratings Group; and (e)
repurchase and reverse repurchase agreements with any securities dealer with
respect to securities of the types specified in subsections (a) through (d) of
this definition of "Cash Equivalents" in respect of an aggregate principal
amount of securities not in excess of $10,000,000 and that are fully
collateralized by any of the
-66-
74
securities specified in subsections (a) through (d) of this definition of "Cash
Equivalents."
"CASH FLOW PERCENTAGE" means, as of the date of any sale, pledge or
other disposition (whether voluntary or involuntary) or exchange of the assets
comprising a Broadcast Station (including the Capital Securities of a Person
that owns a Broadcast Station), the ratio, expressed as a percentage, derived by
dividing (a) Operating Cash Flow attributable thereto for the period of four
consecutive fiscal quarters ending on the last day of the most recent fiscal
year or fiscal quarter in respect of which each Bank shall have received Section
5.01 Financials by (b) Consolidated Operating Cash Flow for such period.
"CHANGE OF CONTROL" means the occurrence of any event whereby any
Person, any group of Persons who have agreed to act together, or any Person or
any such group and its or their Affiliates, other than AT&T and its Affiliates,
has the ability to elect a majority of the members of the Board of Directors of
LIN Television.
"CO-AGENTS" means The Bank of Nova Scotia, Barclays Bank PLC, Fleet
National Bank and NationsBank of Texas, N.A.
"Code" means the Internal Revenue Code of 1986.
----
"COMMITMENT" of any Bank means such Bank's RC Commitment and/or
Incremental Commitment.
"Communications Act" means the Communications Act of 1934.
------------------
"COMPLIANCE CERTIFICATE" means a certificate of the president or a
senior financial officer of the Borrower, in the form of SCHEDULE 5.01(c)-2,
delivered pursuant to Section 5.01(c).
"CONSOLIDATED" refers to the consolidation of financial statements in
accordance with Generally Accepted Accounting Principles.
"CONSOLIDATED FREE CASH FLOW" means, for the Borrower and the
Restricted Subsidiaries, determined on a Consolidated basis, for any period of
four consecutive fiscal quarters ending on any date of determination,
Consolidated Operating Cash Flow plus Available Cash (determined on the last day
of the last such fiscal quarter), less the sum of (a) Tax Distributions
permitted to be made by the Borrower hereunder for such period and (b) capital
expenditures made during such period by the Borrower and the Restricted
Subsidiaries, determined on a Consolidated basis (excluding any upfront payments
made during such period related to Permitted Local Marketing Agreements).
-67-
75
"CONSOLIDATED INTEREST EXPENSE" or "CIE" means, for any period,
Interest Expense of LIN Television, the Borrower and the Restricted
Subsidiaries, determined on a Consolidated basis, for such period.
"CONSOLIDATED OPERATING CASH FLOW" or "COCF" means, for any period,
the sum of (a) Operating Cash Flow of the Borrower and the Restricted
Subsidiaries, determined on a Consolidated basis, for such period, PROVIDED that
there shall be excluded from the calculation of Net Income of the Borrower and
the Restricted Subsidiaries, on a Consolidated basis, (i) any net income of a
Restricted Subsidiary to the extent that the declaration or payment of dividends
or similar distributions by that Restricted Subsidiary is not at the time
permitted by operation of the terms of any Contract or Applicable Law and (ii)
any net income (or net loss) of any Person (other than a Restricted Subsidiary)
in which the Borrower or any Restricted Subsidiary has an ownership interest,
and PROVIDED FURTHER that, there shall be excluded from the calculation of
Consolidated Operating Cash Flow, Operating Cash Flow derived from businesses
other than (1) the business of owning and operating Broadcast Stations and (2)
the business of owning all or part of the Capital Securities of any Person
engaged in the business of owning and operating Broadcast Stations
("Non-Broadcast Operating Cash Flow"), to the extent such Non-Broadcast
Operating Cash Flow exceeds 33.34% of Operating Cash Flow derived from the
businesses referred to in the foregoing clauses (1) and (2), plus (b) any
distributions on the Capital Securities of any Permitted Joint Venture but only
to the extent that (w) such distributions do not exceed the collective ratable
share of the Borrower and the Restricted Subsidiaries of the Operating Cash Flow
of such Permitted Joint Venture for such period, (x) such distributions are
attributable directly to the ownership interests of the Borrower or any
Restricted Subsidiary in such Permitted Joint Venture, (y) such distributions
have been received during such period, or are receivable for (and, in any event,
received no later than 45 days following the end of) such period, in cash or
cash equivalents by the Borrower or any Restricted Subsidiary and (z) there are
no restrictions on the distribution, on a ratable basis, of the free cash flow
of such Permitted Joint Venture to the Borrower or any Restricted Subsidiary.
"CONSOLIDATED PRO FORMA DEBT SERVICE" means, as of any date of
determination, for LIN Television, the Borrower and the Restricted Subsidiaries,
determined on a Consolidated basis, the sum of (a) Consolidated Pro Forma
Interest Expense, (b) the scheduled current maturities of Consolidated Total
Debt and (c) Required Pro Forma Repayments, in each case for the four
consecutive fiscal quarters immediately following the fiscal quarter in which
the date of determination occurs.
"CONSOLIDATED PRO FORMA INTEREST EXPENSE" means, for LIN Television,
the Borrower and the Restricted Subsidiaries, determined on a Consolidated
basis, Consolidated Interest Expense
-68-
76
calculated for the four consecutive fiscal quarters immediately following the
fiscal quarter in which the date of determination occurs, giving effect to the
Consolidated Total Debt outstanding, the interest rates in effect as of the date
of determination and the principal amortization and commitment reductions
scheduled during such period.
"CONSOLIDATED SUBSIDIARY" means, with respect to any Person at any
time, any Subsidiary or other Person the accounts of which would be consolidated
with those of such first Person in its consolidated financial statements as of
such time; unless otherwise specified, "Consolidated Subsidiary" means a
Consolidated Subsidiary of the Borrower.
"CONSOLIDATED TOTAL DEBT" or "CTD" means, at any time, all
Indebtedness of LIN Television, the Borrower and the Restricted Subsidiaries at
such time, including but not limited to all amounts outstanding hereunder and
under the other Loan Documents at such time and all contingent obligations at
such time for back-end purchase payments related to Permitted Local Marketing
Agreements for which a third party has a unilateral right to require such
payment to be made in any form other than additional Capital Securities of LIN
Television.
"CONTRACT" means (a) any agreement (whether bi-lateral or uni-lateral
or executory or non-executory and whether a Person entitled to rights thereunder
is so entitled directly or as a third party beneficiary), including an
indenture, lease or license, (b) any deed or other instrument of conveyance, (c)
any certificate of incorporation or charter and (d) any by-law.
"CORPORATE SERVICE EXPENSES" means any costs, expenses or fees for
general corporate services rendered to the Borrower and the Restricted
Subsidiaries, which costs, expenses and fees shall be calculated only by
reference to the actual costs for such Corporate Service Expenses, other than
(a) any such costs, expenses or fees payable by (i) a Restricted Subsidiary to
the Borrower or (ii) a Restricted Subsidiary to a Restricted Subsidiary which is
a Wholly-Owned Subsidiary, (b) any such reasonable costs, expenses or fees
payable by a Restricted Subsidiary to a Restricted Subsidiary which is not a
Wholly-Owned Subsidiary and (c) any such costs, expenses or fees payable to any
employee of the Borrower or any Restricted Subsidiary.
"DEBT" means any Liability that constitutes "debt" or "Debt" under
section 101(11) of the Bankruptcy Code or under the Uniform Fraudulent
Conveyance Act, the Uniform Fraudulent Transfer Act or any analogous Applicable
Law.
"DEFAULT" means any condition or event that constitutes an Event of
Default or that with the giving of notice or lapse of time or both would, unless
cured or waived, become an Event of Default.
-69-
77
"DELAYED TRANSACTION" means any acquisition or other transaction that
is contemplated and permitted by Section 4.18 and as to which, prior to the
first anniversary of the date of receipt by the Borrower and/or any of the
Restricted Subsidiaries of any Asset Disposition Net Cash Proceeds to be used by
the Borrower, either directly or through any Restricted Subsidiary, to effect
any such acquisition or other transaction (a) the Borrower or any Restricted
Subsidiary shall have entered into a binding agreement to effect any such
acquisition or other transaction and (b) all material conditions to the
consummation of such transaction shall have been fulfilled (other than (i) the
obtaining of any Governmental Approvals necessary to consummate such transaction
and (ii) deliveries of opinions of counsel and officers' certificates, PROVIDED
that such deliveries are capable of being made at closing in the ordinary
course).
"DOCUMENTATION AGENT" means The Bank of New York, and any successor
Documentation Agent appointed pursuant to Section 8.08.
"DOLLARS" and the sign "$" mean lawful money of the United States of
America.
"DOMESTIC LENDING OFFICE" of any Bank means (a) the branch or office
of such Bank set forth below such Bank's name under the heading "Domestic
Lending Office" on ANNEX A or, in the case of a Bank that becomes a Bank
pursuant to an assignment, the branch or office of such Bank set forth under the
heading "Domestic Lending Office" in the Notice of Assignment given to the
Borrower and the Agent with respect to such assignment or (b) such other branch
or office of such Bank designated by such Bank from time to time as the branch
or office at which its Base Rate Loans are to be made or maintained.
"ENVIRONMENTAL LAW" means any law, rule, regulation, order, writ,
judgment, injunction, decree, determination or award relating to the
environment, health or safety or to the release of any materials into the
environment, including, without limitation, the Clean Air Act, the Clean Water
Act of 1977, the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, the Hazardous Materials Transportation Act, the Toxic
Substance Control Act, and the Resource Conservation and Recovery Act of 1976.
"ERISA" means the Employee Retirement Income Security Act of 1974.
-----
"ERISA AFFILIATE" means, with respect to any Person, any other Person,
including a Subsidiary or other Affiliate of such first Person, that is a member
of any group of organizations within the meaning of Code Sections 414(b), (c),
(m) or (o) of which such first Person is a member.
-70-
78
"EURODOLLAR BUSINESS DAY" means any Business Day on which dealings in
Dollar deposits are carried on in the London interbank market and on which
commercial banks are open for domestic and international business (including
dealings in Dollar deposits) in London, England.
"EURODOLLAR LENDING OFFICE" of any Bank means (a) the branch or office
of such Bank set forth below such Bank's name under the heading "Eurodollar
Lending Office" on ANNEX A or, in the case of a Bank that becomes a Bank
pursuant to an assignment, the branch or office of such Bank set forth under the
heading "Eurodollar Lending Office" in the Notice of Assignment given to the
Borrower and the Administrative Agent with respect to such assignment or (b)
such other branch or office of such Bank designated by such Bank from time to
time as the branch or office at which its Eurodollar Rate Loans are to be made
or maintained.
"EURODOLLAR RATE" means, for any Interest Period, the rate per annum
determined by the Administrative Agent to be the average (rounded upward, if not
1/16 of 1% or an integral multiple thereof, to the next higher 1/16 of 1%) of
the rates per annum determined, respectively, by each Reference Bank to be the
rate at which such Reference Bank offered or would have offered to place with
first-class banks in the London interbank market deposits in Dollars in amounts
comparable to the Eurodollar Rate Loan of such Reference Bank to which such
Interest Period applies, for a period equal to such Interest Period, at 11:00
a.m. (London time) on the second Eurodollar Business Day before the first day of
such Interest Period. If any Reference Bank is unable or otherwise fails to
furnish the Administrative Agent with appropriate rate information in a timely
manner, the Administrative Agent shall determine the Eurodollar Rate based on
the rate information furnished by the remaining Reference Banks.
"EURODOLLAR RATE LOAN" means any Loan the interest on which is, or is
to be, as the context may require, computed on the basis of the Adjusted
Eurodollar Rate.
"Event of Default" means any of the events specified in Section 6.01.
----------------
"EXISTING BENEFIT PLAN" means any Benefit Plan listed on SCHEDULE
4.20.
"EXISTING GUARANTY" means (a) any Guaranty outstanding on the Restated
Agreement Date, to the extent set forth on SCHEDULE 4.13, and (b) any Guaranty
that constitutes a renewal, extension or replacement of an Existing Guaranty,
but only if (i) at the time such Guaranty is entered into and immediately after
giving effect thereto, no Default would exist, (ii) such Guaranty is binding
only on the obligor or obligors under the Guaranty so renewed, extended or
replaced, (iii) the principal amount of the obligations Guaranteed by such
Guaranty does not exceed the principal amount of the obligations Guaranteed by
the Guaranty so
-71-
79
renewed, extended or replaced at the time of such renewal, extension or
replacement and (iv) the obligations Guaranteed by such Guaranty bear interest
at a rate per annum not exceeding the rate borne by the obligations Guaranteed
by the Guaranty so renewed, extended or replaced except for any increase that is
commercially reasonable at the time of such increase.
"EXISTING INDEBTEDNESS" means (a) any Indebtedness of the Borrower or
any Restricted Subsidiary outstanding on the Restated Agreement Date, to the
extent set forth on SCHEDULE 4.12(c), and (b) any Indebtedness of the Borrower
or any Restricted Subsidiary constituting a renewal, extension or refunding of
any Existing Indebtedness of the Borrower or any Restricted Subsidiary, but only
if (i) at the time such Indebtedness is incurred and immediately after giving
effect thereto, no Default would exist, (ii) the principal amount of such
Indebtedness does not exceed the principal amount of the Indebtedness so
renewed, extended or refunded and (iii) such Indebtedness bears interest at a
rate per annum not exceeding the rate borne by the Indebtedness so renewed,
extended or refunded except for any increase that is commercially reasonable at
the time such Indebtedness is incurred.
"EXISTING INVESTMENTS" means the Investments set forth on SCHEDULE
4.15.
"FCC" means the Federal Communications Commission, or any successor
agency or entity performing substantially the same functions.
"FCC LICENSE" means any license, permit, approval or authorization
granted or issued by the FCC in connection with the provision of service by a
Broadcast Station or the control, ownership, construction or operation of any
facilities of a Broadcast Station.
"FEDERAL FUNDS RATE" means, for any day, the weighted average (rounded
upward, if not 1/100 of 1% or an integral multiple thereof, to the next higher
1/100 of 1%) of the rates on overnight Federal funds transactions with members
of the Federal Reserve System arranged by Federal funds brokers, as published
for such day (or, if such day is not a Business Day, for the next preceding
Business Day) by the Federal Reserve Bank of New York or, if such rate is not so
published for any day that is a Business Day, the average of quotations for such
day on such transactions received by Toronto Dominion (New York), Inc. from
three Federal funds brokers of recognized standing selected by such bank.
"FINAL ORDER" means an authorization, consent, approval or order which
is final, is not subject to review on appeal or to collateral attacks and is in
full force and effect.
-72-
80
"FIRST ANNIVERSARY" means the first anniversary of the date of receipt
by the Borrower and/or any of the Restricted Subsidiaries of any Asset
Disposition Net Cash Proceeds.
"FUNDED CURRENT LIABILITY PERCENTAGE" has the meaning ascribed to that
term in Code Section 401(a)(29).
"GAAP" means generally accepted accounting principles as in effect
from time to time in the United States.
"GENERALLY ACCEPTED ACCOUNTING PRINCIPLES" means (a) in the case of
the Base Financial Statements, generally accepted accounting principles in the
United States at the time of the issuance of the Base Financial Statements and
(b) in all other cases, the accounting principles followed in the preparation of
the Base Financial Statements.
"GOVERNMENTAL APPROVAL" means any authorization, consent, approval,
license or exemption of, registration or filing with, or report or notice to,
any governmental unit.
"GUARANTY" of any Person means any obligation, contingent or
otherwise, of such Person (a) to pay any Liability of any other Person or to
otherwise protect, or having the practical effect of protecting, the holder of
any such Liability against loss (whether such obligation arises by virtue of
such Person being a partner of a partnership or participant in a joint venture
or by agreement to pay, to keep well, to purchase an obligation, assets, goods,
securities or services or to take or pay, or otherwise) or (b) incurred in
connection with the issuance by a third Person of a Guaranty of any Liability of
any other Person (whether such obligation arises by agreement to reimburse or
indemnify such third Person or otherwise). The word "GUARANTEE" when used as a
verb has the correlative meaning.
"GUARANTY AGREEMENT" means the Guaranty Agreement between LIN
Television and the Administrative Agent, in substantially the form of EXHIBIT B
hereto.
"HAZARDOUS MATERIALS" means all materials subject to any Environmental
Law, including, without limitation, materials listed in 49 C.F.R.
[Section]172.101, materials defined as hazardous pursuant to Section 101(14) of
the Comprehensive Environmental Response, Compensation and Liability Act of
1980, flammable, explosive or radioactive materials, hazardous or toxic wastes
or substances, petroleum or petroleum distillates, PCBs or asbestos or
materials containing asbestos.
"Incremental Bank" means a Bank that has an Incremental Commitment.
----------------
"INCREMENTAL COMMITMENT" of any Bank means (a) the amount set forth
opposite such Bank's name under the heading "Incremental Commitments" on Annex A
(as such Annex shall be
-73-
81
deemed to have been amended pursuant to Section 1.01(b)(ii)) or, in the case of
a Bank that becomes a Bank subsequent thereto pursuant to an assignment, the
amount of the assignor's Incremental Commitment assigned to such Bank, in either
case as the same may be reduced from time to time pursuant to Section 1.07 or
increased or reduced from time to time pursuant to assignments in accordance
with section 9.10 or (b) as the context may require, the obligation of such Bank
to make Incremental Loans in an aggregate unpaid principal amount not exceeding
such amount.
"INCREMENTAL FACILITY" shall have the meaning ascribed thereto in
Section 1.01(b).
"INCREMENTAL LOAN" means any amount advanced by an Incremental Bank
pursuant to Section 1.01(b)(ii).
"INDEBTEDNESS" of any Person means (in each case, whether such
obligation is with full or limited recourse and whether or not such obligation
is contingent) (a) any obligation of such Person for borrowed money, (b) any
obligation of such Person evidenced by a bond, debenture, note or other similar
instrument, (c) any obligation of such Person to pay the deferred purchase price
of property or services in respect of any transaction consummated prior to the
date on or as of which the Indebtedness of any Person is to be calculated,
except a trade account payable that arises in the ordinary course of business
but only if and so long as the same is payable on customary trade terms, (d) any
obligation of such Person as lessee under a Capital Lease, (e) any Mandatorily
Redeemable Stock of such Person owned by any Person other than such Person (the
amount of such Mandatorily Redeemable Stock to be determined for this purpose as
the higher of the liquidation preference of and the amount payable upon
redemption of such Mandatorily Redeemable Stock), (f) any obligation of such
Person to purchase securities or other property that arises out of or in
connection with the sale of the same or substantially similar securities or
property, (g) any obligation, contingent or otherwise, of such Person to
reimburse any other Person in respect of amounts paid under a letter of credit
or other Guaranty issued by such other Person, (h) any Indebtedness of others
secured by (or for which the holder of such Indebtedness has an existing right,
contingent or otherwise, to be secured by) a Lien on any asset of such Person,
but only to the extent of the fair market value of such asset and (i) any
Indebtedness of others Guaranteed by such Person, PROVIDED that Indebtedness of
any Person shall not in any event include (i) any Programming Liabilities of
such Person, or (ii) any Liabilities of such Person under any Local Marketing
Agreement.
"INDEMNIFIED PERSON" means any Person that is, or at any time was, an
Agent, a Bank, an Affiliate of an Agent or a Bank or a director, officer,
employee, agent or advisor of any such Person.
-74-
82
"INFORMATION" means data, certificates, reports, statements (including
financial statements), opinions of counsel, documents and other information.
"INSTALLMENT PAYMENT DATE" means the last day of June and December of
each year.
"INTELLECTUAL PROPERTY" means any of the following held by such
Person: (a) (i) patents and patent rights, (ii) trademarks, trademark rights,
trade names, trade name rights, corporate names, business names, trade styles,
service marks, logos and general intangibles of like nature and (iii)
copyrights, in each case whether registered, unregistered or under pending
registration and, in the case of any such that are registered or under pending
registration, whether registered or under pending registration under the laws of
the United States or any other country, (b) reissues, continuations,
continuations-in-part and extensions of any Intellectual Property referred to in
clause (a), and (c) rights relating to any Intellectual Property referred to in
clause (a) or (b), including rights under applications (whether pending under
the laws of the United States or any other country) or licenses relating
thereto.
"INTEREST EXPENSE" means, for any period, the sum of all interest
expense and commitment fees incurred during such period with respect to
Consolidated Total Debt, including, but not limited to, imputed interest on
Capital Leases and fees and other amounts paid to any lender under any Interest
Rate Protection Agreement in connection with any Interest Rate Protection
Agreement.
"INTEREST PAYMENT DATE" means the last day of March, June, September
and December of each year.
"INTEREST PERIOD" means a period commencing, in the case of the first
Interest Period applicable to a Eurodollar Rate Loan, on the date of the making
of, or conversion into, such Loan, and, in the case of each subsequent,
successive Interest Period applicable thereto, on the last day of the
immediately preceding Interest Period, and ending, depending on the Type of
Loan, on the same day in the first, second, third or sixth calendar month
thereafter, except that (a) any Interest Period that would otherwise end on a
day that is not a Eurodollar Business Day shall be extended to the next
succeeding Eurodollar Business Day unless such Eurodollar Business Day falls in
another calendar month, in which case such Interest Period shall end on the next
preceding Eurodollar Business Day and (b) any Interest Period that begins on the
last Eurodollar Business Day of a calendar month (or on a day for which there is
no numerically corresponding day in the calendar month in which such Interest
Period ends) shall end on the last Eurodollar Business Day of a calendar month.
-75-
83
"INTEREST RATE PROTECTION AGREEMENT" means any interest rate
protection agreement, future, option, swap, cap, collar or other hedge or
similar agreement or arrangement designed to hedge against fluctuations in
interest rates.
"INVESTMENT" of any Person means (a) any of the following held by such
Person: (i) any Capital Security, evidence of Indebtedness or other security or
instrument issued by any other Person, (ii) any loan, advance or extension of
credit to, or any contribution (including, without limitation, cash or assets)
to the capital of, any other Person and (iii) any other investment in any other
Person (including, without limitation, any contribution of cash or assets to a
Permitted Joint Venture), (b) any Guaranty by such Person of any Liability of
any other Person (other than LIN Television, the Borrower or any Restricted
Subsidiary) and (c) the aggregate value of all Restricted Subsidiaries
designated by such Person as Unrestricted Subsidiaries; PROVIDED that, in the
case of clause (c) hereof, if after giving effect to the designation of a
Restricted Subsidiary as an Unrestricted Subsidiary, the Leverage Ratio on the
date of such designation is greater or equal to 4.50 to 1.00, in order to
determine compliance with Section 4.15, the Borrower shall, or shall cause the
Restricted Subsidiary making such designation to, obtain a fair market value
appraisal of the Restricted Subsidiary being designated as an Unrestricted
Subsidiary, in form and substance satisfactory to each Arranging Agent. An
Investment shall be deemed to be "outstanding", except to the extent that, in
the case of clause (a) and clause (b) hereof, it has been paid or otherwise
satisfied in cash, in Capital Securities or in other property or the Person
making such Investment has received cash, has been issued Capital Securities or
has received other property in consideration for the sale thereof,
notwithstanding the fact that such Investment may otherwise have been forgiven,
released, canceled or otherwise nullified.
"LENDING OFFICE" of any Bank means the Domestic Lending Office or the
Eurodollar Lending Office of such Bank.
"LEVERAGE RATIO" means, as of any date of determination, the ratio of
(a)(i) Consolidated Total Debt on such date minus, (ii) to the extent included
in Consolidated Total Debt, the amount of Mandatorily Redeemable Stock on such
date of determination, minus (iii) the excess, if any, of (A) the amount of Cash
Equivalents on such date of determination over (B) $5,000,000 to (b)
Consolidated Operating Cash Flow for the period of four consecutive fiscal
quarters ending on, or most recently ended prior to, such date; PROVIDED,
HOWEVER, that for purposes of determining (i) whether the condition specified in
Section 2.02(c) will be fulfilled as of the requested time for the making of any
Loans, (ii) whether any mandatory prepayment will be required to be made
pursuant to the proviso to Section 1.05(b)(i)(A) or (B), and (iii) whether any
Restricted Payment is permitted to be made pursuant to clause (i)(y) of the
proviso to Section 4.15, Consolidated Operating Cash Flow shall be
-76-
84
calculated on the basis of the period of four consecutive fiscal quarters ending
on the last day of the most recent fiscal year or fiscal quarter in respect of
which each Bank shall have received Section 5.01 Financials.
"LIABILITY" of any Person means (in each case, whether with full or
limited recourse) any indebtedness, liability, obligation, covenant or duty of
or binding upon, or any term or condition to be observed by or binding upon,
such Person or any of its assets, of any kind, nature or description, direct or
indirect, absolute or contingent, due or not due, contractual or tortious,
liquidated or unliquidated, whether arising under Contract, Applicable Law, or
otherwise, whether now existing or hereafter arising, and whether for the
payment of money or the performance or non-performance of any act.
"LIEN" means, with respect to any property or asset (or any income or
profits therefrom) of any Person (in each case whether the same is consensual or
nonconsensual or arises by Contract, operation of law, legal process or
otherwise) (a) any mortgage, lien, pledge, attachment, levy or other security
interest of any kind thereupon or in respect thereof or (b) any other
arrangement, express or implied, under which the same is subordinated,
transferred, sequestered or otherwise identified so as to subject the same to,
or make the same available for, the payment or performance of any Liability in
priority to the payment of the ordinary, unsecured Liabilities of such Person.
For the purposes of this Agreement, a Person shall be deemed to own subject to a
Lien any asset that it has acquired or holds subject to the interest of a vendor
or lessor under any conditional sale agreement, Capital Lease or other title
retention agreement relating to such asset.
"LIN TELEVISION" means LIN Television Corporation, a Delaware
corporation.
"LIN TELEVISION COMMON STOCK" means the shares of common stock, par
value $.01 per share, of LIN Television.
"Loan" means any RC Loan or Incremental Loan.
----
"LOAN DOCUMENT RELATED CLAIM" means any claim or dispute (whether
arising under Applicable Law, including any Environmental Law or similar law,
under Contract or otherwise and, in the case of any proceeding relating to any
such claim or dispute, whether civil, criminal, administrative or otherwise) in
any way arising out of, related to, or connected with, the Loan Documents, the
relationships established thereunder or any actions or conduct thereunder or
with respect thereto, whether such claim or dispute arises or is asserted before
or after the Agreement Date or before or after the Repayment Date.
"LOAN DOCUMENT REPRESENTATION AND WARRANTY" means any "Representation
and Warranty" as defined in any Loan Document and
-77-
85
any other representation or warranty made or deemed made under the express terms
of any of this Agreement, the Guaranty Agreement, any notice of borrowing, any
notice of conversion or continuation, any notice of prepayment and any
certificate as to financial statements and defaults furnished pursuant to
Section 5.01(c).
"LOAN DOCUMENTS" means (a) this Agreement and the Guaranty Agreement
and (b) all other agreements, documents and instruments executed and delivered
pursuant to any agreement, document or instrument referred to in clause (a).
"LOAN PARTY" means any Person (other than an Agent or a Bank) that is
a party to a Loan Document.
"LOCAL MARKETING AGREEMENT" means a transaction or series of
transactions, generally known as local marketing agreements, pursuant to which
the Borrower or a Restricted Subsidiary (a) becomes obligated to provide
programming and marketing services to a Broadcast Station, (b) retains the
revenues generated by a Broadcast Station, (c) purchases any or all of the
Capital Securities of, or any option or other right to acquire any or all of the
Capital Securities of, a Person owning a Broadcast Station or (d) purchases any
option or other right to acquire part or all of a Broadcast Station, in each
case in exchange for cash, notes, annual fees or other consideration.
"MAJOR TELEVISION NETWORK" means any of ABC, Inc., National
Broadcasting Company, Inc., CBS, Inc., Fox Television Network, or any other
television network which produces and makes available more than 15 hours of
weekly prime time television programming.
"MANDATORILY REDEEMABLE STOCK" means, with respect to any Person, any
share of such Person's capital stock to the extent that it is (a) redeemable,
payable or required to be purchased or otherwise retired or extinguished, or
convertible into any Indebtedness or other Liability of such Person, (i) at a
fixed or determinable date, whether by operation of a sinking fund or otherwise,
(ii) at the option of any Person other than such Person or (iii) upon the
occurrence of a condition not solely within the control of such Person, such as
a redemption required to be made out of future earnings or (b) convertible into
Mandatorily Redeemable Stock.
"MATERIAL AGREEMENT" means (a) each Network Affiliation Agreement that
is material to the business, assets, Liabilities, financial condition, results
of operations or business prospects of the Borrower and the Restricted
Subsidiaries taken as a whole, (b) any tax indemnification or allocation
agreement between LIN Television, the Borrower or any Restricted Subsidiary, on
the one hand, and any other Person, on the other hand, (c) the Services
Agreement, (d) any agreement or other document evidencing or governing an
aggregate principal amount of Indebtedness in excess
-78-
86
of $5,000,000 permitted pursuant to Section 4.12(e), (e) any certificate of
incorporation, charter, by-law and other constitutive document of LIN
Television, the Borrower or any Restricted Subsidiary (including but not limited
to any partnership agreement to which LIN Television, the Borrower or any
Restricted Subsidiary is a party) and (f) whether or not otherwise included in
clause (a), (b), (c), (d) or (e) of this definition, each agreement that is
material to the business, assets, Liabilities, financial condition, results of
operations or business prospects of the Borrower and the Restricted Subsidiaries
taken as a whole.
"MATERIAL EVENT" means, with respect to the Private Market Value
Guarantee, any of the following: (a) the determination of a private market price
for the shares of LIN Television pursuant to Section 2(C) thereof, (b) the
execution of an agreement with LIN Television pursuant to which AT&T or any of
its Subsidiaries will proceed with an Acquisition (as defined in Section 2(D)
thereof), (c) the approval by the public stockholders of LIN Television of an
Acquisition (as defined in Section 2(D) thereof) by AT&T or any of its
Subsidiaries as required by Section 2(E) thereof, and (d) the determination by
AT&T or any of its Subsidiaries to proceed with a sale of LIN Television
pursuant to Section 2(F) thereof.
"MATERIALLY ADVERSE EFFECT" means, (a) with respect to any Person, any
materially adverse effect on such Person's business, assets, Liabilities,
financial condition, results of operations or business prospects, (b) with
respect to a group of Persons "taken as a whole", any materially adverse effect
on such Persons' business, assets, Liabilities, financial conditions, results of
operations or business prospects taken as a whole on, where appropriate, a
consolidated basis in accordance with Generally Accepted Accounting Principles
and (c) with respect to any Loan Document, any materially adverse effect on (i)
the binding nature, validity or enforceability thereof as an obligation of any
Loan Party that is a party thereto, or (ii) the rights or remedies of the Agents
and the Banks under any Loan Document.
"Maturity Date" means December 31, 2004.
-------------
"MAXIMUM PERMISSIBLE RATE" means, with respect to interest payable on
any amount, the rate of interest on such amount that, if exceeded, could, under
Applicable Law, result in (a) civil or criminal penalties being imposed on the
payee or (b) the payee's being unable to enforce payment of (or, if collected,
to retain) all or any part of such amount or the interest payable thereon.
"MULTIEMPLOYER BENEFIT PLAN" means any Benefit Plan that is a
multiemployer plan as defined in Section 4001(a)(3) of ERISA.
-79-
87
"NET CASH PROCEEDS" means, with respect to any sale, lease, transfer
or other disposition of any asset by any Person or any extraordinary transaction
by such Person, the aggregate amount of gross cash proceeds received by or on
behalf of such Person for such asset or from such transaction (including (a)
insurance payments and condemnation awards and (b) principal payments in respect
of any notes or other instruments received as consideration for such
disposition) after deducting therefrom (i) the amount of such proceeds required
to be applied to repay Indebtedness (other than the Loans) incurred by it or any
Subsidiary of such Person to acquire such asset or Indebtedness (other than the
Loans) secured by a Lien on such asset and required to be prepaid upon such
disposition, (b) reasonable and documented brokerage commissions, legal fees,
finder's fees and other similar fees and commissions paid by the Borrower or any
Restricted Subsidiary in connection with such transaction, (c) documented taxes
payable by the Borrower or any Restricted Subsidiary within one year in
connection with or as a result of such transaction and (d) other reasonable and
documented out-of-pocket costs incurred by the Borrower or any Restricted
Subsidiary in connection therewith, in the case of each of subsections (a), (b),
(c) and (d) of this definition of "Net Cash Proceeds" to the extent, but only to
the extent, that the amounts so deducted are, at, or about, the time of receipt
of such cash, actually paid to a Person that is not an Affiliate of such Person
(or, if paid to such an Affiliate, to the extent the terms of such payment are
not more favorable to such Affiliate than such terms would be in an arm's-length
transaction) and are properly attributable to such transaction or to the asset
that is the subject thereof.
"NET INCOME" means, for any Person and for any period, the net income
(or net loss) of such Person for such period; PROVIDED that such amount shall be
adjusted to exclude (to the extent otherwise included therein):
(a) any restoration to income of any contingency reserve, except to
the extent that provision for such reserve was made out of income accrued
during such period and except for normal accruals and reversals in the
ordinary course of business;
(b) any write-up or write-down of any asset;
(c) any net gain or loss from the collection of the proceeds of any
insurance policies;
(d) any gain or loss arising from the acquisition of any securities or
Indebtedness of such Person and any net loss arising from the exercise of
any warrant of such Person;
-80-
88
(e) any deferred credit representing the excess of equity in any
Person at the date of acquisition over the cost of the investment in such
Person;
(f) any aggregate net gain (or loss) during such period arising from
the sale, exchange or other disposition of capital assets (such term to
include all fixed assets, whether tangible or intangible, all inventory
sold in conjunction with the disposition of fixed assets, and all
securities) other than any sale, exchange or other disposition in the
ordinary course of business, PROVIDED that there shall also be excluded any
related charges for taxes on such capital assets;
(g) any net gains or losses resulting from the extinguishment or
defeasance of any Indebtedness;
(h) any earnings or losses from discontinued businesses; and
(i) all other extraordinary items.
"NETWORK AFFILIATION AGREEMENTS" means each agreement set forth on
SCHEDULE 3.21 hereto and each other agreement entered into by a Television
Company with any Major Television Network pursuant to which a Television Company
and such Major Television Network agree to be affiliated and such Major
Television Network agrees that such Television Company shall serve as that Major
Television Network's primary outlet within a defined market for television
programming provided by such Major Television Network for broadcast by its
Broadcast Station affiliates.
"NOTICE OF ASSIGNMENT" means any notice to the Borrower and the
Administrative Agent with respect to an assignment pursuant to Section 9.10(a)
in the form of SCHEDULE 9.10(a).
"OPERATING CASH FLOW" or "OCF" of any Person and for
any period means the sum of:
(a) Net Income of such Person for such period; plus
----
(b) the sum of the following items (to the extent deducted in the
computation of such Net Income):
(i) depreciation expense;
(ii) amortization expense (including amortized film expense);
(iii) Interest Expense;
(iv) income tax expense; and
-81-
89
(v) other non-cash items (excluding barter expenses and
related trade expenses); LESS
(c) the sum of the following:
(i) all cash payments made during such period in respect of
Programming Liabilities; and
(ii) deferred Corporate Service Expenses paid in cash during
such period; and
(iii) cash dividends or other distributions made by the
Borrower to LIN Television to reimburse LIN Television for its
reasonable corporate overhead expenses paid pursuant to the Services
Agreement.
Operating Cash Flow will be adjusted to (A) exclude the Operating Cash Flow
attributable to any asset or business that was disposed of (either directly or
as part of an exchange) by the Borrower or any Restricted Subsidiary and (B)
include the Operating Cash Flow attributable to any asset or business that was
acquired (either directly or as part of an exchange) by the Borrower or any
Restricted Subsidiary, in each case during the period of calculation or, for the
purpose of calculating the Leverage Ratio, prior to the date of determination
(as if such asset or business had not been owned, or had been owned (as
applicable), by the Borrower or any Restricted Subsidiary during such period or,
for the purpose of calculating the Leverage Ratio, prior to the date of
determination).
"PBGC" means the Pension Benefit Guaranty Corporation.
----
"PERMITTED ACQUISITION" means the purchase or other acquisition for
value by the Borrower or a Restricted Subsidiary of
(a) all or substantially all of a Broadcast Station, or all or
substantially all of the Capital Securities of, or any other interest in,
any other Person no less than 75% of whose Operating Cash Flow for the
fiscal quarter ending on, or most recently ended prior to, the date of such
purchase or other acquisition is derived from the ownership and operation
of one or more Broadcast Stations, or
(b) all or any portion of the assets used and useful for a business
related to the Broadcast Business, or all or substantially all of the
Capital Securities of, or any other interest in, any other Person no less
than 75% of whose Operating Cash Flow for the fiscal quarter ending on, or
most recently ended prior to, the date of such purchase or other
acquisition is derived from the ownership and operation of the assets used
and useful for a business related to the Broadcast Business, so long as the
purchase price or other consideration paid by the Borrower or the
-82-
90
applicable Restricted Subsidiary in connection therewith, together with the
aggregate purchase price or other consideration paid by the Borrower and
the Restricted Subsidiaries in connection with all other purchases or other
acquisitions for value pursuant to this clause (b) since the Restated
Agreement Date, is not in excess of $100,000,000, and
PROVIDED that (i) in the case of clause (a) and clause (b), both before and
after giving effect to such purchase or other acquisition for value, on a PRO
FORMA basis, no Default shall exist and the Administrative Agent shall have
received a certificate from a senior financial officer of the Borrower to that
effect and a Compliance Certificate illustrating (in sufficient detail to enable
recalculation thereof) that both before and after giving effect to such purchase
or other acquisition for value, on a PRO FORMA basis, no Default shall exist,
and (ii) in the case of clause (a) and clause (b), the Borrower or the
Restricted Subsidiary making such purchase or other acquisition for value, as
the case may be, has received a Final Order from the FCC consenting to the
transfer of any FCC Licenses necessary to operate each such Broadcast Station,
unless the Required Banks shall have consented to the consummation of such
purchase or other acquisition for value without such a Final Order from the FCC,
such consent not be unreasonably withheld.
"PERMITTED DISTRIBUTION" means any dividend or other distribution made
by the Borrower to LIN Television the amount of which, together with all other
such dividends or distributions made in or with respect to any fiscal year of
the Borrower, does not exceed the sum of (a) the reasonable cash corporate
overhead expenses of LIN Television payable by the Borrower pursuant to the
Services Agreement with respect to such fiscal year, (b) any cash interest
payments made by LIN Television during such fiscal year with respect to any
Indebtedness of LIN Television permitted hereunder and (c) the Tax Distribution
permitted to be made by the Borrower hereunder for such fiscal year.
"PERMITTED GUARANTY" means any Guaranty that is (a) an endorsement of
a check for collection in the ordinary course of business, (b) a Guaranty by LIN
Television or the Borrower of any Indebtedness of (i) a Restricted Subsidiary
which is permitted pursuant to Section 4.12 hereof, (ii) any other Subsidiary
thereof, which Indebtedness such guarantor would be permitted to incur pursuant
to Section 4.12 and which Guaranty would constitute a Restricted Payment that
would be permitted to be made pursuant to Section 4.15 or (iii) LIN Television
or the Borrower which is permitted pursuant to Section 4.12(e) hereof, (c) a
Guaranty by LIN Television or the Borrower of any obligation of the Borrower or
a Restricted Subsidiary under either (i) a Local Marketing Agreement in effect
on the Restated Agreement Date and otherwise permitted under the Loan Documents
or (ii) a Permitted Local Marketing Agreement, (d) a Guaranty by LIN Television
or the Borrower of an obligation of a Restricted
-83-
91
Subsidiary, PROVIDED that such Guaranty is made in the ordinary course of
business and that the amount of such Guaranty, together with the amount of all
other such Guaranties outstanding on the date such Guaranty is made, does not
exceed $5,000,000 or (e) a Guaranty of and only of the obligations of the Loan
Parties under the Loan Documents.
"PERMITTED INVESTMENT" means, collectively, (a) Permitted Local
Marketing Agreements, (b) Permitted Acquisitions, (c) Existing Investments, (d)
Cash Equivalents, (e) extensions of trade credit in the ordinary course of
business, but only if and so long as the same are payable on customary trade
terms, (f) Investments in the Borrower and in any Restricted Subsidiary which
was a Restricted Subsidiary prior to giving effect to such Permitted Investment
and (g) loans and advances to employees or officers of LIN Television, the
Borrower or any Restricted Subsidiary made in the ordinary course of business in
an amount which, together with all other such loans and advances then
outstanding, does not exceed $3,000,000.
"PERMITTED JOINT VENTURE" means any Person (a) whose Capital
Securities are owned or held by the Borrower or any Restricted Subsidiary and by
any other Person or Persons (other than the Borrower or any Restricted
Subsidiary), (b) which is operated jointly by the Borrower or such Restricted
Subsidiary and such other Person or Persons and (c) which is engaged only in the
business of owning and operating Broadcast Stations or owning part or all of the
Capital Securities of any Person engaged in the business of owning and operating
Broadcast Stations.
"Permitted Lien" means
--------------
(a) any Lien securing and only securing the obligations of the Loan
Parties under the Loan Documents;
(b) any Lien securing a tax, assessment or other governmental charge
or levy or the claim of a materialman, mechanic, carrier, warehouseman or
landlord for labor, materials, supplies or rentals incurred in the ordinary
course of business, but only if payment thereof shall not at the time be
required to be made in accordance with Section 4.04 and foreclosure,
distraint, sale or other similar proceedings shall not have been commenced;
(c) any Lien consisting of a deposit or pledge made in the ordinary
course of business in connection with, or to secure payment of, obligations
under worker's compensation, unemployment insurance or similar legislation;
(d) any Lien arising pursuant to an order of attachment, distraint or
similar legal process arising in connection with legal proceedings, but
only if and so long as the execution or other enforcement thereof is not
stayed for more than 20 days or the amount thereof, together with
-84-
92
the amount of all other Liens arising pursuant to any such order, is not in
excess of $5,000,000;
(e) any Lien existing on (i) any property or asset of any Restricted
Subsidiary at the time such Restricted Subsidiary is acquired by LIN
Television, the Borrower or another Restricted Subsidiary or (ii) any
property or asset at the time such property or asset is acquired by LIN
Television, the Borrower or a Restricted Subsidiary, but only, in the case
of either (i) or (ii), if and so long as (A) such Lien was not created in
contemplation of such Restricted Subsidiary being acquired or such property
or asset being acquired, (B) such Lien is and will remain confined to the
property or asset subject to it at the time such Restricted Subsidiary is
acquired or such property or asset is acquired and to fixed improvements
thereafter erected on such property or asset and to replacement of any
thereof in the ordinary course of business, (C) such Lien secures only the
obligation secured thereby at the time such Restricted Subsidiary is
acquired or such property or asset is acquired, (D) the obligation secured
by such Lien is not in default and (E) the fair market value of the
property or asset subject to such Lien, together with the fair market value
of any other property or asset subject to a Lien which existed on such
property or asset owned by a Restricted Subsidiary at the time such
Restricted Subsidiary was acquired by LIN Television, the Borrower or
another Restricted Subsidiary or on any property or asset acquired by the
Borrower or a Restricted Subsidiary, shall not exceed $25,000,000;
(f) any Lien in existence on the Agreement Date to the extent set
forth on SCHEDULE 4.14, but only, in the case of each such Lien, to the
extent it secures an obligation outstanding on the Agreement Date to the
extent set forth on such Schedule;
(g) any Lien securing Purchase Money Indebtedness permitted pursuant
to Section 4.12(d) but only if, in the case of each such Lien, (i) such
Lien shall at all times be confined solely to the equipment the purchase
price of which was financed through the incurrence of the Purchase Money
Indebtedness secured by such Lien, to fixed improvements thereafter erected
on such equipment and, subject to the provisions of Section 1.05 and
Section 4.17, to the proceeds of any disposition thereof and (ii) such Lien
attached to such equipment within 30 days of the acquisition of such
equipment;
(h) any Lien on the Capital Securities of an Unrestricted Subsidiary
held by LIN Television, the Borrower or any other Restricted Subsidiary and
any Lien on the Capital Securities of any other Person that is not the
-85-
93
Borrower or a Restricted Subsidiary held by LIN Television; and
(i) any Lien constituting a renewal, extension or replacement of a
Lien constituting a Permitted Lien by virtue of clause (e), (f), (g), (h)
or (i) of this definition, but only if (i) at the time such Lien is granted
and immediately after giving effect thereto, no Default would exist, (ii)
such Lien is limited to all or a part of the property or asset (or, in the
case of clause (g), the equipment) that was subject to the Lien so renewed,
extended or replaced and to fixed improvements thereafter erected on such
property or asset (or, in the case of clause (g), such equipment), (iii)
the principal amount of the obligations secured by such Lien does not
exceed the principal amount of the obligations secured by the Lien so
renewed, extended or replaced and (iv) the obligations secured by such Lien
bear interest at a rate per annum not exceeding the rate borne by the
obligations secured by the Lien so renewed, extended or replaced except for
any increase that is commercially reasonable at the time of such increase.
"PERMITTED LOCAL MARKETING AGREEMENT" means any Local Marketing
Agreement, PROVIDED that, both before and after giving effect to the entering
into of such Local Marketing Agreement, on a PRO FORMA basis, no Default shall
exist.
"PERMITTED RESTRICTIVE COVENANT" means (a) any covenant or restriction
contained in any Loan Document, (b) any covenant or restriction binding upon any
Restricted Subsidiary at the time such Restricted Subsidiary was acquired by LIN
Television, the Borrower or another Restricted Subsidiary, PROVIDED that (i)
such covenant or restriction was not created or amended in contemplation of such
acquisition (except if the terms of such covenant or restriction, as so amended,
(A) are no less favorable to such Restricted Subsidiary than the terms of such
covenant or restriction prior to such amendment and (B) are consented to by the
Arranging Agents (such consent not to be unreasonably withheld)), (ii) such
covenant or restriction is contained in a contract evidencing or providing for
the creation of Indebtedness permitted pursuant to Section 4.12(g) and (iii)
such Restricted Subsidiary, its parent corporation (or, in the case of a
partnership, its general and limited partners) and its Consolidated Subsidiaries
comply with their obligations under Section 4.09, (c) any covenant or
restriction of the type contained in Section 4.14 that is contained in any
Contract evidencing or providing for the creation of or concerning Purchase
Money Indebtedness so long as such covenant or restriction is limited to the
equipment purchased therewith or, subject to the provisions of Section 1.05 and
Section 4.17, to the proceeds of any disposition thereof, (d) any covenant or
restriction described in SCHEDULE 4.22, but only to the extent such covenant or
restriction is there identified by specific reference to the provision of the
Contract in which such covenant
-86-
94
or restriction is contained, or (e) any covenant or restriction that (i) is not
more burdensome than an existing Permitted Restrictive Covenant that is such by
virtue of clause (b), (c), (d) or (e), (ii) is contained in a Contract
constituting a renewal, extension or replacement of the Contract in which such
existing Permitted Restrictive Covenant is contained and (iii) is binding only
on the Person or Persons bound by such existing Permitted Restrictive Covenant.
"PERSON" means any individual, sole proprietorship, corporation,
partnership, trust, unincorporated organization, mutual company, joint stock
company, estate, union, employee organization, government or any agency or
political subdivision thereof or, for the purpose of the definition of "ERISA
Affiliate", any trade or business.
"POST-DEFAULT RATE" means the Base Rate as in effect from time to time
plus the Applicable Margin for a Base Rate Loan in effect from time to time plus
2%.
"PRIME RATE" means the rate of interest adopted by Toronto Dominion
(New York), Inc. in New York, New York from time to time as its reference rate
for the determination of interest rates on loans of varying maturities in
Dollars to United States residents of varying degrees of creditworthiness and
being quoted at such time by Toronto Dominion (New York), Inc. as its "prime
rate." The Prime Rate shall be adjusted automatically, without notice, on the
effective date of any change therein. The Prime Rate is not necessarily Toronto
Dominion (New York), Inc.'s lowest rate of interest.
"PRIVATE LETTER RULING" means the private letter ruling dated August
4, 1994 issued by the Internal Revenue Service addressed to LIN Broadcasting
Corporation with respect to the Spin-Off, as supplemented by the letters issued
by the Internal Revenue Service dated August 15, 1994 and October 4, 1994, as in
effect on the Agreement Date.
"PRIVATE MARKET VALUE GUARANTEE" means the Television Private Market
Value Guarantee between AT&T and LIN Television, entered into in connection with
the consummation of the Spin-Off.
"PROGRAMMING LIABILITIES" means, for any Person, all obligations of
such Person under contracts or other agreements for the acquisition of broadcast
rights to television programs and films.
"PROHIBITED TRANSACTION" means any transaction that is prohibited
under Code Section 4975 or ERISA Section 406 and not exempt under Code Section
4975 or ERISA Section 408.
"PURCHASE MONEY INDEBTEDNESS" means (a) Indebtedness of the Borrower
that is incurred to finance part or all of (but not more than) the purchase
price of equipment, PROVIDED that (i)
-87-
95
neither the Borrower nor any Subsidiary had at any time prior to such purchase
any interest in such equipment other than a security interest or an interest as
lessee under an operating lease and (ii) such Indebtedness is incurred within 30
days after such purchase, or (b) Indebtedness that (i) constitutes a renewal,
extension or refunding of, but not an increase in the principal amount of,
Purchase Money Indebtedness that is such by virtue of clause (a) or (b) and (ii)
bears interest at a rate per annum that is commercially reasonable at the time
such Indebtedness is incurred.
"RC Bank" means any Bank that has an RC Commitment.
-------
"RC COMMITMENT" of any Bank means (a) the amount set forth opposite
such Bank's name under the heading "RC Commitment" on ANNEX A or, in the case of
a Bank that becomes a Bank pursuant to an assignment, the amount of the
assignor's RC Commitment assigned to such Bank, in either case as the same may
be reduced from time to time pursuant to Section 1.07 or increased or reduced
from time to time pursuant to assignments in accordance with Section 9.10 or (b)
as the context may require, the obligation of such Bank to make RC Loans in an
aggregate unpaid principal amount not exceeding such amount.
"RC LOAN" means any amount advanced by an RC Bank pursuant to Section
1.01(a).
"REFERENCE BANKS" means The Bank of New York and Toronto Dominion (New
York), Inc., and any replacement Reference Bank appointed pursuant to Section
9.13.
"REGULATION D" means Regulation D of the Board of Governors of the
Federal Reserve System.
"REGULATION G" means Regulation G of the Board of Governors of the
Federal Reserve System.
"REGULATION T" means Regulation T of the Board of Governors of the
Federal Reserve System.
"REGULATION U" means Regulation U of the Board of Governors of the
Federal Reserve System.
"REGULATORY CHANGE" means any Applicable Law, interpretation,
directive, request or guideline (whether or not having the force of law), or any
change therein or in the administration or enforcement thereof, that becomes
effective or is implemented or first required or expected to be complied with
after the Agreement Date, whether the same is (a) the result of an enactment by
a government or any agency or political subdivision thereof, a determination of
a court or regulatory authority, or otherwise or (b) enacted, adopted, issued or
proposed before or after the Agreement Date, including any such that imposes,
increases or modifies any Tax, reserve requirement,
-88-
96
insurance charge, special deposit requirement, assessment or capital adequacy
requirement, but excluding any such that imposes, increases or modifies any Bank
Tax.
"REPAYMENT DATE" means the later of (a) the termination of the
Commitments (whether as a result of the occurrence of the Maturity Date,
reduction to zero pursuant to Section 1.07 or termination pursuant to Section
6.02) and (b) the payment in full of the Loans and all other amounts payable or
accrued hereunder.
"REPORTABLE EVENT" means, with respect to any Benefit Plan of any
Person, (a) the occurrence of any of the events set forth in ERISA Sections
4043(c) (other than a Reportable Event as to which the provision of 30 days'
notice to the PBGC is waived under applicable regulations), 4068(f) or 4063(a)
or the regulations thereunder with respect to such Benefit Plan, (b) any event
requiring such Person or any of its ERISA Affiliates to provide security to such
Benefit Plan under Code Section 401(a)(29) or (c) any failure to make a payment
required by Code Section 412(m) with respect to such Benefit Plan.
"REPRESENTATION AND WARRANTY" means any representation or warranty
made or deemed made pursuant to or under (a) Section 2.03, Article 3, Section
5.02 or any other provision of this Agreement or (b) any amendment to, or waiver
of rights under, this Agreement, WHETHER OR NOT, IN THE CASE OF ANY
REPRESENTATION OR WARRANTY REFERRED TO IN CLAUSE (a) OR (b) OF THIS DEFINITION
(EXCEPT, IN EACH CASE, TO THE EXTENT OTHERWISE EXPRESSLY PROVIDED), THE
INFORMATION THAT IS THE SUBJECT MATTER THEREOF IS WITHIN THE KNOWLEDGE OF THE
BORROWER.
"REQUIRED BANKS" means, at any time, Banks having more than 50% of the
Loans outstanding or, if there are no Loans outstanding, more than 50% of the
aggregate amount of the Commitments.
"REQUIRED PRO FORMA REPAYMENTS" means, for any period, the excess if
any, of (a) the principal amount of loans made to LIN Television, the Borrower
or any Restricted Subsidiary under any revolving credit or similar agreement
(including but not limited to the Loans) outstanding at the beginning of such
period over (b) the aggregate commitments (including but not limited to the
Commitments) under any revolving credit or similar agreement to which LIN
Television, the Borrower or any Restricted Subsidiary is a party scheduled to be
in effect at the end of such period.
"REQUIRED REPAYMENTS" means, for any period, the excess, if any, of
(a) the principal amount of loans made to LIN Television, the Borrower or any
Restricted Subsidiary under any revolving credit or similar agreement (including
but not limited to the Loans) outstanding at the beginning of such period over
(b) the aggregate commitments (including but not limited to the Commitments)
under any revolving credit or similar agreement to
-89-
97
which LIN Television, the Borrower or any Restricted Subsidiary is a party in
effect at the end of such period.
"RESERVE REQUIREMENT" means, at any time, the then current maximum
rate for which reserves (including any marginal, supplemental or emergency
reserve) are required to be maintained under Regulation D by member banks of the
Federal Reserve System in New York City with deposits exceeding five billion
Dollars against "Eurocurrency liabilities", as that term is used in Regulation
D. The Adjusted Eurodollar Rate shall be adjusted automatically on and as of the
effective date of any change in the applicable Reserve Requirement.
"RESTATED AGREEMENT DATE" means the date set forth on the first page
hereof, which date is the date the executed copies of this Agreement, as amended
and restated as of such date, were delivered by all parties hereto and,
accordingly, the date this Agreement, as amended and restated as of such date,
became effective and, for the first time, binding upon such parties.
"RESTRICTED PAYMENT" means, collectively, (a) any payment with respect
to or on account of any of the Borrower's Capital Securities, including any
dividend or other distribution on, and any payment on account of any purchase,
redemption, retirement, exchange, defeasance or conversion of, or on account of
any claim relating to or arising out of the offer, sale or purchase of, any such
Capital Securities and (b) an Investment. For the purposes of this definition, a
"payment" shall include the transfer of any asset or the incurrence of any
Indebtedness or other Liability (the amount of any such payment to be the fair
market value of such asset or the amount of such obligation, respectively) but
shall not include the issuance of any capital stock of the Borrower other than
Mandatorily Redeemable Stock.
"RESTRICTED SUBSIDIARY" means (a) each Subsidiary of the Borrower in
existence on the Restated Agreement Date, including but not limited to the
Subsidiaries of the Borrower owning or otherwise holding substantially all of
the assets of the following Broadcast Stations: (i) KXAS-TV, (ii) WTNH-TV, (iii)
WISH-TV, (iv) WAVY-TV, (v) KXAN-TV, (vi) WANE-TV, (vii) WAND-TV, (viii) KXTX-TV,
(ix) KNVA-TV, (x) KXAM-TV, (xi) WIVB-TV and (xii) WBNE-TV, (b) each Subsidiary
of the Borrower created, organized or acquired by the Borrower or a Subsidiary
after the Agreement Date, unless designated by the Borrower as an Unrestricted
Subsidiary prior to or substantially contemporaneously with the time of such
creation, organization or acquisition and (c) any Unrestricted Subsidiary of the
Borrower that is designated by the Borrower, in a notice to the Administrative
Agent, as a Restricted Subsidiary, which designation shall be effective as of
the first day of the fiscal quarter of the Borrower following the fiscal quarter
in which such notice shall have been given, PROVIDED that (A) any Subsidiary
which owns, directly or indirectly, the Capital Securities of any Restricted
Subsidiary shall, for so long as it
-90-
98
is a Subsidiary, be a Restricted Subsidiary, (B) all of the issued and
outstanding capital securities of each Restricted Subsidiary shall, for so long
as it is a Restricted Subsidiary, be directly owned by the Borrower or another
Restricted Subsidiary, (C) on the date on which (i) the Borrower or any
Subsidiary forms or acquires any new Subsidiary which is not designated by the
Borrower as an Unrestricted Subsidiary prior to or substantially
contemporaneously with such formation or acquisition or (ii) the Borrower
designates any Unrestricted Subsidiary as a Restricted Subsidiary, the Borrower
or such Subsidiary, as the case may be, shall comply with the requirements of
Section 4.09 and (D) any Restricted Subsidiary may be designated as an
Unrestricted Subsidiary.
"SECTION 5.01 FINANCIALS" means the financial statements delivered, or
to be delivered, pursuant to Section 5.01(a) or (b).
"SERVICES AGREEMENT" means the Services Agreement, dated as of August
1, 1990, between LIN Television and the Borrower.
"SPIN-OFF" means the transfer of the ownership of the Capital
Securities of LIN Television from LIN Broadcasting Corporation to the
stockholders of LIN Broadcasting Corporation by means of the following
transactions:
(a) the authorization and issuance by LIN Television to LIN
Broadcasting Corporation of additional LIN Television Common Stock,
(b) the acquisition by LIN Broadcasting Corporation of all the
outstanding LIN Television Common Stock, and
(c) the distribution by LIN Broadcasting Corporation to its
stockholders, on a PRO RATA basis, of the LIN Television Common Stock owned
by LIN Broadcasting Corporation.
"STAND-ALONE TAX DISTRIBUTION" means, for any fiscal year of LIN
Television, any dividend or other distribution made by the Borrower to LIN
Television for the purpose of paying federal, state and local income taxes
payable with respect to any fiscal year of LIN Television and paid within 90
days following the last day thereof, with the amount of such dividend or other
distribution being less than or equal to the amount of federal, state and local
income taxes that would have been paid by the Borrower and the Restricted
Subsidiaries if the Borrower and the Restricted Subsidiaries had at all times
(including at all times prior to the Agreement Date) filed a separate
consolidated federal income tax return (or equivalent state return), with the
Borrower as the "common parent" (within the meaning of Section 1504 of the
Code), and (a) taking into account losses, credits, carryovers of losses and
credits, including but not limited to
-91-
99
all net operating loss carryforwards pursuant to Section 172 of the Code, that
would have been available to the Borrower and the Subsidiaries had they filed
such a separate return and (b) including deductions from taxable income for (i)
the reasonable cash corporate overhead expenses of LIN Television payable by the
Borrower pursuant to the Services Agreement with respect to such fiscal year and
(ii) any cash interest payments made by LIN Television during such fiscal year
with respect to any Indebtedness of LIN Television permitted hereunder.
"SUBSIDIARY" means, with respect to any Person, any other Person (a)
securities of which having ordinary voting power to elect a majority of the
board of directors (or other persons having similar functions) or (b) other
ownership interests of which ordinarily constituting a majority voting interest,
are at the time, directly or indirectly, owned or controlled by such first
Person, or by one or more of its Subsidiaries, or by such first Person and one
or more of its Subsidiaries; unless otherwise specified, "Subsidiary" means a
Subsidiary of the Borrower.
"Syndication Agent" means The Chase Manhattan Bank.
-----------------
"TAX" means any Federal, State or foreign tax, assessment or other
governmental charge or levy (including any withholding tax) upon a Person or
upon its assets, revenues, income or profits.
"TAX DISTRIBUTION" means, with respect to any fiscal year of LIN
Television, (a) for so long as no Default has occurred and is continuing, the
Stand-Alone Tax Distribution with respect to such fiscal year and (b) for so
long as a Default has occurred and is continuing, the lesser of (i) the
Stand-Alone Tax Distribution with respect to such fiscal year and (ii) an amount
equal to the amount of federal, state and local income taxes paid in cash by LIN
Television with respect to any fiscal year.
"TELEVISION COMPANY" means (a) the Borrower and (b) each Restricted
Subsidiary that owns or operates a Broadcast Station.
"TERMINATION EVENT" means, with respect to any Benefit Plan, (a) any
Reportable Event with respect to such Benefit Plan, (b) the termination of such
Benefit Plan, or the filing of a notice of intent to terminate such Benefit
Plan, or the treatment of any amendment to such Benefit Plan as a termination
under ERISA Section 4041(c), (c) the institution of proceedings to terminate
such Benefit Plan under ERISA Section 4042 or (d) the appointment of a trustee
to administer such Benefit Plan under ERISA Section 4042.
"TYPE" means, with respect to Loans, any of the following, each of
which shall be deemed to be a different "Type" of Loan: Base Rate Loans,
Eurodollar Rate Loans having a one-
-92-
100
month Interest Period, Eurodollar Rate Loans having a two-month Interest Period,
Eurodollar Rate Loans having a three-month Interest Period and Eurodollar Rate
Loans having a six-month Interest Period. Any Eurodollar Rate Loan having an
Interest Period with a duration that differs from the duration specified for a
Type of Eurodollar Rate Loan listed above solely as a result of the operation of
clauses (a) and (b) of the definition of "Interest Period" shall be deemed to be
a Loan of such above-listed Type notwithstanding such difference in duration of
Interest Periods.
"UNFUNDED BENEFIT LIABILITIES" means, with respect to any Benefit Plan
at any time, the amount of unfunded benefit liabilities of such Benefit Plan at
such time as determined under ERISA Section 4001(a)(18).
"UNIFORM COMMERCIAL CODE" means the Uniform Commercial Code as in
effect from time to time in the State of New York.
"UNRESTRICTED SUBSIDIARY" means any Subsidiary of the Borrower that
is not a Restricted Subsidiary.
"WHOLLY OWNED SUBSIDIARY" means, with respect to any Person, any
Subsidiary of such Person all of the Capital Securities and all other ownership
interests and rights to acquire ownership interests of which (except directors'
qualifying shares) are, directly or indirectly, owned or controlled by such
Person or one or more Wholly Owned Subsidiaries of such Person or by such Person
and one or more of such Subsidiaries; unless otherwise specified, "Wholly Owned
Subsidiary" means a Wholly Owned Subsidiary of the Borrower.
Section 10.02. OTHER INTERPRETIVE PROVISIONS. (a) Except as otherwise
specified herein, all references herein (i) to any Person shall be deemed to
include such Person's successors and assigns, (ii) to any Applicable Law defined
or referred to herein shall be deemed references to such Applicable Law or any
successor Applicable Law as the same may have been or may be amended or
supplemented from time to time and (iii) to any Loan Document or Contract
defined or referred to herein shall be deemed references to such Loan Document
or Contract (and, in the case of any instrument, any instrument issued in
substitution therefor) as the terms thereof may have been or may be amended,
supplemented, waived or otherwise modified from time to time.
(b) When used in this Agreement, the words "herein", "hereof" and
"hereunder" and words of similar import shall refer to this Agreement as a whole
and not to any provision of this Agreement, and the words "Article", "Section",
"Annex", "Schedule" and "Exhibit" shall refer to Articles and Sections of, and
Annexes, Schedules and Exhibits to, this Agreement unless otherwise specified.
-93-
101
(c) Whenever the context so requires, the neuter gender includes the
masculine or feminine, the masculine gender includes the feminine, and the
singular number includes the plural, and vice versa.
(d) Any item or list of items set forth following the word
"including", "include" or "includes" is set forth only for the purpose of
indicating that, regardless of whatever other items are in the category in which
such item or items are "included", such item or items are in such category, and
shall not be construed as indicating that the items in the category in which
such item or items are "included" are limited to such items or to items similar
to such items.
(e) Each authorization in favor of the Agents, the Banks or any other
Person granted by or pursuant to this Agreement shall be deemed to be
irrevocable and coupled with an interest.
(f) Except as otherwise specified herein, all references herein to any
Agent, any Bank or any Loan Party shall be deemed to refer to such Person
however designated in Loan Documents, so that (i) a reference to costs incurred
by a Bank in connection with the Loan Documents shall be deemed to include costs
incurred by such Person as a Guaranteed Party under the Guaranty Agreement and
(ii) a reference to the obligations of LIN Television under the Loan Documents
shall be deemed to include the obligations of such Person as the Guarantor under
the Guaranty Agreement.
Section 10.03. ACCOUNTING MATTERS. Unless otherwise specified herein,
all accounting determinations hereunder and all computations utilized by the
Borrower in complying with the covenants contained herein shall be made, all
accounting terms used herein shall be interpreted, and all financial statements
required to be delivered hereunder shall be prepared, in accordance with
Generally Accepted Accounting Principles, except, in the case of such financial
statements, for departures from Generally Accepted Accounting Principles that
may from time to time be approved in writing by the independent certified public
accountants who are at the time, in accordance with Section 5.01(b), reporting
on the Borrower's financial statements.
Section 10.04. REPRESENTATIONS AND WARRANTIES. All Representations and
Warranties shall be deemed made (a) in the case of any Representation and
Warranty contained in this Agreement at the time of its initial execution and
delivery, at and as of the Restated Agreement Date, (b) in the case of any
Representation and Warranty contained in this Agreement or any other document at
the time any Loan is made, at and as of such time and (c) in the case of any
particular Representation and Warranty, wherever contained, at such other time
or times as such Representation and Warranty is made or deemed made in
accordance with the provisions of this Agreement or the document pursuant
-94-
102
to, under or in connection with which such Representation and Warranty is made
or deemed made.
Section 10.05. CAPTIONS. Captions to Articles, Sections and
subsections of, and Annexes, Schedules and Exhibits to, this Agreement are
included for convenience of reference only and shall not constitute a part of
this Agreement for any other purpose or in any way affect the meaning or
construction of any provision of this Agreement.
Section 10.06. INTERPRETATION OF RELATED DOCUMENTS. Except as
otherwise specified therein, terms that are defined herein that are used in
certificates, opinions and other documents delivered in connection herewith
shall have the meanings ascribed to them herein and such documents shall be
otherwise interpreted in accordance with the provisions of this Article 10.
-95-
103
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their duly authorized officers all as of the Agreement Date.
LWWI BROADCASTING INC.
By /s/ Xxxxxxx X. Xxxxxxxx
------------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
LIN TELEVISION CORPORATION
By /s/ Xxxxxxx X. Xxxxxxxx
------------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President of Corporate
Development/Treasurer
TORONTO DOMINION (TEXAS), INC.,
as Administrative Agent
By
------------------------------------------
Name:
Title:
THE BANK OF NEW YORK, as
Documentation Agent, as an
Arranging Agent and as a Bank
By
------------------------------------------
Name:
Title:
CITICORP SECURITIES, INC.,
as an Arranging Agent
By
------------------------------------------
Name:
Title:
104
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their duly authorized officers all as of the Agreement Date.
LWWI BROADCASTING INC.
By
------------------------------------------
Name:
Title:
LIN TELEVISION CORPORATION
By
------------------------------------------
Name:
Title:
TORONTO DOMINION (TEXAS), INC.,
as Administrative Agent
By /s/ Xxxxxx X. Xxxxxx
------------------------------------------
Name: XXXXXX X. XXXXXX
Title: VICE PRESIDENT
THE BANK OF NEW YORK, as
Documentation Agent, as an
Arranging Agent and as a Bank
By
------------------------------------------
Name:
Title:
CITICORP SECURITIES, INC.,
as an Arranging Agent
By
------------------------------------------
Name:
Title:
105
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their duly authorized officers all as of the Agreement Date.
LWWI BROADCASTING INC.
By
------------------------------------------
Name:
Title:
LIN TELEVISION CORPORATION
By
------------------------------------------
Name:
Title:
TORONTO DOMINION (TEXAS), INC.,
as Administrative Agent
By
------------------------------------------
Name:
Title:
THE BANK OF NEW YORK, as
Documentation Agent, as an
Arranging Agent and as a Bank
By /s/ Xxxxxxx X. Xxxxx
------------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
CITICORP SECURITIES, INC.,
as an Arranging Agent
By
------------------------------------------
Name:
Title:
106
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their duly authorized officers all as of the Agreement Date.
LWWI BROADCASTING INC.
By
------------------------------------------
Name:
Title:
LIN TELEVISION CORPORATION
By
------------------------------------------
Name:
Title:
TORONTO DOMINION (TEXAS), INC.,
as Administrative Agent
By
------------------------------------------
Name:
Title:
THE BANK OF NEW YORK, as
Documentation Agent, as an
Arranging Agent and as a Bank
By
------------------------------------------
Name:
Title:
CITICORP SECURITIES, INC.,
as an Arranging Agent
By /s/
------------------------------------------
Name:
Title: Vice President
000
XXX XXXXX XXXXXXXXX BANK,
as an Arranging Agent, as
Syndication Agent and as a
Bank
By /s/ Xxxxxxx X. Xxxxxxx
------------------------------------------
Name: XXXXXXX X. XXXXXXX
Title: MANAGING DIRECTOR
TORONTO DOMINION (NEW YORK), INC.,
as an Arranging Agent and
as a Bank
By
------------------------------------------
Name:
Title:
BARCLAYS BANK PLC,
as a Co-Agent and as a Bank
By
------------------------------------------
Name:
Title:
FLEET NATIONAL BANK,
as a Co-Agent and as a Bank
By
------------------------------------------
Name:
Title:
By
------------------------------------------
Name:
Title:
NATIONSBANK OF TEXAS, N.A.,
as a Co-Agent and as a Bank
By
------------------------------------------
Name:
Title:
000
XXX XXXX XX XXXX XXXXXX,
as a Co-Agent and as a Bank
By
------------------------------------------
Name:
Title:
CITIBANK, N.A.,
as a Bank
By
------------------------------------------
Name:
Title:
XXXXXX GUARANTY TRUST
COMPANY OF NEW YORK,
as a Bank
By
------------------------------------------
Name:
Title:
BANQUE PARIBAS,
as a Bank
By /s/ Xxxxxxx Xxxxx /s/ Xxxxx Xxxxxxx
------------------------------------------
Name: Xxxxxxx Xxxxx Xxxxx Xxxxxxx
Title: Asst. VP Vice President
FIRST UNION NATIONAL BANK OF
NORTH CAROLINA, as a Bank
By
------------------------------------------
Name:
Title:
000
XXX XXXX XX XXXX XXXXXX,
as a Co-Agent and as a Bank
By
------------------------------------------
Name:
Title:
CITIBANK, N.A.,
as a Bank
By
------------------------------------------
Name:
Title:
XXXXXX GUARANTY TRUST
COMPANY OF NEW YORK,
as a Bank
By
------------------------------------------
Name:
Title:
BANQUE PARIBAS,
as a Bank
By
------------------------------------------
Name:
Title:
FIRST UNION NATIONAL BANK OF
NORTH CAROLINA, as a Bank
By /s/ Xxx Xxxxxx
------------------------------------------
Name: Xxx Xxxxxx
Title: Senior Vice President
110
THE FUJI BANK, LIMITED,
LOS ANGELES AGENCY,
as a Bank
By /s/ Xxxxxxxx Xxxxxxx
------------------------------------------
Name: XXXXXXXX XXXXXXX
Title: JOINT GENERAL MANAGER
THE NIPPON CREDIT BANK, LTD.
as a Bank
By
------------------------------------------
Name:
Title:
BANK OF TOKYO-MITSUBISHI TRUST
COMPANY,
as a Bank
By
------------------------------------------
Name:
Title:
BANKERS TRUST COMPANY,
as a Bank
By
------------------------------------------
Name:
Title:
UNION BANK OF CALIFORNIA, N.A.,
as a Bank
By
------------------------------------------
Name:
Title:
-99-
111
THE CHASE MANHATTAN BANK,
as an Arranging Agent, as
Syndication Agent and as a
Bank
By
------------------------------------------
Name:
Title:
TORONTO DOMINION (NEW YORK), INC.,
as an Arranging Agent and
as a Bank
By /s/ Xxxxx Xxxxxx
------------------------------------------
Name: XXXXX XXXXXX
Title: VICE PRESIDENT
BARCLAYS BANK PLC,
as a Co-Agent and as a Bank
By
------------------------------------------
Name:
Title:
FLEET NATIONAL BANK,
as a Co-Agent and as a Bank
By
------------------------------------------
Name:
Title:
By
------------------------------------------
Name:
Title:
NATIONSBANK OF TEXAS, N.A.,
as a Co-Agent and as a Bank
By
------------------------------------------
Name:
Title:
000
XXX XXXXX XXXXXXXXX BANK,
as an Arranging Agent, as
Syndication Agent and as a
Bank
By
------------------------------------------
Name:
Title:
TORONTO DOMINION (NEW YORK), INC.,
as an Arranging Agent and
as a Bank
By
------------------------------------------
Name:
Title:
BARCLAYS BANK PLC,
as a Co-Agent and as a Bank
By /s/ Xxxxx X. Xxxxxx
------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Associate Director
FLEET NATIONAL BANK,
as a Co-Agent and as a Bank
By
------------------------------------------
Name:
Title:
By
------------------------------------------
Name:
Title:
NATIONSBANK OF TEXAS, N.A.,
as a Co-Agent and as a Bank
By
------------------------------------------
Name:
Title:
000
XXX XXXXX XXXXXXXXX BANK,
as an Arranging Agent, as
Syndication Agent and as a
Bank
By
------------------------------------------
Name:
Title:
TORONTO DOMINION (NEW YORK), INC.,
as an Arranging Agent and
as a Bank
By
------------------------------------------
Name:
Title:
BARCLAYS BANK PLC,
as a Co-Agent and as a Bank
By
------------------------------------------
Name:
Title:
FLEET NATIONAL BANK,
as a Co-Agent and as a Bank
By /s/ Xxxxxxxxx X. Xxxxxx
------------------------------------------
Name: Xxxxxxxxx X. Xxxxxx
Title: Assistant Vice President
By /s/ Xxxxxxx X. Xxxxxx
------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
NATIONSBANK OF TEXAS, N.A.,
as a Co-Agent and as a Bank
By
------------------------------------------
Name:
Title:
000
XXX XXXXX XXXXXXXXX BANK,
as an Arranging Agent, as
Syndication Agent and as a
Bank
By
------------------------------------------
Name:
Title:
TORONTO DOMINION (NEW YORK), INC.,
as an Arranging Agent and
as a Bank
By
------------------------------------------
Name:
Title:
BARCLAYS BANK PLC,
as a Co-Agent and as a Bank
By
------------------------------------------
Name:
Title:
FLEET NATIONAL BANK,
as a Co-Agent and as a Bank
By
------------------------------------------
Name:
Title:
By
------------------------------------------
Name:
Title:
NATIONSBANK OF TEXAS, N.A.,
as a Co-Agent and as a Bank
By /s/ Xxxxxxxx X. Xxxxxx
------------------------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Vice President
000
XXX XXXX XX XXXX XXXXXX,
as a Co-Agent and as a Bank
By /s/ Xxxxxx X. Xxxxxx
------------------------------------------
Name: XXXXXX X. XXXXXX
Title: AUTHORIZED SIGNATORY
CITIBANK, N.A.,
as a Bank
By
------------------------------------------
Name:
Title:
XXXXXX GUARANTY TRUST
COMPANY OF NEW YORK,
as a Bank
By
------------------------------------------
Name:
Title:
BANQUE PARIBAS,
as a Bank
By
------------------------------------------
Name:
Title:
FIRST UNION NATIONAL BANK OF
NORTH CAROLINA, as a Bank
By
------------------------------------------
Name:
Title:
000
XXX XXXX XX XXXX XXXXXX,
as a Co-Agent and as a Bank
By
------------------------------------------
Name:
Title:
CITIBANK, N.A.,
as a Bank
By /s/ Xxxxxxx X. Xxx
------------------------------------------
Name: Xxxxxxx X. Xxx
Title: AS ATTORNEY-IN-FACT
XXXXXX GUARANTY TRUST
COMPANY OF NEW YORK,
as a Bank
By
------------------------------------------
Name:
Title:
BANQUE PARIBAS,
as a Bank
By
------------------------------------------
Name:
Title:
FIRST UNION NATIONAL BANK OF
NORTH CAROLINA, as a Bank
By
------------------------------------------
Name:
Title:
000
XXX XXXX XX XXXX XXXXXX,
as a Co-Agent and as a Bank
By
------------------------------------------
Name:
Title:
CITIBANK, N.A.,
as a Bank
By
------------------------------------------
Name:
Title:
XXXXXX GUARANTY TRUST
COMPANY OF NEW YORK,
as a Bank
By /s/ Xxxxxx X. Xxxxxxx
------------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
BANQUE PARIBAS,
as a Bank
By
------------------------------------------
Name:
Title:
FIRST UNION NATIONAL BANK OF
NORTH CAROLINA, as a Bank
By
------------------------------------------
Name:
Title:
118
THE FUJI BANK, LIMITED,
LOS ANGELES AGENCY,
as a Bank
By
------------------------------------------
Name:
Title:
THE NIPPON CREDIT BANK, LTD.
as a Bank
By /s/ Xxxxx X. Xxxxxxxxxx
------------------------------------------
Name: Xxxxx X. Xxxxxxxxxx
Title: Vice President & Manager
BANK OF TOKYO-MITSUBISHI TRUST
COMPANY,
as a Bank
By
------------------------------------------
Name:
Title:
BANKERS TRUST COMPANY,
as a Bank
By
------------------------------------------
Name:
Title:
UNION BANK OF CALIFORNIA, N.A.,
as a Bank
By
------------------------------------------
Name:
Title:
-99-
119
THE FUJI BANK, LIMITED,
LOS ANGELES AGENCY,
as a Bank
By
------------------------------------------
Name:
Title:
THE NIPPON CREDIT BANK, LTD.
as a Bank
By
------------------------------------------
Name:
Title:
BANK OF TOKYO-MITSUBISHI TRUST
COMPANY,
as a Bank
By /s/ Xxxx X. Judge
------------------------------------------
Name: XXXX X. JUDGE
Title: Vice President
BANKERS TRUST COMPANY,
as a Bank
By
------------------------------------------
Name:
Title:
UNION BANK OF CALIFORNIA, N.A.,
as a Bank
By
------------------------------------------
Name:
Title:
-99-
120
THE FUJI BANK, LIMITED,
LOS ANGELES AGENCY,
as a Bank
By
------------------------------------------
Name:
Title:
THE NIPPON CREDIT BANK, LTD.
as a Bank
By
------------------------------------------
Name:
Title:
BANK OF TOKYO-MITSUBISHI TRUST
COMPANY,
as a Bank
By
------------------------------------------
Name:
Title:
BANKERS TRUST COMPANY,
as a Bank
By /s/ Xxxx Xxxxx
------------------------------------------
Name: XXXX XXXXX
Title: VICE PRESIDENT
UNION BANK OF CALIFORNIA, N.A.,
as a Bank
By
------------------------------------------
Name:
Title:
-99-
121
THE FUJI BANK, LIMITED,
LOS ANGELES AGENCY,
as a Bank
By
------------------------------------------
Name:
Title:
THE NIPPON CREDIT BANK, LTD.
as a Bank
By
------------------------------------------
Name:
Title:
BANK OF TOKYO-MITSUBISHI TRUST
COMPANY,
as a Bank
By
------------------------------------------
Name:
Title:
BANKERS TRUST COMPANY,
as a Bank
By
------------------------------------------
Name:
Title:
UNION BANK OF CALIFORNIA, N.A.,
as a Bank
By /s/ Xxxxx X. Xxxxxx
------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
-99-
122
BANQUE NATIONALE DE PARIS,
SAN XXXXXXXXX XXXXXX,
as a Bank
By /s/ Xxxxxxxx X. Xxx
------------------------------------------
Name: Xxxxxxxx X. Xxx
Title: Vice President
By /s/ Xxxxxxx X. Xx Xxxxxx
------------------------------------------
Name: Xxxxxxx X. Xx Xxxxxx
Title: Assistant Vice President
CREDIT LYONNAIS NEW YORK BRANCH,
as a Bank
By
------------------------------------------
Name:
Authorized Signature:
LTCB TRUST COMPANY,
as a Bank
By
------------------------------------------
Name:
Title:
ROYAL BANK OF CANADA,
as a Bank
By
------------------------------------------
Name:
Title:
FIRST HAWAIIAN BANK,
as a Bank
By
------------------------------------------
Name:
Title:
000
XXXXXX XXXXXXXXX XX XXXXX,
XXX XXXXXXXXX XXXXXX,
as a Bank
By
------------------------------------------
Name:
Title:
By
------------------------------------------
Name:
Title:
CREDIT LYONNAIS NEW YORK BRANCH,
as a Bank
By /s/ Xxxxx X. Xxxxxx
------------------------------------------
Name: XXXXX X. XXXXXX
VICE PRESIDENT
LTCB TRUST COMPANY,
as a Bank
By
------------------------------------------
Name:
Title:
ROYAL BANK OF CANADA,
as a Bank
By
------------------------------------------
Name:
Title:
FIRST HAWAIIAN BANK,
as a Bank
By
------------------------------------------
Name:
Title:
000
XXXXXX XXXXXXXXX XX XXXXX,
XXX XXXXXXXXX XXXXXX,
as a Bank
By
------------------------------------------
Name:
Title:
By
------------------------------------------
Name:
Title:
CREDIT LYONNAIS NEW YORK BRANCH,
as a Bank
By
------------------------------------------
Name:
Authorized Signature:
LTCB TRUST COMPANY,
as a Bank
By /s/ Xxxx X. Xxxxxxxx
------------------------------------------
Name: Xxxx X. xxxxxxxx
Title: Executive Vice President
ROYAL BANK OF CANADA,
as a Bank
By
------------------------------------------
Name:
Title:
FIRST HAWAIIAN BANK,
as a Bank
By
------------------------------------------
Name:
Title:
000
XXXXXX XXXXXXXXX XX XXXXX,
XXX XXXXXXXXX XXXXXX,
as a Bank
By
------------------------------------------
Name:
Title:
By
------------------------------------------
Name:
Title:
CREDIT LYONNAIS NEW YORK BRANCH,
as a Bank
By
------------------------------------------
Name:
Authorized Signature:
LTCB TRUST COMPANY,
as a Bank
By
------------------------------------------
Name:
Title:
ROYAL BANK OF CANADA,
as a Bank
By /s/ Xxxx X. Page
------------------------------------------
Name: XXXX X. PAGE
Title: SENIOR MANAGER
FIRST HAWAIIAN BANK,
as a Bank
By
------------------------------------------
Name:
Title:
000
XXXXXX XXXXXXXXX XX XXXXX,
XXX XXXXXXXXX XXXXXX,
as a Bank
By
------------------------------------------
Name:
Title:
By
------------------------------------------
Name:
Title:
CREDIT LYONNAIS NEW YORK BRANCH,
as a Bank
By
------------------------------------------
Name:
Authorized Signature:
LTCB TRUST COMPANY,
as a Bank
By
------------------------------------------
Name:
Title:
ROYAL BANK OF CANADA,
as a Bank
By
------------------------------------------
Name:
Title:
FIRST HAWAIIAN BANK,
as a Bank
By /s/ Xxxxxxx X. Xxxxx
------------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
127
MITSUBISHI TRUST & BANKING
CORPORATION (U.S.A.),
as a Bank
By /s/ Xxxxxxxx Xxxxxxxx
------------------------------------------
Name: Xxxxxxxx Xxxxxxxx
Title: Executive Vice President
INDUSTRIAL BANK OF JAPAN,
as a Bank
By
------------------------------------------
Name:
Title:
PNC BANK, NATIONAL ASSOCIATION,
as a Bank
By
------------------------------------------
Name:
Title:
SOCIETE GENERALE,
as a Bank
By
------------------------------------------
Name:
Title:
THE SUMITOMO BANK, LTD.,
CHICAGO BRANCH,
as a Bank
By
------------------------------------------
Name:
Title:
128
MITSUBISHI TRUST & BANKING
CORPORATION (U.S.A.),
as a Bank
By
------------------------------------------
Name:
Title:
INDUSTRIAL BANK OF JAPAN,
as a Bank
By /s/ Xxxxxxx Xxxx
------------------------------------------
Name: XXXXXXX XXXX
Title: SENIOR VICE PRESIDENT
PNC BANK, NATIONAL ASSOCIATION,
as a Bank
By
------------------------------------------
Name:
Title:
SOCIETE GENERALE,
as a Bank
By
------------------------------------------
Name:
Title:
THE SUMITOMO BANK, LTD.,
CHICAGO BRANCH,
as a Bank
By
------------------------------------------
Name:
Title:
129
MITSUBISHI TRUST & BANKING
CORPORATION (U.S.A.),
as a Bank
By
------------------------------------------
Name:
Title:
INDUSTRIAL BANK OF JAPAN,
as a Bank
By
------------------------------------------
Name:
Title:
PNC BANK, NATIONAL ASSOCIATION,
as a Bank
By /s/ Xxxxxx X. Xxxxxx
------------------------------------------
Name: XXXXXX X. XXXXXX
Title: VICE PRESIDENT
SOCIETE GENERALE,
as a Bank
By
------------------------------------------
Name:
Title:
THE SUMITOMO BANK, LTD.,
CHICAGO BRANCH,
as a Bank
By
------------------------------------------
Name:
Title:
130
MITSUBISHI TRUST & BANKING
CORPORATION (U.S.A.),
as a Bank
By
------------------------------------------
Name:
Title:
INDUSTRIAL BANK OF JAPAN,
as a Bank
By
------------------------------------------
Name:
Title:
PNC BANK, NATIONAL ASSOCIATION,
as a Bank
By
------------------------------------------
Name:
Title:
SOCIETE GENERALE,
as a Bank
By /s/ Xxxx Xxxxx-Xxxx
------------------------------------------
Name: XXXX XXXXX-XXXX
Title: VICE PRESIDENT
THE SUMITOMO BANK, LTD.,
CHICAGO BRANCH,
as a Bank
By
------------------------------------------
Name:
Title:
131
MITSUBISHI TRUST & BANKING
CORPORATION (U.S.A.),
as a Bank
By
------------------------------------------
Name:
Title:
INDUSTRIAL BANK OF JAPAN,
as a Bank
By
------------------------------------------
Name:
Title:
PNC BANK, NATIONAL ASSOCIATION,
as a Bank
By
------------------------------------------
Name:
Title:
SOCIETE GENERALE,
as a Bank
By
------------------------------------------
Name:
Title:
THE SUMITOMO BANK, LTD.,
CHICAGO BRANCH,
as a Bank
By /s/ Xxxxxxxx Xxxxx
------------------------------------------
Name: XXXXXXXX XXXXX
Title: JOINT GENERAL MANANGER
000
XXXX XX XXXXXXX XXXXXXXX,
as a Bank
By /s/ Xxxx X. Xxxxx
------------------------------------------
Name: Xxxx X. Xxxxx
Title: Vice President
BANK OF HAWAII,
as a Bank
By
------------------------------------------
Name:
Title:
MELLON BANK,
as a Bank
By
------------------------------------------
Name:
Title:
CORESTATES BANK, N.A.,
as a Bank
By
------------------------------------------
Name:
Title:
THE DAI-ICHI KANGYO BANK, LTD.,
as a Bank
By
------------------------------------------
Name:
Title:
Restated Agreement Date: 9/26/96
000
XXXX XX XXXXXXX NATIONAL TRUST &
SAVINGS ASSOCIATION,
as a Bank
By
------------------------------------------
Name:
Title:
BANK OF HAWAII,
as a Bank
By /s/ J. Xxxxx Xxxxxxx
------------------------------------------
Name: J. Xxxxx Xxxxxxx
Title: Vice President
MELLON BANK,
as a Bank
By
------------------------------------------
Name:
Title:
CORESTATES BANK, N.A.,
as a Bank
By
------------------------------------------
Name:
Title:
THE DAI-ICHI KANGYO BANK, LTD.,
as a Bank
By
------------------------------------------
Name:
Title:
Restated Agreement Date: 9/26/96
000
XXXX XX XXXXXXX NATIONAL TRUST &
SAVINGS ASSOCIATION,
as a Bank
By
------------------------------------------
Name:
Title:
BANK OF HAWAII,
as a Bank
By
------------------------------------------
Name:
Title:
MELLON BANK,
as a Bank
By /s/ Xxxx X. Xxxxxxxxx
------------------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Assistant Vice President
CORESTATES BANK, N.A.,
as a Bank
By
------------------------------------------
Name:
Title:
THE DAI-ICHI KANGYO BANK, LTD.,
as a Bank
By
------------------------------------------
Name:
Title:
Restated Agreement Date: 9/26/96
000
XXXX XX XXXXXXX NATIONAL TRUST &
SAVINGS ASSOCIATION,
as a Bank
By
------------------------------------------
Name:
Title:
BANK OF HAWAII,
as a Bank
By
------------------------------------------
Name:
Title:
MELLON BANK,
as a Bank
By
------------------------------------------
Name:
Title:
CORESTATES BANK, N.A.,
as a Bank
By /s/ Xxxxx X. Xxxxx
------------------------------------------
Name: Xxxxx X. Xxxxx
Title: AVP
THE DAI-ICHI KANGYO BANK, LTD.,
as a Bank
By
------------------------------------------
Name:
Title:
Restated Agreement Date: 9/26/96
000
XXXX XX XXXXXXX NATIONAL TRUST &
SAVINGS ASSOCIATION,
as a Bank
By
------------------------------------------
Name:
Title:
BANK OF HAWAII,
as a Bank
By
------------------------------------------
Name:
Title:
MELLON BANK,
as a Bank
By
------------------------------------------
Name:
Title:
CORESTATES BANK, N.A.,
as a Bank
By
------------------------------------------
Name:
Title:
THE DAI-ICHI KANGYO BANK, LTD.,
as a Bank
By /s/ Xxxx Xxxxxxx
------------------------------------------
Name: Xxxx Xxxxxxx
Title: Vice President
Restated Agreement Date: 9/26/96
137
ANNEX A
-------
Banks, Lending offices
and Notice Addresses RC Commitment
---------------------- -------------
TORONTO DOMINION $24,750,000
(NEW YORK), INC.
Domestic Lending Office:
TORONTO DOMINION
(NEW YORK), INC.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000-0000
Eurodollar Lending Office:
TORONTO DOMINION
(NEW YORK), INC.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000-0000
Notice Address:
TORONTO DOMINION
(NEW YORK), INC.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000-0000
Telecopy No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Xxxxxxxxxx Xxxxxxx
138
Banks, Lending Offices
and Notice Addresses RC Commitment
---------------------- -------------
THE BANK OF NEW YORK $24,750,000
Domestic Lending Office:
THE BANK OF NEW YORK
Xxx Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Eurodollar Lending Office:
THE BANK OF NEW YORK
Xxx Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Notice Address:
THE BANK OF NEW YORK
Xxx Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Telecopy No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Xxxxxxx Xxxxx
-2-
139
Banks, Lending Offices
and Notice Addresses RC Commitment
---------------------- -------------
THE CHASE MANHATTAN BANK $24,750,000
Borrowing and Administrative:
Domestic Lending Office:
THE CHASE MANHATTAN BANK
One Chase Xxxxxxxxx Xxxxx
0xx Xxxxx
Xxx Xxxx, XX 00000
Eurodollar Lending Office:
THE CHASE MANHATTAN BANK
One Chase Xxxxxxxxx Xxxxx
0xx Xxxxx
Xxx Xxxx, XX 00000
Notice Address:
THE CHASE MANHATTAN BANK
One Chase Xxxxxxxxx Xxxxx
0xx Xxxxx
Xxx Xxxx, XX 00000
Telecopy No.: (000) 000-0000, -1477 or -7375
Telephone No.: (000) 000-0000
Attention: Xxxxxxx Xxxxxxxx
Credit Related Financial Information:
THE CHASE MANHATTAN BANK
One Chase Xxxxxxxxx Xxxxx
0xx Xxxxx
Xxx Xxxx, XX 00000
Telecopy No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Xxxxxxx Xxxxxxx
-3-
140
Banks, Lending Offices
and Notice Addresses RC Commitment
---------------------- -------------
CITIBANK, N.A. $24,750,000
Domestic Lending Office:
CITIBANK, N.A.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Eurodollar Lending Office:
CITIBANK, N.A.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Notice Address:
CITIBANK, N.A.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Telecopy No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Xxxx Xxxxxxx
-4-
141
Banks, Lending Offices
and Notice Addresses RC Commitment
---------------------- -------------
BANK OF TOKYO-MITSUBISHI TRUST COMPANY $19,000,000
Domestic Lending Office:
BANK OF TOKYO-MITSUBISHI TRUST COMPANY
1251 Avenue of the Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000-0000
Eurodollar Lending Office:
BANK OF TOKYO-MITSUBISHI TRUST COMPANY
1251 Avenue of the Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000-0000
Notice Address:
BANK OF TOKYO-MITSUBISHI TRUST COMPANY
1251 Avenue of the Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000-0000
Telecopy No.: 000-000-0000
Telephone No.: 000-000-0000
Attention: Xxxxx Xxxxxx, Assistant Vice President
-5-
142
Banks, Lending Offices
and Notice Addresses RC Commitment
---------------------- -------------
BANQUE PARIBAS $19,000,000
Domestic Lending Office:
BANQUE PARIBAS
0000 Xxxxxxx Xxxx Xxxx
Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Eurodollar Lending Office:
BANQUE PARIBAS
0000 Xxxxxxx Xxxx Xxxx
Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Notice Address:
BANQUE PARIBAS
0000 Xxxxxxx Xxxx Xxxx
Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Telecopy No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Xxxx X. Xxxxx
-6-
143
Banks, Lending Offices
and Notice Addresses RC Commitment
---------------------- -------------
FIRST UNION NATIONAL BANK $19,000,000
OF NORTH CAROLINA
Domestic Lending Office:
FIRST UNION NATIONAL BANK
OF NORTH CAROLINA
000 Xxxxx Xxxxxxx Xxxxxx - XX-00
Xxxxxxxxx, XX 00000-0000
Eurodollar Lending Office:
FIRST UNION NATIONAL BANK
OF NORTH CAROLINA
000 Xxxxx Xxxxxxx Xxxxxx - XX-00
Xxxxxxxxx, XX 00000-0000
Notice Address:
FIRST UNION NATIONAL BANK
OF NORTH CAROLINA
000 Xxxxx Xxxxxxx Xxxxxx - XX-00
Xxxxxxxxx, XX 00000-0000
Telecopy No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Xxxx Xxxxxxxx
-7-
144
Banks, Lending Offices
and Notice Addresses RC Commitment
---------------------- -------------
THE FUJI BANK, LIMITED, $19,000,000
LOS ANGELES AGENCY
Domestic Lending Office:
THE FUJI BANK, LIMITED,
LOS ANGELES AGENCY
000 Xxxxx Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, XX 00000
Eurodollar Lending Office:
THE FUJI BANK, LIMITED,
LOS ANGELES AGENCY
000 Xxxxx Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, XX 00000
Notice Address:
THE FUJI BANK, LIMITED,
LOS ANGELES AGENCY
000 Xxxxx Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, XX 00000
Telecopy No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Xxxxx Xxxxxx
-8-
145
Banks, Lending Offices
and Notice Addresses RC Commitment
---------------------- -------------
THE NIPPON CREDIT BANK, LTD. $19,000,000
Domestic Lending Office:
THE NIPPON CREDIT BANK, LTD.
000 Xxxx Xxxxxx - 00xx Xxxxx
Xxx Xxxx, XX 00000
Eurodollar Lending Office:
THE NIPPON CREDIT BANK, LTD.
000 Xxxx Xxxxxx - 00xx Xxxxx
Xxx Xxxx, XX 00000
Notice Address:
THE NIPPON CREDIT BANK, LTD.
000 Xxxx Xxxxxx - 00xx Xxxxx
Xxx Xxxx, XX 00000
Telecopy No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Xxxxx X. Xxxxxxxxxx
-9-
146
Banks, Lending Offices
and Notice Addresses RC Commitment
---------------------- -------------
INDUSTRIAL BANK OF JAPAN $19,000,000
Domestic Lending Office:
INDUSTRIAL BANK OF JAPAN
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Eurodollar Lending office:
INDUSTRIAL BANK OF JAPAN
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Notice Address:
INDUSTRIAL BANK OF JAPAN
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Telecopy No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Xxxxx Xxxxxxx
-10-
147
Banks, Lending Offices
and Notice Addresses RC Commitment
---------------------- -------------
BANKERS TRUST COMPANY $19,000,000
Domestic Lending Office:
BANKERS TRUST COMPANY
000 Xxxxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Eurodollar Lending Office:
BANKERS TRUST COMPANY
000 Xxxxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Notice Address:
BANKERS TRUST COMPANY
000 Xxxxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Notices for funding purposes:
Telecopy No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Xxxxx Xxxxxxx
Notices for all other matters:
Telecopy No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Xxxx Xxxxx
-11-
148
Banks, Lending Offices
and Notice Addresses RC Commitment
---------------------- -------------
BANQUE NATIONALE DE PARIS, $19,000,000
SAN XXXXXXXXX XXXXXX
Domestic Lending office:
BANQUE NATIONALE DE PARIS,
SAN XXXXXXXXX XXXXXX
000 Xxxxxxxxxx Xxxxxx - 0xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Eurodollar Lending Office:
BANQUE NATIONALE DE PARIS,
SAN XXXXXXXXX XXXXXX
000 Xxxxxxxxxx Xxxxxx - 0xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Notice Address:
BANQUE NATIONALE DE PARIS,
SAN XXXXXXXXX XXXXXX
000 Xxxxxxxxxx Xxxxxx - 0xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Telecopy No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Xxxxxxxx X. Xxx
-12-
149
Banks, Lending Offices
and Notice Addresses RC Commitment
---------------------- -------------
CREDIT LYONNAIS NEW YORK BRANCH $19,000,000
Domestic Lending Office:
CREDIT LYONNAIS NEW YORK BRANCH
1301 Avenue of the Xxxxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Eurodollar Lending Office:
CREDIT LYONNAIS NEW YORK BRANCH
1301 Avenue of the Americas
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Notice Address:
CREDIT LYONNAIS NEW YORK BRANCH
1301 Avenue of the Xxxxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Xxxxx Xxxxxxx
-13-
150
Banks, Lending Offices
and Notice Addresses RC Commitment
---------------------- -------------
LTCB TRUST COMPANY $15,000,000
Domestic Lending Office:
LTCB TRUST COMPANY
000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Eurodollar Lending Office:
LTCB TRUST COMPANY
000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Notice Address:
LTCB TRUST COMPANY
000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Xxxxxxx Xxxxxxxx
-14-
151
Banks, Lending Offices
and Notice Addresses RC Commitment
---------------------- -------------
ROYAL BANK OF CANADA $19,000,000
Domestic Lending Office:
ROYAL BANK OF CANADA
New York Branch
Financial Square, 23rd,
New York, New York 10005-3531
Eurodollar Lending Office:
XXXXX XXXX XX XXXXXX
Xxxxx Xxxxxx
(Xxxxx Xxxxxxx No. 1) Branch
New York Branch
Financial Square, 23rd,
New York, New York 10005-3531
Notice Address:
ROYAL BANK OF CANADA
Grand Cayman
(North America No. 1) Branch
New York Branch
Xxxxxxxxx Xxxxxx, 00xx,
Xxx Xxxx, Xxx Xxxx 00000-0000
Telecopy No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Manager, Credit Administration
With a copy to:
ROYAL BANK OF CANADA
New York Branch
Xxxxxxxxx Xxxxxx, 00xx,
Xxx Xxxx, Xxx Xxxx 00000-0000
Telecopy No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Xxxx Xxxx
-15-
152
Banks, Lending Offices
and Notice Addresses RC Commitment
---------------------- -------------
THE DAI-ICHI KANGYO BANK, LTD. $19,000,000
Domestic Lending Office:
DAI-ICHI KANGYO BANK LTD.
Xxx Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Eurodollar Lending Office:
DAI-ICHI KANGYO BANK LTD.
Xxx Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Notice Address:
DAI-ICHI KANGYO BANK LTD.
Xxx Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Telecopy No.: 000-000-0000
Telephone No.: 000-000-0000
Attention: Xxxx Xxxxxxxxxx
-16-
153
Banks, Lending Offices
and Notice Addresses RC Commitment
---------------------- -------------
THE BANK OF NOVA SCOTIA $22,000,000
Domestic Lending Office:
THE BANK OF NOVA SCOTIA
New York Agency
Xxx Xxxxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Eurodollar Lending Office:
THE BANK OF NOVA SCOTIA
New York Agency
Xxx Xxxxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Notice Address:
THE BANK OF NOVA SCOTIA
New York Agency
Xxx Xxxxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Xxxxxx Xxxxxx
-17-
154
Banks, Lending Offices
and Notice Addresses RC Commitment
---------------------- -------------
MITSUBISHI TRUST & BANKING $12,000,000
CORPORATION (U.S.A.)
Domestic Lending Office:
MITSUBISHI TRUST & BANKING
CORPORATION (U.S.A.)
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Eurodollar Lending Office:
MITSUBISHI TRUST & BANKING
CORPORATION (U.S.A.)
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Notice Address:
MITSUBISHI TRUST & BANKING
CORPORATION (U.S.A.)
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Xxxx Xxxxxx
-18-
155
Banks, Lending Offices
and Notice Addresses RC Commitment
---------------------- -------------
FIRST HAWAIIAN BANK $19,000,000
Domestic Lending Office:
FIRST HAWAIIAN BANK
0000 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxx, XX 00000
Eurodollar Lending Office:
FIRST HAWAIIAN BANK
0000 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxx, XX 00000
Notice Address:
FIRST HAWAIIAN BANK
0000 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxx, XX 00000
Telecopy No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Xxxxxxx X. Xxxxx
-19-
156
Banks, Lending Offices
and Notice Addresses RC Commitment
---------------------- -------------
PNC BANK, NATIONAL ASSOCIATION $19,000,000
Domestic Lending Office:
PNC BANK, NATIONAL ASSOCIATION
0000 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxxxxx, XX 00000
Eurodollar Lending Office:
PNC BANK, NATIONAL ASSOCIATION
0000 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxxxxx, XX 00000
Notice Address:
PNC BANK, NATIONAL ASSOCIATION
0000 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxxxxx, XX 00000
Telecopy No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Xxxxxx X. Xxxxxx
-20-
157
Banks, Lending Offices
and Notice Addresses RC Commitment
---------------------- -------------
SOCIETE GENERALE $19,000,000
Domestic Lending Office:
SOCIETE GENERALE
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Eurodollar Lending Office:
SOCIETE GENERALE
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Notice Address:
SOCIETE GENERALE
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Telecopy No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Rob Xxxxx
-21-
158
Banks, Lending Offices
and Notice Addresses RC Commitment
---------------------- -------------
THE SUMITOMO BANK, LTD., $19,000,000
CHICAGO BRANCH
Domestic Lending Office:
THE SUMITOMO BANK, LTD.,
CHICAGO BRANCH
000 Xxxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Eurodollar Lending Office:
THE SUMITOMO BANK, LTD.,
CHICAGO BRANCH
000 Xxxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Notice Address:
THE SUMITOMO BANK, LTD.,
CHICAGO BRANCH
000 Xxxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Telecopy No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Xxxxxxx Xxxxxxx
-22-
159
Banks, Lending Offices
and Notice Addresses RC Commitment
---------------------- -------------
BANK OF AMERICA ILLINOIS $19,000,000
Domestic Lending Office:
BANK OF AMERICA NATIONAL
TRUST & SAVINGS ASSOCIATION
0000 Xxxxxxx Xxxxxxxxx, Xxxx #0000
Xxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxxxxxx
Eurodollar Lending Office:
BANK OF AMERICA NATIONAL
TRUST & SAVINGS ASSOCIATION
0000 Xxxxxxx Xxxxxxxxx, Xxxx #0000
Xxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxxxxxx
Notice Address:
BANK OF AMERICA NATIONAL
TRUST & SAVINGS ASSOCIATION
000 Xxxxx Xxxxxx Xxxxxx
00xx Xxxxx, Xxxx #0000
Xxx Xxxxxxx, XX 00000
Telecopy No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Xxxx Xxxxxxx
and
BANK OF AMERICA NATIONAL
TRUST & SAVINGS ASSOCIATION
0000 Xxxxxxx Xxxxxxxxx, Xxxx #0000
Xxxxxxx, XX 00000
Telecopy No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Xxxxx Xxxxxxxxxxx
-23-
160
Banks, Lending Offices
and Notice Addresses RC Commitment
---------------------- -------------
BANK OF HAWAII $10,000,000
Domestic Lending Office:
BANK OF HAWAII
000 Xxxxxxxx Xxxxxx
00xx Xxxxx
Xxxxxxxx, Xxxxxx 00000
Eurodollar Lending Office:
BANK OF HAWAII
000 Xxxxxxxx Xxxxxx
00xx Xxxxx
Xxxxxxxx, Xxxxxx 00000
Notice Address:
BANK OF HAWAII
000 Xxxxxxxx Xxxxxx
00xx Xxxxx
Xxxxxxxx, Xxxxxx 00000
Telecopy No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: J. Xxxxx Xxxxxxx
-24-
161
Banks, Lending Offices
and Notice Addresses RC Commitment
---------------------- -------------
BARCLAYS BANK PLC $22,000,000
Domestic Lending Office:
BARCLAYS BANK PLC
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Eurodollar Lending Office:
BARCLAYS BANK PLC
Bay Street, Nassau Bahamas
c/o BARCLAYS BANK PLC
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Notice Address:
BARCLAYS BANK PLC
BZW Division
000 Xxxxxx Xxxxxx - Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Telecopy No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Xxx Xxx
(for compliance issues
and financial statements)
BARCLAYS BANK PLC
00 Xxxx Xxxxxx - 00xx Xxxxx
Xxx Xxxx, XX 00000
Telecopy No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Xxxxxxxxx Challenger
(for borrowings, repayments, interest
payments and administrative matters)
-25-
162
Banks, Lending Offices
and Notice Addresses RC Commitment
---------------------- -------------
MELLON BANK $19,000,000
Domestic Lending Office:
XXXXXX XXXX
Xxxx 0000
0 Xxxxxx Xxxx Center
000 Xxxxx Xx.
Xxxxxxxxxx, XX 00000-0000
Eurodollar Lending Office:
XXXXXX XXXX
Xxxx 0000
0 Xxxxxx Xxxx Center
000 Xxxxx Xx.
Xxxxxxxxxx, XX 00000-0000
Notice Address:
XXXXXX XXXX
Xxxx 0000
0 Xxxxxx Xxxx Center
000 Xxxxx Xx.
Xxxxxxxxxx, XX 00000-0000
Telecopy No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Xxxx X. Xxxxxxxxx
-26-
163
Banks, Lending Offices
and Notice Addresses RC Commitment
---------------------- -------------
CORESTATES BANK, N.A. $15,000,000
Domestic Lending Office:
CORESTATES BANK, N.A.
0000 Xxxxxxxx Xxxxxx
FC 1-8-11-28
Xxxxxxxxxxxx, XX 00000
Eurodollar Lending Office:
CORESTATES BANK, N.A.
0000 Xxxxxxxx Xxxxxx
FC 1-8-11-28
Philadelphia, PA 19107
Notice Address:
CORESTATES BANK, N.A.
0000 Xxxxxxxx Xxxxxx
XX 0-0-00-00
Xxxxxxxxxxxx, XX 00000
Telecopy No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Xxxx Xxxxxxxx
and
Telecopy No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Xxxxx X. Xxxxx
-27-
164
Banks, Lending Offices
and Notice Addresses RC Commitment
---------------------- -------------
FLEET NATIONAL BANK $22,000,000
Domestic Lending Office:
FLEET NATIONAL BANK
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Eurodollar Lending Office:
FLEET NATIONAL BANK
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Notice Address:
FLEET NATIONAL BANK
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Telecopy No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Xxxxxxx X. Xxxxx
-28-
165
Banks, Lending Offices
and Notice Addresses RC Commitment
---------------------- -------------
NATIONSBANK OF TEXAS, N.A. $22,000,000
Domestic Lending Office:
NATIONSBANK OF TEXAS, N.A.
000 Xxxx Xxxxxx
00xx Xxxxx
Xxxxxx, XX 00000
Eurodollar Lending Office:
NATIONSBANK OF TEXAS, N.A.
000 Xxxx Xxxxxx
00xx Xxxxx
Xxxxxx, XX 00000
Notice Address:
NATIONSBANK OF TEXAS, N.A.
000 Xxxx Xxxxxx
00xx Xxxxx
Xxxxxx, XX 00000
Telecopy No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Hutch XxXxxxxxx
-29-
166
Banks, Lending Offices
and Notice Addresses RC Commitment
---------------------- -------------
UNION BANK OF CALIFORNIA, N.A. $19,000,000
Domestic Lending Office:
UNION BANK OF CALIFORNIA, N.A.
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Eurodollar Lending Office:
UNION BANK OF CALIFORNIA, N.A.
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Notice Address:
UNION BANK OF CALIFORNIA, N.A.
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Telecopy No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Xxxx Xxxxxxxx
-30-
167
Banks, Lending Offices
and Notice Addresses RC Commitment
---------------------- -------------
XXXXXX GUARANTY TRUST COMPANY $19,000,000
OF NEW YORK
Domestic Lending Office:
XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK
00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Eurodollar Lending Office:
XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK
00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Notice Address:
XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK
00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Telecopy No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Xxx Xxxxxxx
-31-
168
Schedule 1.02
-------------
NOTICE OF BORROWING
[Name and address
of Administrative Agent in
accordance with Section 9.01(a)(ii)]
Date:
Ladies and Gentlemen:
Reference is made to the Credit Agreement, dated as of November 30, 1994,
as amended and restated as of September 26, 1996, among LWWI Broadcasting Inc.,
LIN Television Corporation, the banks listed on the signature pages thereof, The
Bank of Nova Scotia, Barclays Bank PLC, Fleet National Bank and NationsBank of
Texas, N.A., as Co-Agents, The Bank of New York, The Chase Manhattan Bank,
Citicorp Securities, Inc., and Toronto Dominion (New York), Inc., as Arranging
Agents, The Bank of New York, as Documentation Agent, Toronto Dominion (Texas),
Inc., as Administrative Agent, and The Chase Manhattan Bank, as Syndication
Agent (the "Credit Agreement"). The undersigned hereby gives notice pursuant to
Section 1.02 of the Credit Agreement of its request to have the following [RC]
[Incremental] Loans made to it on [insert requested date of borrowing]:
Type of Loan(1) Amount
--------------- ------
------------------------------------------- --------------------
------------------------------------------- --------------------
------------------------------------------- --------------------
Please disburse the proceeds of the Loans by [insert requested method of
disbursement].
The undersigned represents and warrants that (a) the borrowing requested
hereby complies with the requirements of Section 1.02 of the Credit Agreement
and (b) [except to the extent set forth on Annex A hereto,](2)(i) each Loan
Document Representation and Warranty is true and correct at and as of the date
hereof and (except to the extent the undersigned gives notice to the Banks to
the contrary prior
169
to 5:00 p.m. (New York time) on the Business Day before the requested date for
the making of the Loans) will be true and correct at and as of the time the
Loans are made, in each case both with and without giving effect to the Loans
and the application of the proceeds thereof, except to the extent that any such
Loan Document Representation and Warranty by its terms expressly relates to a
specified prior date and (ii) no Default has occurred and is continuing as of
the date hereof or would result from the making of the Loans or from the
application of the proceeds thereof if the Loans were made on the date hereof,
and (except to the extent the undersigned gives notice to the Banks to the
contrary prior to 5:00 p.m. (New York time) on the Business Day before the
requested date for the making of the Loans) no Default will have occurred and be
continuing at the time the Loans are to be made or would result from the making
of the Loans or from the application of the proceeds thereof.
LWWI BROADCASTING INC.
By
-------------------------------
Name:
Title:
---------------------
1. Be sure to specify the duration of the Interest Period in the case of
Fixed Rate Loans (E.G., one-month Eurodollar Rate).
2. If the representation and warranty in either clause (b)(i) or (b)(ii)
would be incorrect, include the material in brackets and set forth the
reasons such representation and warranty would be incorrect on an
attachment labeled Annex A.
-2-
170
Schedule 1.03(c)(iv)
--------------------
NOTICE OF CONVERSION OR CONTINUATION
[Name and address
of Administrative Agent in
accordance with Section 9.01(a)(ii)]
Date:
Ladies and Gentlemen:
Reference is made to the Credit Agreement, dated as of November 30, 1994,
as amended and restated as of September 26, 1996, among LWWI Broadcasting Inc.,
LIN Television Corporation, the banks listed on the signature pages thereof, The
Bank of Nova Scotia, Barclays Bank PLC, Fleet National Bank and NationsBank of
Texas, N.A., as Co-Agents, The Bank of New York, The Chase Manhattan Bank,
Citicorp Securities, Inc., and Toronto Dominion (New York), Inc., as Arranging
Agents, The Bank of New York, as Documentation Agent, Toronto Dominion (Texas),
Inc., as Administrative Agent, and The Chase Manhattan Bank, as Syndication
Agent (the "Credit Agreement"). The undersigned hereby gives notice pursuant to
Section 1.03(c)(iv) of the Credit Agreement of its desire to convert or continue
the [RC] [Incremental] Loans specified below into or as Loans of the Types and
in the amounts specified below on [insert date of conversion or continuation]:
Converted
Loans to be Converted or Continued or Continued Loans
---------------------------------- ------------------
Last Day of
Type Current Type
of Loan(1) Interest Period Amount of Loan(1) Amount
---------- --------------- ------ ---------- ------
---------- --------------- ------ ---------- ------
---------- --------------- ------ ---------- ------
---------- --------------- ------ ---------- ------
171
The undersigned represents and warrants that conversions and continuations
requested hereby comply with the requirements of Section 1.03(c) of the Credit
Agreement.
LWWI BROADCASTING INC.
By
----------------------------
Name:
Title:
-------------------
1. Be sure to specify the duration of the Interest Period in the case of
Fixed Rate Loans (E.G., one-month Eurodollar Rate).
-2-
172
Schedule 1.05(a)
----------------
NOTICE OF PREPAYMENT
[Name and address
of Administrative Agent in
accordance with Section 9.01(a)(ii)]
Date:
Ladies and Gentlemen:
Reference is made to the Credit Agreement, dated as of November 30, 1994,
as amended and restated as of September 26, 1996, among LWWI Broadcasting Inc.,
LIN Television Corporation, the banks listed on the signature pages thereof, The
Bank of Nova Scotia, Barclays Bank PLC, Fleet National Bank and NationsBank of
Texas, N.A., as Co-Agents, The Bank of New York, The Chase Manhattan Bank,
Citicorp Securities, Inc., and Toronto Dominion (New York), Inc., as Arranging
Agents, The Bank of New York, as Documentation Agent, Toronto Dominion (Texas),
Inc., as Administrative Agent, and The Chase Manhattan Bank, as Syndication
Agent (the "Credit Agreement"). The undersigned hereby gives notice pursuant to
Section 1.05 (a) of the Credit Agreement that it will prepay the [RC]
[Incremental] Loans specified below on [insert date of prepayment]:
Last Day of
Current
Type of Loan(1) Interest Period Amount
--------------- --------------- ------
--------------------- --------------- -------------
--------------------- --------------- -------------
--------------------- --------------- -------------
The undersigned represents and warrants that the prepayment requested
hereby complies with the requirements of Section 1.05(a) of the Credit
Agreement.
LWWI BROADCASTING INC.
By
---------------------------
Name:
Title:
-------------------
1. Be sure to specify the duration of the Interest Period in the case of Fixed
Rate Loans (E.G., one-month Eurodollar Rate).
173
Schedule 2.01(a)(i)
-------------------
[NAME OF LOAN PARTY]
CERTIFICATE AS TO RESOLUTIONS, ETC.
I,_________________, [Assistant] Secretary of [name of Loan Party], a
___________ corporation (the "Company"), hereby certify, pursuant to Section
2.01(a)(i) of the Credit Agreement, dated as of November 30, 1994, as amended
and restated as of September 26, 1996, among LWWI Broadcasting Inc., LIN
Television Corporation, the banks listed on the signature pages thereof, The
Bank of Nova Scotia, Barclays Bank PLC, Fleet National Bank and NationsBank of
Texas, N.A., as Co-Agents, The Bank of New York, The Chase Manhattan Bank,
Citicorp Securities, Inc., and Toronto Dominion (New York), Inc., as Arranging
Agents, The Bank of New York, as Documentation Agent, Toronto Dominion (Texas),
Inc., as Administrative Agent, and The Chase Manhattan Bank, as Syndication
Agent that:
1. The below named persons have been duly elected (or appointed)
and have duly qualified as, and on this day are, officers of the
Company holding their respective offices below set opposite their
names, and the signatures below set opposite their names are their
genuine signatures:
Name Office Signature
---- ------ ---------
[Insert names and offices ---------------------------
of persons authorized to sign the ---------------------------
Loan Documents to which ---------------------------
the Company is a party ---------------------------
and any related documents] ---------------------------
2. (a) Attached as Annex A is a true and correct copy of
resolutions duly adopted by [unanimous written consent of] the Board
of Directors of the Company. Such resolutions have not been amended,
modified or revoked and are in full force and effect on the date
hereof.
[(b) Attached as Annex A-1 is a true and correct copy of
resolutions duly adopted by [unanimous written consent of] the
stockholders of the Company. Such resolutions have not been amended,
modified or
174
revoked and are in full force and effect on the date hereof.](l)
3. [List Loan Documents to which the Company is a party], in each
case as executed and delivered on behalf of the Company, are in the
forms thereof approved by [unanimous written consent of] the Board of
Directors of the Company.
4. There has been no amendment to the Certificate of
Incorporation of the Company since _____________, 19__.(2)
5. Attached as Annex B is a true and correct copy of the By-laws
of the Company as in effect on ____________, 19__(3) and at all
subsequent times to and including the date hereof.
IN WITNESS WHEREOF, I have signed this certificate this __ day of
______________, 19__.
-----------------------------
[Assistant] Secretary
I, __________________, [title] of the Company, hereby certify that [name of
the above [Assistant] Secretary] has been duly elected or appointed and has been
duly qualified as, and on this day is, [Assistant] Secretary of the Company, and
the signature in paragraph 1 above is his genuine signature.
IN WITNESS WHEREOF, I have signed this certificate this __ day of
____________, 19__.
-----------------------------
[Title]
--------------
1. Omit if not applicable.
2. Insert date of the Secretary of State's Certificate of Incorporation
required by Section 2.01(b)(ix) or 2.02(a)(ii).
3. Insert date of the Board of Directors' meeting adopting the resolutions
referred to in paragraph 2(a).
-2-
175
ANNEX A
-------
[NAME OF LOAN PARTY]
RESOLUTIONS OF BOARD OF DIRECTORS(1)
[WHEREAS, LWWI Broadcasting Inc. (the "Borrower") intends to enter into an
amended and restated credit agreement (the "Credit Agreement") with LIN
Television Corporation, the banks listed on the signature pages thereof (the
"Banks"), The Bank of Nova Scotia, Barclays Bank PLC, Fleet National Bank and
NationsBank of Texas, N.A., as Co-Agents, The Bank of New York, The Chase
Manhattan Bank, Citicorp Securities, Inc., and Toronto Dominion (New York),
Inc., as Arranging Agents, The Bank of New York, as Documentation Agent, Toronto
Dominion (Texas), Inc., as Administrative Agent (the "Administrative Agent"),
and The Chase Manhattan Bank, as Syndication Agent, in substantially the form of
the draft of __________, 19__ attached, pursuant to which the Borrower may,
subject to the terms and conditions of the Credit Agreement, borrow up to
600,000,000; and](2)
[WHEREAS, borrowings by the Borrower under the Credit Agreement will be of
direct and indirect benefit to this Corporation; and](2)
[WHEREAS, it is a condition to such borrowings under the Credit Agreement
that this Corporation guarantee all of the Guaranteed Obligations (as defined in
the below-mentioned Guaranty Agreement); and ](2)
[WHEREAS, it is in the best interests of this Corporation that this
Corporation so guarantee the Guaranteed Obligations, it is hereby](2)
RESOLVED, that this Corporation is authorized to borrow from the Banks,
under and pursuant to such Credit Agreement, an aggregate principal amount not
to exceed at any time outstanding 600,000,000, to be repaid in accordance with
the Credit Agreement, with interest on the unpaid principal amounts thereof from
time to time outstanding at the interest rates per annum provided for in the
Credit Agreement; and be it further
RESOLVED, that this Corporation is authorized to guarantee all of the
Guaranteed Obligations (as defined in the below-mentioned Guaranty Agreement);
and be it further
RESOLVED, that the form, terms and provisions of:
176
(a) the proposed Credit Agreement, as amended and restated, in
substantially the form of the draft of _____________, 19__, among LWWI
Broadcasting Inc., LIN Television Corporation, the Banks, The Bank of
Nova Scotia, Barclays Bank PLC, Fleet National Bank and NationsBank of
Texas, N.A., as Co-Agents, The Bank of New York, The Chase Manhattan
Bank, Citicorp Securities, Inc. and Toronto Dominion (New York), Inc.,
as Arranging Agents, The Bank of New York, as Documentation Agent,
Toronto Dominion (Texas), Inc., as Administrative Agent and The Chase
Manhattan Bank, as Syndication Agent (the "Credit Agreement"),
providing, among other things, (i) for the making by the Banks to this
Corporation from time to time of advances ("Loans") in an aggregate
principal amount not to exceed at any time outstanding 600,000,000
upon the terms and conditions therein set forth, (ii) for the payment
by this Corporation of the fees, costs and expenses as therein
provided AND (iii) FOR THE WAIVER BY THIS CORPORATION OF TRIAL BY
JURY;
(b) the proposed promissory notes (the "Notes"), in substantially
the form of EXHIBIT A to the draft of the Credit Agreement referred to
in paragraph (a) of this resolution, to be issued by LWWI Broadcasting
Inc. to the Banks pursuant to the terms and conditions of the Credit
Agreement, to evidence the indebtedness of LWWI Broadcasting Inc. to
the Banks resulting from each of the Loans made by the Banks to LWWI
Broadcasting Inc. and providing, among other things, for the repayment
of such Loans, and payment of interest thereon;
(c) the proposed Guaranty Agreement (the "Guaranty Agreement"),
in substantially the form of the draft of __________, 19__, between
this Corporation and the Administrative Agent, providing, among
other things, (i) for the guaranty by this Corporation of the
Guaranteed Obligations (as defined therein), and (ii) for the waiver
by this Corporation of all acts or failures to act that would
otherwise constitute a discharge of its obligations thereunder; and
be, and the same hereby are, in all respects approved, and that the Chairman of
the Board of Directors of this Corporation, the President, any Vice President or
the Treasurer of this Corporation be, and each of them hereby is, authorized, in
the name and on behalf of this Corporation, to execute and deliver [the Credit
Agreement,] [the Notes,] the Guaranty Agreement, (collectively, the "Loan
Documents"), each in the form, or substantially in the form, thereof submitted
to the Board of Directors of this Corporation, with such changes, additions and
-2-
177
modifications thereto as the officer of this Corporation executing the same
shall approve, such approval to be conclusively evidenced by his execution and
delivery thereof; and be it further
RESOLVED, that the drafts of the Loan Documents referred to above be filed
by the Secretary of this Corporation among the minutes of the Board of Directors
of this Corporation; and be it further
RESOLVED, that the proper officers of this Corporation be, and each of them
hereby is, authorized and empowered (any one of them acting alone) to do or
cause to be done all such acts or things and to sign and deliver, or cause to be
signed and delivered, all such documents, instruments and certificates
(including, without limitation, all notices and certificates required or
permitted to be given or made under the terms of the Loan Documents), in the
name and on behalf of this Corporation or otherwise, as such officer of this
Corporation may deem necessary, advisable or appropriate to effectuate or carry
out the purposes and intent of the foregoing resolutions and to perform the
obligations of this Corporation under the agreements and instruments referred to
therein.
--------------
1. The resolutions for each Loan Party should include only those portions of
the following resolutions that relate to the Loan Documents to which such
Loan Party is a party.
2. This recital should be included, in appropriate form, in the resolutions of
each Loan Party other than the Borrower.
-3-
178
Annex A-1
---------
[NAME OF LOAN PARTY]
RESOLUTIONS OF SHAREHOLDERS
[Insert applicable resolutions]
179
Schedule 2.01(a)(iv)
--------------------
September 26, 1996
To each Agent, each Co-Agent,
and each Bank party to the Credit
Agreement referred to below
Re: Credit Agreement, dated as of November 30, 1994, as amended and restated as
of September 26, 1996, among LWWI Broadcasting Inc., LIN Television
Corporation, the Banks listed on the signature pages thereof, Barclays Bank
PLC, Fleet National Bank, NationsBank of Texas, N.A., and The Bank of Nova
Scotia, as Co-Agents, The Bank of New York, The Chase Manhattan Bank,
Citicorp Securities, Inc. and Toronto Dominion (New York), Inc. as
Arranging Agents, The Bank of New York, as Documentation Agent, The Chase
Manhattan Bank, as Syndication Agent, and Toronto Dominion (Texas), Inc.,
as Administrative Agent
--------------------------------------------------------------------------
Ladies and Gentlemen:
This opinion is furnished to you in connection with the Credit Agreement,
dated as of November 30, 1994, as amended and restated as of September 26, 1996,
among LWWI Broadcasting Inc. (the "Borrower"), LIN Television Corporation ("LIN
Television"), the Banks listed on the signature pages thereof, Barclays Bank
PLC, Fleet National Bank, NationsBank of Texas, N.A., and The Bank of Nova
Scotia, as Co-Agents, The Bank of New York, The Chase Manhattan Bank, Citicorp
Securities, Inc. and Toronto Dominion (New York), Inc., as Arranging Agents, The
Bank of New York, as Documentation Agent, The Chase Manhattan Bank, as
Syndication Agent, and Toronto Dominion (Texas), Inc., as Administrative Agent
(the "Credit Agreement"). Capitalized terms used herein and not otherwise
defined have the meanings ascribed to them in the Credit Agreement.
We are members of the Bar of the State of New York and do not hold
ourselves out as experts on the laws of any other state except the General
Corporation Law of the State
180
of Delaware, and the opinions expressed below are limited to the General
Corporation Law of the State of Delaware, the laws of the State of New York, and
the federal laws of the United States, except that (other than as expressly set
forth in the penultimate paragraph hereof) we express no opinion as to matters
arising under or governed by the Telecommunications Act of 1996, the
Communications Act of 1934, as amended, or the rules and regulations and
published opinions of the Federal Communications Commission promulgated
thereunder (collectively, the "Communications Act"). Without limiting the
generality of the foregoing, we express no opinion as to the effect of the law
of any jurisdiction other than the State of New York wherein any Agent, any
Co-Agent or any Bank may be located or wherein enforcement of the Credit
Agreement and Guaranty Agreement may be sought that limits the rates of interest
legally chargeable or collectable.
We have acted as counsel for each Loan Party in connection with the
execution and delivery of the Credit Agreement and the Guaranty Agreement, dated
as of September 26, 1996, between LIN Television and the Administrative Agent
(the "Guaranty Agreement").
In that connection and in rendering our opinion, we have examined:
(1) executed counterparts of the Credit Agreement;
(2) executed counterparts of the Guaranty Agreement;
(3) the Certificate of Incorporation of each Loan Party and all
amendments thereto (the "Charter");
(4) the by-laws of each Loan Party and all amendments thereto
(the "By-laws"); and
(5) certificates of the Secretary of State of Delaware, dated a
recent date, attesting to the continued corporate or limited
partnership existence and good standing of each Loan Party in
Delaware.
In addition, we have examined the originals, or copies certified or otherwise
identified to our satisfaction, of such other corporate records, documents,
certificates and other instruments of each Loan Party, certificates of public
officials and of officers and other representatives of each Loan Party, and such
other agreements, instruments and documents, as we have deemed necessary as a
basis for the opinions hereinafter expressed. As to questions of fact, we
2
181
have relied solely upon the foregoing and upon the representations contained in
or made pursuant to the Credit Agreement and the Guaranty Agreement. Except as
set forth above with respect to the examination of such agreements,
certificates, records, documents and instruments, we have made no other
investigations with respect to factual matters.
Whenever our opinion herein is indicated to be based upon our knowledge of
any matter or issue, it is intended to signify that, in the course of our
preparation of this opinion and representation of each Loan Party in connection
with the negotiation of the Credit Agreement, without having made any special
investigation, none of the attorneys who were involved in the preparation of the
opinion, or such representation of such Loan Parties, has acquired actual
knowledge of the matter or issue.
For purposes of this opinion, we have assumed, without independent
verification:
(1) the genuineness of all signatures and the authenticity
of all documents submitted to us as originals and the conformity
to authentic originals of all documents submitted to us as
certified, conformed or photostatic copies and the authenticity
of the originals of such copies; and
(2) the due authorization, execution and delivery of the
Credit Agreement and the Guaranty Agreement by each Agent, each
Co-Agent and each Bank (each, an "Other Party") party thereto,
and that each Other Party has full power, authority and legal
right to enter into and perform each of such agreements and
documents to which it is a party, and that each of the same is
the legal, valid and binding obligation of each such Other Party,
enforceable against him or it in accordance with its terms.
Based upon the foregoing, subject to the assumptions, qualifications and
limitations stated herein, and relying as to factual matters solely upon
statements of fact contained in the documents that we have examined, we are of
the opinion that:
1. Each Loan Party is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware, has the corporate
power and authority to own its properties and to carry on its businesses as
now being conducted.
3
182
2. Each Loan Party has the power, and has taken all necessary action
(including any necessary stockholder action), to authorize it, to execute,
deliver and perform in accordance with their respective terms the Credit
Agreement and, in the case of LIN Television, the Guaranty Agreement, and,
in the case of the Borrower, to borrow under the Credit Agreement in the
unused amount of the Commitments and to consummate the other transactions
contemplated by the Credit Agreement and Guaranty Agreement.
3. The Credit Agreement has been duly executed and delivered by each Loan
Party and is the legal, valid and binding obligation of each Loan Party,
enforceable against each Loan Party in accordance with its terms.
4. The Guaranty Agreement has been duly executed and delivered by LIN
Television and is the legal, valid and binding obligation of LIN
Television, enforceable against LIN Television in accordance with its
terms.
5. Except as set forth in either the Credit Agreement or the Guaranty
Agreement (including by reference to a schedule or exhibit), none of (a)
the execution, delivery and performance in accordance with their respective
terms by each Loan Party of the Credit Agreement and by LIN Television of
the Guaranty Agreement, (b) any borrowing under the Credit Agreement,
whether or not in the amount of the unused Commitments, or (c) the exercise
by the Agents, the Co-Agents or the Banks of any of their respective
rights and remedies expressly set forth in the Credit Agreement or the
Guaranty Agreement, does or will:
(i) require any Governmental Approval, any consent or approval of any
Loan Party or the stockholders of any Loan Party, or, to our
knowledge, any other consent or approval under the terms of any
Material Agreement; or
(ii) violate or conflict with, result in a breach of, constitute a
default under, or result in or require the creation of any Lien
upon any assets of any Loan Party under, (A) its Charter or
By-laws, (B) to our knowledge, any other Material Agreement,
other than the Credit Agreement and the Guaranty Agreement, (C)
any Applicable Law referred to in clause (a) or (b)(i) of the
definition thereof that is applicable to any Loan Party, any
Credit Agreement and the Guaranty Agreement or any of the
transactions contemplated thereby or
4
183
(D) to our knowledge, any other Applicable Law.
6. None of the Loan Parties is an "investment company" or a Person
"controlled" by an "investment company", within the meaning of the
Investment Company Act of 1940, as amended.
7. No Loan Party is a "holding company," or a "subsidiary company" of a
"holding company," or an "affiliate" of a "holding company," or of a
"subsidiary company" of a "holding company," as such terms are defined in
the Public Utility Holding Company Act of 1935, as amended.
8. Each Network Affiliation Agreement set forth on Schedule 3.21 to the Credit
Agreement is the legal, valid and binding obligation of each Person that is
a party thereto, enforceable against each such Person in accordance with
its terms.
Our opinions expressed above are qualified as follows:
(a) The enforceability of, and the obligations of the Loan Parties and
the rights of the Agents, Banks and other Indemnified Parties under,
the Credit Agreement and the Guaranty Agreement are subject to and may
be limited by (i) the Bankruptcy Code, (ii) any applicable insolvency,
bankruptcy, reorganization, moratorium, fraudulent conveyance,
preference or other similar laws relating to or affecting the
enforcement of creditors' rights generally, (iii) general principles
of equity (whether considered in a proceeding in equity or at law)
limiting the availability of the remedy of specific enforcement and
affecting the enforcement of creditors' rights generally, (iv)
considerations of public policy or applicable federal or state laws or
regulations limiting the enforceability of indemnities and (v) a
requirement that remedies be exercised and other acts of a creditor be
taken with reasonableness and in good faith. In applying any of the
foregoing principles, a court, among other things, might not allow
acceleration of the maturity of a debt or termination of a lender's
commitments to advance funds, for non-credit reasons or upon the
occurrence of a default deemed immaterial, or might decline to order a
debtor to perform covenants. Furthermore, a court may refuse to
enforce a covenant or recognize a default where a
5
184
court deems such covenant or default to be violative of applicable
public policy.
(b) Our opinion is subject to judicial limitations on the enforceability
of releases of unknown claims and claims arising out of future acts
and of releases of claims in contravention of public policy, and
limitations (judicial, statutory or otherwise) on the enforceability
of (i) waivers of provisions of Applicable Law, (ii) standards of
commercial reasonableness inconsistent with Applicable Law and (iii)
provisions purporting to limit the liability of any lender.
(c) We express no opinion as to the effect on the opinions expressed
herein of (i) the compliance or noncompliance of any party (other than
the Loan Parties) to the Credit Agreement and the Guaranty Agreement
with any state, federal or other laws or regulations applicable to it
or (ii) the legal or regulatory status or nature of the business of
any party to the Credit Agreement and the Guaranty Agreement (other
than the Loan Parties).
While we are not expert in the Communications Act, we advise you that, to
our knowledge (as defined above), except as set forth in either the Credit
Agreement or the Guaranty Agreement (including by reference to a schedule or
exhibit) and subject to the assumptions, qualifications and limitations stated
herein, none of (a) the execution, delivery and performance in accordance with
their respective terms by each Loan Party of the Credit Agreement and by LIN
Television of the Guaranty Agreement, (b) any borrowing under the Credit
Agreement, whether or not in the amount of the unused Commitments, or (c) the
exercise by the Agents, the Co-Agents or the Banks of any of their respective
rights and remedies expressly set forth in the Credit Agreement or the Guaranty
Agreement, does or will require any Governmental Approval under the
Communications Act or violate or conflict with, result in a breach of,
constitute a default under, or result in or require the creation of any Lien
upon any assets of any Loan Party under the Communications Act.
This opinion is addressed only to each Agent, each Co-Agent, and each Bank
that is party to the Credit Agreement, and is being rendered solely in
connection with the closing of the transactions under the Credit Agreement. No
other Person is entitled to rely hereon for any purpose, and no Person is
entitled to rely hereon for any other purpose. We assume no obligation to update
or supplement this opinion to reflect any facts or circumstances that may
6
185
hereafter come to our attention or any changes in facts or law that may
hereafter occur.
Very truly yours,
7
186
Schedule 2.01(a)(v)
-------------------
[LETTERHEAD of]
[Winthrop, Stimson, Xxxxxx & Xxxxxxx]
September 26, 1996
To each Agent, each Co-Agent,
and each Bank party to the
Credit Agreement referred
to below
Ladies and Gentlemen:
We have acted as counsel to The Bank of New York, The Chase Manhattan Bank,
Citicorp Securities, Inc. and Toronto Dominion (New York), Inc., as Arranging
Agents, in connection with the negotiation, execution and delivery of the Credit
Agreement, dated as of November 30, 1994, as amended and restated as of
September 26, 1996, among LWWI Broadcasting Inc., a Delaware corporation (the
"Borrower"), LIN Television Corporation, a Delaware corporation ("LIN
Television"), the banks listed on the signature pages thereof, The Bank of Nova
Scotia, Barclays Bank PLC, Fleet National Bank and NationsBank of Texas, N.A.,
as Co-Agents, The Bank of New York, The Chase Manhattan Bank, Citicorp
Securities, Inc., and Toronto Dominion (New York), Inc., as Arranging Agents,
The Bank of New York, as Documentation Agent, Toronto Dominion (Texas), Inc., as
Administrative Agent, and The Chase Manhattan Bank, as Syndication Agent (the
"Credit Agreement"). Terms defined in the Credit Agreement that are not
otherwise defined herein are used herein with the meanings therein ascribed to
them.
For the purposes of rendering the opinions contained in this letter, we
have examined and reviewed executed counterparts of the Credit Agreement and the
Guaranty Agreement (collectively, the "Loan Documents").
For the purposes of this opinion, we have assumed (i) the authenticity of
all documents submitted to us as originals, (ii) the due authorization,
execution and delivery by the Agents, the Co-Agents and the Banks of each Loan
Document to which they
187
are parties, (iii) that each of the Loan Parties has the corporate power, and
have taken all necessary corporate action to authorize it, to execute, deliver
and perform each Loan Document to which it is a party, (iv) that the Loan
Documents have been duly executed and delivered by each of the Loan Parties
party thereto and (v) that the execution, delivery and performance in accordance
with their respective terms by each of the Loan Parties of the Loan Documents to
which it is a party do not and will not (A) require any Governmental Approval or
any other consent or approval, other than Governmental Approvals and other
consents and approvals that have been obtained, are final and not subject to
review or collateral attack and are in full force and effect, or (B) violate or
conflict with, result in a breach of, or constitute a default under (1) any
Contract to which any of the Loan Parties is a party or by which it or its
properties may be bound or (2) any Applicable Law referred to in clause (b)(ii)
or (iii) of the definition thereof contained in the Credit Agreement.
Based upon the foregoing, and subject to the qualifications and limitations
set forth herein, we are of the opinion that the Loan Documents are legal, valid
and binding obligations of each Loan Party party thereto, enforceable against
each Loan Party party thereto in accordance with their respective terms.
Our opinion above is subject to the following qualifications and
limitations:
(a) Our opinion is subject to the effect of applicable bankruptcy,
insolvency, reorganization, fraudulent conveyance and other laws affecting
the enforcement of creditors' rights generally and to the effect of general
equitable principles (whether considered in a proceeding in equity or at
law). Such principles applied by a court might include a requirement that a
creditor act with reasonableness and good faith.
(b) Our opinions are limited to the law of the State of New York and
the Federal law of the United States. Without limiting the generality of
the foregoing, we express no opinion as to the effect of the law of any
jurisdiction other than the State of New York wherein any Agent, any
Co-Agent or any Bank may be located or wherein enforcement of the Loan
Documents may be sought that limits the rates of interest legally
chargeable or collectable.
(c) Certain remedial provisions of the Loan Documents may be
unenforceable in whole or in part, but the inclusion of such provisions
does not affect the validity of the balance of the Loan Documents, and the
Loan Documents taken as a whole contain adequate provisions for enforcing
the obligations of the Loan Parties party thereto pursuant thereto and for
the practical realization of the benefits
-2-
188
created thereby. In addition, certain remedial provisions of the Loan
Documents may be subject to procedural requirements not set forth therein.
This opinion is intended for the sole benefit of the Agents, the Co-Agents
and the Banks and no other Person shall be entitled to rely hereon for any
purpose.
Very truly yours,
-3-
189
September 26, 1996
To each Agent, each Co-Agent,
and each Bank party to the
Credit Agreement referred
to below
Ladies and Gentlemen:
We have acted as counsel to The Bank of New York, The Chase Manhattan Bank,
Citicorp Securities, Inc. and Toronto Dominion (New York), Inc., as Arranging
Agents, in connection with the negotiation, execution and delivery of the Credit
Agreement, dated as of November 30, 1994, as amended and restated as of
September 26, 1996, among LWWI Broadcasting Inc., a Delaware corporation (the
"Borrower"), LIN Television Corporation, a Delaware corporation ("LIN
Television"), the banks listed on the signature pages thereof, The Bank of Nova
Scotia, Barclays Bank PLC, Fleet National Bank and NationsBank of Texas, N.A.,
as Co-Agents, The Bank of New York, The Chase Manhattan Bank, Citicorp
Securities, Inc., and Toronto Dominion (New York), Inc., as Arranging Agents,
The Bank of New York, as Documentation Agent, Toronto Dominion (Texas), Inc., as
Administrative Agent, and The Chase Manhattan Bank, as Syndication Agent (the
"Credit Agreement"). Terms defined in the Credit Agreement that are not
otherwise defined herein are used herein with the meanings therein ascribed to
them.
For the purposes of rendering the opinions contained in this letter, we
have examined and reviewed executed counterparts of the Credit Agreement and the
Guaranty Agreement (collectively, the "Loan Documents").
For the purposes of this opinion, we have assumed (i) the authenticity of
all documents submitted to us as originals, (ii) the due authorization,
execution and delivery by the Agents, the Co-Agents and the Banks of each Loan
Document to which they are parties, (iii) that each of the Loan Parties has the
190
corporate power, and have taken all necessary corporate action to authorize it,
to execute, deliver and perform each Loan Document to which it is a party, (iv)
that the Loan Documents have been duly executed and delivered by each of the
Loan Parties party thereto and (v) that the execution, delivery and performance
in accordance with their respective terms by each of the Loan Parties of the
Loan Documents to which it is a party do not and will not (A) require any
Governmental Approval or any other consent or approval, other than Governmental
Approvals and other consents and approvals that have been obtained, are final
and not subject to review or collateral attack and are in full force and effect,
or (B) violate or conflict with, result in a breach of, or constitute a default
under (1) any Contract to which any of the Loan Parties is a party or by which
it or its properties may be bound or (2) any Applicable Law referred to in
clause (b)(ii) or (iii) of the definition thereof contained in the Credit
Agreement.
Based upon the foregoing, and subject to the qualifications and limitations
set forth herein, we are of the opinion that the Loan Documents are legal, valid
and binding obligations of each Loan Party party thereto, enforceable against
each Loan Party party thereto in accordance with their respective terms.
Our opinion above is subject to the following qualifications and
limitations:
(a) Our opinion is subject to the effect of applicable bankruptcy,
insolvency, reorganization, fraudulent conveyance and other laws affecting
the enforcement of creditors' rights generally and to the effect of general
equitable principles (whether considered in a proceeding in equity or at
law). Such principles applied by a court might include a requirement that a
creditor act with reasonableness and good faith.
(b) Our opinions are limited to the law of the State of New York and
the Federal law of the United States. Without limiting the generality of
the foregoing, we express no opinion as to the effect of the law of any
jurisdiction other than the State of New York wherein any Agent, any
Co-Agent or any Bank may be located or wherein enforcement of the Loan
Documents may be sought that limits the rates of interest legally
chargeable or collectable.
(c) Certain remedial provisions of the Loan Documents may be
unenforceable in whole or in part, but the inclusion of such provisions
does not affect the validity of the balance of the Loan Documents, and the
Loan Documents taken as a whole contain adequate provisions for enforcing
the obligations of the Loan Parties party thereto pursuant thereto and for
the practical realization of the benefits created thereby. In addition,
certain remedial provisions
-2-
191
of the Loan Documents may be subject to procedural requirements not set
forth therein.
This opinion is intended for the sole benefit of the Agents, the Co-Agents
and the Banks and no other Person shall be entitled to rely hereon for any
purpose.
Very truly yours,
-3-
192
Schedule 3.02
-------------
Schedule of Subsidiaries (as of 9/20/96)
----------------------------------------
Percentage of
Shares Owned
Shares of Shares of Directly or Consolidated
State of Capital Stock Capital Indirectly by Subsidiary
Subsidiaries Incorporation Authorized Outstanding the Guarantor Y/N
------------ ------------- ---------- ----------- ------------- ---
LWWI Broadcasting Inc. DE 1,000 1,000 100% Yes
KXAN, Inc. DE 1,000 1,000 100% Yes
KXAS Holdings, Inc. DE 1,000 1,000 100% Yes
LIN Television of Texas, Inc. DE 1,000 1,000 100% Yes
Satellite Signals, Inc. NY 60,000 60,000 100% Yes
LIN Television of Texas, L.P. TX N/A-Partnership N/A Yes
Buffalo Broadcasting Co., Inc. NY 98,692 98,692 100% Yes
North Texas Broadcasting Corporation DE 1,000 1,000 100% Yes
Buffalo Management Enterprises NY 100 100 100% Yes
WAND Television, Inc. DE 5,000 1,100 100% Yes
LIN Sports, Inc. DE 1,000 1,000 100% Yes
WAVY Broadcasting, Inc. DE 1,000 1,000 100% Yes
Airwaves, Inc. DE 1,000 1,000 100% Yes
WAVY Television, Inc. DE 1,000 1,000 100% Yes
LINbenco, Inc. DE 1,000 1,000 100% Yes
WTNH Broadcasting, Inc. DE 1,000 1,000 100% Yes
193
Schedule 3.03
-------------
SCHEDULE OF REQUIRED CONSENTS AND GOVERNMENTAL APPROVALS
--------------------------------------------------------
NONE
194
Schedule 3.05
-------------
SCHEDULE OF MATERIAL LITIGATION
-------------------------------
NONE
195
Schedule 3.07
-------------
SCHEDULE OF ADDITIONAL MATERIAL ADVERSE FACTS
---------------------------------------------
1. See "Competition" and "Licensing and Regulation" sections at pp. 8-14 of the
LIN Television Corporation Form 10-K for the year ended December 31, 1995.
196
Schedule 3.07
-------------
COMPETITION
Competition in the television industry takes place on several levels:
competition for audience, competition for programming (including news) and
competition for advertisers. Factors that are material to a television station's
competitive position include network affiliation, quality of programming, signal
coverage and assigned frequency. The broadcasting industry is continually faced
with technological change and innovation, the possible rise in popularity of
competing entertainment and communications media, and governmental restrictions
or actions of federal regulatory bodies, including the FCC and the FTC, any of
which could have a material adverse effect on the Company's operations.
AUDIENCE. Stations compete for audience on the basis of program popularity,
which has a direct effect on advertising rates. The development of methods of
television transmission other than over-the-air broadcasting and, in particular,
the growth of cable television have significantly altered competition for
audience in the television broadcasting industry. As the technology of satellite
program delivery to cable systems advanced in the late 1970s, development of
programming for cable television accelerated dramatically, resulting in the
emergence of multiple, national-scale program alternatives and the rapid
expansion of cable television and higher subscriber growth rates. Historically,
cable operators have not sought to compete with broadcasting stations for a
share of the local news audience. Recently, however, certain cable operators
have elected to compete for such audiences.
Other sources of audience competition include home entertainment systems
(including videocassette recorder and playback systems, videodiscs and
television game devices), wireless cable, satellite master antenna television
systems, LPTVs, low-power satellite-to-home video distribution services, and
telephone company video systems, computer on-line services and other
entertainment and advertising media. The Stations also face competition from
high-powered direct broadcast satellite services that can transmit programming
directly to homes equipped with special receiving devices. Two direct broadcast
satellite ("DBS") companies provide nationwide service, a third is expected to
launch in mid-1996, and MCI has acquired the right to launch a fourth DBS
service in a joint venture with the parent company of Fox.
Further advances in technology may increase competition for household
audiences and advertisers. Video compression techniques, now in use with direct
broadcast satellites and under development for cable and "wireless cable," are
expected to permit substantially greater numbers of channels to be carried with
existing bandwidth. These compression techniques, as well as other technological
developments, are applicable to all video delivery systems, including
over-the-air broadcasting, and have the potential to provide expanded
programming to highly targeted audiences. A reduction in the cost of creating
additional channel capacity could lower entry barriers for new channels and
encourage the development of increasingly specialized "niche" programming. This
ability to reach very specific audiences is expected to alter the competitive
dynamics for advertising expenditures and could have an adverse effect on the
Company's ability to generate revenues.
Programming. Competition for programming involves negotiating with national
program distributors or syndicators that sell first-run and rerun programming.
The Stations compete against in-market television broadcasting station
competitors for exclusive access to off-network reruns (such as Cheers) and
first-run products (such as Wheel of Fortune) in their respective markets. There
is no assurance that the Company will not be exposed to volatile or increased
programming costs that may adversely affect the Company's operating results.
Further, because syndicated programs are generally purchased in advance of being
broadcast, the Company may not accurately predict how a program will perform.
The Company minimizes this risk by generally limiting its commitments for
unproven syndicated non-network programming to no more than two years.
Syndicated programs may be purchased for cash, for cash and barter, or for
barter only. Under a barter arrangement, a national program syndicator receives
advertising time in exchange for the programming it supplies, and the station
pays a reduced cash fee or no fee for such programming. Cable systems generally
do not compete with local stations for programming, although various national
cable networks have acquired programs that would have otherwise been offered to
local television broadcasting stations. Competition also occurs for exclusive
news stories and features and local sports programming.
8
197
Schedule 3.07
-------------
Advertising. Television broadcasting stations compete for advertising
revenues with other stations in their respective markets, as well as with other
advertising media, such as newspapers, radio, magazines, outdoor advertising
transit advertising, yellow page directories, direct mail and local cable
systems. Competition for advertising dollars in the broadcasting industry occurs
primarily in individual markets. Generally, a television broadcasting station in
one market does not compete with stations in other markets.
The television broadcasting industry is undergoing a period of
consolidation and significant change. Many of the Company's current and
potential competitors have significantly greater financial, marketing,
programming and broadcasting resources than the Company. The Company, however,
believes that its local news programming, network affiliations and management of
its sales resources have to date enabled it to compete effectively in its
markets. Nonetheless, there is no assurance that the Company's strategy will
continue to be effective or that the introduction of new competitors for
television audiences will not have a material adverse effect on the Company's
financial condition and results of operations.
LICENSING AND REGULATION
The following is a brief discussion of certain provisions of the
Communications Act of 1934, as amended (the "Communications Act"), and of FCC
regulations and policies that affect the business operations of television
broadcasting stations. Reference should be made to the Communications Act, FCC
rules and the public notices and rulings of the FCC, on which this discussion is
based, for further information concerning the nature and extent of FCC
regulation of television broadcasting stations.
License Renewal, Assignments and Transfers. Television broadcast licenses
are granted for a maximum term of eight years (five years prior to 1996) and are
subject to renewal upon application to the FCC. The FCC prohibits the assignment
of a license or the transfer of control of a broadcast license without prior
FCC approval. In determining whether to grant or renew a broadcast license, the
FCC considers a number of factors pertaining to the applicant, including
compliance with a variety of ownership limitations and compliance with
character and technical standards. During certain limited periods when a renewal
application is pending, petitions to deny a license renewal may be filed by
interested parties, including members of the public. Such petitions may raise
various issues before the FCC. The FCC is required to hold evidentiary,
trial-type hearings on renewal applications if a petition to deny renewal of
such license raises a "substantial and material question of fact" as to whether
the grant of the renewal application would be inconsistent with the public
interest, convenience and necessity. The FCC must grant the renewal application
if, after notice and opportunity for a hearing, it finds that the incumbent has
served the public interest and has not committed any serious violation of FCC
requirements. If the incumbent fails to meet that standard, and if it does not
show other mitigating factors warranting a lesser sanction, the FCC has
authority to deny the renewal application and consider a competing application.
Failure to observe FCC rules and policies, including, but not limited to,
those discussed above, can result in the imposition of various sanctions,
including monetary forfeitures, the grant of short-term license renewals or, for
particularly egregious violations, the denial of a license renewal application
or revocation of a license.
Multiple and Cross-Ownership Rules. On a national level, the FCC rules
generally prevent an entity or individual from having an attributable interest
in television stations with an aggregate audience reach in excess of 35% of all
U.S. households. On a local level, the "duopoly" rules prohibit or restrict such
interests in two or more television stations with overlapping service areas.
Additional cross-ownership restrictions generally prohibit new television/radio,
broadcast/daily newspaper or television/cable combinations in the same market.
The FCC generally applies its ownership limits only to "attributable" interests
held by an individual, corporation, partnership or other association. In the
case of corporations holding broadcast licenses, the interest of officers,
directors and those who, directly or indirectly, have the right to vote 5% or
more of the corporation's voting stock (or 10% or more of such stock in the case
of insurance companies, mutual funds, bank trust departments and certain other
passive investors that are holding stock for investment purposes only) are
generally deemed to be attributable, as are positions as an officer or director
of a corporate parent of a broadcast licensee. In light of these rules, an
exemption was sought from and granted by the FCC with respect to certain
interests otherwise attributable to AT&T by virtue of positions held by
directors of AT&T as directors of other companies with media interests.
9
198
Schedule 3.07
-------------
Because of these multiple and cross-ownership rules, a purchaser of the
Company's Common Stock who acquires an attributable interest in the Company may
violate the FCCs rules if that purchaser also has an attributable interest in
other television or radio stations, or in daily newspapers or cable systems,
depending on the number and location of those radio or television stations or
daily newspapers or cable systems. Such a purchaser also may be restricted in
the companies in which it may invest to the extent that those investments give
rise to an attributable interest. If an attributable stockholder of the Company
violates any of these ownership rules or if a proposed acquisition by the
Company would cause such a violation, the Company may be unable to obtain from
the FCC one or more authorizations needed to conduct its television station
business and may be unable to obtain FCC consents for certain future
acquisitions. Based on their direct or indirect ownership of the Company's
Common Stock, acquisitions by either AT&T and CICC might have the effect of
limiting future acquisitions by the Company. The Company has agreed with LIN
Broadcasting not to acquire additional television broadcasting stations if such
acquisition would cause AT&T to violate applicable FCC multiple ownership rules
due to its attributed ownership of the television broadcasting station retained
by LIN Broadcasting on the Distribution Date and the Stations. This obligation
will terminate upon the earlier of the completion of the sale of the Company to
AT&T pursuant to the Private Market Value Guarantee ("PMVG") or a determination
by AT&T not to offer to purchase the Company pursuant to the PMVG. See
"Business -- Private Market Value Guarantee".
The FCC has initiated rulemaking proceedings to consider proposals to relax
its television ownership restrictions, including ones that would permit the
ownership, in some circumstances, of two television stations with overlapping
service areas. The FCC may also consider in these proceedings whether to adopt
new restrictions on television LMAs. The "duopoly" rules currently prevent the
Company from acquiring its LMA stations, thereby preventing the Company from
directly fulfilling its obligations under put options that such LMA stations
have with the Company. If the Company should be unable to fulfill its obligation
under a put option, it would be required to find an assignee who could perform
such obligation. There is no assurance that the Company could find an assignee
to fulfill the Company's obligations under the put options on favorable terms.
Under the Telecommunications Act of 1996, the Company's LMAs were
"grandfathered" and cannot be prohibited by the FCC. The precise extent to which
the FCC may nevertheless restrict existing LMAs or make them attributable
ownership interests is uncertain and the Company could be required to modify its
LMAs in ways which impair their viability, though the Company does not believe
this is likely to occur. Further if the FCC were to find that one of the
Company's LMA stations failed to maintain control over its operations, the
licensee of the LMA station and/or the Company could be fined. The Company is
unable to predict the ultimate outcome of possible changes to these FCC rules
and the impact such FCC rules may have on its broadcasting operations.
The Congress and the FCC have under consideration, and in the future may
consider and adopt, new laws, regulations and policies regarding a wide variety
of matters that could affect, directly or indirectly, the operation, ownership
and profitability of the Company's broadcast stations, result in the loss of
audience share and advertising revenues for the Company's broadcast stations,
and affect the ability of the Company to acquire additional broadcast stations
or finance such acquisitions.
For example, the FCC has initiated rulemaking proceedings to solicit
comments on its multiple ownership, attribution and minority ownership rules
as well as other rules with respect to television broadcasting generally. On
January 17, 1995 the FCC released a Further Notice of Proposed Rulemaking which
proposed, among other things, the following changes regarding television
broadcasting: (i) modifying the national audience reach discount as it applies
to UHF stations; (ii) narrowing the geographic area where common local ownership
restrictions would be triggered by limiting it to overlapping "Grade A"
contours, which encompass substantially smaller areas than the current "Grade B"
contours, and by permitting (or granting waivers in particular cases or markets)
certain UHF/UHF or UHF/VHF overlaps; (iii) relaxing the rules prohibiting
cross-ownership of radio and television stations in the same market to allow
certain combinations where alternative outlets and suppliers are available to
ensure diversity; and (iv) treating television LMAs the same as radio LMAs,
which would presently preclude certain television LMAs (such as those entered
into by the Company) where the programmer owns or has an attributable interest
in another television station in the same market unless the ownership
restriction were also relaxed.
10
199
Schedule 3.07
-------------
On January 12, 1995, the FCC released two additional Notices of Proposed
Rulemaking. The first seeks comment on whether the FCC should relax attribution
and other rules to facilitate greater minority and female ownership. The second
seeks comment on whether the FCC should modify its attribution rules by (i)
restricting the avai1bility of the single-majority shareholder exemption and
(ii) attributing certain non-equity interests such as non-voting stock, debt and
certain holdings by limited liability corporations. In the context of this
letter Rulemaking, the Commission is further examining its cross interest
policy and seeks comment on the appropriate treatment of non-equity financial
interest and multiple business interrelationships between licensees. The
Company cannot predict the outcome of these proceedings or how they will affect
the Company's business.
Alien Ownership. Under the Communications Act, broadcast licenses may not
be granted to or held by any corporation having more than one-fifth of its
capital stock owned of record or voted by non-U.S. citizens (including a
non-U.S. corporation), foreign governments or their representatives
(collectively, "Aliens") or having an Alien as an officer or director. The
Communications Act also prohibits a corporation, without an FCC public interest
finding, from holding a broadcast license if that corporation is controlled,
directly or indirectly, by another corporation, any officer of which is an
Alien, or more than one-fourth of the directors of which are Aliens, or more
than one-fourth of the capital stock of which is owned of record or voted by
Aliens, unless the FCC finds that such ownership would be in the public
interest. The FCC has issued interpretations of existing law under which these
restrictions in modified form apply to other forms of business organizations,
including general and limited partnerships. As a result of these provisions, the
Company, which serves as a holding company for its various television station
licensee subsidiaries, cannot have more than 25% of its capital stock owned of
record or voted by Aliens, cannot have an officer who is an Alien and cannot
have more than one-fourth of the Company Board consisting of Aliens. The
Certificate of Incorporation and By-Laws provide for certain stock transfer
legends and procedures designed to prevent a violation of these requirements.
Programming and Operation. The Communications Act requires broadcasters to
serve the "public interest." Since the late 1970s, the FCC gradually has relaxed
or eliminated many of the more formalized procedures it had developed to promote
the broadcast of certain types of programing responsive to the needs of a
station's community of license. Broadcast station licensees continue, however,
to be required to present programming that is responsive to community problems,
needs and interests and to maintain certain records demonstrating such
responsiveness. Complaints from viewers concerning a station's programming may
be considered by the FCC when it evaluates license renewal applications,
although such complaints may be filed, and generally may be considered by the
FCC, at any time. Stations also must follow various rules promulgated under the
Communications Act that regulate, among other things, children's television
programming, political advertising, sponsorship identifications, contest and
lottery advertising, obscene and indecent broadcasts, and technical operations,
including limits on radio frequency radiation. In addition, broadcast licensees
must develop and implement affirmative action programs designed to promote equal
employment opportunities, and must submit reports to the FCC with respect to
these matters on an annual basis and in connection with a license renewal
application.
Syndicated Exclusivity/Territorial Exclusivity. Effective January 1, 1990,
the FCC reimposed syndicated exclusivity rules and expanded the existing network
nonduplication rules. The syndicated exclusivity rules allow local broadcast
stations to require that cable operators black out certain syndicated,
non-network programming carried on "distant signals" (i.e., signals of broadcast
stations, including so-called super stations, that serve areas substantially
removed from the cable system's local community). Under certain circumstances,
the network nonduplication rules allow local broadcast network affiliates to
demand that cable operators black out duplicative network broadcast programming
carried on more distant signals.
Prime Time Access Rule. The FCCs prime time access rule (the "PTAR") also
places programming restrictions on affiliates of "networks." The PTAR restricts
affiliates of "networks" in the 50 largest television markets (as defined by the
PTAR) from broadcasting more than three hours of network programming during the
four hours of prime time. Five of the Stations are located in the nation's 50
largest television markets. The FCC has repealed the PTAR effective August 30,
1996. The Company cannot predict the effect that elimination of the PTAR will
have on the Company's programming or operations.
11
200
Schedule 3.07
-------------
Restrictions on Broadcast Advertising. The advertising of cigarettes on
broadcast stations has been banned for many years. The broadcast advertising of
smokeless tobacco products has more recently been banned by Congress. Certain
Congressional committees have examined legislative proposals to eliminate or
severely restrict the advertising of beer and wine. The Company cannot
predict whether any or all of the present proposals will be enacted into law
and, if so, what the final form of such law might be. The elimination of all
beer and wine advertising would have an adverse effect on the Stations' revenues
and operating profits as well as the revenues and operating profits of other
stations that carry beer and wine advertising.
Other Programming Restrictions. The Telecommunications Act of 1996, signed
into law on February 8, 1996, directs the FCC to establish, if the broadcast
industry does not do so on a voluntary basis, guidelines and procedures for
rating programming that contains sexual, violent, or other indecent material so
as to inform parents. Under the Act, the FCC must issue rules that require TV
set manufacturers to include in the sets that they manufacture appropriate
technology (a "V-Chip" that can block programming based on an electronically
encoded rating) to implement the rating guidelines. The Company cannot predict
the effect such guidelines and procedures will have on the Company's
programming or operations.
Cable "Must-Carry" or "Retransmission Consent" Rights. The 1992 Cable Act,
enacted in October 1992, requires television broadcasters to make an election to
exercise either certain "must-carry" or "retransmission consent" rights in
connection with their carriage by cable television systems in the station's
local market. If a broadcaster chooses to exercise its must-carry rights, it may
demand carriage on a specified channel on cable systems within ITS DMA.
Must-carry rights are not absolute, and their exercise is dependent on variables
such as the number of activated channels on and the location and size of the
cable system and the amount of duplicative programming on a broadcast station.
Under certain circumstances, a cable system may decline to carry a given
station. If a broadcaster chooses to exercise its retransmission consent rights,
it may prohibit cable systems from carrying its signal, or permit carriage under
a negotiated compensation arrangement. Generally, the Stations have negotiated
retransmission consent agreements with cable television systems in their
markets, with terms generally ranging from three to 10 years, which provide for
carriage of the Station's signal and the Local Weather Station. The licensees of
the LMAs generally have opted for must-carry status.
On April 8, 1993, a three-judge panel of the United States District Court
for the District of Columbia upheld the constitutionality of the legislative
must-carry provisions. On June 27, 1994, the Supreme Court ruled that the
must-carry provisions were "content-neutral" and thus not subject to strict
scrutiny and that Congress' stated interests in preserving the benefits of free,
over-the-air local broadcast television, promoting the widespread dissemination
of information from a multiplicity of sources and promoting fair competition in
the market for television programming all qualify as important governmental
interests. However, the Court remanded to a lower federal court with
instructions to hold further evidentiary proceedings as to the question whether
lack of the must-carry requirements would harm local broadcasting. In 1995, the
lower court again upheld the constitutionality of the must-carry requirements
after taking the required evidence. The Supreme Court is expected to rule again
on the case in 1996. Management does not, however, expect the outcome of this
case to affect the Company's cable contracts relating to the Local Weather
Station. It could, however, affect the degree of cable penetration afforded the
LMAs and, if adversely decided, have a negative impact on the profitability of
those stations.
Telecommunications Act of 1996. The Telecommunications Act of 1996, signed
into law on February 8, 1996, made various changes in the Communications Act
that will affect the broadcast industry. Among other things and in addition to
matters previously mentioned, the Act (i) directs the FCC to increase the
national audience reach cap for television from 25% to 35% and to eliminate the
12-station numerical limit; (ii) directs the FCC to review its local ownership
restrictions; (iii) clarifies that existing LMAs were in compliance with
applicable FCC regulations are grandfathered and that future LMAs are not
inconsistent with the Act so long as they comply with applicable FCC
regulations; (iv) directs the FCC to extend its liberal policy of permitting
waivers of its television/radio cross-ownership restriction to proposed
combinations in the top 50 markets; (v) lifts the statutory ban on
cable-broadcast cross-ownership but does not direct the FCC to eliminate its
parallel FCC rule prohibition; (vii) repeals the statutory ban against telephone
companies providing video programming in their own service areas; and (viii)
permits but does not require the FCC to award to broadcasters a second channel
for
12
201
Schedule 3.07
-------------
Advanced Television ("ATV") and other digital services and imposes a fee on
subscription-based services. Certain leaders in Congress have asked the FCC to
postpone issuing ATV licenses pending consideration of possible future
legislation that would require broadcasters to bid at auction for ATV channels
or return the existing conventional channels to the FCC on an expedited basis.
PROPOSED LEGISLATION AND REGULATIONS. The FCC has proposed the adoption of
rules for implementing Advanced Television ("ATV") in the United States.
Implementation of ATV will improve the technical quality of over-the-air
broadcast television. Under certain circumstances, however, conversion to ATV
operations may reduce a station's geographical coverage area. The FCC is
considering an implementation proposal that would allot a second broadcast
channel to each regular commercial television station for ATV operation.
Stations would be required to phase in their ATV operations on the second
channel, with a three-year period to build necessary ATV facilities and a
consecutive three-year period in which to begin operations. Such stations would
be required to surrender their non-ATV channel 15 years after the commencement
of the first three-year period. Implementation of ATV will impose additional
costs on television stations providing the new service due to increased
equipment costs. The Company estimates that the adoption of ATV would require
average capital expenditures of approximately $2 million per Station to provide
facilities necessary to pass along an ATV signal. The conversion of a Station's
equipment enabling it, for example, to produce and transmit ATV programming
would be substantially more expensive. The introduction of this new technology
will require that consumers purchase new receivers (television sets) for ATV
signals or, if available by that time, adapters for their existing receivers.
The FCC has also proposed to assign to full-power ATV stations the channels
currently occupied by LPTVs, which could adversely affect the Company's LPTV
channels. The Company believes that it is essential to the long-term viability
of the Company and the broadcast industry that the FCC authorize ATV in the
United States, but the Company cannot otherwise predict when such authorization
might be given or the precise effect such authorization might have on the
Company's business.
Budget legislation is being considered in both the House and Senate which
would require the FCC to raise revenue for the federal government by auctioning
radio frequencies in bands which encompass those currently licensed for use by
broadcasters, including those channels used for "auxiliary" purposes, such as
remote pickups in electronic news gathering and studio-to-transmitter links, and
which would require immediate auctioning of ATV spectrum or accelerated
give-back by broadcasters of their existing analog channels.
In addition, the FCC is conducting an inquiry to consider proposals to
increase broadcasters' obligations under its rules implementing the Children's
Television Act of 1990, which requires television stations to present
programming specifically directed to the "educational and informational" needs
of children. The FCC also is conducting a rulemaking proceeding to consider the
adoption of more restrictive standards for the exposure of the public and
workers to potentially harmful radio frequency radiation emitted by broadcast
station transmitting facilities. Other matters that could affect the Company's
broadcast properties include technological innovations affecting the mass
communications industry such as technical allocation matters, including
assignment by the FCC of channels for additional broadcast stations, LPTVs and
wireless cable systems and their relationship to and competition with full-power
television broadcasting service.
The FCC has initiated a Notice of Inquiry proceeding seeking comment on
whether the public interest would be served by establishing limits on the amount
of commercial matter broadcast by television stations. No prediction can be made
at this time as to whether the FCC will impose any commercial limits at the
conclusion of its deliberations. The Company is unable to determine what effect,
if any, the imposition of limits on the commercial matter broadcast by
television stations would have on the Company's operations.
Congress and the FCC also have under consideration, or may in the future
consider and adopt, new laws, regulations and policies regarding a wide variety
of matters that could, directly or indirectly, affect the operation, ownership
and profitability of the Company and the Stations, result in the loss of
audience share and advertising revenues of the Stations, and affect the
Company's ability to acquire additional broadcast stations or finance such
acquisitions. Such matters include, for example, (i) imposition of greater
spectrum use or other governmentally imposed fees upon a licensee; (ii) changes
in the FCCs cross-interest multiple ownership, alien ownership and
cross-ownership policies; (iii) proposals to expand the FCCs equal employment
opportunity rules and other
13
202
Schedule 3.07
-------------
matters relating to minority and female involvement in broadcasting; (iv)
proposals to increase the benchmarks or thresholds for attributing ownership
interest in broadcast media; (v) proposals to change rules or policies relating
to political advertising; (vi) technical and frequency allocation matters,
including those relative to the implementation of ATV; (vii) proposals to
restrict or prohibit the advertising of beer, wine and other alcoholic beverages
on broadcast stations; (viii) changes to broadcast technical requirements; and
(ix) proposals to limit the tax deductibility of advertising expenses by
advertisers.
The Company cannot predict what other matters might be considered in the
future, nor can it judge in advance what impact, if any, the implementation of
any of these proposals or changes might have on its business.
The foregoing does not purport to be a complete discussion of all the
provisions of the Communications Act or other Congressional acts or the
regulations and policies of the FCC promulgated thereunder. Reference is made to
the Communications Act, other Congressional acts, such regulations, and the
public notices promulgated by the FCC, on which the foregoing discussion is
based, for further information. There are additional FCC regulations and
policies, and regulations and policies of other federal agencies, that govern
political broadcasts, public affairs programming, equal employment opportunities
and other areas affecting the Stations' businesses and operations.
203
Schedule 3.16
-------------
SCHEDULE OF FCC LICENSES
------------------------
I. TELEVISION STATIONS OWNED AND OPERATED BY LIN TELEVISION CORPORATION
A. TELEVISION BROADCASTING STATIONS AND ASSOCIATED BROADCAST AUXILIARIES:
DATE
MARKET CALL COMMUNITY CLASS FREQUENCY LICENSE
RANK 1 SIGN OF LICENSE OF STATION OR CHANNEL EXPIRES
# 8 KXAS-TV Fort Worth, Texas Commercial TV Ch. 5 8/1/98
# 25 WISH-TV Indianapolis, Indiana Commercial TV Ch. 8 8/1/97
# 26 WTNH-TV New Haven, Connecticut Commercial TV Ch. 8 4/1/99
# 39 WIVB-TV Buffalo, New York Commercial TV Ch. 4 6/1/99
# 40 WAVY-TV Portsmouth, Virginia Commercial TV Xx. 00 00/0/00
# 00 XXXX-XX Austin, Texas Commercial TV Ch. 36 8/1/98
# 64 KXAM-TV 3 Llano, Texas Commercial TV Ch. 14 8/1/98
# 81 WAND(TV) Decatur, Illinois Commercial TV Ch. 17 12/1/97
# 103 WANE-TV Fort Xxxxx, Indiana Commercial TV Ch. 15 8/1/97
---------------
1/ 1995/96 Xxxxxxx DMA TV Households.
2/ A timely-filed renewal application is pending.
3/ This station operates primarily as a satellite of KXAN-TV, Austin, Texas.
204
Schedule 3.16
-------------
- 2 -
I. TELEVISION STATIONS OWNED AND OPERATED BY LIN TELEVISION CORPORATION -
CONTINUED
B. LOW POWER TV (LPTV) AND TV TRANSLATOR STATIONS:
DATE
CALL CLASS FREQUENCY LICENSE OR
SIGN LOCATION OF STATION 4 OR CHANNEL PERMIT EXPIRES
WIIH-LP Indianapolis, Indiana LPTV Ch. 11 8/1/97
WTTD-LP Hampton, Virginia LPTV Ch. 59 8/1/98 5
WITD-LP Chesapeake, Virginia LPTV Ch. 65 8/1/98 5
WBTD-LP Suffolk, Virginia LPTV Ch. 66 8/1/98 5
W22BG Elizabeth City, North Carolina LPTV (CP) Ch. 22 9/22/96
X00XX Xxxxxxxxxx, Xxxxxxxx LPTV Ch. 36 10/1/2001 6
---------------
1/ "CP" indicates the station is not operating and that the authorization it
holds is a construction permit.
5/ Renewal applications for these stations were filed with the WAVY-TV renewal,
pursuant to a recent change in the FCC rules that permits early filing of
renewals for LPTV and translator stations so that the expiration dates for that
class of stations will coincide with the expiration dates for full service TV
stations in the same state.
6/ The license for this station was granted after the deadline for filing
renewals for LPTV stations in Virginia had passed, so it was granted a license
for a full five-year license term.
205
Schedule 3.16
-------------
- 3 -
I. TELEVISION STATIONS OWNED AND OPERATED BY LIN TELEVISION CORPORATION -
CONTINUED
B. LOW POWER TV (LPTV) AND TV TRANSLATOR STATIONS - CONTINUED:
DATE
CALL CLASS FREQUENCY LICENSE OR
SIGN LOCATION OF STATION 4 OR CHANNEL PERMIT EXPIRES
WKTD-LP Suffolk, Virginia LPTV Ch. 69 8/1/98 5
W35BH Virginia Beach, Virginia LPTV (CP) Ch. 35 7/17/96 7
KHPM-LP San Marcos, Texas LPTV Ch. 40 10/1/98
KBVO-LP Austin, Texas LPTV Ch. 49 00/0/00
XXXX-XX Xx Xxxxxx, Xxxxx LPTV Ch. 32 10/1/98
KHPG-XX Xxxxxxxx, Texas LPTV Ch. 21 10/1/98
KHPX-LP Georgetown, Texas LPTV Ch. 48 10/1/98
XXXX-LP Fredericksburg, Texas LPTV Ch. 58 10/1/98
KHPZ-LP Round Rock, Texas LPTV Ch. 64 10/1/98
KHPB-LP Bastrop, Texas LPTV Ch. 16 10/1/98
W68AA Danville, Illinois TV Translator Ch. 68 8/1/98
-------------
7/ An application for extension of time to construct was timely filed June 12,
1996 (BMPTTL-960612JC).
206
Schedule 3.16
-------------
- 4 -
II. TV STATIONS WHICH LIN TELEVISION CORPORATION OPERATES PURSUANT TO LMAS 8
DATE
Market Call Community Class Frequency License
Rank 1 Sign of License of Station or Channel Expires
# 8 KXTX-TV Dallas, Texas Commercial TV Ch. 39 8/1/97
# 26 WBNE(TV) New Haven, Connecticut Commercial TV Ch. 59 4/1/99
# 40 WVBT(TV) Virginia Beach, Virginia Commercial TV Ch. 43 10/1/96 2
# 64 KNVA(TV) Austin, Texas Commercial TV Ch. 54 8/1/98
------------------
8/ LMA is the acronym for Local Marketing Agreement.
207
Schedule 3.19
-------------
SCHEDULE OF MATERIAL AGREEMENTS
-------------------------------
1) NETWORK AFFILIATION AGREEMENTS (ALL LIN STATIONS):
As listed on Schedule 3.21
2) XXXX INLET AGREEMENTS
a. Registration Rights Agreement between LIN Television Corporation and
Xxxx Inlet Communications Corporation.
b. Stockholder's Agreement by and among LIN Television Corporation, XxXxx
Cellular Communications, Inc. and Xxxx Inlet Communications Corp.
c. Right of First Refusal Agreement with respect to television station
WOOD-TV and the Local Marketing Agreement for television station
WOTV-TV by and between LIN Television Corporation and LIN Broadcasting
Corporation.
d. Consulting Agreement with respect to television station WOOD-TV and
the Local Marketing Agreement for television station WOTV-TV by and
between LIN Television Corporation and LIN Broadcasting Corporation.
3) SPIN-OFF AGREEMENTS
a. Distribution Agreement by and between LIN Broadcasting Corporation and
LIN Television Corporation.
b. Employee Benefits Allocation Agreement by and between LIN Broadcasting
Corporation and LIN Television Corporation.
c. Tax Allocation Agreement by and between LIN Broadcasting Corporation
and LIN Television Corporation.
d. Management Service Agreement by and between LIN Broadcasting
Corporation and LIN Television Corporation.
e. Television Private Market Value Guarantee by and between XxXxx
Cellular Communications, Inc. and LIN Television Corporation.
208
Schedule 3.19
-------------
f. Services Agreement by and between LIN Broadcasting Corporation and LIN
Television Corporation.
4) LIN TELEVISION CORPORATION - LWWI BROADCASTING INC. AGREEMENTS
a. Service Agreement by and between LIN Television Corporation and LWWI
Broadcasting Inc.
b. Tax Sharing Agreement by and between LIN Television Corporation and
LWWI Broadcasting, Inc.
5) OTHER
a. Certificate of incorporation and by-laws of each of the corporations
listed on Schedule 3.02 (post-restructuring).
b. Partnership agreements by and among LIN Television of Texas, Inc.,
KXAN, Inc. and KXAS Holdings, Inc. with respect to LIN Texas
Broadcasting, a Texas partnership.
c. Limited Liability Company Agreement of Datacast, LLC.
209
Schedule 3.21
-------------
SCHEDULE OF NETWORK AFFILIATION AGREEMENTS
------------------------------------------
KXAN-TV: Television Affiliation Contract with National Broadcasting Company,
Inc., dated as of November 15, 1994, as amended. Expires November 14, 2004.
KXAS-TV: Television Affiliation Contract with National Broadcasting Company,
Inc. dated as of November 15, 1994, as amended. Expires November 14, 2004.
WAND-TV: Primary Affiliation Contract with American Broadcasting Companies, Inc.
dated as of September 4, 1995, as amended. Expires September 4, 2005. (Unsigned)
WANE-TV: Television Affiliation Agreement with Columbia Broadcasting System,
Inc., dated as of July 31, 1995, as amended. Expires December 31, 2005.
WAVY-TV: Television Affiliation Contract with National Broadcasting Company,
Inc., dated as of November 15, 1994, as amended. Expires November 14, 2004.
WISH-TV: Television Affiliation Agreement with CBS Television Network, dated as
of July 31, 1995, as amended. Expires December 31, 2005.
WTNH-TV: Primary Television Affiliation Agreement with American Broadcasting
Companies, Inc. dated as of September 4, 1995, as amended. Expires September 4,
2005. (Unsigned)
WVBT-TV: Station Affiliation Agreement with Fox Broadcasting Company dated as of
November 9, 1995. Expires September 1, 2008.
BUFFALO MANAGEMENT ENTERPRISES, CO., INC: Television Affiliation Agreement with
CBS Television Network dated as of December 4, 1992, as amended. Expires
December 31, 2005.
210
Schedule 4.12(c)
----------------
SCHEDULE OF EXISTING INDEBTEDNESS
---------------------------------
1. Prior to the closing date, existing Credit Agreement.
211
Schedule 4.13
-------------
SCHEDULE OF EXISTING GUARANTIES
-------------------------------
1. Prior to the closing date, guaranties executed in connection with the
existing Credit Agreement in favor of the existing bank group.
212
Schedule 4.14
-------------
SCHEDULE OF EXISTING LIENS
--------------------------
1. Prior to the closing date, liens and pledges executed in favor of the
existing bank group under the existing Credit Agreement.
213
Schedule 4.15
-------------
SCHEDULE OF EXISTING INVESTMENTS
--------------------------------
1. 4.49% of the outstanding capital stock of KXTX of Texas, Inc.
2. 4.49% of the outstanding capital stock of 54 Broadcasting Inc.
3. 25% Investment Datacast Partner's LLC
214
Schedule 4.20
-------------
EMPLOYEE BENEFIT PLANS
----------------------
1) LIN Television Corporation 4010(k) Plan
2) LIN Television Corporation Employee Stock Purchase Plan
3) LIN Television Corporation Profit Sharing Plan ("frozen" in 1989)
4) LIN Television Corporation Retirement Plan
5) Supplemental Benefit Retirement Plan of LIN Television Corporation and
Subsidiary Companies
6) LIN Television Corporation Non-Qualified Deferred Compensation Plan
(covering Officers and Directors)
7) LIN Television Corporation Non-Qualified Deferred Compensation Plan
8) LIN Television Corporation 1994 Stock Option Plan and the 1994 Adjustment
Stock Incentive Plan
9) Group Life Insurance Policy between LIN Television Corporation and UNUM
Life Insurance Co. of America
10) Accidental Death and Dismemberment Policy between LIN Television
Corporation and UNUM Life Insurance Co. of America
11) Long-Term Disability Policy between LIN Television Corporation Hartford
Life Insurance Company
12) Group Medical Plan (HMO) between Optima Health Plan and WAVY-TV
13) Group Service Medical Agreement (HMO) between Sentara Virginia, E.P. and
Wavy Television, Inc.
14) Group Medical Plan Agreement with United Health Care
15) Voluntary Life Insurance Policy and Voluntary Accidental Death and
Disability Policy with Life Insurance Company of North America
16) Employee Benefits Agreement by and between LIN Broadcasting Corporation and
LIN Television Corporation
17) Year-end Bonus (awarded solely at the discretion of the Company)
18) Group Medical Plan between Blue Cross, Blue Cross Healthcare Plan,
Community Blue and WIVB-TV
19) Group Medical Plan between Independent Health Association and WIVB-TV
215
Schedule 4.21
-------------
TRANSACTIONS WITH AFFILIATES
----------------------------
1. Registration Rights Agreement between LIN Television Corporation and Xxxx
Inlet Communications Corporation.
2. Stockholder's Agreement by. and among LIN Television Corporation, XxXxx
Cellular Communications, Inc. and Xxxx Inlet Communications Corp.
3. Right of First Refusal Agreement with respect to television station WOOD-TV
and the Local Marketing Agreement for television station WOTV-TV by and
between LIN Television Corporation and LIN Broadcasting Corporation.
4. Consulting Agreement with respect to television station WOOD-TV and the
Local Marketing Agreement for television station WOTV-TV by and between LIN
Television Corporation and LIN Broadcasting Corporation.
SPIN-OFF AGREEMENTS
-------------------
1. Distribution Agreement by and between LIN Broadcasting Corporation and LIN
Television Corporation.
2. Employee Benefits Allocation Agreement by and between LIN Broadcasting
Corporation and LIN Television Corporation.
3. Tax Allocation Agreement by and between LIN Broadcasting Corporation and
LIN Television Corporation.
4. Management Service Agreement by and between LIN Broadcasting Corporation
and LIN Television Corporation.
5. Television Private Market Value Guarantee by and between XxXxx Cellular
Communications, Inc. and LIN Television Corporation.
6. Services Agreement by and between LIN Broadcasting Corporation and LIN
Television Corporation.
216
Schedule 4.22
-------------
SCHEDULE OF EXISTING RESTRICTIVE COVENANTS
------------------------------------------
1. Prior to the Closing Date, Existing Credit Agreement covenants.
2. Anti-assignment clauses, all entered into the ordinary course of business,
with respect to leased tangible and real property, film contracts, and
other service contracts.
217
Schedule 5.01(b)
----------------
Independent Auditors' Report on Compliance
------------------------------------------
The Board of Directors and Stockholder(s) of
[LIN Television Corporation/LWWI Broadcasting Inc.]
We have audited, in accordance with generally accepted auditing standards,
the consolidated balance sheets of [LIN Television Corporation (the "Company")
and its Consolidated Subsidiaries] [LWWI Broadcasting Inc. (the "Company") and
the Restricted Subsidiaries] as of December 31, __________, and the related
consolidated statements of income, and cash flows for the year then ended, and
have issued our report thereon dated ____________ __, _______.
In connection with our audit, nothing came to our attention that caused us
to believe that the Company failed to comply with the terms, covenants,
provisions or conditions of Sections 4.01 through 5.03(c), inclusive, of the
Credit Agreement, dated as of November 30, 1994, as amended and restated as of
September 26, 1996, among [LWWI Broadcasting Inc.] [the Company], [LIN
Television Corporation] [the Company], the financial institutions from time to
time parties thereto, The Bank of Nova Scotia, Barclays Bank PLC, Fleet National
Bank and NationsBank of Texas, N.A., as Co-Agents, The Bank of New York, The
Chase Manhattan Bank, Citicorp Securities, Inc., and Toronto Dominion (New
York), Inc., as Arranging Agents, The Bank of New York, as Documentation Agent,
Toronto Dominion (Texas), Inc., as Administrative Agent, and The Chase Manhattan
Bank, as Syndication Agent insofar as they relate to accounting matters.
However, our audit was not directed primarily toward obtaining knowledge of such
noncompliance.
This report is intended solely for the information and use of the Boards of
Directors and managements of [Lin Television Corporation/LWWI Broadcasting
Inc.], the banks from time to time party to the Credit Agreement referred to
above, The Bank of New York, The Chase Manhattan Bank, Citicorp Securities,
Inc., Toronto Dominion (New York), Inc. and Toronto Dominion (Texas), Inc. and
should not be used for any other purpose.
[NAME OF AUDITOR]
Date:
218
Schedule 5.01 (c)-l
-------------------
LIN TELEVISION CORPORATION
CERTIFICATE AS TO FINANCIAL STATEMENTS AND DEFAULTS
I, __________, [President or senior financial officer] of LIN Television
Corporation, a Delaware corporation (the "Company"), hereby certify, pursuant to
Section 5.01(c) of the Credit Agreement, dated as of November 30, 1994, as
amended and restated as of September 26, 1996, among LWWI Broadcasting Inc. (the
"Borrower"), the Company, the banks listed on the signature pages thereof, The
Bank of Nova Scotia, Barclays Bank PLC, Fleet National Bank and NationsBank of
Texas, N.A., as Co-Agents, The Bank of New York, The Chase Manhattan Bank,
Citicorp Securities, Inc., and Toronto Dominion (New York), Inc., as Arranging
Agents, The Bank of New York, as Documentation Agent, Toronto Dominion (Texas),
Inc., as Administrative Agent, and The Chase Manhattan Bank, as Syndication
Agent, that:
1. (a) The accompanying [unaudited]1 consolidated financial statements of
the Company and its Consolidated Subsidiaries as at ____________ and for the
[fiscal year] [quarterly accounting period] 2 ending _________, 19__, present
fairly, in all material respects, in accordance with Generally Accepted
Accounting Principles (except for changes therein or departures therefrom
described below that have been approved in writing by Messrs. ______________-,
the Company's current independent certified public accountants), the
consolidated financial position of the Company and its Consolidated Subsidiaries
as at the end of such [fiscal year][quarterly period]2, and the consolidated
results of operations and, as applicable, changes in financial position or cash
flows for such quarterly period, and for the elapsed portion of the fiscal year
ended with the last day of [such fiscal year][such quarterly period]2, in each
case on the basis presented [and subject only to normal year-end auditing
adjustments]l.
(b) Except as disclosed or reflected in such financial statements, as at
______________, none of the Company, the Borrower or any Subsidiary had any
Liability, contingent or otherwise, or any unrealized or anticipated loss, that,
singly or in the aggregate, has had or could have a Materially Adverse Effect on
the Borrower and the Restricted Subsidiaries taken as a whole.
2. (a) The changes in and departures from Generally Accepted Accounting
Principles are as follows:
219
All such changes have been approved in writing by Messrs. ________________.
[(b) Attached as Annex A are [unaudited]1 consolidated financial statements
of the Company and its Consolidated Subsidiaries as at ____________ and for the
[fiscal year][quarterly accounting period]2 ending ________________, 19__,
which have been prepared in accordance with Generally Accepted Accounting
Principles without giving effect to the changes referred to in Paragraph 2(a) of
this Certificate or any previous Certificate. Such financial statements present
fairly, in all material respects, in accordance with Generally Accepted
Accounting Principles, the consolidated financial position of the Company and
its Consolidated Subsidiaries as at the end of such [fiscal year][quarterly
period]2, and the consolidated results of operations and, as applicable, changes
in financial position or cash flows for such quarterly period, and for the
elapsed portion of the fiscal year ending with the last day of such [fiscal
year][quarterly period]2, in each case on the basis presented [and subject only
to normal year-end auditing adjustments]1.]3
3. [Reserved]
4. Based on an examination sufficient to enable me to make an informed
statement, no Default exists, including, in particular, any such arising under
the provisions of Article 4, except the following:
[If none such exist, insert "None"; if any do exist, specify the
same by Section, give the date the same occurred, and the steps being
taken by the Company or a Subsidiary of it with respect thereto.]
5. Attached as Annex B is [insert description of Information relating to
each Broadcast Station owned by the Borrower or any Restricted Subsidiary, each
Local Marketing Agreement to which the Borrower or any Restricted Subsidiary is
a party and each other separate business unit of the Borrower or any Restricted
Subsidiary reasonably requested by any Arranging Agent]. On the date hereof (or,
in the case of any such Information dated as of a prior date, as of such date),
no such
-2-
220
Information contains any untrue statement of a material fact or omits to state a
material fact necessary to make the statements made therein, in light of the
circumstances under which they were made, not misleading[; PROVIDED that, with
respect to financial projections and forecasts included therein, such
projections and forecasts were prepared in good faith based on the assumptions
stated therein, which assumptions were reasonable in light of the conditions
existing at the time of delivery of such projections and forecasts and
represent, at the time of delivery of this Certificate, the Company's best
estimate of the future financial performance of the Company and its Consolidated
Subsidiaries or the Borrower and the Restricted Subsidiaries, as the case may
be].
Dated: -------------------------
[President or senior
financial officer]
---------------------
1. Include only in the case of a certificate to be delivered with respect to
quarterly financial statements.
2. Include first alternative in the case of a certificate to be delivered with
respect to year-end financial statements; include second alternative in the
case of a certificate to be delivered with respect to quarterly financial
statements.
3. Paragraph (b) should be included in, and Annex A attached to, the
Certificate only if changes from Generally Accepted Accounting Principles
are specified in Paragraph 2(a) of this or any previous Certificate.
-3-
221
Schedule 5 01(c)-2
------------------
LWWI BROADCASTING INC.
CERTIFICATE AS TO FINANCIAL STATEMENTS AND DEFAULTS
I, _____________, [President or senior financial officer] of LWWI
Broadcasting Inc., a Delaware corporation (the "Borrower"), hereby certify,
pursuant to Section 5.01(c) of the Credit Agreement, dated as of November 30,
1994, as amended and restated as of September 26, 1996, among the Borrower, LIN
Television Corporation ("LIN Television"), the banks listed on the signature
pages thereof, The Bank of Nova Scotia, Barclays Bank PLC, Fleet National Bank
and NationsBank of Texas, N.A., as Co-Agents, The Bank of New York, The Chase
Manhattan Bank, Citicorp Securities, Inc., and Toronto Dominion (New York),
Inc., as Arranging Agents, The Bank of New York, as Documentation Agent, Toronto
Dominion (Texas), Inc., as Administrative Agent, and The Chase Manhattan Bank,
as Syndication Agent that:
1. (a) The accompanying [unaudited]1 consolidated and consolidating
financial statements of the Borrower and the Restricted Subsidiaries, in each
case as at _______________ and for the [fiscal year][quarterly accounting
period]2 ending __________________, 19 __, present fairly, in all material
respects, in accordance with Generally Accepted Accounting Principles (except
for changes therein or departures therefrom described below that have been
approved in writing by Messrs. , the Borrower's current independent certified
public accountants), the consolidated and consolidating financial position of
the Borrower and the Restricted Subsidiaries as at the end of such [fiscal
year][quarterly period]2, and the consolidated and consolidating results of
operations and, as applicable, changes in financial position or cash flows for
such quarterly period, and for the elapsed portion of the fiscal year ended with
the last day of [such fiscal year][such quarterly period]2 in each case on the
basis presented [and subject only to normal year-end auditing adjustments]l.
(b) Except as disclosed or reflected in such financial statements, as at
____________, none of LIN Television, the Borrower or any Subsidiary had any
Liability, contingent or otherwise, or any unrealized or anticipated loss, that,
singly or in the aggregate, has had or could have a Materially Adverse Effect on
the Borrower and the Restricted Subsidiaries taken as a whole.
2. (a) The changes in and departures from Generally Accepted Accounting
Principles are as follows:
222
All such changes have been approved in writing by Messrs. _________________.
[(b) Attached as Annex A are [unaudited]1 consolidated and consolidating
financial statements of the Borrower and the Restricted Subsidiaries as at
____________ and for the [fiscal year][quarterly accounting period]2 ending
_____________, 19__, which have been prepared in accordance with Generally
Accepted Accounting Principles without giving effect to the changes referred to
in Paragraph 2(a) of this Certificate or any previous Certificate. Such
financial statements present fairly, in all material respects, in accordance
with Generally Accepted Accounting Principles, the consolidated and
consolidating financial position of the Borrower and the Restricted Subsidiaries
as at the end of such [fiscal year][quarterly period]2, and the consolidated and
consolidating results of operations and, as applicable, changes in financial
position or cash flows for such quarterly period, and for the elapsed portion of
the fiscal year ending with the last day of such [fiscal year][quarterly
period]2, in each case on the basis presented [and subject only to normal
year-end auditing adjustments]l.]3
3. There follow the calculations required to establish whether or not the
Borrower was in compliance with the following Sections of the Credit Agreement:4
(a) Section 1.05.
------------
(b) Section 4.15.
------------
(c) Section 4.17.
------------
(d) Section 4.28.
------------
(e) Section 4.29.
------------
(f) Section 4.30.
------------
4. Based on an examination sufficient to enable me to make an informed
statement, no Default exists, including, in particular, any such arising under
the provisions of Article 4, except the following:
[If none such exist, insert "None"; if any do exist, specify the
same by Section, give the date the same occurred, and the steps being
taken by LIN Television or a Subsidiary of it with respect thereto. ]
5. Attached as Annex B is [insert description of Information relating to
each Broadcast Station owned by the Borrower or any Restricted Subsidiary, each
Local Marketing
-2-
223
Agreement to which the Borrower or any Restricted Subsidiary is a party and each
other separate business unit of the Borrower or any Restricted Subsidiary
reasonably requested by any Arranging Agent]. On the date hereof (or, in the
case of any such Information dated as of a prior date, as of such date), no such
Information contains any untrue statement of a material fact or omits to state a
material fact necessary to make the statements made therein, in light of the
circumstances under which they were made, not misleading[; PROVIDED that, with
respect to financial projections and forecasts included therein, such
projections and forecasts were prepared in good faith based on the assumptions
stated therein, which assumptions were reasonable in light of the conditions
existing at the time of delivery of such projections and forecasts and
represent, at the time of delivery of this Certificate, the Borrower's best
estimate of the future financial performance of LIN Television and its
Consolidated Subsidiaries or the Borrower and the Restricted Subsidiaries, as
the case may be].
Dated: -----------------------
[President or other
financial officer]
-------------------
1. Include only in the case of a certificate to be delivered with respect to
quarterly financial statements.
2. Include first alternative in the case of a certificate to be delivered with
respect to year-end financial statements; include second alternative in the
case of a certificate to be delivered with respect to quarterly financial
statements.
3. Paragraph (b) should be included in, and Annex A attached to, the
Certificate only if changes from Generally Accepted Accounting Principles
are specified in Paragraph 2(a) of this or any previous Certificate.
4. The calculations should be made in the same manner and with the same
degree of detail as the calculations set forth in the certificates
delivered by the Borrower historically.
-3-
224
Schedule 5.02(a)
----------------
SCHEDULE OF HISTORICAL FINANCIAL INFORMATION
--------------------------------------------
1. Consolidated Financial Statements and other Financial Information with
respect to LIN Television for the years ended December 31, 1995, 1994, and
1992.
225
Schedule 9.10 (a)
-----------------
NOTICE OF ASSIGNMENT
[Name and address
of Borrower in accordance with
Section 9.01(a) (ii)]
[Name and address
of Administrative Agent in accordance with
Section 9.0l(a) (ii)]
Date:
Ladies and Gentlemen:
Reference is made to the Credit Agreement, dated as of November 30, 1994,
as amended and restated as of September 26, 1996, among LWWI Broadcasting Inc.,
LIN Television Corporation, the banks listed on the signature pages thereof, The
Bank of Nova Scotia, Barclays Bank PLC, Fleet National Bank and NationsBank of
Texas, N.A., as Co-Agents, The Bank of New York, The Chase Manhattan Bank,
Citicorp Securities, Inc., and Toronto Dominion (New York), Inc., as Arranging
Agents, The Bank of New York, as Documentation Agent, Toronto Dominion (Texas),
Inc., as Administrative Agent, and The Chase Manhattan Bank, as Syndication
Agent (the "Credit Agreement"). The undersigned hereby give notice pursuant to
Section 9.10(a) of the Credit Agreement that, as of the effective date specified
below, [name of Assignor] [(the "Assignor")]l will make the following assignment
to [name of Assignee] [(the "Assignee")]2:
Rights and Obligations
Assigned:
Effective Date of
Assignment:
[The Assignee's Lending Offices and address for notices are as follows:
Domestic Lending Office:
226
Eurodollar Lending Office:
Notice Address:]3
[The Assignor hereby requests that the Borrower consent to the assignment
described above by signing a copy of this letter in the space provided below and
returning it to the Assignor. Such consent shall, as of the effective date
specified above, release the Assignor from all of the obligations described
above as being assigned to the Assignee.]4
[NAME OF ASSIGNOR]
By
------------------------------
Name:
Title:
[NAME OF ASSIGNEE]
By
------------------------------
Name:
Title:
[Assignment and release consented to:]4
LWWI BROADCASTING INC.
By
-------------------------------
Name:
Title:
----------------
1. Include definition if Footnote 4 material is to be included.
2. Include definition if Footnote 3 or Footnote 4 material is to be included.
3. Omit if the Assignee is a Bank.
4. Include the appropriate portion of the bracketed provision if (i) the
Assignor desires to be released from the assigned obligations, (ii) the
consent of the Borrower is required for such release and (iii) the Assignor
has not otherwise obtained such consent.
-2-
227
EXHIBIT A
---------
LWWI BROADCASTING INC.
FORM OF PROMISSORY NOTE
_______________, 19__
FOR VALUE RECEIVED, LWWI BROADCASTING INC. (the "Borrower") hereby promises
to pay to the order of _______________ (the "Bank") the principal amount of
____________ Dollars (___________), or, if less, the principal amount of the
[Base] [Eurodollar] Rate Loans which are [RC] [Incremental] Loans of the Bank
outstanding, on the dates' and in the amounts specified in Section 1.04 of the
Credit Agreement referred to below, and to pay interest on such principal amount
on the dates and at the rates specified in Section 1.03 of such Credit
Agreement. All payments due the Bank hereunder shall be made to the Bank at the
place, in the type of money and funds and in the manner specified in Section
1.11 of such Credit Agreement.
Each holder hereof is authorized to endorse on the grid attached hereto, or
on a continuation thereof, each [Base] [Eurodollar] Rate Loan which is an [RC]
[Incremental] Loan of the Bank and each payment, prepayment or conversion with
respect thereto. The failure of any holder hereof to make any endorsement on the
grid attached hereto, or any continuation thereof, shall not affect the
Borrower's obligations hereunder, under the Credit Agreement referred to below
or under any other Loan Document.
Presentment, demand, protest, notice of dishonor and notice of intent to
accelerate are hereby waived by the undersigned.
This [Base] [Eurodollar] Rate [RC] [Incremental] Note evidences Loans made
under, and is entitled to the benefits of, the Credit Agreement, dated as of
November 30, 1994, as amended and restated as of September 26, 1996, among the
Borrower, LIN Television Corporation, the banks listed on the signature pages
thereof, The Bank of Nova Scotia, Barclays Bank PLC, Fleet National Bank and
NationsBank of Texas, N.A., as Co-Agents, The Bank of New York, The Chase
Manhattan Bank, Citicorp Securities, Inc., and Toronto Dominion (New York),
Inc., as Arranging Agents, The Bank of New York, as Documentation Agent, Toronto
Dominion (Texas), Inc., as Administrative Agent, and The Chase Manhattan Bank,
as Syndication Agent, as the same may be amended from time to time. Reference is
made to such Credit Agreement, as so amended, for provisions relating to the
prepayment and the acceleration of the maturity hereof. This
228
[Base] [Eurodollar] Rate [RC] [Incremental] Note is also entitled to the
benefits of the Guaranty Agreement.
This [Base] [Eurodollar] Rate [RC] [Incremental] Note shall be construed in
accordance with and governed by the law of the State of New York (without giving
effect to its choice of law principles).
LWWI BROADCASTING INC.
By
------------------------------
Name:
Title:
-2-
229
GRID
[DOMESTIC] [EURODOLLAR] RATE [RC] [INCREMENTAL] NOTE
-------------------------------------------------------------------------------------------------------------------------
DATE AMOUNT OF [BASE] [E URODOLLAR] AMOUNT OF PRINCIPAL PAID, UNPAID PRINCIPAL AMOUNT OF NOTATION MADE BY
RATE LOAN WHICH IS AN [RC] PREPAID OR CONVERTED [DOMESTIC] [EURODOLLAR] RATE
[INCREMENTAL] LOAN [INCREMENTAL] [RC] NOTE
-------------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------------
230
EXHIBIT B
--------------------------------------------------------------------------------
GUARANTY AGREEMENT
Dated as of September 26, 1996
BETWEEN
LIN TELEVISION CORPORATION
and
TORONTO DOMINION (TEXAS), INC.,
as Administrative Agent
--------------------------------------------------------------------------------
231
TABLE OF CONTENTS
Page
----
ARTICLE 1
GUARANTY
Section 1.01. Guaranty of Payment and Performance ........................ 1
Section 1.02. [Reserved] ................................................. 1
Section 1.03. Continuance and Acceleration of Guaranteed
Obligations upon Certain Events............................. 1
Section 1.04. Recovered Payments ......................................... 2
Section 1.05. Evidence of Guaranteed Obligations ......................... 2
Section 1.06. Binding Nature of Adjudications ............................ 2
Section 1.07. Nature of Guarantor's Obligations .......................... 3
Section 1.08. No Release of Guarantor .................................... 3
Section 1.09. Certain Waivers ............................................ 4
Section 1.10. Independent Credit Evaluation .............................. 5
Section 1.12. Subordination of Rights Against the Borrower,
Other Guarantors and Collateral ............................ 5
Section 1.12. Payments by the Guarantor ................................... 6
(a) Time, Place and Manner ................................. 6
(b) No Reductions .......................................... 6
(c) Taxes .................................................. 6
(d) Extension of Payment Dates ............................. 8
Section 1.13. Continuance of Guaranty ..................................... 8
ARTICLE 2
CERTAIN REPRESENTATIONS AND WARRANTIES
Section 2.01. Economic Benefits ........................................... 8
ARTICLE 3
MISCELLANEOUS
Section 3.01. Notices and Deliveries ...................................... 8
(a) Manner of Delivery ..................................... 8
(b) Addresses .............................................. 9
(c) Effectiveness .......................................... 10
(d) Reasonable Notice ...................................... 10
Section 3.02. Expenses .................................................... 10
-i-
232
Section 3.03. Amounts Payable Due upon Request for Payment............... 11
Section 3.04. Interest .................................................. 11
Section 3.05. Remedies of the Essence ................................... 11
Section 3.06. Rights Cumulative ......................................... 11
Section 3.07. Amendments; Waivers ....................................... 11
Section 3.08. Set-Off; Suspension of Payment and Performance............. 12
Section 3.09. Assignments and Participations ............................ 12
(a) Assignment ........................................... 12
(b) Participations ....................................... 12
(c) Rights of Assignees and
Participants ......................................... 13
Section 3.10. Governing Law ............................................. 13
Section 3.11. Judicial Proceedings; Waiver of Jury Trial ................ 13
Section 3.12. LIMITATION OF LIABILITY ................................... 14
Section 3.13. Severability of Provisions ................................ 14
Section 3.14. Counterparts .............................................. 14
Section 3.15. Survival of Obligations ................................... 14
Section 3.16. Entire Agreement .......................................... 14
Section 3.17. Successors and Assigns .................................... 14
ARTICLE 4
INTERPRETATION
Section 4.01. Definitional Provisions .................................... 15
(a) Certain Terms Define by Reference ...................... 15
(b) Other Defined Terms .................................... 15
Section 4.02. Other Interpretive Provisions .............................. 16
Section 4.03. Representations and Warranties ............................. 18
Section 4.04. Captions ................................................... 18
-ii-
233
GUARANTY AGREEMENT
Dated as of September 26, 1996
In consideration of the execution and delivery of the Credit Agreement by
the Banks listed on the signature pages thereof, The Bank of Nova Scotia,
Barclays Bank PLC, Fleet National Bank and NationsBank of Texas, N.A., as
Co-Agents, The Bank of New York, The Chase Manhattan Bank, Citicorp Securities,
Inc., and Toronto Dominion (New York), Inc., as Arranging Agents, The Bank of
New York, as Documentation Agent, Toronto Dominion (Texas), Inc., as
Administrative Agent, and The Chase Manhattan Bank, as Syndication Agent, LIN
TELEVISION CORPORATION, a Delaware corporation, hereby agrees with TORONTO
DOMINION (TEXAS), INC., as Administrative Agent, acting both on its own behalf
as the Administrative Agent and as the agent for the other Agents and the Banks,
as follows (with certain terms used herein being defined in Article 4):
ARTICLE 1
GUARANTY
--------
Section 1.01. GUARANTY OF PAYMENT AND PERFORMANCE. The Guarantor hereby (a)
irrevocably, unconditionally and absolutely guarantees to each Guaranteed Party
the due and punctual payment, observance and performance of all of the
Guaranteed Obligations in accordance with their respective terms and when and as
due (whether at maturity, by reason of acceleration or otherwise), or deemed to
be due pursuant to Section 1.03, and (b) agrees so to pay, observe or perform
the same when so due, or deemed to be due, upon demand.
Section 1.02. [Reserved]
Section 1.03. CONTINUANCE AND ACCELERATION OF GUARANTEED OBLIGATIONS UPON
CERTAIN EVENTS. If:
(a) any Event of Default that the Credit Agreement states is to result
in the automatic acceleration of any Guaranteed Obligations shall occur;
(b) any injunction, stay or the like that enjoins any acceleration, or
demand for the payment, observance or performance, of any Guaranteed
Obligations that would otherwise be required or permitted under the Loan
Documents shall become effective; or
(c) any Guaranteed Obligations shall be or be determined to be or
become discharged, disallowed, invalid,
234
illegal, void or otherwise unenforceable (whether by operation of any
present or future law or by order of any court or governmental agency)
against the Borrower;
then (i) such Guaranteed Obligations shall, for all purposes of the Guarantor
Loan Documents, be deemed (A) in the case of clause (c), to continue to be
outstanding and in full force and effect notwithstanding the unenforceability
thereof against the Borrower and (B) if such is not already the case, to have
thereupon become immediately due and payable and to have commenced bearing
interest at the Post-Default Rate and (ii) the Guaranteed Parties to which such
Guaranteed Obligations are owing may, with respect to such Guaranteed
Obligations, exercise all of the rights and remedies under the Guarantor Loan
Documents that would be available to them during an Event of Default.
Section 1.04. RECOVERED PAYMENTS. The Guaranteed Obligations shall be
deemed not to have been paid, observed or performed, and the Guarantor's
obligations under the Guarantor Loan Documents in respect thereof shall continue
and not be discharged, to the extent that any payment, observance or performance
thereof by the Borrower or any other guarantor, or out of the proceeds of the
Collateral or any other collateral, is recovered from or paid over by or for the
account of any Guaranteed Party for any reason, including as a preference or
fraudulent transfer or by virtue of any subordination (whether present or future
or contractual or otherwise) of the Guaranteed Obligations, whether such
recovery or payment over is effected by any judgment, decree or order of any
court or governmental agency, by any plan of reorganization or by settlement or
compromise made by any Guaranteed Party and deemed by such Guaranteed Party in
its reasonable determination to be commercially reasonable (whether or not
consented to by the Borrower, the Guarantor or any other guarantor) of any claim
for any such recovery or payment over. The Guarantor hereby expressly waives the
benefit of any applicable statute of limitations and agrees that it shall be
liable under the Guarantor Loan Documents with respect to any Guaranteed
Obligation whenever such a recovery or payment over thereof occurs.
Section 1.05. EVIDENCE OF GUARANTEED OBLIGATIONS. The records of each
Guaranteed Party shall, absent manifest error, be conclusive evidence of the
Guaranteed Obligations owing to it and of all payments, observances and
performances in respect thereof.
Section 1.06. BINDING NATURE OF ADJUDICATIONS. The Guarantor shall be
conclusively bound by the adjudication in any action or proceeding, legal or
otherwise, involving any controversy arising under, in connection with, or in
any way related to, any of the Guaranteed Obligations, and by a judgment, award
or decree entered therein.
-2-
235
Section 1.07. NATURE OF GUARANTOR'S OBLIGATIONS. The Guarantor's
obligations under the Guarantor Loan Documents (a) are absolute and
unconditional, (b) are unlimited in amount, (c) constitute a guaranty of payment
and performance and not a guaranty of collection, (d) are as primary obligor and
not as a surety only, (e) shall be a continuing guaranty of all present and
future Guaranteed Obligations and all promissory notes and other documentation
given in extension or renewal or substitution for. any of the Guaranteed
Obligations and (f) shall be irrevocable.
Section 1.08. NO RELEASE OF GUARANTOR. THE OBLIGATIONS OF THE GUARANTOR
UNDER THE GUARANTOR LOAN DOCUMENTS SHALL NOT BE REDUCED, LIMITED OR TERMINATED,
NOR SHALL THE GUARANTOR BE DISCHARGED FROM ANY THEREOF, FOR ANY REASON
WHATSOEVER (other than, subject to Sections 1.04 and 1.13, the payment,
observance and performance of the Guaranteed Obligations), including (and
whether or not the same shall have occurred or failed to occur once or more than
once and whether or not the Guarantor shall have received notice thereof):
(a) (i) any increase in the principal amount of, or interest rate
applicable to, (ii) any extension of the time of payment, observance or
performance of, (iii) any other amendment or modification of any of the other
terms and provisions of, (iv) any release, composition or settlement (whether by
way of acceptance of a plan of reorganization or otherwise) of, (v) any
subordination (whether present or future or contractual or otherwise) of, or
(vi) any discharge, disallowance, invalidity, illegality, voidness or other
unenforceability of, the Guaranteed Obligations;
(b) (i) any failure to obtain, (ii) any release, composition or settlement
of, (iii) any amendment or modification of any of the terms and provisions of,
(iv) any subordination of, or (v) any discharge, disallowance, invalidity,
illegality, voidness or other unenforceability of, any other guaranties of the
Guaranteed Obligations;
(c) (i) any failure to obtain or any release of, (ii) any failure to
protect or preserve, (iii) any release, compromise, settlement or extension of
the time of payment of any obligations constituting, (iv) any failure to perfect
or maintain the perfection or priority of any Lien upon, (v) any subordination
of any Lien upon, or (vi) any discharge, disallowance, invalidity, illegality,
voidness or other unenforceability of any Lien or intended Lien upon, the
Collateral or any other collateral now or hereafter securing the Guaranteed
Obligations or any other guaranties thereof;
(d) any termination of or change in any relationship between the Guarantor
and the Borrower, including any such termination or change resulting from a
change in the ownership of
-3-
236
the Guarantor or the Borrower or from the cessation of any commercial
relationship between the Guarantor and the Borrower;
(e) any exercise of, or any election not or failure to exercise, delay in
the exercise of, waiver of, or forbearance or other indulgence with respect to,
any right, remedy or power available to the Guaranteed Parties, including (i)
any election not or failure to exercise any right of setoff, recoupment or
counterclaim, (ii) any election of remedies effected by the Guaranteed Parties,
including the foreclosure upon any real 'estate constituting the Collateral or
any other collateral, whether or not such election affects the right to obtain a
deficiency judgment, and (iii) any election by the Guaranteed Parties in any
proceeding under the Bankruptcy Code of the application of Section 1111(b)(2) of
such Code; and
(f) ANY OTHER ACTOR FAILURE TO ACT OR ANY OTHER EVENT OR CIRCUMSTANCE THAT
(i) VARIES THE RISK OF THE GUARANTOR UNDER THE GUARANTOR LOAN DOCUMENTS OR (ii)
BUT FOR THE PROVISIONS HEREOF, WOULD, AS A MATTER OF STATUTE OR RULE OF LAW OR
EQUITY, OPERATE TO REDUCE, LIMIT OR TERMINATE THE OBLIGATIONS OF THE GUARANTOR
THEREUNDER OR DISCHARGE THE GUARANTOR FROM ANY THEREOF.
Section 1.09. CERTAIN WAIVERS. The Guarantor waives:
(a) any requirement, and any right to require, that any right or power be
exercised or any action be taken against the Borrower, any other guarantor or
the Collateral or any other collateral for the Guaranteed Obligations;
(b) all defenses to, and all setoffs, counterclaims and claims of
recoupment against, the Guaranteed Obligations that may at any time be available
to the Borrower or any other guarantor;
(c) (i) notice of acceptance of and intention to rely on the Guarantor Loan
Documents, (ii) notice of the making or renewal of any Loans or other extensions
of credit under the Credit Agreement and of the incurrence or renewal of any
other Guaranteed Obligations, (iii) notice of any of the matters referred to in
Section 1.08 and (iv) all other notices that may be required by Applicable Law
or otherwise to preserve any rights against the Guarantor under the Guarantor
Loan Documents, including any 'notice of default, demand, dishonor, presentment
and protest;
(d) diligence;
(e) any defense based upon, arising out of or in any way related to (i) any
claim that any sale or other disposition of the Collateral or any other
collateral for the Guaranteed Obligations was not conducted in a commercially
reasonable fashion or that a public sale, should the Guaranteed Parties have
elected to so proceed, was, in and of itself, not a commercially
-4-
237
reasonable method of sale, (ii) any claim that any election of remedies by the
Guaranteed Parties, including the exercise by the Guaranteed Parties of any
rights against the Collateral or any other collateral, impaired, reduced,
released or otherwise extinguished any right that the Guarantor might otherwise
have had against the Borrower or any other guarantor or against the Collateral
or any other collateral, including any right of subrogation, exoneration,
reimbursement or contribution or right to obtain a deficiency judgment, (iii)
any claim based upon, arising out of or in any way related to any of the
matters referred to in Section 1.08 and (iv) any claim that the Guarantor Loan
Documents should be strictly construed against the Guaranteed Parties; and
(f) ALL OTHER DEFENSES UNDER APPLICABLE LAW THAT WOULD, BUT FOR THIS CLAUSE
(f), BE AVAILABLE TO THE GUARANTOR AS A DEFENSE AGAINST OR A REDUCTION OR
LIMITATION OF ITS OBLIGATIONS UNDER THE GUARANTOR LOAN DOCKS.
Section 1.10. INDEPENDENT CREDIT EVALUATION. The Guarantor has
independently, and without reliance on any information supplied by the
Guaranteed Parties, taken, and will continue to take, whatever steps it deems
necessary to evaluate the financial condition and affairs of the Borrower, and
the Guaranteed Parties shall have no duty to advise the Guarantor of information
at any time known to them regarding such financial condition or affairs.
Section 1.11. SUBORDINATION OF RIGHTS AGAINST THE BORROWER, OTHER
GUARANTORS AND COLLATERAL. All rights that the Guarantor may at any time have
against the Borrower, any other guarantor or the Collateral or any other
collateral for the Guaranteed Obligations, and all obligations that the Borrower
or any other guarantor may at any time have to the Guarantor, are hereby
expressly subordinated to the prior payment, observance and performance in full
of the Guaranteed Obligations. The Guarantor shall not enforce any of the
rights, or attempt to obtain payment or performance of any of the obligations,
subordinated pursuant to this Section 1.11 until the Guaranteed Obligations have
been paid, observed and performed in full, except that such prohibition shall
not apply to routine acts, such as the giving of notices and the filing of
continuation statements, necessary to preserve any such rights. If any amount
shall be paid to or recovered by the Guarantor (whether directly or by way of
setoff, recoupment or counterclaim) on account of any right or obligation
subordinated pursuant to this Section 1.11, such amount shall be held in trust
by the Guarantor for the benefit of the Guaranteed Parties, not commingled with
any of the Guarantor's other funds and forthwith paid over to the Administrative
Agent, in the exact form received, together with any necessary endorsements, to
be applied and credited against, or held as security for, the Guaranteed
Obligations and the obligations of the Guarantor under the Guarantor Loan
Documents.
-5-
238
Section 1.12. PAYMENTS BY THE GUARANTOR. (a) TIME, PLACE AND MANNER. All
payments due to the Administrative Agent under the Guarantor Loan Documents
shall be made to the Administrative Agent at the Administrative Agent's Office
or to such other Person or at such other address as the Administrative Agent may
designate by notice to the Guarantor. All payments due to any Bank under the
Guarantor Loan Documents shall, in the case of payments on account of principal
of or interest on the Loans or commitment fees, be made to the Administrative
Agent at the Administrative Agent's Office and, in the case of all other
payments, be made directly to such Bank at its Domestic Lending Office or at
such other address as such Bank may designate by notice to the Guarantor. All
payments due to any Bank under the Guarantor Loan Documents, whether made to the
Administrative Agent or directly to such Bank, shall be made for the account of,
in the case of payments in respect of Eurodollar Rate Loans, such Bank's
Eurodollar Rate Lending Office and, in the case of all other payments, such
Bank's Domestic Lending Office. A payment shall not be deemed to have been made
on any day unless such payment has been received by the required Person, at the
required place of payment, in Dollars in funds immediately available to such
Person, no later than 12:00 noon (New York time) on such day.
(b) NO REDUCTIONS. All payments due any Guaranteed Party under the
Guarantor Loan Documents, and all of the other terms, conditions, covenants and
agreements to be observed and performed by the Guarantor thereunder, shall be
made, observed or performed by the Guarantor without any reduction or deduction
whatsoever, including any reduction or deduction for any set-off, recoupment,
counterclaim (whether, in any case, in respect of an obligation owed by such
Guaranteed Party to the Guarantor, the Borrower or any other guarantor and, in
the case of a counterclaim, whether sounding in tort, contract or otherwise) or
Tax, except for any withholding or deduction for Taxes required to be withheld
or deducted under Applicable Law.
(c) TAXES. (i) If any Tax is required to be withheld or deducted from, or
is otherwise payable by the Guarantor in connection with, any payment due to any
Guaranteed Party under the Guarantor Loan Documents, the Guarantor (A) shall, if
required, withhold or deduct the amount of such Tax from such payment and, in
any case, pay such Tax to the appropriate taxing authority in accordance with
Applicable Law and (B) shall pay to such Guaranteed Party such additional
amounts as may be necessary so that the net amount received by such Guaranteed
Party with respect to such payment, after withholding or deducting all Taxes
required to be withheld or deducted, is equal to the full amount payable under
the Guarantor Loan Documents. If any Tax is withheld or deducted from, or is
otherwise payable by the Guarantor in connection with, any payment due to any
Guaranteed Party under the Guarantor Loan Documents, the Guarantor shall, as
soon as possible after the date of such payment, furnish to such Guaranteed
Party the original or a certified copy of a receipt
-6-
239
for such Tax from the applicable taxing authority. If any payment due to any
Guaranteed Party under the Guarantor Loan Documents is or is expected to be made
without withholding or deducting therefrom, or otherwise paying in connection
therewith, any Tax payable to any taxing authority, the Guarantor shall, within
30 days after any request from such Guaranteed Party, furnish to such Guaranteed
Party a certificate from such taxing authority, or an opinion of counsel
acceptable to such Principal, in either case stating that no Tax payable to such
taxing authority was or is, as the case may be, required to be withheld or
deducted from, or otherwise paid by the Guarantor in connection with, such
payment.
(ii) The Guarantor shall, promptly upon request by any Guaranteed Party for
the payment thereof, pay to such Guaranteed Party (A) all Taxes (other than Bank
Taxes) payable by such Guaranteed Party with respect to any payment due to such
Guaranteed Party under the Guarantor Loan Documents and (B) all Taxes (including
Bank Taxes) payable by such Guaranteed Party as a result of payments made by the
Guarantor (whether made to a taxing authority or to such Guaranteed Party)
pursuant to Section 1.12(c)(i) or (ii).
(iii) (A) Each Guaranteed Party that is not a "United States person" (as
such term is defined in Section 7701(a)(30) of the Code) shall submit to the
Guarantor and the Administrative Agent (1) on or before the Closing Date, (aa)
two duly completed and signed copies of Internal Revenue Service Form 1001 or
4224 or any successor form, in each case entitling such Guaranteed Party to a
complete exemption from withholding of any United States federal income taxes on
all amounts to be received by such Guaranteed Party under the Guarantor Loan
Documents, and (bb) a duly completed and signed copy of Internal Revenue Service
Form W-8 or W-9 or any successor form, in each case entitling such Guaranteed
Party to a complete exemption from United States backup withholding tax on all
amounts to be received by such Guaranteed Party under the Guarantor Loan
Documents, and (2) from time to time thereafter, prior to the expiration or
obsolescence of any previously delivered form or upon any previously delivered
form becoming inaccurate or inapplicable, such further duly completed and signed
copies of such forms or such other forms or certificates, in each case entitling
such Guaranteed Party to exemption from withholding of United States federal
income taxes and from United States backup withholding tax to the maximum extent
to which such Guaranteed Party is then entitled under Applicable Law. Such
Guaranteed Party shall promptly notify the Guarantor and the Administrative
Agent if (1) it is required to withdraw or cancel any form or certificate
previously submitted by it or any such form or certificate has otherwise become
ineffective or inaccurate or (2) payments to it are or will be subject to
withholding of United States federal income taxes or United States backup
withholding tax to a greater extent than the extent to which payments to it were
previously subject. Upon the request of the Guarantor or the Administrative
Agent, each
-7-
240
Guaranteed Party that is a United States person (as defined above) shall from
time to time submit to the Guarantor and the Administrative Agent, a certificate
to the effect that it is such a United States person.
(B) Notwithstanding anything to the contrary contained herein, the
Guarantor shall not be required to pay any additional amount in respect of
withholding of United States income taxes or United States backup withholding
tax pursuant to Section 1.12(c) (i) or (ii) to any Guaranteed Party (1) except
to the extent United States federal income taxes or United States backup
withholding tax, as the case may be, is required to be withheld as a result of a
Regulatory Change or (2) to the extent such withholding is required because the
Guaranteed Party has failed to submit any form or certificate that it is
entitled to so submit under Applicable Law.
(d) EXTENSION OF PAYMENT DATES. Whenever any payment to any Guaranteed
Party under the Guarantor Loan Documents would otherwise be due (except by
reason of acceleration) on a day that is not a Business Day, such payment shall
instead be due on the next succeeding Business Day. If the date any payment
under the Guarantor Loan Documents is due is extended (whether by operation of
any Guarantor Loan Document, Applicable Law or otherwise), such payment shall
bear interest for such extended time at the rate of interest applicable
hereunder.
Section 1.13. CONTINUANCE OF GUARANTY. The obligations of the Guarantor
under this Article 1 shall continue in full force and effect until (a) the
termination of the Commitments and (b) the indefeasible payment, observance and
performance in full of the Guaranteed Obligations.
ARTICLE 2
CERTAIN REPRESENTATIONS AND WARRANTIES
--------------------------------------
The Guarantor represents and warrants as follows:
Section 2.01. ECONOMIC BENEFITS. The execution and delivery by the Agents
and the Banks of the Credit Agreement, and the extensions of credit by the Banks
thereunder, constitute indirect economic benefit to the Guarantor at least equal
to the amount of its obligations under the Guarantor Loan Documents.
ARTICLE 3
MISCELLANEOUS
-------------
Section 3.01. NOTICES AND DELIVERIES. (a) MANNER OF DELIVERY. All notices,
communications and materials (including all Information) to be given or
delivered pursuant to the
-8-
241
Guarantor Loan Documents shall, except in those cases where giving notice by
telephone is expressly permitted, be given or delivered in writing (which shall
include telecopy transmissions). Demands under Section 1.01(b) may be by
telephone, if promptly confirmed in writing. In the event of a discrepancy
between any telephonic notice and any written confirmation thereof, such written
confirmation shall be deemed the effective notice except to the extent that the
Administrative Agent has acted in reliance on such telephonic notice.
(b) ADDRESSES. All notices, communications and materials to be given or
delivered pursuant to the Guarantor Loan Documents shall be given or delivered
at the following respective addresses and telecopier and telephone numbers and
to the attention of the following individuals or departments:
(i) if to the Guarantor, to it at the address or telecopier or
telephone number and to the attention of the individual or
department set forth as the notice address for LIN Television in
Section 9.01 of the Credit Agreement;
(ii) if to the Administrative Agent, to it at the address or
telecopier or telephone number and to the attention of the
individual or department set forth as the notice address for the
Administrative Agent in Section 9.01 of the Credit Agreement;
(iii) if to any Bank, to it at the address or telecopier or telephone
number and to the attention of the individual or department, set
forth below such Bank's name under the heading "Notice Address"
on Annex A to the Credit Agreement or, in the case of a Bank that
becomes a Bank pursuant to an assignment, set forth under the
heading "Notice Address" in the Notice of Assignment given to the
Borrower and the Administrative Agent with respect to such
assignment;
or at such other address or telecopier or telephone number or to the attention
of such other individual or department as the party to which such information
pertains may hereafter specify for the purpose in a notice specifically
captioned "Notice of Change of Address" given to (A) if the party to which such
information pertains is the Guarantor, the Administrative Agent and each Bank,
(B) if the party to which such information pertains is the Administrative Agent,
the Guarantor and each Bank and (c) if the party to which such information
pertains is a Bank, the Guarantor and the Administrative Agent.
-9-
242
(c) EFFECTIVENESS. Each notice and communication and any material to be
given or delivered pursuant to the Guarantor Loan. Documents shall be deemed so
given or delivered (i) if sent by registered or certified mail, postage prepaid,
return receipt requested, on the fourth Business Day after such notice,
communication or material, addressed as above provided, is delivered to a United
States post office and a receipt therefor is issued thereby, (ii) if sent by any
other means of physical delivery, when such notice, communication or material is
delivered to the appropriate address as above provided, (iii) if sent by
telecopier, when such notice, communication or material is transmitted to the
appropriate telecopier number as above provided and is received at such number
and (iv) if given by telephone, when communicated to the individual or any
member of the department specified as the individual or department to whose
attention notices, communications and materials are to be given or delivered,
except that (A) notices of a change of address, telecopier or telephone number
Or individual or department to whose attention notices, communications and
materials are to be given or delivered shall not be deemed given until received
and (B) notices, communications and materials to be given or delivered to the
Administrative Agent or any Bank pursuant to the Guarantor Loan Documents shall
not be deemed given or delivered until received by the officer of the
Administrative Agent or such Bank responsible, at the time, for the
administration of the Loan Documents.
(d) REASONABLE NOTICE. Any requirement under Applicable Law of reasonable
notice by the Guaranteed Parties to the Guarantor of any event in connection
with, or in anyway related to, the Loan DOcuments or the exercise by the
Guaranteed Parties of any of their rights thereunder shall be met if notice of
such event is given to the Guarantor in the manner prescribed above at least 10
days before (i) the date of such event or (ii) the date after which such event
will occur.
Section 3.02. EXPENSES. The Guarantor agrees to pay on demand: (a) all
costs and expenses of the Administrative Agent and the Documentation Agent in
connection with the preparation, execution, delivery, administration,
modification and amendment of this Agreement, including, without limitation, (i)
all due diligence, transportation, computer, duplication, appraisal, audit,
consultant, search, filing and recording fees and expenses and (ii) the
reasonable fees and expenses of counsel for the Administrative Agent and the
Documentation Agent with respect thereto and with respect to advising the
Administrative Agent and the Documentation Agent as to their respective rights
and responsibilities, or the perfection, protection or preservation of rights or
interests, under this Agreement and with respect to negotiations with the
Guarantor regarding any Default or any events or circumstances that may give
rise to a Default and (b) all costs and expenses of the Agents and the Banks in
connection with the enforcement of this Agreement whether in any action, 'suit
or litigation, any bankruptcy, insolvency or other similar
-10-
243
proceeding affecting creditors' rights generally or otherwise (including,
without limitation, the reasonable fees and expenses of counsel for any Agent or
any Bank with respect thereto).
Section 3.03. AMOUNTS PAYABLE DUE UPON REQUEST FOR PAYMENT. All amounts
payable by the Guarantor under Section 3.02 and under the other provisions of
the Guarantor Loan Documents shall, except as otherwise expressly provided, be
immediately due upon request for the payment thereof.
Section 3.04. INTEREST. All amounts due and payable under the Guarantor
Loan Documents shall, to the maximum extent permitted by Applicable Law, bear
interest at a rate per annum equal to (a) the Base Rate as in effect from time
to time plus, unless an Event of Default is continuing, the Applicable Margin or
(b) during an Event of Default, the Post-Default Rate. Notwithstanding the
foregoing, nothing contained in the Guarantor Loan Documents shall require the
Guarantor at any time to pay interest. at a rate exceeding the Maximum
Permissible Rate. If interest payable by the Guarantor on any date would exceed
the maximum amount permitted by the Maximum Permissible Rate, such interest
payment shall automatically be reduced to such maximum permitted amount, and
interest for any subsequent period, to the extent less than the maximum amount
permitted for such period by the Maximum Permissible Rate, shall be increased by
the unpaid amount of such reduction. Interest shall be computed on the basis of
a year of 360 days and paid for the actual number of days elapsed. Interest for
any period shall be calculated from and including the first day thereof to but
excluding the last day thereof.
Section 3.05. REMEDIES OF THE ESSENCE. The various rights and remedies of
the Guaranteed Parties under the Guarantor Loan Documents are of the essence of
those agreements, and the Guaranteed Parties shall be entitled to obtain a
decree requiring specific performance of each such right and remedy.
Section 3.06. RIGHTS CUMULATIVE. Each of the rights and remedies of the
Guaranteed Parties under the Guarantor Loan Documents shall be in addition to
all of their other rights and remedies under the Guarantor Loan Documents and
Applicable Law, and nothing in the Guarantor Loan Documents shall be construed
as limiting any such rights or remedies.
Section 3.07. AMENDMENTS; WAIVERS. Any term, covenant, agreement or
condition of the Guarantor Loan Documents may be amended, and any right under
the Guarantor Loan Documents may be waived, if, but only if, such amendment or
waiver is in writing and is signed by the Administrative Agent (in accordance
with the terms of the Credit Agreement) and, in the case of an amendment, by the
Guarantor. Unless otherwise specified in such waiver, a waiver of any right
under the Guarantor Loan Documents shall be effective only in the specific
instance and for the specific purpose for which given. No election not to
exercise,
-11-
244
failure to exercise or delay in exercising any right, nor any course of dealing
or performance, shall operate as a waiver of any right of the Guaranteed Parties
under the Guarantor Loan Documents or Applicable Law, nor shall any single or
partial exercise of any such right preclude any other or further exercise
thereof or the exercise of any other right of the Guaranteed Parties under the
Guarantor Loan Documents or Applicable Law.
Section 3.08. SET-OFF; SUSPENSION OF PAYMENT AND PERFORMANCE. Each
Guaranteed Party is hereby authorized by the Guarantor, at any time and from
time to time, without notice, (a) during the continuance of any Event of
Default, to set off against, and to appropriate and apply to the payment of, the
Liabilities of the Guarantor under the Guarantor Loan Documents (whether owing
to such Guaranteed Party or to any other Guaranteed Party and whether matured or
unmatured, fixed or contingent or liquidated or unliquidated) any and all
Liabilities owing by such Guaranteed Party or any of its Affiliates to the
Guarantor or any of its Wholly Owned Subsidiaries (whether payable in Dollars or
any other currency, whether matured or unmatured and, in the case of Liabilities
that are deposits, whether general or special, time or demand and however
evidenced and whether maintained at a branch or office located within or without
the United States) and (b) during the continuance of any Event of Default, to
suspend the payment and performance of such Liabilities owing by such Guaranteed
Party or its Affiliates and, in the case of Liabilities that are deposits, to
return as unpaid for insufficient funds any and all checks and other items drawn
against such deposits.
Section 3.09. ASSIGNMENTS AND PARTICIPATIONS. (a) Assignments. (i) The
Guarantor may not assign any of its rights or obligations under the Guarantor
Loan Documents without the prior written consent of the Administrative Agent,
and no assignment of any such obligation shall release the Guarantor therefrom
unless the Administrative Agent shall have consented to such release in a
writing specifically referring to the obligation from which the Guarantor is to
be released.
(ii) Each Bank may, in connection with any assignment to any Person of
any or all of the Guaranteed Obligations owing to it or its Commitment, in each
case in accordance with the terms of the Credit Agreement, assign to such Person
any or all of its rights and obligations under the Guarantor Loan Documents and
with respect to the Collateral without the ~consent of the Guarantor or any
other Guaranteed Party. Any such assignment of any such obligation shall release
the Bank therefrom.
(b) PARTICIPATIONS. Each Bank may, in connection with any grant to any
Person of a participation in any or all of the Guaranteed Obligations owing to
it or its Commitment, in each case in accordance with the terms of the Credit
Agreement, grant to such Person a participation in any or all of its rights
under
-12-
245
the Guarantor Loan Documents and with respect to the Collateral without the
consent of the Guarantor or any other Guaranteed Party.
(c) RIGHTS OF ASSIGNEES AND PARTICIPANTS. Each assignee of, and each holder
of a participation in, the rights of any Bank under the Guarantor Loan Documents
and with respect to the Collateral, if and to the extent the applicable
assignment or participation agreement so provides, (i) shall, with respect to
its assignment or participation, be entitled to all of the rights of a Bank (as
fully, in the case of a holder of a participation, as though it were a Bank),
subject to any conditions imposed on a Bank hereunder with respect thereto,
including delivery of the forms and certificates required under Section
1.12(c)(iii), and (ii) may exercise any and all rights of set-off or banker's
lien with respect thereto (as fully, in the case of a holder of a participation,
as though the Guarantor were directly indebted to such holder for amounts
payable under the Guarantor Loan Documents to which such holder is entitled
under the applicable participation agreement); PROVIDED, HOWEVER, that no
assignee or holder of a participation shall be entitled to any amounts that
would otherwise be payable to it with respect to its assignment or participation
under Section 1.12(b) or (c) unless (x) such amounts are payable in respect of
Regulatory Changes that are enacted, adopted or issued after the date the
applicable assignment or participation agreement was executed or(y) such
amounts would have been payable to the Bank that made such assignment or granted
such participation if such assignment had not been made or such participation
granted.
Section 3.10. GOVERNING LAW. This Agreement (including matters relating to
the Maximum Permissible Rate). shall be construed in accordance with and
governed by the law of the State of New York (without giving effect to its
choice of law principles).
Section 3.11. JUDICIAL PROCEEDINGS; WAIVER OF JURY TRIAL. Any judicial
proceeding brought against the Guarantor with respect to any Guarantor Loan
Document Related Claim may be brought in any court of competent jurisdiction in
the City of New York, and, by execution and delivery of this Agreement, the
Guarantor (a) accepts, generally and unconditionally, the nonexclusive
jurisdiction of such courts and any related appellate court and irrevocably
agrees to be bound by any judgment rendered thereby in connection with any
Guarantor Loan Document Related Claim and (b) irrevocably waives any objection
it may now or hereafter have as to the venue of any such proceeding brought in
such a court or that such a court is an inconvenient forum. The Guarantor hereby
waives personal service of process and consents that service of process upon it
may be made by certified or registered mail, return receipt requested, at its
address specified or determined in accordance with the provisions of Section
3.01(b), and service so made shall be deemed completed on the fourth Business
Day after Such service is
-13-
246
deposited in the mail. Nothing herein shall affect the right of any Guaranteed
Party to serve process in any other manner permitted by law or shall limit the
right of any Guaranteed Party to bring proceedings against the Guarantor in the
courts of any other jurisdiction. To the extent permitted in accordance with
Applicable Law (including Applicable Law relating to jurisdiction and venue),
any judicial proceeding by the Guarantor against the Administrative Agent or any
Bank involving any Guarantor Loan Document Related Claim shall be brought only
in a court located in, in the case of the Administrative Agent, the City and
State of New York and, in the case of a Bank, the jurisdiction in which such
Bank's principal United States office is located. THE GUARANTOR, THE
ADMINISTRATIVE AGENT AND EACH BANK HEREBY WAIVE TRIAL BY JURY IN ANY JUDICIAL
PROCEEDING INVOLVING ANY GUARANTOR LOAN DOCUMENT RELATED CLAIM.
Section 3.12. LIMITATION OF LIABILITY. NO GUARANTEED PARTY SHALL HAVE ANY
LIABILITY WITH RESPECT TO, AND THE GUARANTOR HEREBY WAIVES, RELEASES AND AGREES
NOT TO XXX FOR, ANY LOSS OR DAMAGE SUSTAINED BY THE GUARANTOR THAT MAY OCCUR AS
A RESULT OF, IN CONNECTION WITH, OR THAT IS IN ANY WAY RELATED TO, ANY ACT OR
FAILURE TO ACT REFERRED TO IN SECTION 1.08.
Section 3.13. SEVERABILITY OF PROVISIONS. Any provision of the Guarantor
Loan Documents that is prohibited or unenforceable in any jurisdiction shall, as
to such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions thereof or
affecting the validity or enforceability of such provision in any other
jurisdiction. To the extent permitted by Applicable Law, the Guarantor hereby
waives any provision of Applicable Law that renders any provision of the
Guarantor Loan Documents prohibited or unenforceable in any respect.
Section 3.14. COUNTERPARTS. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto were upon the same instrument.
Section 3.15. SURVIVAL OF OBLIGATIONS. Except as otherwise expressly
provided therein, the rights and obligations of the Guarantor and the Guaranteed
Parties under the Guarantor Loan Documents shall survive the Repayment Date and
the termination of the Security Interest.
Section 3.16. ENTIRE AGREEMENT. This Agreement embodies the entire
agreement among the Guarantor, the Administrative Agent and the Banks relating
to the subject matter hereof and supersedes all prior agreements,
representations and understandings, if any, relating to the subject matter
hereof.
Section 3.17. SUCCESSORS AND ASSIGNS. All of the provisions of this
Agreement shall be binding upon and inure to
-14-
247
the benefit of the Guarantor and the Guaranteed Parties and their respective
successors and assigns.
ARTICLE 4
INTERPRETATION
--------------
Section 4.01. DEFINITIONAL PROVISIONS. (a) CERTAIN TERMS DEFINED BY
REFERENCE. Except in the case of "Agreement", "Agreement Date", "Collateral",
"Representation and Warranty" and "Security Interest" and as otherwise specified
herein, all terms defined in the Credit Agreement are used herein with the
meanings therein ascribed to them.
(b) OTHER DEFINED TERMS. For purposes of this Agreement:
"AGREEMENT" means this Agreement, including all schedules, annexes and
exhibits hereto.
"AGREEMENT DATE" means the date set forth as such on the last signature
page hereof, which date is the date the executed copies of this Agreement were
delivered by all parties hereto and, accordingly, the date this Agreement became
effective and, for the first time, binding upon such parties.
"COLLATERAL" means all property in which the Loan Documents create or
purport to create a Lien.
"CREDIT AGREEMENT" means the Credit Agreement, dated as of November 30,
1994, as amended and restated as of September 26, 1996, among LWWI Broadcasting
Inc., LIN Television Corporation, the banks listed on the signature pages
thereof, The Bank of Nova Scotia, Barclays Bank PLC, Fleet National Bank and
NationsBank of Texas, N.A., as Co-Agents, The Bank of New York, The Chase
Manhattan Bank, Citicorp Securities, Inc., and Toronto Dominion (New York),
Inc., as Arranging Agents, The Bank of New York, as Documentation Agent, Toronto
Dominion (Texas), Inc., as Administrative Agent, and The Chase Manhattan Bank,
as Syndication Agent.
"GUARANTEED OBLIGATIONS" means all Liabilities of the Borrower owing to, or
in favor or for the benefit of, or purporting to be owing to, or in favor or for
the benefit of, the Guaranteed Parties under the Loan Documents and under any
Interest Rate Protection Agreement to which any Bank is a party, in each case
(i) WHETHER NOW EXISTING OR HEREAFTER ARISING OR ACQUIRED, (ii) whether owing
to, or in favor or for the benefit of, or purporting to be owing to or in favor
or for the benefit of, Persons that are Guaranteed Parties as of the Agreement
Date or that become Guaranteed Parties by reason of any succession or assignment
at any time thereafter and (iii) WHETHER OR NOT AN ALLOWABLE CLAIM AGAINST THE
BORROWER UNDER THE BANKRUPTCY CODE OR
-15-
248
OTHERWISE ENFORCEABLE AGAINST THE BORROWER, AND INCLUDING, IN ANY EVENT,
INTEREST AND OTHER LIABILITIES ACCRUING OR ARISING AFTER THE FILING BY OR
AGAINST THE BORROWER OF A PETITION UNDER THE BANKRUPTCY CODE OR THAT WOULD HAVE
SO ACCRUED OR ARISEN BUT FOR THE FILING OF SUCH A PETITION.
"GUARANTEED PARTIES" means all Persons that are, or at any time were, an
Agent, a Bank or any other Indemnified Person.
"GUARANTOR" means LIN Television Corporation, a Delaware corporation.
"GUARANTOR LOAN DOCUMENT RELATED CLAIM" means any claim (whether civil,
criminal or administrative and whether sounding in tort, contract or otherwise)
in any way arising out of, related to, or connected with, the Guarantor Loan
Documents or the relationships established thereunder, whether such claim arises
or is asserted before or after the Agreement Date or before or after the
Repayment Date or before or after the release of the Security Interest.
"GUARANTOR LOAN DOCUMENTS" means the Loan Documents to which the Guarantor
is a party.
"REPRESENTATION AND WARRANTY" means each representation or warranty made
pursuant to or under (i) Article 2 or any other provision of this Agreement or
(ii) any amendment to, or waiver of rights under, this Agreement, WHETHER OR
NOT, IN THE CASE OF ANY REPRESENTATION OR WARRANTY REFERRED TO IN CLAUSE (i) OR
(ii) OF THIS DEFINITION (EXCEPT, IN EACH CASE, TO THE EXTENT OTHERWISE EXPRESSLY
PROVIDED), THE INFORMATION THAT IS THE SUBJECT MATTER THEREOF IS WITHIN THE
KNOWLEDGE OF THE GUARANTOR.
"SECURITY INTEREST" means the Liens created, or purported to be created, by
the Guarantor Loan Documents.
Section 4.02. OTHER INTERPRETIVE PROVISIONS. (a) Except as otherwise
specified herein, all references herein (i) to any Person shall be deemed to
include such Person's successors and assigns, (ii) to any Applicable Law defined
or referred to herein shall be deemed references to such Applicable Law or any
successor Applicable Law as the same may have been or may be amended or
supplemented from time to time and (iii) to any Loan Document or Contract
defined or referred to herein shall be deemed references to such Loan Document
or Contract (and, in the case of any instrument, any other instrument issued in
substitution therefor) as the terms thereof may have been or may be amended,
supplemented, waived or otherwise modified from time to time.
(b) When used in this Agreement, the words "herein", "hereof" and
"hereunder" and words of similar import shall refer to this Agreement as a whole
and not to any provision of this "Annex" Agreement, and the words "Article",
"Section",
-16-
249
"Schedule" and "Exhibit" shall refer to Articles and Sections of, and Annexes,
Schedules and Exhibits to, this Agreement unless otherwise specified.
(c) Whenever the context so requires, the neuter gender includes the
masculine or feminine, the masculine gender includes the feminine, and the
singular number includes the plural, and vice versa.
(d) Any item or list of items set forth following the word "including",
"include" or "includes" is set forth only for the purpose of indicating that,
regardless of whatever other items are in the category in which such item or
items are "included", such item or items are in such category, and shall not be
construed as indicating that the items in the category in which such item or
items are "included" are limited to such items or to items similar to such
items.
(e) Each authorization in favor of the Guaranteed Parties or any other
Person granted by or pursuant to this Agreement shall be deemed to be
irrevocable and coupled with an interest.
(f) Except as otherwise indicated, any reference herein to the "Guaranteed
Obligations", the "Guarantor Loan Documents", the "Guaranteed Parties" or any
other collective or plural term shall be deemed a reference to each and every
item included within the category described by such collective or plural term,
so that (i) a reference to the "Guaranteed Obligations" or the "Guaranteed
Parties" shall be deemed a reference to any or all of the Guaranteed Obligations
or the Guaranteed Parties, as the case may be, and (ii) a reference to the
"obligations" of the Guarantor under the "Guarantor Loan Documents" shall be
deemed a reference to each and every obligation under each and every Guarantor
Loan Document, whether any such obligation is incurred under one; some or all of
the Guarantor Loan Documents.
(g) Except as otherwise specified herein, all references herein to any
Guaranteed Party or any Loan Party shall be deemed to refer to such Person
however designated in the Loan Documents, so that (i) a reference to rights of a
Guaranteed Party under the Guarantor Loan Documents shall be deemed to include
the rights of such Person as a Principal and, in the case of the Administrative
Agent, as the Secured Party under the Security Agreement to which the Guarantor
is a party, (ii) a reference to costs incurred by a Guaranteed Party in
connection with the Guarantor Loan Documents shall be deemed to include costs
incurred by such Person as a Principal and, in the case of the Administrative
Agent, as the Secured Party under the Security Agreement to which the Guarantor
is a party and (iii) a reference to the obligations of the Guarantor under the
Guarantor Loan Documents shall be deemed to include the obligations of such
-17-
250
Person as the Pledgor under the Security Agreement to which the Guarantor is a
party.
(h) Except as otherwise specified therein, all terms defined in this
Agreement shall have the meanings herein ascribed to them when used in any
certificate, opinion or other document delivered pursuant hereto or thereto.
Section 4.03. REPRESENTATIONS AND WARRANTIES. All Representations and
Warranties shall be deemed made (a) in the case of any Representation and
Warranty contained in this Agreement at.the time of its initial execution and
delivery, at and as of the Agreement Date, (b) in the case of any Representation
and Warranty contained in this Agreement or any other document at the time any
Loan is made, at and as of such time and (c) in the case of any particular
Representation and Warranty, wherever contained, at such other time or times as
such Representation and Warranty is made or deemed made in accordance with the
provisions of this Agreement or the document pursuant to, under or in connection
with which such Representation and Warranty is made or deemed made.
Section 4.04. CAPTIONS. Captions to Articles, Sections and subsections
of, and Annexes, Schedules and Exhibits to, this Agreement are included for
convenience of reference only and shall not constitute a part of this Agreement
for any other purpose or in any way affect the meaning or construction of any
provision of this Agreement.
251
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized officers all as of the Agreement Date.
LIN TELEVISION CORPORATION
By:
--------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President - Treasurer
TORONTO DOMINION (TEXAS), INC.,
as Administrative Agent, acting both on
its own behalf as the Administrative
Agent and as the agent for the other
Agents and the Banks
By:
--------------------------------------
Name:
Title:
Agreement Date:
