EXECUTION COPY
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CREDIT AGREEMENT
DATED AS OF MARCH 11, 2005
AMONG
LIN TELEVISION CORPORATION,
AS THE BORROWER,
TELEVICENTRO OF PUERTO RICO, LLC,
AS THE PERMITTED BORROWER,
THE LENDERS PARTY HERETO,
JPMORGAN CHASE BANK, N.A.,
AS ADMINISTRATIVE AGENT,
AS AN ISSUING LENDER
AND AS SWINGLINE LENDER
---------------------
J.P. MORGAN SECURITIES INC.
AND
DEUTSCHE BANK SECURITIES INC.,
AS JOINT LEAD ARRANGERS AND JOINT BOOKRUNNERS,
DEUTSCHE BANK TRUST COMPANY AMERICAS,
AS SYNDICATION AGENT AND AS AN ISSUING LENDER,
AND
BANK OF AMERICA, N.A.,
THE BANK OF NOVA SCOTIA,
AND
WACHOVIA BANK, NATIONAL ASSOCIATION,
AS DOCUMENTATION AGENTS
AND
SUNTRUST BANK,
AS CO-DOCUMENTATION AGENT
STB DRAFT 2/16/05
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TABLE OF CONTENTS
Page
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SECTION 1. DEFINITIONS........................................................ 1
1.1 Defined Terms......................................................... 1
1.2 Other Definitional Provisions......................................... 27
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS.................................... 27
2.1 Term Commitments...................................................... 27
2.2 Procedure for Term Loan Borrowing..................................... 28
2.3 Repayment of Term Loans............................................... 29
2.4 Revolving Credit Commitments; Incremental Revolving Loans............. 29
2.5 Procedure for Revolving Credit Borrowing.............................. 33
2.6 Commitment Fees, etc.................................................. 34
2.7 Termination or Reduction of Commitments............................... 34
2.8 Optional Prepayments.................................................. 34
2.9 Mandatory Prepayments................................................. 35
2.10 Conversion and Continuation Options................................... 36
2.11 Minimum Amounts and Maximum Number of Eurodollar Tranches............. 37
2.12 Interest Rates and Payment Dates...................................... 37
2.13 Computation of Interest and Fees.................................... 37
2.14 Inability to Determine Interest Rate.................................. 38
2.15 Pro Rata Treatment and Payments....................................... 38
2.16 Requirements of Law................................................... 41
2.17 Taxes................................................................. 42
2.18 Indemnity............................................................. 44
2.19 Change of Lending Office.............................................. 44
2.20 Replacement of Lenders under Certain Circumstances.................... 44
2.21 Notice of Certain Costs............................................... 45
SECTION 3. LETTERS OF CREDIT.................................................. 45
3.1 L/C Commitment........................................................ 45
3.2 Procedure for Issuance of Letter of Credit............................ 46
3.3 Commissions, Fees and Other Charges................................... 46
3.4 L/C Participations.................................................... 47
3.5 Reimbursement Obligation of the Borrower.............................. 48
3.6 Obligations Absolute.................................................. 48
3.7 Letter of Credit Payments............................................. 48
3.8 Applications.......................................................... 49
SECTION 4. REPRESENTATIONS AND WARRANTIES..................................... 49
4.1 Financial Condition................................................... 49
4.2 No Change............................................................. 49
4.3 Corporate Existence; Compliance with Law.............................. 49
4.4 Corporate Power; Authorization; Enforceable Obligations............... 50
4.5 No Legal Bar.......................................................... 50
4.6 No Material Litigation................................................ 50
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4.7 Ownership of Property; Liens.......................................... 50
4.8 Intellectual Property................................................. 50
4.9 Taxes................................................................. 51
4.10 Federal Regulations................................................... 51
4.11 ERISA................................................................. 51
4.12 Investment Company Act................................................ 51
4.13 Subsidiaries.......................................................... 51
4.14 Use of Proceeds....................................................... 51
4.15 Environmental Matters................................................. 52
4.16 Accuracy of Information, etc.......................................... 52
4.17 Security Documents.................................................... 52
4.18 Senior Indebtedness................................................... 53
SECTION 5. CONDITIONS PRECEDENT............................................... 53
5.1 Conditions to Extension of Credit on the Effective Date............... 53
5.2 Conditions to Each Extension of Credit................................ 54
SECTION 6. AFFIRMATIVE COVENANTS.............................................. 54
6.1 Financial Statements.................................................. 54
6.2 Certificates; Other Information....................................... 55
6.3 Payment of Obligations................................................ 56
6.4 Conduct of Business and Maintenance of Existence, etc................. 56
6.5 Maintenance of Property; Insurance.................................... 57
6.6 Inspection of Property; Books and Records; Discussions................ 57
6.7 Notices............................................................... 57
6.8 Environmental Laws.................................................... 57
6.9 Additional Collateral, etc............................................ 57
6.10 After-Acquired Stations............................................... 59
SECTION 7. NEGATIVE COVENANTS................................................. 59
7.1 Financial Condition Covenants......................................... 59
7.2 Limitation on Indebtedness............................................ 60
7.3 Limitation on Liens................................................... 61
7.4 Limitation on Fundamental Changes..................................... 63
7.5 Limitation on Sale of Assets.......................................... 64
7.6 Limitation on Dividends............................................... 65
7.7 Limitation on Capital Expenditures.................................... 66
7.8 Limitation on Investments, Loans and Advances......................... 66
7.9 Limitation on Optional Payments....................................... 67
7.10 Limitation on Transactions with Affiliates............................ 68
7.11 Limitation on Sales and Leasebacks.................................... 68
7.12 Limitations on Change in Holding Company Status....................... 69
SECTION 8. EVENTS OF DEFAULT.................................................. 69
SECTION 9. THE ADMINISTRATIVE AGENT........................................... 72
9.1 Appointment........................................................... 72
9.2 Delegation of Duties.................................................. 72
9.3 Exculpatory Provisions................................................ 72
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9.4 Reliance by Administrative Agent...................................... 73
9.5 Notice of Default..................................................... 73
9.6 Non-Reliance on the Administrative Agent and Other Lenders............ 73
9.7 Indemnification....................................................... 74
9.8 Agent in Its Individual Capacity...................................... 74
9.9 Successor Administrative Agent........................................ 74
9.10 Documentation Agents, Co-Documentation Agents and Syndications Agent.. 75
SECTION 10. MISCELLANEOUS..................................................... 75
10.1 Amendments and Waivers................................................ 75
10.2 Notices............................................................... 76
10.3 No Waiver; Cumulative Remedies........................................ 77
10.4 Survival of Representations and Warranties............................ 77
10.5 Payment of Expenses and Taxes......................................... 77
10.6 Successors and Assigns; Participations and Assignments................ 78
10.7 Adjustments; Set-off.................................................. 81
10.8 Counterparts.......................................................... 82
10.9 Severability.......................................................... 82
10.10 Integration........................................................... 82
10.11 GOVERNING LAW......................................................... 82
10.12 Submission To Jurisdiction; Waivers................................... 82
10.13 Acknowledgments....................................................... 83
10.14 WAIVERS OF JURY TRIAL................................................. 83
10.15 Confidentiality....................................................... 83
10.16 FCC Compliance........................................................ 84
10.17 Filing of Mortgages................................................... 84
SECTION 11 CROSS-GUARANTEE.................................................... 84
11.1 Guarantee............................................................. 84
11.2 No Subrogation........................................................ 85
11.3 Amendments, etc. with respect to the Borrower Obligations............. 85
11.4 Guarantee Absolute and Unconditional.................................. 86
11.5 Reinstatement......................................................... 86
11.6 Payments.............................................................. 86
SCHEDULES:
1.1A Loans and Commitments
1.1B Mortgaged Properties
1.1D Stations and Licensed Subsidiaries
4.6 Litigation
4.13 Subsidiaries
4.15 Environmental Matters
7.2(e) Existing Indebtedness
7.3(f) Existing Liens
7.8(f) Existing Investments
iii
EXHIBITS:
A Form of Guarantee and Collateral Agreement
B Form of Compliance Certificate
C Form of Closing Certificate
E Form of Assignment and Acceptance
F Form of Legal Opinion of Covington & Burling
G-1 Form of Incremental Revolving Loan Activation Notice
G-2 Form of Incremental Term Loan Activation Notice
H Form of Swingline Loan Participation Certificate
I-1 Form of Revolving Credit Note
I-2 Form of Term Note
I-3 Form of Swingline Note
J Form of Borrowing Notice
K Form of Joinder or Increase Agreement
L Form of Stock Pledge Agreement
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CREDIT AGREEMENT, dated as of March 11, 2005, among LIN TELEVISION
CORPORATION, a Delaware corporation (the "Borrower"), TELEVICENTRO OF PUERTO
RICO, LLC, a Delaware limited liability company (the "Permitted Borrower"), the
several banks and other financial institutions or entities from time to time
parties to this Agreement (the "Lenders"), JPMORGAN CHASE BANK, N.A., as
administrative agent (in such capacity, the "Administrative Agent"), as an
Issuing Lender (as defined below) and as swingline lender (in such capacity, the
"Swingline Lender"), DEUTSCHE BANK TRUST COMPANY AMERICAS, as syndication agent
(in such capacity, the "Syndication Agent") and as an Issuing Lender, BANK OF
AMERICA, THE BANK OF NOVA SCOTIA and WACHOVIA BANK, NATIONAL ASSOCIATION, as
documentation agents (in such capacity, the "Documentation Agents") and SUNTRUST
BANK, as co-documentation agent (in such capacity, the "Co-Documentation
Agent"), and J.P. MORGAN SECURITIES INC. and DEUTSCHE BANK SECURITIES INC., as
joint lead arrangers and joint bookrunners (in such capacities, the "Joint Lead
Arrangers").
The parties hereto agree as follows:
SECTION 1. DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the following terms
shall have the following meanings:
"ABR": for any day, a rate per annum (rounded upwards, if necessary,
to the next 1/100 of 1%) equal to the greater of (a) the Prime Rate in
effect on such day and (b) the Federal Funds Effective Rate in effect on
such day plus 1/2 of 1%. For purposes hereof, "Prime Rate" shall mean the
rate of interest per annum publicly announced from time to time by
JPMorgan Chase as its prime rate in effect at its principal office in New
York City (the Prime Rate not being intended to be the lowest rate of
interest charged by JPMorgan Chase in connection with extensions of credit
to debtors); and "Federal Funds Effective Rate" shall mean, for any day,
the weighted average of the rates on overnight federal funds transactions
with members of the Federal Reserve System arranged by federal funds
brokers, as published on the next succeeding Business Day by the Federal
Reserve Bank of New York, or, if such rate is not so published for any day
which is a Business Day, the average of the quotations for the day of such
transactions received by the Administrative Agent from three federal funds
brokers of recognized standing selected by it. Any change in the ABR due
to a change in the Prime Rate or the Federal Funds Effective Rate shall be
effective as of the opening of business on the effective day of such
change in the Prime Rate or the Federal Funds Effective Rate,
respectively.
"ABR Loans": Loans the rate of interest applicable to which is based
upon the ABR.
"Adjustment Date": as defined in the Pricing Grid.
"Adjusted Net Cash Proceeds": with respect to any Asset Sale or
Recovery Event, the Net Cash Proceeds received by the Borrower or any of
its Subsidiaries from such Asset Sale or Recovery Event, multiplied by:
(a) 100%, if the Consolidated Leverage Ratio as of the last day of the
immediately preceding four-fiscal-quarter period for which financial
statements are available is greater than or equal to 5.25x, and (b) 50%,
if the Consolidated Leverage Ratio as of the last day of the immediately
preceding four-fiscal-quarter period for which financial statements are
available is less than 5.25x and greater than or equal to 4.50x.
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If the Consolidated Leverage Ratio as of the last day of the immediately
preceding four-fiscal-quarter period for which financial statements are
available is less than 4.50x, the Adjusted Net Cash Proceeds shall be
zero.
"Administrative Agent": JPMorgan Chase, together with its
affiliates, as the arranger of the Commitments and as the administrative
agent for the Lenders under this Agreement and the other Loan Documents,
together with any of its successors.
"Affected Eurodollar Loans": as defined in subsection 2.9(d).
"Affiliate": as to any Person, any other Person (other than a
Subsidiary) which, directly or indirectly, is in control of, is controlled
by, or is under common control with, such Person. For purposes of this
definition, "control" of a Person means the power, directly or indirectly,
either to (a) vote 51% or more of the securities having ordinary voting
power for the election of directors (or persons performing similar
functions) of such Person or (b) direct or cause the direction of the
management and policies of such Person, whether by contract or otherwise.
"Agreement": this Credit Agreement, as further amended, supplemented
or otherwise modified from time to time.
"Applicable Margin": (a) for all Loans, other than Incremental Term
Loans and Incremental Revolving Loans, the Applicable Margin as determined
pursuant to the Pricing Grid and (b) with respect to Incremental Term
Loans or Incremental Revolving Loans, the rate per annum agreed to, or the
rate per annum determined pursuant to a pricing grid agreed to, by the
Borrower or Permitted Borrower, as applicable, and the applicable
Incremental Lenders in the applicable Incremental Term Loan Activation
Notice or the Incremental Revolving Loan Activation Notice, as the case
may be.
"Application": an application, in such form reasonably acceptable to
the Borrower and the Issuing Lender, requesting the Issuing Lender to open
a Letter of Credit.
"Approved Fund": as defined in subsection 10.6(b).
"Asset Sale": any Sale (excluding any sale and leaseback of assets
permitted under subsection 7.11 but including a Sale in connection with an
Asset Swap Transaction (other than Asset Swap Transactions described in
clause (iii) below)) by the Borrower or any of its Subsidiaries of any
property of the Borrower or any such Subsidiary (including property
subject to any Lien under any Security Document), other than (i) a Sale
pursuant to subsections 7.5(a) or 7.5(d) through (h); (ii) a Sale pursuant
to subsection 7.5(b), provided that, except with respect to the loss or
condemnation of all or substantially all of the assets of the Borrower and
its Subsidiaries, the Adjusted Net Cash Proceeds from such Sale, if any,
are used to replace or rebuild the lost or condemned assets within the
time period specified in subsection 2.9(a); and (iii) a Sale pursuant to
subsection 7.5(c), (i) or (j) in respect of which the Net Cash Proceeds
received by the Borrower and its Subsidiaries are $5,000,000 or less.
"Asset Swap Transaction": a substantially concurrent purchase and
sale, or exchange, of a Broadcasting Asset of the Borrower or all the
Capital Stock of, or other equity interests in, a Subsidiary owning a
Broadcasting Asset, for a Broadcast Station or Broadcast
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Enterprise of another Person or group of affiliated Persons, or at least a
majority of the Capital Stock of, or other equity interests in, a Person
or group of affiliated Persons owning a Broadcast Station or Broadcast
Enterprise, provided that (a) the Borrower shall receive, in exchange for
such Broadcasting Asset, or Capital Stock of, or other equity interests
in, such Subsidiary owning a Broadcasting Asset, a Broadcast Station or
Broadcast Enterprise, or Capital Stock of, or other equity interests in, a
Person or group of affiliated Persons owning a Broadcast Station or
Broadcast Enterprise, (b) no Default or Event of Default will have
occurred and be continuing or will result therefrom (including, without
limitation, pursuant to subsection 7.1), (c) (i) the Consolidated EBITDA
of the Broadcasting Asset being sold or exchanged plus the Consolidated
EBITDA of all Broadcasting Assets that were sold pursuant to subsection
7.5(i) or exchanged pursuant to subsection 7.5(j) in such fiscal quarter
and in the immediately preceding four-fiscal-quarter period (in each case
calculated for the four fiscal quarters immediately preceding the sale or
exchange) shall not exceed 25% of the Consolidated EBITDA of the Borrower
for such immediately preceding four-fiscal-quarter period and (ii) the
Consolidated EBITDA of the Broadcasting Asset being sold or exchanged plus
the Consolidated EBITDA of all Broadcasting Assets that were sold pursuant
to subsection 7.5(i) or exchanged pursuant to subsection 7.5(j) since the
Effective Date (in each case calculated for the four fiscal quarters
immediately preceding the sale or exchange) shall not exceed 50% of the
Consolidated EBITDA of the Borrower in the aggregate, and (d) the Borrower
takes such actions as may be required or reasonably requested to ensure
that the Administrative Agent, for the ratable benefit of the Lenders, has
a perfected first priority security interest, to the extent contemplated
by the Guarantee and Collateral Agreement, in any assets required to be
secured pursuant to subsection 6.9 or any other Loan Document, subject to
Liens permitted by subsection 7.3, and provided further that in the case
of any exchange involving the acquisition of a Broadcasting Asset with a
value in excess of $75,000,000 (i) the Borrower provides the
Administrative Agent with appropriate supporting documentation if
reasonably requested by the Administrative Agent, including, without
limitation, copies of any exchange agreement in connection with such
transaction, copies of opinions of counsel, including FCC counsel,
delivered in connection therewith and copies of an FCC consent on Form 732
(or any comparable form issued by the FCC) relating to the transfer of
control or assignment of the Station Licenses of the acquired Broadcast
Station to the Borrower or its Subsidiary and (ii) on a pro forma basis
(including any recurring improvements related to the acquired asset or the
assets of the Person acquired) for the most recently completed four-fiscal
quarter period for which financial statements are available on the date of
such acquisition, no Default or Event of Default pursuant to subsection
7.1 will have occurred and be continuing, provided that for purposes of
calculating Consolidated EBITDA pursuant to this clause (ii), the
Consolidated EBITDA of such Broadcast Stations or Broadcast Enterprises
being acquired for such four-fiscal quarter period shall be equal to the
Consolidated EBITDA of such Broadcast Stations or Broadcast Enterprises
for the 12-month period immediately preceding such acquisition, and the
Borrower provides the Administrative Agent with appropriate supporting
documentation if reasonably requested by the Administrative Agent.
"Assignee": as defined in subsection 10.6(b).
"Available Revolving Credit Commitment": as to any Lender at any
time, an amount equal to (a) such Lender's Revolving Credit Commitment
minus (b) such Lender's Revolving Extensions of Credit.
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"Benefited Lender": as defined in subsection 10.7(a).
"Board": the Board of Governors of the Federal Reserve System of the
United States (or any successor).
"Borrower": as defined in the introductory paragraph of this
Agreement.
"Borrower Tranche A Term Loan Commitment": as to any Lender, the
obligation of such Lender, if any, to make a Tranche A Term Loan to the
Borrower hereunder in a principal amount equal to the amount set forth
under the heading "Borrower Tranche A Term Loan Commitment" opposite such
Lender's name on Schedule 1.1A attached hereto. The aggregate amount of
the Borrower Tranche A Term Loan Commitments on the Effective Date is
$50,000,000.
"Borrowing Date": any Business Day specified by the Borrower as a
date on which the Borrower requests the Lenders or Swingline Lender to
make Loans or Swingline Loans hereunder.
"Broadcast Cash Flow": for any period, the sum of Consolidated
EBITDA plus amounts expensed during such period for corporate expenses
(including corporate expenses of LIN TV).
"Broadcast Enterprise": assets used and useful for the operation of
broadcasting or entertainment businesses, or any businesses reasonably
related thereto.
"Broadcast Station": all or substantially all the assets used and
useful for operating a full service commercial television broadcast
station pursuant to a Station License, including without limitation the
rights to use such Station License.
"Broadcasting Assets": collectively, any Stations and any
Non-Station Assets of the Borrower and its Subsidiaries.
"Business Day": a day other than a Saturday, Sunday or other day on
which commercial banks in New York City are authorized or required by law
to close, provided that when used in connection with a Eurodollar Loan,
the term "Business Day" shall also exclude any day on which commercial
banks are not open for dealing in Dollar deposits in the London interbank
market.
"Capital Expenditures": for any period, with respect to any Person,
the aggregate of all expenditures (whether paid in cash or accrued as a
liability) by such Person and its Subsidiaries for the acquisition or
leasing (pursuant to a capital lease) of fixed or capital assets or
additions to equipment (including replacements, capitalized repairs and
improvements during such period). The following items will be excluded
from the definition of "Capital Expenditures": (a) expenditures to the
extent funded by insurance proceeds, condemnation awards or payments
pursuant to a deed in lieu thereof, (b) expenditures to the extent made
through barter transactions and (c) assets acquired pursuant to (i)
Permitted Acquisitions, (ii) Asset Swap Transactions and (iii) a
reinvestment of proceeds received in a sale permitted under subsection
7.5(a), (b) or (c) that does not constitute an Asset Sale.
5
"Capital Lease Obligations": as to any Person, the obligations of
such Person to pay rent or other amounts under any lease of (or other
arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under
GAAP and, for the purposes of this Agreement, the amount of such
obligations at any time shall be the capitalized amount thereof at such
time determined in accordance with GAAP.
"Capital Stock": any and all shares, interests, participations or
other equivalents (however designated) of capital stock of a corporation,
any and all equivalent ownership interests in a Person (other than a
corporation) and any and all warrants, rights or options to purchase any
of the foregoing.
"Cash Equivalents": (a) marketable direct obligations issued by, or
unconditionally guaranteed by, the United States or issued by any agency
thereof and backed by the full faith and credit of the United States, in
each case maturing on or within one year from the date of acquisition; (b)
certificates of deposit, time deposits, Eurodollar time deposits, bankers'
acceptances and repurchase agreements, or overnight bank deposits having
maturities of one year or less from the date of acquisition issued by any
Lender or by any commercial bank organized under the laws of the United
States or any state thereof having combined capital and surplus (or whose
obligations are guaranteed by an affiliated commercial bank which has
capital and surplus) of not less than $500,000,000; (c) commercial paper
of an issuer rated at least A-2 by Standard & Poor's Ratings Services or
P-2 by Moody's Investors Service, Inc., or carrying an equivalent rating
by a nationally recognized rating agency, if both of the two named rating
agencies cease publishing ratings of commercial paper issuers generally;
(d) money market accounts or funds with or issued by Qualified Issuers;
and (e) repurchase agreements with a term of not more than one year for
underlying securities of the types described in clause (a) above entered
into with any bank meeting the qualifications specified in clause (b)
above.
"Change of Control": the earliest to occur of (a) a majority of
directors of LIN TV consisting of directors who are not, as of the date of
determination, Continuing Directors, (b) any "Person" or "group" (as such
terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act
of 1934, as amended) excluding the holders of record and "beneficial
owners" (as defined in Rules 13(d) 3 and 13(d) 5 under such Act) of
outstanding shares of Class B and Class C common stock of LIN TV on the
Effective Date (including Hicks Muse and their Affiliates and Subsidiaries
and their respective general or limited partners), becoming beneficial
owner, directly or indirectly, of more than 50% of the then outstanding
voting stock of LIN TV and (c) a Change of Control as defined in any
document pertaining to any Senior Subordinated Indebtedness in an
aggregate outstanding principal amount in excess of $100,000,0000 or any
Senior Unsecured Indebtedness in an aggregate outstanding principal amount
in excess of $100,000,000; provided that the conversion by Hicks Muse (or
any of its Affiliates or Subsidiaries or any of their respective general
or limited partners) of Class B Common Stock of LIN TV into Class A Common
Stock, Class C Common Stock or any other voting common stock of LIN TV
pursuant to the terms of the Class B Common Stock and any conversion of
the Class C Common Stock in connection therewith shall not constitute a
Change of Control.
"Code": the Internal Revenue Code of 1986, as amended from time to
time.
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"Co-Documentation Agents": as defined in the introductory paragraph
of this Agreement.
"Commitment": as to any Lender, the sum of the Tranche A Term Loan
Commitment and the Revolving Credit Commitment of such Lender.
"Commitment Fee Rate": (a) for the Revolving Credit Facility, as
determined pursuant to the Pricing Grid and (b) with respect to any
Incremental Revolving Loan Amount, the rate per annum agreed to, or the
rate per annum determined pursuant to a pricing grid agreed to, by the
Borrower or Permitted Borrower, as applicable, and the applicable
Incremental Lenders in the applicable Incremental Revolving Loan
Activation Notice.
"Commonly Controlled Entity": an entity, whether or not
incorporated, which is under common control with the Borrower within the
meaning of Section 4001 of ERISA or is part of a group which includes the
Borrower and which is treated as a single employer under Section 414 of
the Code.
"Compliance Certificate": a certificate duly executed by a
Responsible Officer substantially in the form of Exhibit B.
"Consolidated Cash Interest Expense": for any period, Consolidated
Interest Expense (including, without limitation, that attributable to
Capital Lease Obligations but excluding capitalized financing fees), net
of cash interest income of the Borrower and its Subsidiaries, for such
period (a) minus, in each case to the extent included in determining such
Consolidated Interest Expense for such period, the sum of the following:
(i) non-cash expenses for interest payable in kind and (ii) amortization
of debt discount and fees and (b) plus the sum of cash payments made by
the Borrower or any of its Subsidiaries during such period in respect of
the items referred to in clause (a)(i) of this definition to the extent
previously subtracted pursuant to clause (a) of this definition
(including, without limitation, all commissions, discounts and other fees
and charges owed with respect to letters of credit and bankers' acceptance
financing and net costs under Interest Rate Protection Agreements to the
extent such net costs are allocable to such period in accordance with
GAAP).
"Consolidated EBITDA": for any period:
(a) Net Income for such period; plus
(b) without duplication, the sum of the following items (to the
extent deducted in the computation of such Net Income for such period):
(i) depreciation expense;
(ii) amortization expense (including amortization in respect
of Film Obligations and other amortized film expense) and
amortization of intangibles (including goodwill, organizational
costs and impairments);
(iii) Consolidated Interest Expense;
(iv) income and franchise tax expense;
7
(v) any extraordinary and unusual losses (net of income
taxes);
(vi) to the extent identified and reasonably satisfactory
to the Administrative Agent, any cost savings realized in connection
with any acquired Broadcasting Assets;
(vii) for any pro forma period for an acquisition, any
recurring improvements to Consolidated EBITDA as a result of any
acquired Broadcasting Assets;
(viii) other non-cash charges (excluding barter expenses and
trade expenses); and
(ix) for all purposes of this Agreement other than the
computation of the Consolidated Leverage Ratio for the purpose of
determining the Applicable Margin and the Commitment Fee Rate,
non-recurring charges for severance payments related to corporate
restructuring and similar activities not exceeding, in the
aggregate, $10,000,000 during the term of this Agreement; and
less (c) without duplication, the sum of the following items for
such period:
(i) all cash payments originally scheduled to be made during
such period in respect of Film Obligations;
(ii) any extraordinary and unusual gains (net of income
taxes), to the extent included in the computation of Net Income for
such period;
(iii) non-cash gains included in Net Income for such period
(excluding barter and trade revenues); and
(iv) cash dividends or other distributions made by the
Borrower to LIN TV for its reasonable corporate overhead expenses.
Consolidated EBITDA for any period will be adjusted to (A) exclude the
Consolidated EBITDA attributable to any asset or business that was
disposed of (either directly or as part of an exchange) by the Borrower or
any of its Subsidiaries prior to the date of determination (as if such
asset or business had not been owned by the Borrower or any of its
Subsidiaries prior to the date of determination) and (B) include the
Consolidated EBITDA attributable to any asset or business that was
acquired (either directly or as part of an exchange) by the Borrower or
any of its Subsidiaries (including, to the extent identified and
reasonably satisfactory to the Administrative Agent, pro forma cost
savings in connection therewith) prior to the date of determination (as if
such asset or business had been owned by the Borrower or any of its
Subsidiaries prior to the date of determination).
"Consolidated Interest Coverage Ratio": for any period, the ratio of
(a) Consolidated EBITDA for such period to (b) Consolidated Cash Interest
Expense for such period.
"Consolidated Interest Expense": for any period, the amount of
interest expense, both expensed and capitalized, of the Borrower and its
Subsidiaries for such period on the aggregate principal amount of their
Indebtedness determined on a consolidated basis in
8
accordance with GAAP, after giving effect to any interest rate protection
agreements with respect to such Indebtedness but excluding non-cash
deferred financing costs (other than for purposes of the definition of the
term "Consolidated EBITDA"). Consolidated Interest Expense for any period
will be adjusted to (A) exclude the Consolidated Interest Expense
attributable to any Indebtedness repaid or assumed by a third party in
connection with the Sale of any asset or business that was disposed of
(either directly or as part of an exchange) by the Borrower or any of its
Subsidiaries prior to the date of determination (as if such Indebtedness
had not been outstanding prior to the date of determination) and (B)
include the Consolidated Interest Expense attributable to any Indebtedness
incurred or assumed in connection with the acquisition of any asset or
business that was acquired (either directly or as part of an exchange) by
the Borrower or any of its Subsidiaries prior to the date of determination
(as if such Indebtedness had been outstanding prior to the date of
determination).
"Consolidated Leverage Ratio": as of the last day of any period, the
ratio of (a) Consolidated Total Debt on such day to (b) Consolidated
EBITDA for such period.
"Consolidated Senior Leverage Ratio": as of the last day of any
period, the ratio of (a) Consolidated Senior Debt on such day to (b)
Consolidated EBITDA for such period.
"Consolidated Senior Debt": at any date, Consolidated Total Debt at
such date less the aggregate principal amount at such date of all
Indebtedness of the Borrower and its Subsidiaries that is subordinated in
right of payment to the Obligations, including all Subordinated
Indebtedness, including, without limitation, any subordinated Indebtedness
assumed in connection with a Permitted Acquisition or an Asset Swap
Transaction.
"Consolidated Total Debt": at any date, the aggregate principal
amount of all Indebtedness for borrowed money of the Borrower and its
Subsidiaries at such date, determined on a consolidated basis in
accordance with GAAP, net of cash and Cash Equivalents on the balance
sheet not to exceed $35,000,000.
"Continuing Directors": (i) any member of the board of directors of
LIN TV who was a member of such board of directors on the Effective Date,
(ii) any member of the board of directors of LIN TV who was nominated for
election or elected to such board of directors with the approval of a
majority of the members of such board of directors referred to in clause
(i), and (iii) any member of the board of directors nominated for election
or elected to such board of directors with the approval of a majority of
the members of such board of directors referred to in clause (i) and (ii).
"Contractual Obligation": as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or other
undertaking (including, without limitation, any undertaking made to the
FCC) to which such Person is a party or by which it or any of its property
is bound.
"Default": any of the events specified in Section 8, whether or not
any requirement for the giving of notice, the lapse of time, or both,
unless cured or waived, has been satisfied.
"Documentation Agents": as defined in the introductory paragraph of
this Agreement.
9
"Dollars" and "$": lawful currency of the United States of America.
"Effective Date": March 11, 2005.
"Environmental Laws": any and all applicable foreign, Federal,
state, local or municipal laws, rules, orders, regulations, statutes,
ordinances, codes, decrees, legally binding requirements of any
Governmental Authority or other Requirements of Law (including common law)
regulating, relating to or imposing liability or standards of conduct
concerning protection of the environment, as now or may at any time
hereafter be in effect.
"Environmental Liability": any liability, contingent or otherwise
(including any liability for damages, costs of environmental remediation,
fines, penalties or indemnities), of the Borrower or any Subsidiary
directly or indirectly resulting from or based upon (a) violation of any
Environmental Law, (b) the generation, use, handling, transportation,
storage, treatment or disposal of any Materials of Environmental Concern,
(c) exposure to any Materials of Environmental Concern, (d) the release or
threatened release of any Materials of Environmental Concern into the
environment or (e) any contract, agreement or other consensual arrangement
pursuant to which liability is assumed or imposed with respect to any of
the foregoing.
"ERISA": the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"Eurocurrency Reserve Requirements": for any day as applied to a
Eurodollar Loan, the aggregate (without duplication) of the rates
(expressed as a decimal fraction) of reserve requirements in effect on
such day (including, without limitation, basic, supplemental, marginal and
emergency reserves under any regulations of the Board or other
Governmental Authority having jurisdiction with respect thereto) dealing
with reserve requirements prescribed for eurocurrency funding (currently
referred to as "Eurocurrency Liabilities" in Regulation D of the Board)
maintained by a member bank of the Federal Reserve System.
"Eurodollar Base Rate": with respect to each day during each
Interest Period pertaining to a Eurodollar Loan, the rate per annum
determined on the basis of the rate for deposits in Dollars for a period
equal to such Interest Period commencing on the first day of such Interest
Period appearing on Page 3750 of the Telerate screen as of 11:00 A.M.,
London time, two Business Days prior to the beginning of such Interest
Period. In the event that such rate does not appear on Page 3750 of the
Telerate screen (or otherwise on such screen), the "Eurodollar Base Rate"
shall be determined by reference to such other comparable publicly
available service for displaying eurodollar rates as may be selected by
the Administrative Agent, or, in the absence of such availability, by
reference to the rate at which the Administrative Agent is offered Dollar
deposits of $5,000,000 at or about 11:00 A.M., London time, two Business
Days prior to the beginning of such Interest Period in the interbank
eurodollar market where its eurodollar and foreign currency and exchange
operations are then being conducted for delivery on the first day of such
Interest Period for the number of days comprised therein.
"Eurodollar Loans": Loans the rate of interest applicable to which
is based upon the Eurodollar Rate.
9
"Eurodollar Rate": with respect to each day during each Interest
Period pertaining to a Eurodollar Loan, a rate per annum determined for
such day in accordance with the following formula (rounded upward to the
nearest 1/100th of 1%):
Eurodollar Base Rate
----------------------------------------
1.00 - Eurocurrency Reserve Requirements
"Eurodollar Tranche": the collective reference to Eurodollar Loans
under the same Facility the then current Interest Periods with respect to
all of which begin on the same date and end on the same later date
(whether or not such Loans shall originally have been made on the same
day).
"Event of Default": any of the events specified in Section 8,
provided that any requirement for the giving of notice, the lapse of time,
or both, has been satisfied.
"Exchangeable Senior Subordinated Debentures": the Borrower's 2.50%
Exchangeable Senior Subordinated Debentures due 2033.
"Existing Credit Agreement": the Amended and Restated Credit
Agreement, dated as of February 7, 2003, as amended, among the Borrower,
the Permitted Borrower, the several banks and other financial institutions
or entities from time to time parties thereto, JPMorgan Chase, as
administrative agent, as issuing lender, and as swingline lender, Deutsche
Bank Trust Company Americas, as syndication agent, The Bank of Nova
Scotia, Fleet National Bank and Morgan Stanley Senior Funding, as
co-documentation agents, and J.P. Morgan Securities Inc. and Deutsche Bank
Securities Inc., as joint lead arrangers and joint bookrunners.
"Facility": each of (a) the Tranche A Term Loan Commitments and the
Tranche A Term Loans made thereunder (the "Tranche A Term Loan Facility"),
(b) the Incremental Term Loan Amounts and the Incremental Term Loans
related thereto as provided in any Incremental Term Loan Activation Notice
(an "Incremental Term Loan Facility"), (c) the Swingline Loan Commitment
and the Swingline Loans made thereunder, (d) the aggregate Revolving
Credit Commitments and the Total Revolving Extensions of Credit made
thereunder (the "Revolving Credit Facility") and (e) the Incremental
Revolving Loan Amounts and the Incremental Revolving Loans related thereto
as provided in any Incremental Revolving Loan Activation Notice (an
"Incremental Revolving Loan Facility").
"FCC": the Federal Communications Commission or any Governmental
Authority substituted therefor.
"Federal Funds Effective Rate": as defined in the definition of the
term "ABR".
"Fee Payment Date": (a) the third Business Day following the last
day of each March, June, September and December and (b) the last day of
the Revolving Credit Commitment Period.
"Film Obligations": all obligations in respect of the purchase, use,
license or acquisition of programs, programming materials, films and
similar assets used in connection with the business and operation of the
Borrower and its Subsidiaries.
11
"Final Order": with respect to the assignment or transfer of control
of the Station Licenses for any Station, an order of the FCC approving
such assignment or transfer that is final (i.e., no longer subject to
further judicial or administrative review), as to which no requests for
judicial or administrative review are pending, and that has not been
reversed, stayed, enjoined, set aside, annulled or suspended.
"GAAP": generally accepted accounting principles in the United
States of America as in effect from time to time set forth in the opinions
and pronouncements of the Accounting Principles Board and the American
Institute of Certified Public Accountants and the statements and
pronouncements of the Financial Accounting Standards Board and the rules
and regulations of the Securities and Exchange Commission, or in such
other statements by such other entity as may be in general use by
significant segments of the accounting profession, which are applicable to
the circumstances of the Borrower as of the date of determination. In the
event that any "Accounting Change" (as defined below) shall occur, if the
Borrower notifies the Administrative Agent that the Borrower wishes to, or
the Administrative Agent notifies the Borrower that the Required Lenders
wish to, amend any financial covenants, standards or terms in this
Agreement to eliminate the effect of such Accounting Change, then the
Borrower and the Administrative Agent agree to enter into negotiations in
order to amend such provisions of this Agreement so as to equitably
reflect such Accounting Changes with the desired result that the criteria
for evaluating the Borrower's financial condition shall be the same after
such Accounting Changes as if such Accounting Changes had not been made.
Until such time as such an amendment shall have been executed and
delivered by the Borrower, the Administrative Agent and the Required
Lenders or the Borrower or the Required Lenders, as the case may be, shall
have withdrawn the request for amendment, all financial covenants,
standards and terms in this Agreement shall continue to be calculated or
construed as if such Accounting Changes had not occurred. The term
"Accounting Changes" refers to changes in accounting principles required
by the promulgation of any rule, regulation, pronouncement or opinion by
the Financial Accounting Standards Board, the Accounting Principles Board
or the American Institute of Certified Public Accountants, the Securities
and Exchange Commission (if applicable), successors to any of the
foregoing or agencies with similar functions to any of the foregoing, or
such other entity the statements of which are in general use by
significant segments of the accounting profession.
"GECC": General Electric Capital Corporation, a New York
corporation.
"Governmental Authority": any nation or government, any state or
other political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or
pertaining to government.
"Guarantee and Collateral Agreement": the Guarantee and Collateral
Agreement, dated the date hereof, executed and delivered by the Borrower
and each Subsidiary Guarantor, as the same may be further amended,
supplemented or otherwise modified from time to time.
"Guarantee Obligation": as to any Person (the "guaranteeing
person"), any obligation of (a) the guaranteeing person or (b) another
Person (including, without limitation, any bank under any letter of
credit) to induce the creation of which the guaranteeing person has issued
a reimbursement, counter indemnity or similar obligation, in either case
guaranteeing or in
12
effect guaranteeing any Indebtedness (the "primary obligations") of any
other third Person (the "primary obligor") in any manner, whether directly
or indirectly, including, without limitation, any obligation of the
guaranteeing person, whether or not contingent, (i) to purchase any such
primary obligation or any property constituting direct or indirect
security therefor, (ii) to advance or supply funds (A) for the purchase or
payment of any such primary obligation or (B) to maintain working capital
or equity capital of the primary obligor or otherwise to maintain the net
worth or solvency of the primary obligor, (iii) to purchase property,
securities or services primarily for the purpose of assuring the owner of
any such primary obligation of the ability of the primary obligor to make
payment of such primary obligation or (iv) otherwise to assure or hold
harmless the owner of any such primary obligation against loss in respect
thereof; provided, however, that the term "Guarantee Obligation" shall not
include endorsements of instruments for deposit or collection in the
ordinary course of business. The amount of any Guarantee Obligation of any
guaranteeing person shall be deemed to be the lower of (a) an amount equal
to the stated or determinable amount of the primary obligation in respect
of which such Guarantee Obligation is made and (b) the maximum amount for
which such guaranteeing person may be liable pursuant to the terms of the
instrument embodying such Guarantee Obligation, unless such primary
obligation and the maximum amount for which such guaranteeing person may
be liable are not stated or determinable, in which case the amount of such
Guarantee Obligation shall be such guaranteeing person's maximum
reasonably anticipated liability in respect thereof as determined by such
Person in good faith.
"Hicks Muse": Hicks, Muse, Tate & Furst Incorporated, any of its
Affiliates and Subsidiaries, and any fund that it (or any of its
Affiliates or Subsidiaries) sponsors or manages.
"Incremental Lender": any Lender or, with the consent of the
Borrower and the Administrative Agent (such consent not to be unreasonably
withheld), any other bank, financial institution or other entity which
becomes a signatory to an Incremental Term Loan Activation Notice or to an
Incremental Revolving Loan Activation Notice, as the case may be, and each
Lender which has made, or acquired pursuant to an assignment made in
accordance with subsection 10.6(b), an Incremental Term Loan or an
Incremental Revolving Loan, as the case may be. Any other bank, financial
institution or other entity which elects to become an Incremental Lender
shall execute a joinder in substantially the form attached hereto as
Exhibit K with the Borrower and the Administrative Agent, whereupon such
bank, financial institution or other entity shall become a Lender for all
purposes and to the same extent as if originally a party hereto and shall
be bound by and entitled to the benefits of this Agreement.
"Incremental Revolving Loan Activation Notice": a notice
substantially in the form of Exhibit G-1.
"Incremental Revolving Loan Amount": as to each Incremental Lender,
in respect of any Incremental Revolving Loan Facility, the obligation of
such Incremental Lender on and after the applicable Incremental Revolving
Loan Closing Date to make Incremental Revolving Loans hereunder in a
principal amount equal to the amount set forth under the heading
"Incremental Revolving Loan Amount" opposite such Incremental Lender's
name on the applicable Incremental Revolving Loan Activation Notice.
13
"Incremental Revolving Loan Closing Date": as to any Incremental
Revolving Loans to be made pursuant to an Incremental Revolving Loan
Activation Notice, the date (which shall be a Business Day) specified in
such Incremental Revolving Loan Activation Notice as the first date on
which such Incremental Revolving Loans will be made available.
"Incremental Revolving Loan Facility": as defined in the definition
of the term "Facility".
"Incremental Revolving Loan Maturity Date": as to the Incremental
Revolving Loans to be made pursuant to any Incremental Revolving Loan
Activation Notice, the maturity date specified in such Incremental
Revolving Loan Activation Notice, which date shall be not earlier than the
Revolving Credit Termination Date.
"Incremental Revolving Loan Percentage": as to any Incremental
Lender in respect of any Incremental Revolving Loan Facility, the
percentage which such Lender's Incremental Revolving Loan Amount then
outstanding constitutes of the aggregate principal amount of the
Incremental Revolving Loan Amounts then outstanding in respect of such
Incremental Revolving Facility.
"Incremental Revolving Loans": as defined in subsection 2.4(d).
"Incremental Term Loan Activation Notice": a notice substantially in
the form of Exhibit G-2.
"Incremental Term Loan Amount": as to each Incremental Lender, in
respect of any Incremental Term Loan Facility, the obligation of such
Incremental Lender on and after the applicable Incremental Term Loan
Closing Date to make Incremental Term Loans hereunder in a principal
amount equal to the amount set forth under the heading "Incremental Term
Loan Amount" opposite such Incremental Lender's name on the applicable
Incremental Term Loan Activation Notice.
"Incremental Term Loan Closing Date": as to any Incremental Term
Loans to be made pursuant to an Incremental Term Loan Activation Notice,
the date (which shall be a Business Day) specified in such Incremental
Term Loan Activation Notice as the first date on which such Incremental
Term Loans will be made available.
"Incremental Term Loan Facility": as defined in the definition of
the term "Facility".
"Incremental Term Loan Maturity Date": as to any Incremental Term
Loans to be made pursuant to an Incremental Term Loan Activation Notice,
the maturity date specified in such Incremental Term Loan Activation
Notice, which date shall be not earlier than the Tranche A Maturity Date.
"Incremental Term Loan Percentage": as to any Incremental Lender in
respect of any Incremental Term Loan Facility, the percentage which such
Lender's Incremental Term Loan Amount then outstanding in respect of such
Incremental Term Loan Facility constitutes of the aggregate principal
amount of the Incremental Term Loan Amounts then outstanding in respect of
such Incremental Term Loan Facility.
"Incremental Term Loans": as defined in subsection 2.1(b).
14
"Incur": as defined in subsection 7.2; and the term "Incurrence"
shall have a correlative meaning.
"Indebtedness": of any Person at any date, without duplication, (a)
all indebtedness of such Person for borrowed money, (b) all obligations of
such Person for the deferred purchase price of property or services (other
than current trade payables and accrued expenses incurred in the ordinary
course of such Person's business), (c) all obligations of such Person
evidenced by notes, bonds, debentures or other similar instruments, (d)
all indebtedness created or arising under any conditional sale or other
title retention agreement with respect to property acquired by such Person
(even though the rights and remedies of the seller or lender under such
agreement in the event of default are limited to repossession or sale of
such property), provided, however, that the amount of such Indebtedness of
any Person described in this clause (d) shall, for the purposes of the
Agreement, be deemed to be equal to the lesser of (i) the aggregate unpaid
amount of such Indebtedness and (ii) the fair market value of the property
or asset encumbered, as determined by such Person in good faith, (e) all
Capital Lease Obligations of such Person, (f) all obligations of such
Person, contingent or otherwise, as an account party under a bankers'
acceptance, letter of credit or similar facilities, (g) the obligations of
such Person under any Interest Rate Protection Agreement, (h) all
Guarantee Obligations of such Person in respect of obligations of the kind
referred to in clauses (a) through (g) above and (i) all obligations of
the kind referred to in clauses (a) through (h) above secured by (or for
which the holder of such obligation has an existing right, contingent or
otherwise, to be secured by) any Lien on property (including, without
limitation, accounts and contract rights) owned by such Person, whether or
not such Person has assumed or become liable for the payment of such
obligation and on which obligations such Person has recourse only to such
property; provided, however, that the amount of such Indebtedness of any
Person described in this clause (i) shall, for the purposes of this
Agreement, be deemed to be equal to the lesser of (i) the aggregate unpaid
amount of such Indebtedness and (ii) the fair market value of the property
or asset encumbered, as determined by such Person in good faith.
"Insolvency": with respect to any Multiemployer Plan, the condition
that such Plan is insolvent within the meaning of Section 4245 of ERISA.
"Insolvent": pertaining to a condition of Insolvency.
"Intellectual Property": as defined in subsection 4.8.
"Interest Payment Date": (a) as to any ABR Loan, the last day of
each March, June, September and December to occur while such Loan is
outstanding, (b) as to any Eurodollar Loan having an Interest Period of
three months or less, the last day of such Interest Period, (c) as to any
Eurodollar Loan having an Interest Period longer than three months, each
day which is three months, or a whole multiple thereof, after the first
day of such Interest Period and the last day of such Interest Period and
(d) as to any Loan, the date of repayment thereof at final stated
maturity.
"Interest Period": as to any Eurodollar Loan, (a) initially, the
period commencing on the borrowing or conversion date, as the case may be,
with respect to such Eurodollar Loan and ending one, two, three, six or
(if available to all Lenders under the relevant Facility as determined in
good faith by such Lenders) nine or twelve months thereafter, as selected
by
15
the Borrower in its notice of borrowing or notice of conversion, as the
case may be, given with respect thereto; and (b) thereafter, each period
commencing on the last day of the next preceding Interest Period
applicable to such Eurodollar Loan and ending one, two, three, six or (if
available to all Lenders under the relevant Facility as determined in good
faith by such Lenders) nine or twelve months thereafter, as selected by
the Borrower by irrevocable notice to the Administrative Agent not less
than three Business Days prior to the last day of the then current
Interest Period with respect thereto, provided that all of the foregoing
provisions relating to Interest Periods are subject to the following:
(i) if any Interest Period would otherwise end on a day that is
not a Business Day, such Interest Period shall be extended to the next
succeeding Business Day unless the result of such extension would be to
carry such Interest Period into another calendar month in which event such
Interest Period shall end on the immediately preceding Business Day;
(ii) any Interest Period that would otherwise extend beyond the
Revolving Credit Termination Date, in the case of Revolving Credit Loans,
or the date final payment is due, in the case of Term Loans, shall end on
the Revolving Credit Termination Date or such due date, as applicable; and
(iii) any Interest Period that begins on the last Business Day of a
calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest
Period) shall end on the last Business Day of the calendar month at the
end of such Interest Period.
"Interest Rate Protection Agreement": any interest rate protection
agreement, interest rate futures contract, interest rate option, interest
rate cap or other interest rate hedge arrangement, to or under which the
Borrower or any of its Subsidiaries is a party or a beneficiary on the
Effective Date or becomes a party or a beneficiary thereafter.
"Investment" as defined in subsection 7.8.
"Issuing Lender": JPMorgan Chase, Deutsche Bank Trust Company
Americas or any other Lender selected by the Borrower with the consent of
the Administrative Agent (such consent not to be unreasonably withheld),
and any of their respective affiliates, each in its capacity as issuer of
any Letter of Credit. Each reference herein to "the Issuing Lender" shall
be deemed to be a reference to the relevant Issuing Lender with respect to
the relevant Letter of Credit.
"Joint Venture Loan": the non-amortizing senior secured note due
2023 in the amount of $815,500,000 issued by LLC and payable to GECC.
"Joint Venture Loan Guarantee": the guarantee executed by LIN TV in
connection with the Joint Venture Loan.
"JPMorgan Chase": JPMorgan Chase Bank, N.A.
"L/C Commitment": $35,000,000.
16
"L/C Fee Payment Date": the third Business Day following the last
day of each March, June, September and December and the last day of the
Revolving Credit Commitment Period.
"L/C Obligations": at any time, an amount equal to the sum of (a)
the aggregate then undrawn and unexpired amount of the then outstanding
Letters of Credit and (b) the aggregate amount of drawings under Letters
of Credit which have not then been reimbursed pursuant to subsection 3.5.
"L/C Participants": with respect to any Letter of Credit, the
collective reference to all the Revolving Credit Lenders other than the
Issuing Lender that issued such Letter of Credit.
"Lenders": as defined in the introductory paragraph of this
Agreement. "Lender" shall in any event include any Incremental Lender and,
as the context may permit, the Issuing Lender and the Swingline Lender.
"Letters of Credit": as defined in subsection 3.1(a), provided that
to the extent the Borrower shall have deposited amounts in a cash
collateral account for the benefit of the Lenders, the Letters of Credit
relating thereto shall be deemed not to be Letters of Credit for purposes
of this Agreement.
"License Subsidiary": (a) with respect to each Station owned on the
Effective Date, each Subsidiary listed opposite such Station's name on
Schedule 1.1D and (b) with respect to any Station acquired after the
Effective Date, the Subsidiary or Subsidiaries of the Borrower that shall
hold the Station Licenses under the authority of which such Station is
operated, provided that, in the case of Subsidiaries referred to in clause
(b) above, each such Subsidiary shall be a single purpose entity the sole
purpose of which shall be to hold Station Licenses and to perform related
functions with respect thereto, unless otherwise agreed by the
Administrative Agent (such agreement not to be unreasonably withheld).
"Lien": any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), charge or other
security interest or any preference, priority or other security agreement
or preferential arrangement of any kind or nature whatsoever (including,
without limitation, any conditional sale or other title retention
agreement and any capital lease having substantially the same economic
effect as any of the foregoing) but not including a lien for taxes that
are not delinquent.
"LIN Texas": LIN Television of Texas, LP, a Delaware limited
partnership.
"LIN TV": LIN TV Corp., a Delaware corporation and the parent of the
Borrower.
"LIN TV Common Stock": the Class A Common Stock of LIN TV, par value
$0.01 per share.
"LLC": Station Venture Holdings, LLC, a Delaware limited liability
company.
"LLC Agreement": the Station Venture Holdings, LLC Amended and
Restated Limited Liability Company Agreement dated as of January 15, 1998,
between Outlet and LIN Texas.
17
"Loan": any loan made by any Lender pursuant to this Agreement.
"Loan Documents": this Agreement, the Security Documents, and the
Notes, if any.
"Loan Parties": the Borrower, the Permitted Borrower and each
Subsidiary of the Borrower which is a party to a Loan Document.
"Majority Facility Lenders": with respect to any Facility, Lenders
which collectively are the holders of more than 50% of the aggregate
unpaid principal amount of the Tranche A Term Loans or the Incremental
Term Loans, or of the Total Revolving Extensions of Credit, or Incremental
Revolving Loans, as the case may be, outstanding under such Facility (or,
in the case of the Revolving Credit Facility or any Incremental Revolving
Loan Facility, prior to any termination of the Revolving Credit
Commitments or Incremental Revolving Loan Amounts, respectively,
thereunder, Lenders which are collectively the holders of more than 50% of
the aggregate Revolving Credit Commitments or the aggregate Incremental
Revolving Loan Amounts thereunder, as the case may be).
"Majority Revolving Credit Facility Lenders": the Majority Facility
Lenders in respect of the Revolving Credit Facility.
"Material Adverse Effect": a material adverse effect on (a) the
business, operations, properties or condition (financial or otherwise) of
the Borrower and its Subsidiaries, taken as a whole, or (b) the validity
or enforceability of this Agreement and the other Loan Documents or the
rights or remedies of the Administrative Agent, the Swingline Lender, the
Issuing Lender or the other Lenders hereunder and thereunder.
"Materials of Environmental Concern": any gasoline or petroleum
(including crude oil or any fraction thereof) or petroleum products or any
hazardous or toxic substances, materials or wastes, defined or regulated
as such in or under any Environmental Law, including, without limitation,
asbestos, polychlorinated biphenyls and urea-formaldehyde insulation.
"Mortgaged Properties": the real properties listed on Schedule 1.1B.
"Mortgages": each of the mortgages and deeds of trust made by any
Loan Party in favor of, or for the benefit of, the Administrative Agent
for the benefit of the Lenders, as the same may be amended, supplemented
or otherwise modified from time to time.
"Multiemployer Plan": a Plan which is a multiemployer plan as
defined in Section 4001 (a) (3) of ERISA.
"Net Cash Proceeds": (a) in connection with any Asset Sale or any
Recovery Event, the proceeds thereof in the form of cash and Cash
Equivalents (including any such proceeds received by way of deferred
payment of principal pursuant to a note or installment receivable or
purchase price adjustment receivable or otherwise, but only as and when
received) of such Asset Sale or Recovery Event, net of attorneys' fees,
notarial fees, accountants' fees, investment banking fees, appraisal fees,
survey costs, title insurance premiums, amounts to be applied to the
repayment of Indebtedness secured by a Lien expressly permitted hereunder
on any asset which is the subject of such Asset Sale or Recovery Event
(other than any Lien
18
pursuant to a Security Document) and other customary fees and expenses
actually incurred in connection therewith, net of taxes paid or reasonably
estimated to be payable as a result thereof (after taking into account any
available tax credits or deductions and any tax sharing arrangements) and
net of purchase price adjustments reasonably expected to be payable in
connection therewith and (b) in connection with any issuance or sale of
equity securities or debt securities or instruments or the incurrence of
loans, the cash proceeds received from such issuance or Incurrence, net of
attorneys' fees, notarial fees, investment banking fees, accountants'
fees, underwriting discounts and commissions and other customary fees and
expenses actually Incurred in connection therewith.
"Net Consolidated Revenue": at a particular date, all amounts which
would, in conformity with GAAP, be set opposite the caption "Net Revenues"
(or any like caption) on a consolidated statement of operations of the
Borrower and its Subsidiaries at such date.
"Net Income": at a particular date, all amounts which would, in
conformity with GAAP, be set forth opposite the caption "Net Income" (or
any like caption) on a consolidated statement of operations of the
Borrower and its Subsidiaries at such date; provided that in no event
shall Net Income include the net income or loss of Banks Broadcasting,
Inc., and provided further that such amount shall be adjusted to exclude
(to the extent otherwise included therein) (a) earnings or losses
attributable to any Person (other than the LLC) in which the Borrower or
any of its Subsidiaries has a joint interest with third parties, except to
the extent of the amount of dividends or other distributions actually paid
to the Borrower or such Subsidiary by such other Person in cash during
such period and (b) any earnings or losses attributable to the interest of
the Borrower or any of its Subsidiaries in the LLC, except for any such
earnings to the extent of (i) actual distributions of Distributable Cash
(as defined in the LLC Agreement) in respect of such interest made to the
Borrower or any of its Subsidiaries and (ii) amounts that would have
constituted Distributable Cash and would have been required to be
distributed to the Borrower and its Subsidiaries in respect of such
interest but for the reserve requirement of Section 8.06 of the LLC
Agreement.
"Non-Consenting Lender": as defined in subsection 2.20.
"Non-Excluded Taxes": as defined in subsection 2.17(a).
"Non-Funding Lender": as defined in subsection 2.15(c).
"Non-Station Asset": all of the assets used and useful for the
operation of the Borrower's and its Subsidiaries' broadcasting and
entertainment businesses, other than the Stations.
"Non-U.S. Lender": as defined in subsection 2.17(b).
"Notes": the collective reference to the Term Notes, the Revolving
Credit Notes and the Swingline Notes.
"Obligations": the unpaid principal of and interest on (including,
without limitation, interest accruing after the maturity of the Loans and
Reimbursement Obligations and interest accruing after the filing of any
petition in bankruptcy, or the commencement of any insolvency,
reorganization or like proceeding, relating to the Borrower or the
Permitted
19
Borrower, whether or not a claim for post-filing or post-petition interest
is allowed in such proceeding) the Loans, the Reimbursement Obligations
and all other obligations and liabilities of the Borrower and the
Permitted Borrower to the Administrative Agent, the Swingline Lender, the
Issuing Lender or any other Lender (or, in the case of Interest Rate
Protection Agreements, any counterparty thereto who was a Lender (or any
affiliate of any Lender) at the time such Interest Rate Protection
Agreement was entered into), whether direct or indirect, absolute or
contingent, due or to become due, or now existing or hereafter incurred,
which may arise under, out of, or in connection with, this Agreement
(including, with respect to the Borrower, those obligations under Section
11 hereof), any Notes, any other Loan Document, the Letters of Credit, any
Interest Rate Protection Agreement entered into with counterparty who was
a Lender (or any affiliate of any Lender) at the time such Interest Rate
Protection Agreement was entered into or any other document made,
delivered or given in connection herewith or therewith, whether on account
of principal, interest, reimbursement obligations, fees, indemnities,
costs, expenses (including, without limitation, all fees, charges and
disbursements of counsel to the Administrative Agent, to the Swingline
Lender, to the Issuing Lender or to any other Lender that are required to
be paid by the Borrower or Permitted Borrower pursuant hereto).
"Outlet": Outlet Broadcasting, Inc., a Rhode Island corporation.
"Participant": as defined in subsection 10.6(c).
"Parent Guarantee": the guarantee dated as of March 11, 2005 made by
LIN TV in favor of JP Morgan Chase as Administrative Agent under this
Agreement.
"PBGC": the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA (or any successor).
"Permitted Acquisition": the acquisition by the Borrower or any of
its Subsidiaries of one or more Broadcast Stations or Broadcast
Enterprises, or at least a majority of the capital stock of, or other
equity interests in, any other Person whose primary business is the
ownership and operation of one or more Broadcast Stations or Broadcast
Enterprises, in the United States provided that (a) no Default or Event of
Default will have occurred and be continuing or will result therefrom
(including, without limitation, pursuant to subsection 7.1), and (b) the
Borrower takes such actions as may be required or reasonably requested to
ensure that the Administrative Agent, for the ratable benefit of the
Lenders, has a perfected first priority security interest, to the extent
contemplated by the Guarantee and Collateral Agreement, in any assets
required to be secured pursuant to subsection 6.9 or any other Loan
Document, subject to Liens permitted by subsection 7.3, and provided
further that for any acquisition involving consideration in excess of
$75,000,000, (i) the Borrower provides the Administrative Agent with
appropriate supporting documentation if reasonably requested by the
Administrative Agent, including, without limitation, copies of any
acquisition documents in connection with such acquisition and copies of
opinions of counsel, including FCC counsel, delivered in connection
therewith and copies of an FCC consent on Form 732 (or any comparable form
issued by the FCC) relating to the transfer of control or assignment of
the Station Licenses of any acquired Broadcast Station to the Borrower or
its Subsidiary and (ii) on a pro forma basis (including any recurring
improvements related to the acquired asset or the assets of the Person
acquired) for the most recently completed four-fiscal quarter period for
which financial statements are available on the date of such acquisition,
no Default
20
or Event of Default pursuant to subsection 7.1 will have occurred and be
continuing, provided that for purposes of calculating Consolidated EBITDA
pursuant to this clause (ii), the Consolidated EBITDA of such Broadcast
Stations or Broadcast Enterprises being acquired for such four-fiscal
quarter period shall be equal to the Consolidated EBITDA of such Broadcast
Stations or Broadcast Enterprises for the 12-month period immediately
preceding such acquisition, and the Borrower provides the Administrative
Agent with appropriate supporting documentation if reasonably requested by
the Administrative Agent.
"Permitted Borrower": as defined in the introductory paragraph to
this Agreement.
"Permitted Borrower Tranche A Term Loan Commitment": as to any
Lender, the obligation of such Lender, if any, to make a Tranche A Term
Loan to the Permitted Borrower hereunder in a principal amount equal to
the amount set forth under the heading "Permitted Borrower Tranche A Term
Loan Commitment" opposite such Lender's name on Schedule 1.1A attached
hereto. The aggregate amount of the Permitted Borrower Tranche A Term Loan
Commitments on the Effective Date is $120,000,000.
"Permitted Dividend": any dividend paid by, or other distribution
made by, the Borrower on or after the Effective Date on its Capital Stock,
other than (a) dividends or distributions of Capital Stock and (b)
pursuant to subsection 7.6(a) through (e), provided that either (x) after
giving effect thereto and to any related incurrence of Indebtedness, the
Consolidated Leverage Ratio on a pro forma basis as of the last day of the
immediately preceding four-fiscal-quarter period for which financial
statements are available is less than or equal to 5.0x or (y) after giving
effect thereto the aggregate amount of all such dividends and
distributions and of all payments, prepayments, redemptions and purchases
referred to in clause (y) the definition of "Permitted Redemption" since
the Effective Date does not exceed the Broadcast Cash Flow for the
immediately preceding four-fiscal-quarter period for which financial
statements are available.
"Permitted Redemption": any payment, prepayment, redemption or
purchase, including payments in connection with a defeasance, made on or
after the Effective Date by the Borrower or any of its Subsidiaries (a) of
or on Subordinated Indebtedness or Senior Unsecured Indebtedness or (b) of
or on LIN TV Capital Stock, provided that either (x) after giving effect
thereto and to any related incurrence of Indebtedness, the Consolidated
Leverage Ratio on a pro forma basis as of the last day of the immediately
preceding four-fiscal-quarter period for which financial statements are
available is less than or equal to 5.0x or (y) after giving effect thereto
the aggregate amount (excluding any accrued interest) of all such
payments, prepayments, redemptions and purchases and of all dividends and
distributions referred to in clause (y) of the definition of "Permitted
Dividend" since the Effective Date does not exceed the Broadcast Cash Flow
for the immediately preceding four-fiscal-quarter period for which
financial statements are available.
"Person": an individual, partnership, corporation, limited liability
company, business trust, joint stock company, trust, unincorporated
association, joint venture, Governmental Authority or other entity of
whatever nature.
"Plan": at a particular time, any employee benefit plan which is
covered by ERISA and in respect of which the Borrower or a Commonly
Controlled Entity is (or, if such plan
21
were terminated at such time, would under Section 4069 of ERISA be deemed
to be) an "employer" as defined in Section 3(5) of ERISA.
"Pledged Stock": as defined in the Guarantee and Collateral
Agreement.
"Pricing Grid": the pricing grid as follows:
REVOLVING
APPLICABLE APPLICABLE CREDIT FACILITY
MARGIN FOR MARGIN FOR COMMITMENT
CONSOLIDATED LEVERAGE RATIO EURODOLLAR LOANS ABR LOANS FEE
- -------------------------------------- ---------------- ---------- ---------------
Level 1: Greater than or equal to
6.00 to 1.00 1.375% 0.375% 0.375%
Level 2: Greater than or equal to
5.50 to 1.00 and less than
6.00 to 1.00 1.25% 0.25% 0.375%
Level 3: Greater than or equal to
5.00 to 1.00 and less than
5.50 to 1.00 1.00% 0.00% 0.300%
Level 4: Greater than or equal to
4.50 to 1.00 and less than
5.00 to 1.00 0.75% 0.00% 0.300%
Level 5: Less than 4.50 to 1.00 0.625% 0.00% 0.250%
Changes in the Applicable Margin and the Commitment Fee Rate with respect
to Tranche A Term Loans, Revolving Credit Loans and Swingline Loans
resulting from changes in the Consolidated Leverage Ratio shall become
effective on the day (the "Adjustment Date") of receipt by the
Administrative Agent of the financial statements delivered pursuant to
subsection 6.1 and shall remain in effect until the next change to be
effected pursuant to this paragraph. If any financial statements referred
to above are not delivered within the time periods specified above, then,
until such financial statements are delivered, at the option of the
Administrative Agent or the Required Lenders, the Consolidated Leverage
Ratio as at the end of the fiscal period that would have been covered
thereby shall for the purposes of this definition be determined by
reference to "Level 1". Each determination of the Consolidated Leverage
Ratio pursuant to this paragraph shall be made with respect to the period
of four consecutive fiscal quarters of the Borrower ending at the end of
the period covered by the relevant financial statements. The Applicable
Margin for all Loans (other than Incremental Term Loans and Incremental
Revolving Loans) and for the Revolving Credit Facility Commitment Fee for
the period from the Effective Date to the date on which financial
statements are delivered pursuant to subsection 6.1 for the period ended
March 31, 2005 shall be determined by reference to "Level 4".
"Prime Rate": as defined in the definition of the term "ABR".
22
"Projections": as defined in subsection 6.2(b).
"Property": any right or interest in or to property of any kind
whatsoever, whether real, personal or mixed and whether tangible or
intangible, including, without limitation, Capital Stock.
"Qualified Issuer": any financial institution (a) which has, or
whose obligations are guaranteed by an affiliated financial institution
which has, capital and surplus in excess of $500,000,000 and (b) the
outstanding short-term debt securities of which are rated, or whose
parent's outstanding short-term debt securities are rated, at least A-2 by
Standard & Poor's Ratings Services or at least P-2 by Moody's Investors
Service, Inc., or carry an equivalent rating by a nationally recognized
rating agency if both of the two named rating agencies cease publishing
ratings of investments.
"Recovery Event": any settlement of or payment in respect of any
property insurance or casualty insurance claim or any condemnation
proceeding or deed in lieu thereof relating to any Property of the
Borrower or any of its Subsidiaries, excluding any such settlement or
payment which, together with any related settlement or payment, yields Net
Cash Proceeds to the Borrower or any of its Subsidiaries of $5,000,000 or
less.
"Refunded Swingline Loans": as defined in subsection 2.4(c)(ii).
"Register": as defined in subsection 10.6(b).
"Reimbursement Obligations": with respect to any Letter of Credit,
the obligation of the Borrower to reimburse the Issuing Lender pursuant to
subsection 3.5 for amounts drawn under the Letters of Credit.
"Reinvestment Deferred Amount": with respect to any Reinvestment
Event, the aggregate Adjusted Net Cash Proceeds received by the Borrower
or any of its Subsidiaries in connection therewith which are not applied
to the prepayment of Term Loans pursuant to subsection 2.9(a)(i) as a
result of the delivery of a Reinvestment Notice.
"Reinvestment Event": any Asset Sale or Recovery Event in respect of
which the Borrower has delivered a Reinvestment Notice.
"Reinvestment Notice": a written notice executed by a Responsible
Officer stating that no Event of Default has occurred and is continuing
and that the Borrower (directly or indirectly through a Subsidiary)
intends and expects to use all or a specified portion of the Adjusted Net
Cash Proceeds of an Asset Sale or Recovery Event to acquire assets useful
in its business (including pursuant to a Permitted Acquisition or an Asset
Swap Transaction).
"Reinvestment Prepayment Amount": with respect to any Reinvestment
Event, the Reinvestment Deferred Amount relating thereto less any amount
expended prior to the relevant Reinvestment Prepayment Date to acquire
assets useful in the Borrower's business.
"Reinvestment Prepayment Date": with respect to any Reinvestment
Event, the earlier of (a) the date occurring 365 days after such
Reinvestment Event and (b) the date on which the Borrower shall have
determined not to acquire assets useful in the Borrower's business with
all or any portion of the relevant Reinvestment Deferred Amount, provided
that
23
if the Reinvestment Notice with respect to such Reinvestment Event relates
to the acquisition of a new Station by the Borrower or any of its
Subsidiaries (whether as a result of a Permitted Acquisition, an Asset
Swap Transaction or otherwise) and the Borrower or such Subsidiary has
filed within 365 days of the Reinvestment Event an application with the
FCC for the approval of the transfer of control or assignment of the
Station License of such acquired Station, the period specified in
paragraph (a) shall be extended to a period equal to five Business Days
after the time required for the FCC to issue a Final Order relating to the
transfer of control of such Station License.
"Reorganization": with respect to any Multiemployer Plan, the
condition that such plan is in reorganization within the meaning of
Section 4241 of ERISA.
"Reportable Event": any of the events set forth in Section 4043(b)
of ERISA, other than those events as to which the thirty day notice period
is waived under the regulations issued pursuant to Section 4043(b) of
ERISA.
"Required Lenders": Lenders, other than Non-Funding Lenders, which
collectively are the holders of more than 50% of the sum of (i) the
outstanding principal amount of Term Loans, (ii) the aggregate Revolving
Credit Commitments (determined without duplication for commitments of the
Issuing Lender and the Swingline Lender to issue Letters of Credit or make
Swingline Loans) or, if the Revolving Credit Commitments have been
terminated, the Total Revolving Extensions of Credit, and (iii) the
aggregate Incremental Revolving Loan Amounts or, if the Incremental
Revolving Loan Amounts have been terminated, the aggregate outstanding
principal amount of Incremental Revolving Loans.
"Requirement of Law": as to any Person, the Certificate of
Incorporation and By-Laws or other organizational or governing documents
of such Person, and any law, treaty, rule or regulation (including,
without limitation, Environmental Laws or rules, regulations or orders,
whether addressed to the Borrower or any of its Subsidiaries, of the FCC)
or determination of an arbitrator or a court or other Governmental
Authority, in each case applicable to or binding upon such Person or any
of its property or to which such Person or any of its property is subject.
"Responsible Officer": the chief executive officer, the president,
any vice president or senior or executive vice president, the treasurer or
any assistant treasurer, the secretary or assistant secretary, the chief
financial officer (or officer having comparable duties) and the controller
of the Borrower or the Permitted Borrower, as the case may be, in each
case acting solely in such capacity and without personal liability.
"Restricted Payment" as defined in subsection 7.6.
"Revolving Credit Commitment": as to any Lender, the obligation of
such Lender, if any, to make Revolving Credit Loans, and to participate in
Swingline Loans and Letters of Credit, in an aggregate principal and/or
face amount not to exceed the amount set forth under the heading
"Revolving Credit Commitment" opposite such Lender's name on Schedule
1.1A, as the same may be changed from time to time pursuant to the terms
hereof. The aggregate amount of the Revolving Credit Commitments as of the
Effective Date is $160,000,000. In no event shall the Revolving Credit
Commitments include Incremental Revolving Loan Amounts not incorporated in
the Revolving Credit Commitments as
24
contemplated by the penultimate sentence of subsection 2.4(d) (in which
case such Incremental Revolving Loan Amounts shall not be treated as
Incremental Revolving Loan Amounts from and after the Incremental
Revolving Loan Closing Date with respect thereto).
"Revolving Credit Commitment Period": the period from and including
the Effective Date to the Revolving Credit Termination Date.
"Revolving Credit Facility": as defined in the definition of the
term "Facility".
"Revolving Credit Lender": each Lender which has a Revolving Credit
Commitment or which has made, or acquired pursuant to an assignment made
in accordance with subsection 10.6(b), Revolving Credit Loans or has
participations in outstanding Letters of Credit or Swingline Loans.
"Revolving Credit Loans": as defined in subsection 2.4(a).
"Revolving Credit Note": as defined in subsection 10.6(e).
"Revolving Credit Percentage": as to any Revolving Credit Lender at
any time, the percentage which such Lender's Revolving Credit Commitment
then constitutes of the aggregate Revolving Credit Commitments (or, at any
time after the Revolving Credit Commitments shall have expired or
terminated, the percentage which the aggregate principal amount of such
Lender's Revolving Credit Loans then outstanding constitutes of the
aggregate principal amount of the Revolving Credit Loans then
outstanding).
"Revolving Credit Termination Date": the earlier of (a) the
Scheduled Revolving Credit Termination Date or, if such date is not a
Business Day, the Business Day next preceding such date and (b) the date
upon which the Revolving Credit Commitments shall be earlier terminated
pursuant hereto.
"Revolving Extensions of Credit": as to any Revolving Credit Lender
at any time, an amount equal to the sum of (a) the aggregate principal
amount of all Revolving Credit Loans made by such Lender then outstanding,
(b) such Lender's Revolving Credit Percentage of the L/C Obligations then
outstanding and (c) such Lender's Swingline Exposure at such time. In no
event shall the Revolving Extensions of Credit include Incremental
Revolving Loans.
"Sale": as defined in subsection 7.5.
"Scheduled Revolving Credit Termination Date": March 11, 2010.
"Security Documents": the collective reference to the Guarantee and
Collateral Agreement, the Mortgages, the Parent Guarantee, the Stock
Pledge Agreement and all other security documents hereafter delivered to
the Administrative Agent granting a Lien on any Property of any Person to
secure the obligations and liabilities of any Loan Party under any Loan
Document.
"Senior Responsible Officer": the chief executive officer, the
president, any senior or executive vice-president, the treasurer, the
chief financial officer and the general counsel of the Borrower in each
case acting solely in such capacity and without personal liability.
25
"Senior Subordinated Notes": the Borrower's 6-1/2 % Senior
Subordinated Notes due 2013.
"Senior Unsecured Indebtedness": unsecured Indebtedness of the
Borrower, provided that, to the extent incurred after the Effective Date,
such Indebtedness has no maturity, amortization, mandatory redemption or
purchase option (other than with asset sale proceeds, subject to the
provisions of this Agreement, or following a change of control) or sinking
fund payment prior to one year after the Tranche A Maturity Date.
"Single Employer Plan": any Plan which is covered by Title IV of
ERISA, but which is not a Multiemployer Plan.
"Station Licenses": (a) with respect to the Borrower or any of its
Subsidiaries, all authorizations, licenses or permits issued by the FCC
and granted or assigned to the Borrower or any of its Subsidiaries, or
under which the Borrower or any of its Subsidiaries has the right to
operate any Station, together with any extensions or renewals thereof and
(b) with respect to any other Person, all authorizations, licenses or
permits issued by the FCC and granted or assigned to such Person, or under
which such Person has the right to operate any Broadcast Station, together
with any extensions or renewals thereof.
"Stations": collectively, the Broadcast Stations owned from time to
time by the Borrower and its Subsidiaries. Schedule 1.1D sets forth a
complete list of Stations as of the Effective Date.
"Stock Pledge Agreement": the stock pledge agreement, in
substantially the form of Exhibit J (Form of Stock Pledge Agreement)
attached hereto, executed and delivered by LIN TV.
"Subordinated Indebtedness": Indebtedness of the Borrower, including
the Senior Subordinated Notes and the Exchangeable Senior Subordinated
Debentures, that is subordinated in right of payment to the Obligations,
provided that, to the extent incurred after the Effective Date, such
Indebtedness has (a) no maturity, amortization, mandatory redemption or
purchase option (other than with asset sale proceeds, subject to the
provisions of this Agreement, or following a change of control) or sinking
fund payment prior to the date that is one year after the Tranche A
Maturity Date, (b) no financial maintenance covenants and (c) customary
subordination provisions as shall be reasonably satisfactory to the
Administrative Agent.
"Subsidiary": as to any Person, a corporation, partnership, limited
liability company or other entity of which shares of stock or other
ownership interests having ordinary voting power (other than stock or such
other ownership interests having such power only by reason of the
happening of a contingency) to elect a majority of the board of directors
or other managers of such corporation, partnership or other entity are at
the time owned, or the management of which is otherwise controlled,
directly or indirectly through one or more intermediaries, or both, by
such Person.
"Subsidiary Guarantor": each Subsidiary of the Borrower party to the
Guarantee and Collateral Agreement.
26
"Swingline Exposure": at any time, the aggregate principal amount of
all outstanding Swingline Loans at such time. The Swingline Exposure of
any Revolving Credit Lender at any time shall mean its Revolving Credit
Percentage of the aggregate Swingline Exposure at such time.
"Swingline Lender": as defined in the introductory paragraph of this
Agreement.
"Swingline Loan Commitment": the obligation of the Swingline Lender
to make Swingline Loans to the Borrower hereunder. The original amount of
the Swingline Loan Commitment is $50,000,000.
"Swingline Loan Participation Certificate": a certificate in
substantially the form of Exhibit H.
"Swingline Loans": as defined in subsection 2.4(c)(i).
"Swingline Note": as defined in subsection 10.6(e).
"Syndication Agent": as defined in the introductory paragraph of
this Agreement.
"Term Loans": the Tranche A Term Loans and the Incremental Term
Loans made by the Lenders to the Borrower and the Permitted Borrower
pursuant to subsection 2.1.
"Term Note": as defined in subsection 10.6(e).
"Test Period": any period of four consecutive fiscal quarters of the
Borrower most recently ended.
"Total Revolving Extensions of Credit": at any time, the aggregate
amount of the Revolving Extensions of Credit of the Revolving Credit
Lenders at such time.
"Tranche A Maturity Date": March 11, 2011.
"Tranche A Term Loan Commitments": the sum of (i) the Borrower
Tranche A Term Loan Commitments and (ii) the Permitted Borrower Tranche A
Term Loan Commitments. The aggregate amount of the Tranche A Term Loan
Commitments on the Effective Date is $170,000,000.
"Tranche A Term Loan Facility": as defined in the definition of the
term "Facility".
"Tranche A Term Loan Lender": each Lender which has a Tranche A Term
Loan Commitment or which has made, or acquired pursuant to an assignment
made in accordance with subsection 10.6(b), a Tranche A Term Loan.
"Tranche A Term Loan Percentage": as to any Tranche A Term Loan
Lender at any time, the percentage which such Lender's Tranche A Term Loan
Commitment then constitutes of the aggregate Tranche A Term Loan
Commitments (or, at any time after the Effective Date, the percentage
which the principal amount of such Lender's Tranche A Term Loans then
outstanding constitutes of the aggregate principal amount of the Tranche A
Term Loans then outstanding).
27
"Tranche A Term Loans": as defined in subsection 2.1(a).
"Transferee": as defined in subsection 10.6(f).
"Type": as to any Loan, its nature as an ABR Loan or a Eurodollar
Loan.
"Uniform Customs": the Uniform Customs and Practice for Documentary
Credits (1993 Revision), International Chamber of Commerce Publication No.
500, as the same may be revised from time to time.
"Wholly Owned Subsidiary": as to any Person, any other Person all of
the Capital Stock of which (other than directors' qualifying shares
required by law) is owned by such Person directly and/or through other
Wholly Owned Subsidiaries.
"Wholly Owned Subsidiary Guarantor": any Subsidiary Guarantor that
is a Wholly Owned Subsidiary of the Borrower.
1.2 Other Definitional Provisions. (a) Unless otherwise specified
therein, all terms defined in this Agreement shall have the defined meanings
when used in the other Loan Documents or any certificate or other document made
or delivered pursuant hereto or thereto.
(b) As used herein and in the other Loan Documents, and any
certificate or other document made or delivered pursuant hereto or thereto,
accounting terms relating to the Borrower and its Subsidiaries not defined in
subsection 1.1 and accounting terms partly defined in subsection 1.1, to the
extent not defined, shall have the respective meanings given to them under GAAP.
(c) The words "hereof", "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement, and Section,
Schedule and Exhibit references are to this Agreement unless otherwise
specified. The words "include", "includes" and "including" shall be deemed to be
followed by the phrase "without limitation." The word "will" shall be construed
to have the same meaning and effect as the word "shall".
(d) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS
2.1 Term Commitments. (a) Subject to the terms and conditions
hereof, each Tranche A Term Loan Lender severally agrees to make term loans
("Tranche A Term Loans") to (i) the Borrower on the Effective Date in a
principal amount equal to the Borrower Tranche A Term Loan Commitment of such
Lender and (ii) the Permitted Borrower on the Effective Date in a principal
amount equal to the Permitted Borrower Tranche A Term Loan Commitment of such
Lender.
(b) The Borrower, the Permitted Borrower and all or certain of the
Lenders may from time to time agree that such Lenders shall become Incremental
Lenders under an Incremental Term Loan Facility or increase the principal amount
of their Incremental Term Loans under any Incremental Term Loan Facility by
executing and delivering to the Administrative Agent an Incremental Term Loan
Activation Notice specifying (i) the respective Incremental Term Loan
28
Amount of such Incremental Lenders, (ii) the applicable Incremental Term Loan
Closing Date, (iii) the applicable Incremental Term Loan Maturity Date, (iv) the
amortization schedule for the applicable Incremental Term Loans, which shall
comply with subsection 2.3(b) and (v) the Applicable Margin for the Incremental
Term Loans to be made pursuant to such Incremental Term Loan Activation Notice,
and which shall be otherwise duly completed. Each Incremental Lender that is a
signatory to an Incremental Term Loan Activation Notice severally agrees, on the
terms and conditions of this Agreement, to make a term loan (an "Incremental
Term Loan") to either or both of the Borrower and the Permitted Borrower, as
specified in such Incremental Term Loan Activation Notice, on the Incremental
Term Loan Closing Date specified in such Incremental Term Loan Activation Notice
in a principal amount equal to the Incremental Term Loan Amount of such
Incremental Lender specified in such Incremental Term Loan Activation Notice.
Subject to the terms and conditions of this Agreement, the Borrower or Permitted
Borrower, as applicable, may convert Incremental Term Loans of one Type into
Incremental Term Loans of another Type (as provided in subsection 2.10) or
continue Incremental Term Loans of one Type as Incremental Term Loans of the
same Type (as provided in subsection 2.10). Incremental Term Loans that are
prepaid may not be reborrowed. Nothing in this subsection 2.1(b) shall be
construed to obligate any Lender to execute an Incremental Term Loan Activation
Notice. Notwithstanding the foregoing, the aggregate amount of Incremental Term
Loans outstanding under all Incremental Term Loan Facilities, together with the
aggregate amount of Incremental Revolving Amounts available under all
Incremental Revolving Loan Facilities (including any incorporated into the
Revolving Credit Commitments pursuant to the penultimate sentence of subsection
2.4(d)), shall at no time exceed $350,000,000.
(c) The Term Loans may from time to time be Eurodollar Loans or ABR
Loans, as determined by the Borrower and the Permitted Borrower, as applicable,
and notified to the Administrative Agent in accordance with subsections 2.2 and
2.10.
2.2 Procedure for Term Loan Borrowing. (a) The Borrower and the
Permitted Borrower shall give the Administrative Agent irrevocable written (or
telephonic promptly confirmed in writing) notice (which notice must be received
by the Administrative Agent prior to 12:00 Noon, New York City time, (i) three
Business Days prior to the requested Borrowing Date, in the case of Eurodollar
Loans, or (ii) one Business Day prior to the requested Borrowing Date, in the
case of ABR Loans (except that such notice must be received by the
Administrative Agent prior to 9:00 a.m., New York City time, on the Effective
Date in the case of ABR Loans requested to be borrowed on such date)) requesting
that the Tranche A Term Loan Lenders make the Tranche A Term Loans on such
Borrowing Date and specifying the amount to be borrowed. Upon receipt of such
notice the Administrative Agent shall promptly notify each Tranche A Term Loan
Lender thereof. Not later than 12:00 Noon, New York City time, on such Borrowing
Date, each Tranche A Term Loan Lender shall make available to the Administrative
Agent at its office specified in subsection 10.2 an amount in immediately
available funds equal to the Tranche A Term Loans to be made by such Lender. The
Administrative Agent shall credit the account of the Borrower and the Permitted
Borrower on the books of such office of the Administrative Agent with the
aggregate of the amounts made available to the Administrative Agent by the
Tranche A Term Loan Lenders in like funds as received by the Administrative
Agent.
(b) The Borrower or the Permitted Borrower, as the case may be,
shall give the Administrative Agent irrevocable written (or telephonic promptly
confirmed in writing) notice of the borrowing of any Incremental Term Loans
under any Incremental Term Loan Facility (which notice must be received by the
Administrative Agent prior to 12:00 Noon, New York City time, (i) three Business
Days prior to the requested Borrowing Date, in the case of Eurodollar Loans, or
(ii) one
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Business Day prior to the requested Borrowing Date, in the case of ABR Loans),
specifying (A) the amount and Type of Incremental Term Loans to be borrowed, (B)
the requested Borrowing Date and (C) in the case of Eurodollar Loans, the
respective amounts of each such Type of Loan and the respective lengths of the
initial Interest Period therefor. Each borrowing under any Incremental Term Loan
Facility shall be in an amount equal to (x) in the case of ABR Loans, $1,000,000
or a whole multiple of $100,000 in excess thereof and (y) in the case of
Eurodollar Loans, $5,000,000 or a whole multiple of $100,000 in excess thereof.
Upon receipt of any such notice with respect to an Incremental Term Loan
Facility, the Administrative Agent shall promptly notify each relevant
Incremental Lender thereof. Each relevant Incremental Lender will make its
respective Incremental Term Loan available to the Administrative Agent for the
account of the Borrower or the Permitted Borrower, as applicable, at the office
of the Administrative Agent specified in subsection 10.2 prior to 12:00 Noon,
New York City time, on the Borrowing Date requested by the Borrower or Permitted
Borrower, as applicable, in funds immediately available to the Administrative
Agent. Such borrowing will then be made available to the Borrower or the
Permitted Borrower, as applicable, by the Administrative Agent crediting the
relevant account on the books of such office with the aggregate of the amounts
made available to the Administrative Agent by the applicable Lenders and in like
funds as received by the Administrative Agent. The provisions of the paragraph
shall be subject to any applicable limitations or requirements in the relevant
Incremental Term Loan Activation Notice.
2.3 Repayment of Term Loans. (a) The Tranche A Term Loan of each
Lender made to the Borrower and the Tranche A Term Loan of each Lender made to
the Permitted Borrower shall mature in consecutive quarterly installments
payable by the Borrower and the Permitted Borrower, respectively, on the last
day of March, June, September and December of each year, - commencing on March
31, 2006. Each such installment shall be (i) with respect to installments
payable prior to the Tranche A Maturity Date, in an aggregate amount equal to
such Lender's Tranche A Term Loan Percentage multiplied by 4,250,000 and (ii)
with respect to the installments payable on the Tranche A Maturity Date, in an
amount equal to such Lender's Tranche A Term Loan Percentage multiplied by the
then outstanding aggregate principal amount of the Tranche A Term Loans.
(b) The Incremental Term Loans made after the Effective Date, if
any, of each Incremental Lender shall mature in such installments as are
specified in the Incremental Term Loan Activation Notice pursuant to which such
Incremental Term Loans were made; provided that such Incremental Term Loans
shall have an average weighted life not less than that of the then outstanding
Tranche A Term Loans.
2.4 Revolving Credit Commitments; Incremental Revolving Loans. (a)
Subject to the terms and conditions hereof, each Revolving Credit Lender
severally agrees to make revolving credit loans ("Revolving Credit Loans") to
the Borrower from time to time during the Revolving Credit Commitment Period in
an aggregate principal amount at any one time outstanding, when added to such
Lender's Swingline Exposure at such time and Revolving Credit Percentage of the
L/C Obligations then outstanding, does not exceed the amount of such Lender's
Revolving Credit Commitment. During the Revolving Credit Commitment Period the
Borrower may use the Revolving Credit Commitments by borrowing, prepaying and
reborrowing the Revolving Credit Loans in whole or in part, all in accordance
with the terms and conditions hereof. The Revolving Credit Loans may from time
to time be Eurodollar Loans or ABR Loans, as determined by the Borrower and
notified to the Administrative Agent in accordance with subsections 2.5 and
2.10, provided that no Revolving
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Credit Loan shall be made as a Eurodollar Loan after the day that is one month
prior to the Scheduled Revolving Credit Termination Date.
(b) The Borrower shall repay all outstanding Revolving Credit Loans
on the Revolving Credit Termination Date and all outstanding Swingline Loans on
the earlier of the Revolving Credit Termination Date and the first date after
such Swingline Loan is made that is the 15th or last day of a calendar month and
is at least three Business Days after such Swingline Loan is made.
(c) (i) Subject to the terms and conditions hereof, the Swingline
Lender agrees to make swingline loans ("Swingline Loans") to the Borrower from
time to time during the Revolving Credit Commitment Period in an aggregate
principal amount at any one time outstanding not to exceed $50,000,000, provided
that at no time may the Total Revolving Extensions of Credit exceed the
aggregate Revolving Credit Commitments. During the Revolving Credit Commitment
Period, the Borrower may use the Swingline Loan Commitment by borrowing,
prepaying, in whole or in part, and reborrowing the Swingline Loans, all in
accordance with the terms and conditions hereof. All Swingline Loans shall be
ABR Loans. The Borrower shall give the Swingline Lender irrevocable written (or
telephonic promptly confirmed in writing) notice (which notice must be received
by the Swingline Lender prior to 12:00 noon New York City time) on the requested
Borrowing Date specifying the amount of the requested Swingline Loan which shall
be in an aggregate minimum amount of $100,000, or a whole multiple of $25,000 in
excess thereof. Each such notice shall be given by the Borrower in the form of
Exhibit J. The proceeds of the Swingline Loan will be made available by the
Swingline Lender to the Borrower at the office of the Swingline Lender by 2:00
p.m. New York City time on the Borrowing Date by crediting the account of the
Borrower at such office with such proceeds. The Borrower may, at any time and
from time to time, prepay the Swingline Loans, in whole or in part, without
premium or penalty, by notifying the Swingline Lender prior to 12:00 noon New
York City time on any Business Day of the date and amount of prepayment. If any
such notice is given, the amount specified in such notice shall be due and
payable on the date specified therein. Partial prepayments shall be in an
aggregate principal amount of $100,000, or a whole multiple of $25,000 in excess
thereof.
(ii) The Swingline Lender, at any time in its sole and absolute
discretion, may, on behalf of the Borrower (which hereby irrevocably directs the
Swingline Lender to act on its behalf), and without regard to the minimum
amounts in subsection 2.5, request each Revolving Credit Lender including the
Swingline Lender to make a Revolving Credit Loan in an amount equal to such
Lender's Revolving Credit Percentage of the amount of the Swingline Loans
outstanding on the date such notice (a copy of which shall be provided to the
Borrower) is given (the "Refunded Swingline Loans"). Unless any of the events
described in paragraph (f) of Section 8 shall have occurred with respect to the
Borrower (in which event the procedures of subparagraph (iii) of this subsection
2.4(c) shall apply), each Revolving Credit Lender shall make the proceeds of its
Revolving Credit Loan available to the Administrative Agent for the account of
the Swingline Lender at the office of the Administrative Agent specified in
subsection 10.2 prior to 1:00 p.m. New York City time in immediately available
funds on the Business Day next succeeding the date such notice is given. The
proceeds of such Revolving Credit Loans shall be immediately applied to repay
the Refunded Swingline Loans. The Administrative Agent shall notify the Borrower
of any repayment of the Refunded Swingline Loans hereunder. Effective on the day
such Revolving Credit Loans are made, the portion of such Loans so paid shall no
longer be outstanding as Swingline Loans, shall no longer be due under any
Swingline Note and shall be Revolving Credit Loans made by the Revolving Credit
Lenders in accordance with their respective Revolving Credit Percentages. The
Borrower authorizes
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the Swingline Lender to charge its account with the Administrative Agent (up to
the amount available in each such account) upon any Refunded Swingline Loan
becoming due, after the expiration of any applicable cure period, in order to
immediately pay the amount of such Refunded Swingline Loan to the extent amounts
received from the Revolving Credit Lenders were not sufficient to repay in full
such Refunded Swingline Loan.
(iii) If prior to the making of a Revolving Credit Loan pursuant to
subparagraph (ii) of this subsection 2.4(c) one of the events described in
paragraph (f) of Section 8 shall have occurred and be continuing with respect to
the Borrower, each Revolving Credit Lender will, on the date such Revolving
Credit Loan was to have been made pursuant to the notice in subsection
2.4(c)(ii), purchase an undivided participating interest in the Refunded
Swingline Loan in an amount equal to (i) its Revolving Credit Percentage times
(ii) the Refunded Swingline Loans. Each Revolving Credit Lender will immediately
transfer to the Swingline Lender, in immediately available funds, the amount of
its participation, and upon receipt thereof the Swingline Lender will deliver to
such Revolving Credit Lender a Swingline Loan Participation Certificate dated
the date of receipt of such funds and in such amount. The Administrative Agent
shall notify the Borrower of any participations in a Refunded Swingline Loan
acquired hereunder.
(iv) Whenever, at any time after any Revolving Credit Lender has
purchased a participating interest in a Swingline Loan, the Swingline Lender
receives any payment on account thereof, the Swingline Lender will distribute to
such Revolving Credit Lender its participating interest in such amount
(appropriately adjusted, in the case of interest payments, to reflect the period
of time during which such Revolving Credit Lender's participating interest was
outstanding and funded); provided, however, that in the event that such payment
received by the Swingline Lender is required to be returned, such Revolving
Credit Lender will return to the Swingline Lender any portion thereof previously
distributed by the Swingline Lender to it.
(v) Each Revolving Credit Lender's obligation to make the Loans
referred to in subsection 2.4(c)(ii) and to purchase participating interests
pursuant to subsection 2.4(c)(iii) shall be absolute and unconditional and shall
not be affected by any circumstance, including, without limitation, (A) any
set-off, counterclaim, recoupment, defense or other right which such Revolving
Credit Lender or the Borrower may have against the Swingline Lender, the
Borrower or any other Person for any reason whatsoever; (B) the occurrence or
continuance of a Default or an Event of Default; (C) any adverse change in the
condition (financial or otherwise) of the Borrower; (D) any breach of this
Agreement or any other Loan Document by the Borrower or any of its Subsidiaries
or any other Lender; or (E) any other circumstance, happening or event
whatsoever, whether or not similar to any of the foregoing.
(d) The Borrower and all or certain of the Lenders may from time to
time agree that such Lenders shall become Incremental Lenders under an
Incremental Revolving Facility or increase the principal amount of their
Incremental Revolving Loans under any Incremental Revolving Facility by
executing and delivering to the Administrative Agent an Incremental Revolving
Activation Notice specifying (i) the respective Incremental Revolving Loan
Amount of such Incremental Lenders, (ii) the applicable Incremental Revolving
Loan Closing Date, (iii) the applicable Incremental Revolving Loan Maturity Date
and (iv) the Applicable Margin and the Commitment Fee Rate for the Incremental
Revolving Loans and the unused Incremental Revolving Loan Amount to be made
available pursuant to such Incremental Revolving Loan Activation Notice, and
which shall be otherwise duly completed. Each Incremental Lender that is a
signatory to an Incremental Revolving Loan Activation Notice severally agrees,
on the terms and conditions of this Agreement, to make
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revolving credit loans (each, an "Incremental Revolving Loan") to the Borrower
from time to time on or after the Incremental Revolving Loan Closing Date
specified in such Incremental Revolving Loan Activation Notice in an aggregate
principal amount outstanding at any time up to but not exceeding the amount of
the Incremental Revolving Loan Amount of such Incremental Lender specified in
such Incremental Revolving Loan Activation Notice. Subject to the terms and
conditions of this Agreement, the Borrower may convert Incremental Revolving
Loans to another Type (as provided in subsection 2.10) or continue Incremental
Revolving Loans of one Type as Incremental Revolving Loans of the same Type (as
provided in subsection 2.10). The Borrower may use the Incremental Revolving
Loan Amounts by borrowing, prepaying and reborrowing the Incremental Revolving
Loans in whole or in part, all in accordance with the terms and conditions
hereof. Nothing in this subsection 2.4(d) shall be construed to obligate any
Lender to execute an Incremental Revolving Loan Activation Notice.
Notwithstanding the foregoing, the aggregate amount of Incremental Revolving
Loan Amounts available under all Incremental Revolving Loan Facilities, together
with the aggregate amount of Incremental Term Loans outstanding under all
Incremental Term Loan Facilities, shall at no time exceed $350,000,000. An
Incremental Revolving Loan Facility may take the form of an increase to the
Revolving Credit Facility or any other Incremental Revolving Loan Facility and,
if so, shall be treated thereunder accordingly and the Administrative Agent may
specify procedures as reasonably determined by it to effect an incorporation of
such Incremental Revolving Loan Facility therein. Letters of Credit and
Swingline Loans shall not be made under any Incremental Revolving Loan Facility
which is not incorporated in the Revolving Credit Facility.
(e) The Borrower shall give the Administrative Agent irrevocable
written (or telephonic promptly confirmed in writing) notice of each borrowing
of Incremental Revolving Loans under any Incremental Revolving Facility which is
not incorporated in the Revolving Credit Facility (which notice must be received
by the Administrative Agent prior to 12:00 Noon, New York City time, (i) three
Business Days prior to the requested Borrowing Date, in the case of Eurodollar
Loans, or (ii) one Business Day prior to the requested Borrowing Date, in the
case of ABR Loans), specifying (A) the amount and Type of Incremental Revolving
Loan to be borrowed, (B) the requested Borrowing Date and (C) in the case of
Eurodollar Loans, the respective amounts of each such Type of Loan and the
respective lengths of the initial Interest Period therefor. Each such notice
shall be given by the Borrower in the form of Exhibit J. Each borrowing under
any Incremental Revolving Loan Facility shall be in an amount equal to (x) in
the case of ABR Loans, $1,000,000 or a whole multiple of $100,000 in excess
thereof (or, if the then aggregate available Incremental Revolving Loan Amounts
are less than $1,000,000, such lesser amount) and (y) in the case of Eurodollar
Loans, $5,000,000 or a whole multiple of $100,000 in excess thereof. Upon
receipt of any such notice with respect to an Incremental Revolving Loan
Facility from the Borrower, the Administrative Agent shall promptly notify each
relevant Incremental Lender thereof. Each relevant Incremental Lender will make
its respective Incremental Revolving Loan available to the Administrative Agent
for the account of the Borrower at the office of the Administrative Agent
specified in subsection 10.2 prior to 12:00 Noon, New York City time, on the
Borrowing Date requested by the Borrower in funds immediately available to the
Administrative Agent. Such borrowing will then be made available to the Borrower
by the Administrative Agent crediting the account of the Borrower on the books
of such office with the aggregate of the amounts made available to the
Administrative Agent by the applicable Lenders and in like funds as received by
the Administrative Agent. The provisions of the paragraph shall be subject to
any applicable limitations or requirements in the relevant Incremental Revolving
Loan Activation Notice.
(f) No Lender shall at any time be required to agree to a request of
the Borrower to increase its Revolving Credit Commitment hereunder.
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(g) On the date any increase in the aggregate Revolving Credit
Commitments becomes effective pursuant to this subsection 2.4, (i) the Borrower
agrees to prepay any outstanding Revolving Credit Loans with the proceeds of new
Revolving Credit Loans in order to make the then outstanding Revolving Credit
Loans ratable in accordance with the then effective Revolving Credit Commitments
and (ii) the participating interests in the then outstanding Letters of Credit
shall be deemed to be reallocated among the Revolving Credit Lenders in order to
make the participating interests in each such Letter of Credit ratable in
accordance with the then effective Revolving Credit Commitments (and interest
and letter of credit commissions for any relevant period shall be paid to the
Revolving Credit Lenders based on the allocation set forth in this paragraph).
2.5 Procedure for Revolving Credit Borrowing. The Borrower may
borrow under the Revolving Credit Commitments during the Revolving Credit
Commitment Period on any Business Day, provided that the Borrower shall give the
Administrative Agent irrevocable written (or telephonic promptly confirmed in
writing) notice (which notice must be received by the Administrative Agent prior
to 12:00 Noon, New York City time, (a) three Business Days prior to the
requested Borrowing Date, in the case of Eurodollar Loans, or (b) one Business
Day prior to the requested Borrowing Date, in the case of ABR Loans), specifying
(i) the amount and Type of Revolving Credit Loans to be borrowed, (ii) the
requested Borrowing Date and (iii) in the case of Eurodollar Loans, the
respective amounts of each such Type of Loan and the respective lengths of the
initial Interest Period therefor. Each such notice shall be given by the
Borrower in the form of Exhibit J. Each borrowing under the Revolving Credit
Commitments shall be in an amount equal to (A) in the case of ABR Loans,
$1,000,000 or a whole multiple of $100,000 in excess thereof (or, if the then
aggregate Available Revolving Credit Commitments are less than $1,000,000, such
lesser amount) and (B) in the case of Eurodollar Loans, $5,000,000 or a whole
multiple of $100,000 in excess thereof. Upon receipt of any such notice from the
Borrower, the Administrative Agent shall promptly notify each Revolving Credit
Lender thereof. Each Revolving Credit Lender will make the amount of its pro
rata share of each borrowing available to the Administrative Agent for the
account of the Borrower at the office of the Administrative Agent specified in
subsection 10.2 prior to 12:00 Noon, New York City time, on the Borrowing Date
requested by the Borrower in funds immediately available to the Administrative
Agent. Such borrowing will then be made available to the Borrower by the
Administrative Agent crediting the account of the Borrower on the books of such
office with the aggregate of the amounts made available to the Administrative
Agent by the Revolving Credit Lenders and in like funds as received by the
Administrative Agent.
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2.6 Commitment Fees, etc. (a) The Borrower agrees to pay to the
Administrative Agent for the account of each Revolving Credit Lender and each
Incremental Lender with an Incremental Revolving Loan Amount a commitment fee
for the period from and including the Effective Date or the date of the
Incremental Revolving Loan Activation Notice with respect thereto to the last
day of the Revolving Credit Commitment Period or the commitment period with
respect thereto, computed at the Commitment Fee Rate on the average daily amount
of the Available Revolving Credit Commitment of such Lender or of the unused
Incremental Revolving Loan Amount, as the case may be, during the period for
which payment is made, payable quarterly in arrears on each Fee Payment Date,
commencing on the first Fee Payment Date to occur after the Effective Date or
the date of the Incremental Revolving Loan Activation Notice, as the case may
be. For purposes of calculating commitment fees under this subsection 2.6(a)
only, no portion of the Revolving Credit Commitments shall be deemed utilized as
a result of outstanding Swingline Loans (other than Refunded Swingline Loans).
(b) The Borrower agrees to pay the Administrative Agent and the
Joint Lead Arrangers the fees in the amounts and on the dates agreed to in
writing by the Borrower and the Administrative Agent and Joint Lead Arrangers.
2.7 Termination or Reduction of Commitments. (a) The Tranche A Term
Loan Commitments shall be automatically and permanently terminated at 5:00 p.m.,
New York City time, on the Effective Date. The Revolving Credit Commitments
shall be automatically and permanently terminated at 5:00 p.m., New York City
time, on the Revolving Credit Termination Date.
(b) The Borrower shall have the right, upon not less than three
Business Days' notice to the Administrative Agent, to terminate the Revolving
Credit Commitments or any Incremental Revolving Loan Amounts or, from time to
time, to reduce the amount thereof, provided that (i) no such termination or
reduction with respect to Revolving Credit Commitments shall be permitted if,
after giving effect thereto and to any prepayments of the Swingline Loans and
the Revolving Credit Loans made on the effective date thereof, the Total
Revolving Extensions of Credit would exceed the Revolving Credit Commitments
then in effect and (ii) no such termination or reduction of with respect to any
Incremental Revolving Loan Amount shall result in the aggregate outstanding
principal amount of the related Incremental Revolving Loans being greater than
such Incremental Revolving Loan Amount as so reduced or terminated. Any
reduction pursuant to this subsection 2.7(b) shall be in an amount equal to
$1,000,000, or a whole multiple of $100,000 in excess thereof, and shall reduce
permanently the Revolving Credit Commitments then in effect or the Incremental
Revolving Loan Amount then in effect, as the case may be. Upon receipt of any
notice pursuant to this subsection 2.7(b), the Administrative Agent shall
promptly notify each Revolving Credit Lender, each affected Incremental Lender,
and the Swingline Lender, as applicable, of the contents thereof.
(c) Each notice of termination or reduction delivered by the
Borrower or the Permitted Borrower under this subsection 2.7 shall be
irrevocable, provided that any such notice may state that such notice is
conditioned upon effectiveness of other financing, in which case such notice may
be revoked by the Borrower or the Permitted Borrower, as applicable, by notice
to the Administrative Agent on or prior to the specified effective date if such
condition is not satisfied.
2.8 Optional Prepayments. The Borrower or the Permitted Borrower, in
the case of the Term Loans, may at any time and from time to time prepay its
Loans, in whole or in part, without premium or penalty, upon written (or
telephonic promptly confirmed in writing) notice delivered to the Administrative
Agent at least three Business Days prior thereto in the case of Eurodollar Loans
35
and at least one Business Day prior thereto in the case of ABR Loans, which
notice shall specify the date and amount of prepayment and whether the
prepayment is of Eurodollar Loans, ABR Loans or a combination thereof, and, if
of a combination thereof, the amount allocable to each, provided that if a
Eurodollar Loan is prepaid on any day other than the last day of the Interest
Period applicable thereto, the Borrower or the Permitted Borrower, as
applicable, shall also pay any amounts owing pursuant to subsection 2.18. Each
notice of prepayment delivered by the Borrower or the Permitted Borrower under
this subsection 2.8 shall be irrevocable, provided that any such notice may
state that such notice is conditioned upon effectiveness of other financing, in
which case such notice may be revoked by the Borrower or the Permitted Borrower,
as applicable, by notice to the Administrative Agent on or prior to the
specified effective date if such condition is not satisfied. Upon receipt of any
such notice the Administrative Agent shall promptly notify each relevant Lender
thereof. If any such notice is given (and not revoked), the amount specified in
such notice shall be due and payable on the date specified therein. Amounts
prepaid on account of the Term Loans may not be reborrowed. Partial prepayments
of Eurodollar Loans shall be in an aggregate principal amount of $5,000,000 or a
whole multiple of $100,000 in excess thereof. Partial prepayments of ABR Loans
(other than Swingline Loans) shall be in an aggregate principal amount of
$1,000,000 or a whole multiple of $100,000 thereof. Optional prepayments on
account of the Term Loans shall be allocated among the Term Loans under the
Tranche A Term Loan Facility and any Incremental Term Loan Facilities ratably
based on the outstanding principal amount of the Term Loans under each such
Facility and applied to the then remaining installments under each such Facility
in accordance with subsection 2.15(d). Any optional prepayment of the Tranche A
Term Loans will be allocated by the Borrower between the Tranche A Term Loans
made to the Borrower and the Tranche A Term Loans made to the Permitted Borrower
as directed by the Borrower in a notice to the Administrative Agent prior to any
such prepayment.
2.9 Mandatory Prepayments. (a) If on any date the Borrower or any of
its Subsidiaries shall receive Net Cash Proceeds from any Asset Sale or Recovery
Event then (i) unless a Reinvestment Notice shall be delivered in respect
thereof, the Adjusted Net Cash Proceeds (if any) with respect to such Asset Sale
or Recovery Event shall be applied, within five Business Days after such date,
toward the prepayment of the Term Loans, and (ii) if a Reinvestment Notice shall
have been delivered in respect thereof, on the applicable Reinvestment
Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with
respect to the relevant Reinvestment Event shall be applied toward the
prepayment of the Term Loans.
(b) Prepayments of the Term Loans required by the provisions of this
subsection 2.9 shall be applied to the prepayment of the Incremental Term Loans
and the Tranche A Term Loans ratably based on the principal amount of the Term
Loans outstanding under each such Facility in accordance with subsection
2.15(d). Prepayments of the Term Loans will be allocated to the Term Loans made
to the Borrower and to the Term Loans made to the Permitted Borrower as directed
by the Borrower in a notice to the Administrative Agent prior to any such
prepayment. The Administrative Agent shall promptly notify each Term Loan Lender
of such direction.
(c) The application of any prepayment pursuant to this subsection
2.9 shall be made first to ABR Loans and second to Eurodollar Loans. Amounts
prepaid on account of the Term Loans may not be reborrowed. In no event shall
any prepayment required pursuant to this subsection 2.9 result in the reduction
of the permitted aggregate amount of the Incremental Term Loan Facilities and
the Incremental Revolving Loan Facilities or in the aggregate Revolving Credit
Commitments.
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(d) Notwithstanding the foregoing provisions of this subsection 2.9,
if at any time the mandatory prepayment of any Loans pursuant to this Agreement
would result, after giving effect to the procedures set forth in this Agreement,
in the Borrower or the Permitted Borrower, as the case may be, incurring costs
under subsection 2.16, 2.17 or 2.18 as a result of Eurodollar Loans ("Affected
Eurodollar Loans") being prepaid other than on the last day of an Interest
Period applicable thereto, which costs are required to be paid pursuant to
subsection 2.18, then, the Borrower or the Permitted Borrower, as the case may
be, may, in its sole discretion, initially deposit a portion (up to 100%) of the
amounts that otherwise would have been paid in respect of the Affected
Eurodollar Loans with the Administrative Agent (which deposit must be equal in
amount to the amount of the Affected Eurodollar Loans not immediately prepaid)
to be held as security for the obligations of the Borrower or the Permitted
Borrower, as the case may be, to make such mandatory prepayment pursuant to a
cash collateral agreement to be entered into in form and substance reasonably
satisfactory to the Administrative Agent, with such cash collateral to be
directly applied upon the first occurrence (or occurrences) thereafter of the
last day of an Interest Period applicable to the relevant Loan that is a
Eurodollar Loan (or such earlier date or dates as shall be requested by the
Borrower or the Permitted Borrower, as the case may be), to repay an aggregate
principal amount of such Loan equal to the Affected Eurodollar Loans not
initially repaid pursuant to this sentence.
2.10 Conversion and Continuation Options. (a) The Borrower and the
Permitted Borrower may elect from time to time to convert Eurodollar Loans to
ABR Loans by giving the Administrative Agent at least one Business Day's prior
irrevocable written (or telephonic promptly confirmed in writing) notice of such
election (but no later than 12:00 Noon, New York City time on the Business Day
immediately prior to such election), provided that unless the Borrower or
Permitted Borrower, as applicable, elects to deposit with the Administrative
Agent the amount of any breakage costs and other Eurodollar Loans related costs
to be incurred by the Borrower or Permitted Borrower under this Agreement with
respect to any prepayment or conversion of such Eurodollar Loans prior to the
end of an Interest Period, any such conversion of Eurodollar Loans may only be
made on the last day of an Interest Period with respect thereto. The Borrower
and the Permitted Borrower may elect from time to time to convert ABR Loans to
Eurodollar Loans by giving the Administrative Agent at least three Business
Days' prior irrevocable written (or telephonic promptly confirmed in writing)
notice of such election by 12:00 Noon, New York City time (which notice shall
specify the length of the initial Interest Period therefor), provided that no
ABR Loan may be converted into a Eurodollar Loan (i) when any Event of Default
has occurred and is continuing and the Administrative Agent or the Required
Lenders have determined that such a conversion is not appropriate or (ii) after
the date that is one month prior to the final scheduled termination or maturity
date of such Facility. Upon receipt of any such notice the Administrative Agent
shall promptly notify each relevant Lender thereof.
(b) Any Eurodollar Loan may be continued as such upon the expiration
of the then current Interest Period with respect thereto by the Borrower or
Permitted Borrower giving irrevocable notice to the Administrative Agent, in
accordance with the applicable provisions of the term "Interest Period" set
forth in subsection 1.1, of the length of the next Interest Period to be
applicable to such Loans, provided that no Eurodollar Loan may be continued as
such (i) when any Event of Default has occurred and is continuing and the
Administrative Agent has or the Required Lenders have determined that such a
continuation is not appropriate or (ii) after the date that is one month prior
to the final scheduled termination or maturity date of any Facility, and
provided further that if the Borrower or Permitted Borrower shall fail to give
any required notice as described above in this paragraph or if such continuation
is not permitted pursuant to the preceding proviso such Eurodollar Loans shall
be automatically converted to ABR Loans on the last day of such then
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expiring Interest Period. Upon receipt of any such notice the Administrative
Agent shall promptly notify each relevant Lender thereof.
2.11 Minimum Amounts and Maximum Number of Eurodollar Tranches.
Notwithstanding anything to the contrary in this Agreement, all borrowings,
conversions, continuations and optional prepayments of Eurodollar Loans
hereunder and all selections of Interest Periods hereunder shall be in such
amounts and be made pursuant to such elections so that, after giving effect
thereto, (a) the aggregate principal amount of the Eurodollar Loans comprising
each Eurodollar Tranche shall be equal to $5,000,000 or a whole multiple of
$100,000 in excess thereof, (b) no more than eight Eurodollar Tranches under a
particular Facility shall be outstanding at any one time and (c) no more than 12
Eurodollar Tranches in the aggregate shall be outstanding at any one time.
2.12 Interest Rates and Payment Dates. (a) Each Eurodollar Loan
shall bear interest for each day during each Interest Period with respect
thereto at a rate per annum equal to the Eurodollar Rate determined for such day
plus the Applicable Margin.
(b) Each ABR Loan shall bear interest at a rate per annum equal to
the ABR plus the Applicable Margin.
(c) Upon the occurrence and during the continuance of an Event of
Default under subsection 8(a), (i) all outstanding Loans and any overdue amounts
hereunder shall bear interest at a rate per annum which is (A) in the case of
overdue principal of any Loan, the rate that would otherwise be applicable
thereto pursuant to the foregoing provisions of this subsection 2.12 plus 2% or
(B) in the case of overdue Reimbursement Obligations, interest, commitment fees
or other amounts, the rate applicable to ABR Loans under the relevant Facility
plus 2% (or, in the case of any such other amounts that do not relate to a
particular Facility, the rate applicable to ABR Loans under the Revolving Credit
Facility plus 2%), in each case, with respect to clauses (i) and (ii) above,
from the date of such non-payment until such amount is paid in full (after
judgment as well as before judgment).
(d) Interest shall be payable in arrears on each Interest Payment
Date, provided that interest accruing pursuant to paragraph (c) of this
subsection 2.12 shall be payable from time to time on demand.
2.13 Computation of Interest and Fees. (a) Interest, fees and other
amounts payable pursuant hereto shall be calculated on the basis of a 360-day
year for the actual days elapsed, except that, with respect to ABR Loans the
rate of interest on which is calculated on the basis of the Prime Rate, the
interest thereon shall be calculated on the basis of a 365- (or 366-, as the
case may be) day year for the actual days elapsed. The Administrative Agent
shall as soon as practicable notify the Borrower, the Permitted Borrower and the
relevant Lenders of each determination of a Eurodollar Rate. Any change in the
interest rate on a Loan resulting from a change in the ABR or the Eurocurrency
Reserve Requirements shall become effective as of the opening of business on the
day on which such change becomes effective. The Administrative Agent shall as
soon as practicable notify the Borrower, the Permitted Borrower and the relevant
Lenders of the effective date and the amount of each such change in interest
rate.
(b) Each determination of an interest rate by the Administrative
Agent pursuant to any provision of this Agreement shall be conclusive and
binding on the Borrower, the Permitted
38
Borrower and the Lenders in the absence of manifest error. The Administrative
Agent shall, at the request of the Borrower, deliver to the Borrower a statement
showing the quotations used by the Administrative Agent in determining any
interest rate pursuant to subsections 2.12.
2.14 Inability to Determine Interest Rate. If prior to the first day
of any Interest Period:
(a) the Administrative Agent shall have determined (which
determination, absent manifest error, shall be conclusive and binding upon the
Borrower and the Permitted Borrower) that, by reason of circumstances affecting
the relevant market, adequate and reasonable means do not exist for ascertaining
the Eurodollar Rate for such Interest Period, or
(b) the Administrative Agent shall have received notice from the
Required Lenders that the Eurodollar Rate determined or to be determined for
such Interest Period will not adequately and fairly reflect the cost to such
Lenders (as conclusively certified by such Lenders) of making or maintaining
their affected Loans during such Interest Period,
the Administrative Agent shall give telecopy or telephonic notice thereof to the
Borrower, the Permitted Borrower and the relevant Lenders as soon as practicable
thereafter. If such notice is given (x) any Eurodollar Loans requested to be
made on the first day of such Interest Period shall be made as ABR Loans, (y)
any Loans that were to have been converted on the first day of such Interest
Period to Eurodollar Loans shall be continued as ABR Loans and (z) any
outstanding Eurodollar Loans shall be converted to ABR Loans on the last day of
the Interest Period applicable thereto. Until such notice has been withdrawn by
the Administrative Agent (which the Administrative Agent agrees to do when the
circumstances that prompted delivery of such notice no longer exist), no further
Eurodollar Loans under the relevant Facility shall be made or continued as such,
nor shall the Borrower or the Permitted Borrower have the right to convert Loans
under the relevant Facility to Eurodollar Loans.
2.15 Pro Rata Treatment and Payments.(a) (a) Each borrowing by the
Borrower, or in the case of the Tranche A Term Loan Facility or an Incremental
Term Loan Facility, the Permitted Borrower, from the Lenders hereunder, each
payment on account of any commitment fee, letter of credit fee, interest or
principal and any reduction of any of the commitments of the Lenders shall be
made, with regard to the applicable Facility, pro rata according to the
respective Tranche A Term Loan Percentages, Incremental Term Loan Percentages,
Revolving Credit Percentages, or Incremental Revolving Loan Percentages, as the
case may be, of the relevant Lenders.
(b) Whenever (i) any payment received by the Administrative Agent
under this Agreement or any Note or (ii) any other amounts received by the
Administrative Agent for or on behalf of the Borrower or, as the case may be,
the Permitted Borrower (including, without limitation, proceeds of collateral or
payments under any guarantee) is insufficient to pay in full all amounts then
due and payable to the Administrative Agent and the Lenders under this Agreement
and any Note, such payment shall be distributed by the Administrative Agent and
applied by the Administrative Agent and the Lenders in the following order:
first, to the payment of fees and expenses due and payable to the Administrative
Agent under and in connection with this Agreement; second, to the payment of all
expenses due and payable under subsection 10.5, ratably among the Administrative
Agent and the Lenders in accordance with the aggregate amount of such payments
owed to the Administrative Agent and each such Lender; third, to the payment of
fees due and payable under subsections 2.6 and 3.3, ratably among the Revolving
Credit Lenders in accordance with the
39
Revolving Credit Commitment of each Revolving Credit Lender, the Tranche A Term
Loan Lenders in accordance with the Tranche A Term Loan Commitments of each
Tranche A Term Loan Lender, the Incremental Lenders in accordance with the
Incremental Term Loan Amounts and Incremental Revolving Loan Amounts of each
Incremental Lender and, in the case of the Issuing Lenders, the amount retained
by each Issuing Lender for its own account pursuant to subsection 3.3(a);
fourth, to the payment of interest then due and payable under the Loans, ratably
in accordance with the aggregate amount of interest owed to each such Lender;
and fifth, to the payment of the principal amount of the Loans and the L/C
Obligations then due and payable and, in the case of proceeds of collateral or
payments under any guarantee, to the payment of any other obligations to any
Lender not covered in first through fourth above ratably secured by such
collateral or ratably guaranteed under any such guarantee, ratably among the
Lenders in accordance with the aggregate principal amount and, in the case of
proceeds of collateral or payments under any guarantee, the obligations secured
or guaranteed thereby owed to each such Lender.
(c) If any Revolving Credit Lender or Incremental Lender with an
Incremental Revolving Loan Amount (each, a "Non-Funding Lender") has (x) failed
to make a Revolving Credit Loan or Incremental Revolving Loan required to be
made by it hereunder, and the Administrative Agent has determined that such
Revolving Credit Lender is not likely to make such Revolving Credit Loan or
Incremental Revolving Loan, as the case may be, or (y) given notice to the
Borrower or the Administrative Agent that it will not make, or that it has
disaffirmed or repudiated any obligation to make, any Revolving Credit Loans or
any Incremental Revolving Loans, in each case by reason of the provisions of the
Financial Institutions Reform, Recovery and Enforcement Act of 1989, as amended,
or otherwise, any payment made on account of the principal of the Revolving
Credit Loans or Incremental Revolving Loans outstanding shall be made as
follows:
(i) with respect to Revolving Credit Loans or Incremental Revolving
Credit Loans, in the case of any such payment made on any date when and to the
extent that, in the determination of the Administrative Agent, the Borrower
would be able, under the terms and conditions hereof, to reborrow the amount of
such payment under the Revolving Credit Commitments or Incremental Revolving
Loan Amounts and to satisfy any applicable conditions precedent set forth in
subsection 5.2 to such reborrowing, such payment shall be made on account of the
outstanding Revolving Credit Loans or Incremental Revolving Credit Loans held by
the Revolving Credit Lenders other than the Non-Funding Lender pro rata
according to the respective outstanding principal amounts of the Revolving
Credit Loans of such Revolving Credit Lenders or of the Incremental Revolving
Loans of such Incremental Lender, as the case may be;
(ii) otherwise, such payment shall be made on account of the
outstanding Revolving Credit Loans held by the Revolving Credit Lenders or the
Incremental Revolving Loans held by the Incremental Lender, as the case may be,
pro rata according to the respective outstanding principal amounts of such
Revolving Credit Loans or such Incremental Revolving Loans, as the case may be;
and
(iii) any payment made on account of interest on the Revolving
Credit Loans or the Incremental Revolving Loans, as the case may be, shall be
made pro rata according to the respective amounts of accrued and unpaid interest
due and payable on the Revolving Credit Loans or the Incremental Revolving
Loans, as the case may be, with respect to which such payment is being made.
40
The Borrower agrees to give the Administrative Agent such assistance in making
any determination pursuant to this paragraph as the Administrative Agent may
reasonably request. Any such determination by the Administrative Agent shall be
conclusive and binding on the Lenders.
(d) Subject to subsection 2.15(b), subsection 2.8 and subsection
2.9(b), each payment (including each prepayment) on account of principal of and
interest on the Tranche A Term Loans and Incremental Term Loans made to the
Borrower, and each payment (including each prepayment) on account of principal
of and interest on the Tranche A Term Loans or any Incremental Term Loans made
to the Permitted Borrower shall be made to the applicable Lenders pro rata
according to the respective outstanding principal amounts of the applicable Term
Loans then held by the applicable Lenders. The amount of each payment on account
of principal of the Tranche A Term Loans or Incremental Term Loans made to the
Borrower or the Permitted Borrower shall be applied to reduce the then remaining
installments of such Tranche A Term Loans or Incremental Term Loans pro rata
based upon the respective then remaining principal amounts thereof.
(e) Each payment (including each prepayment) by the Borrower on
account of principal of and interest on the Revolving Credit Loans or any
Incremental Revolving Loans shall be made pro rata according to the respective
outstanding principal amounts of the Revolving Credit Loans or such Incremental
Revolving Loans then held by the applicable Lenders (subject to subsection
2.4(g)).
(f) All payments (including prepayments) to be made hereunder,
whether on account of principal, interest, fees or otherwise, shall be made
without setoff or counterclaim and shall be made prior to 2:00 P.M., New York
City time, on the due date thereof to the Administrative Agent, for the account
of the Lenders, at the Administrative Agent's office specified in subsection
10.2, in Dollars and in immediately available funds. Payments received by the
Administrative Agent after such time shall be deemed to have been received on
the next Business Day. The Administrative Agent shall distribute such payments
to the Lenders promptly upon receipt in like funds as received. If any payment
hereunder becomes due and payable on a day other than a Business Day, such
payment shall be extended to the next succeeding Business Day (except, in the
case of Eurodollar Loans, as otherwise provided in clause (i) of the definition
of "Interest Period"). In the case of any extension of any payment of principal
pursuant to the preceding sentence, interest thereon shall be payable at the
then applicable rate during such extension.
(g) Unless the Administrative Agent shall have been notified in
writing by any Lender prior to a Borrowing Date that such Lender will not make
the amount that would constitute its share of such borrowing available to the
Administrative Agent, the Administrative Agent may assume that such Lender is
making such amount available to the Administrative Agent, and the Administrative
Agent may, in reliance upon such assumption, make available to the Borrower a
corresponding amount. If such amount is not made available to the Administrative
Agent by the required time on the Borrowing Date therefor, such Lender shall pay
to the Administrative Agent, on demand, such amount with interest thereon at a
rate equal to the greater of the daily average Federal Funds Effective Rate and
a rate determined by the Administrative Agent in accordance with banking
industry rules on interbank compensation for the period until such Lender makes
such amount immediately available to the Administrative Agent. A certificate of
the Administrative Agent submitted to any Lender with respect to any amounts
owing under this subsection 2.15(g) shall be conclusive in the absence of
manifest error. If such Lender's share of such borrowing is not made available
to the Administrative Agent by such Lender within three Business Days of such
Borrowing Date, the Administrative Agent shall also be entitled to recover such
amount with interest thereon at
41
the rate per annum applicable to ABR Loans under the relevant Facility, on
demand, from the Borrower. The failure of any Lender to make any Loan to be made
by it shall not relieve any other Lender of its obligation, if any, hereunder to
make its Loan on such Borrowing Date, but no Lender shall be responsible for the
failure of any other Lender to make the Loan to be made by such other Lender on
such Borrowing Date.
2.16 Requirements of Law. (a) If the adoption of or any change in
any Requirement of Law or in the interpretation or application thereof or
compliance by any Lender with any request or directive (whether or not having
the force of law) from any central bank or other Governmental Authority made
subsequent to the Effective Date:
(i) shall subject any Lender to any tax of any kind whatsoever with
respect to this Agreement, any Letter of Credit, any Application or any
Eurodollar Loan made by it, or change the basis of taxation of payments to such
Lender in respect thereof (except for (A) Non-Excluded Taxes covered by
subsection 2.17 and (B) the establishment of a tax based on the net income of
such Lender and changes in the rate of tax on the net income of such Lender, or
any franchise taxes, or any branch profits imposed on such Lender);
(ii) shall impose, modify or hold applicable any reserve, special
deposit, compulsory loan or similar requirement against assets held by, deposits
or other liabilities in or for the account of, advances, loans or other
extensions of credit by, or any other acquisition of funds by, any office of
such Lender which is not otherwise included in the determination of the
Eurodollar Rate hereunder; or
(iii) shall impose on such Lender any other condition;
and the result of any of the foregoing is to increase the cost to such Lender,
by an amount which such Lender deems to be material, of making, converting into,
continuing or maintaining Eurodollar Loans or issuing or participating in
Letters of Credit, or to reduce any amount receivable hereunder in respect
thereof, then, in any such case, the Borrower shall promptly pay such Lender,
upon its demand, any additional amounts necessary to compensate such Lender for
such increased cost or reduced amount receivable, provided that before making
any such demand, each Lender agrees to use reasonable efforts (consistent with
its internal policy and legal and regulatory restrictions and so long as such
efforts would not be disadvantageous to it, in its reasonable discretion, in any
legal, economic or regulatory manner) to designate a different Eurodollar
lending office if the making of such designation would allow the Lender or its
Eurodollar lending office to continue to perform its obligations to make
Eurodollar Loans or to continue to fund or maintain Eurodollar Loans and avoid
the need for, or materially reduce the amount of, such increased cost. If any
Lender becomes entitled to claim any additional amounts pursuant to this
subsection 2.16, it shall promptly notify the Borrower or the Permitted
Borrower, as the case may be, through the Administrative Agent, of the event by
reason of which it has become so entitled. If the Borrower or the Permitted
Borrower notifies the Administrative Agent within ten Business Days after any
Lender notifies the Borrower or the Permitted Borrower of any increased cost
pursuant to the foregoing provisions of this subsection 2.16(a), the Borrower or
the Permitted Borrower may convert all Eurodollar Loans of such Lender then
outstanding into ABR Loans in accordance with subsection 2.10 and shall,
additionally, reimburse such Lender for any cost in accordance with subsection
2.18.
42
(b) If any Lender shall have determined that the adoption of or any
change in any Requirement of Law regarding capital adequacy or in the
interpretation or application thereof or compliance by such Lender or any
corporation controlling such Lender with any request or directive regarding
capital adequacy (whether or not having the force of law) from any Governmental
Authority made subsequent to the Effective Date shall have the effect of
reducing the rate of return on such Lender's or such corporation's capital as a
consequence of its obligations hereunder or under or in respect of any Letter of
Credit to a level below that which such Lender or such corporation could have
achieved but for such adoption, change or compliance (taking into consideration
such Lender's or such corporation's policies with respect to capital adequacy)
by an amount deemed by such Lender to be material, then from time to time, after
submission by such Lender, to the Borrower or the Permitted Borrower, through
the Administrative Agent, of a written request therefor, the Borrower or the
Permitted Borrower shall pay to such Lender such additional amount or amounts as
will compensate such Lender or such corporation for such reduction.
(c) A certificate as to any additional amounts payable pursuant to
this subsection 2.16, showing in reasonable detail the calculation thereof and
certifying that it is generally charging such costs to other similarly situated
borrowers under similar credit facilities, submitted by any Lender through the
Administrative Agent shall be conclusive in the absence of manifest error,
provided that the determination of such amounts shall be made in good faith in a
manner generally consistent with such Lender's standard practices. The
obligations of the Borrower and the Permitted Borrower pursuant to this
subsection 2.16 shall survive the termination of this Agreement and the payment
of the Loans and all other amounts payable hereunder for a period of nine months
thereafter.
2.17 Taxes. (a) Except as provided below in this subsection, all
payments made by the Borrower or Permitted Borrower, as the case may be, under
this Agreement shall be made free and clear of, and without deduction or
withholding for or on account of, any present or future income, stamp or other
taxes, levies, imposts, duties, charges, fees, deductions or withholdings, now
or hereafter imposed, levied, collected, withheld or assessed by any
Governmental Authority, excluding income taxes (including alternative minimum
taxes), franchise taxes (imposed on or measured by net income), and taxes
imposed on branch profits imposed on the Administrative Agent or any Lender as a
result of a present or former connection between the Administrative Agent or
such Lender and the jurisdiction of the Governmental Authority imposing such tax
or any political subdivision or taxing authority thereof or therein (other than
any such connection arising solely from the Administrative Agent or such Lender
having executed, delivered or performed its obligations or received a payment
under, or enforced, this Agreement or any other Loan Document). If any such
non-excluded taxes, levies, imposts, duties, charges, fees, deductions or
withholdings ("Non-Excluded Taxes") are required to be withheld from any amounts
payable to the Administrative Agent or any Lender hereunder, the amounts so
payable to the Administrative Agent or such Lender shall be increased to the
extent necessary to yield to the Administrative Agent or such Lender (after
payment of all Non-Excluded Taxes) interest or any such other amounts payable
hereunder at the rates or in the amounts specified in this Agreement; provided,
however, that the Borrower or Permitted Borrower, as the case may be, shall be
entitled to deduct and withhold any Non-Excluded Taxes and shall not be required
to increase any such amounts payable to any Lender that is not organized under
the laws of the United States of America or a state thereof to the extent such
Lender's compliance with the requirements of subsection 2.17(b) at the time such
Lender becomes a party to this Agreement fails to establish a complete exemption
from such withholding or to the extent such failure to establish a complete
exemption from such withholding thereafter is attributable to the actions or
omissions of such Lender. Whenever any Non-Excluded Taxes are payable by the
Borrower or Permitted Borrower, as the case may be, as promptly as possible
thereafter the Borrower
43
or Permitted Borrower shall send to the Administrative Agent for its own account
or for the account of such Lender, as the case may be, a certified copy of an
original official receipt received by the Borrower or Permitted Borrower showing
payment thereof. If the Borrower or Permitted Borrower, as the case may be,
fails to pay any Non-Excluded Taxes when due to the appropriate taxing authority
(except when such failure results from act or omission of a Lender) or fails to
remit to the Administrative Agent the required receipts or other required
documentary evidence, the Borrower shall indemnify the Administrative Agent and
the Lenders for any incremental taxes, interest or penalties that may become
payable by the Administrative Agent or any Lender as a result of any such
failure. The agreements in this subsection 2.17 shall survive the termination of
this Agreement and the payment of the Loans and all other amounts payable
hereunder for a period of nine months thereafter.
(b) Each Lender (or Transferee) that is not a United States person
within the meaning of Section 7701(a)(30) of the Code (a "Non-U.S. Lender")
shall deliver to the Borrower, the Permitted Borrower and the Administrative
Agent (or, in the case of a Participant, to the Lender from which the related
participation shall have been purchased) three copies of either U.S. Internal
Revenue Service Form W-8ECI or Form W-8BEN, or, in the case of a Non-U.S. Lender
claiming exemption from U.S. federal withholding tax under Section 871(h) or
881(c) of the Code with respect to payments of "portfolio interest", a Form
W-8BEN, or any subsequent versions thereof or successors thereto (and, if such
Non-U.S. Lender delivers a Form W-8BEN, an annual certificate representing,
under penalty of perjury, that such Non-U.S. Lender is not a "bank" for purposes
of Section 881(c) of the Code, is not a 10-percent shareholder (within the
meaning of Section 871(h)(3)(B) of the Code) of the Borrower and is not a
controlled foreign corporation related to the Borrower (within the meaning of
Section 864(d)(4) of the Code)), properly completed and duly executed by such
Non-U. S. Lender claiming complete exemption from, or a reduced rate of, U.S.
federal withholding tax on all payments by the Borrower or the Permitted
Borrower, as the case may be, under this Agreement and the other Loan Documents.
Such forms shall be delivered by each Non-U.S. Lender on or before the date it
becomes a party to this Agreement (or, in the case of any Participant, on or
before the date such Participant purchases the related participation). In
addition, each Non U.S. Lender shall deliver such forms on or before the
expiration or obsolescence and promptly upon the invalidity of any form
previously delivered by such Non-U.S. Lender and after the occurrence of any
event requiring a change in the most recently provided form and, if necessary,
obtain any extensions of time reasonably requested by the Borrower, the
Permitted Borrower or the Administrative Agent for filing and completing such
forms. Each Non-U.S. Lender (and, if applicable, any other Lender or Transferee)
agrees, to the extent legally entitled to do so, upon reasonable request by the
Borrower, to provide to the Borrower or the Permitted Borrower, as the case may
be, (for the benefit of the Borrower, the Permitted Borrower and the
Administrative Agent) such other forms as may be reasonably required in order to
establish the legal entitlement of such Lender to an exemption from withholding
with respect to payments of interest under this Agreement or the other Loan
Documents. Each Non-U.S. Lender shall promptly notify the Borrower or the
Permitted Borrower at any time it determines that it is no longer in a position
to provide any previously delivered certificate to the Borrower or the Permitted
Borrower, as the case may be (or any other form of certification adopted by the
U.S. taxing authorities for such purpose). Notwithstanding any other provision
of this subsection 2.17(b), a Non-U.S. Lender shall not be required to deliver
any form pursuant to this subsection 2.17(b) that such Non-U.S. Lender is not
legally able to deliver. If the Administrative Agent or any Lender (or
Transferee) receives a refund in respect of Non-Excluded Taxes paid by the
Borrower or the Permitted Borrower, as the case may be, it shall promptly pay
such refund, together with any other amounts paid by the Borrower or the
Permitted Borrower, as the case may be, in connection with such refunded
Non-Excluded Taxes, to
44
the Borrower or the Permitted Borrower, as the case may be, net of all
out-of-pocket expenses of such Lender incurred in obtaining such refund,
provided that the Borrower or the Permitted Borrower, as the case may be, agrees
to promptly return such refund to the Administrative Agent or the applicable
Lender if it receives notices from the Administrative Agent or applicable Lender
that such Administrative Agent or Lender is required to repay such refund.
2.18 Indemnity. The Borrower or the Permitted Borrower, as
applicable, agrees to indemnify each Lender and to hold each Lender harmless
from any loss (excluding loss of profit) or expense which such Lender actually
incurs as a consequence of (a) withdrawal of notice given by the Borrower or the
Permitted Borrower in making a borrowing of, conversion into or continuation of
Eurodollar Loans after the Borrower or the Permitted Borrower has given a notice
requesting the same in accordance with the provisions of this Agreement, (b)
failure by the Borrower or the Permitted Borrower to make any prepayment of a
Eurodollar Loan after the Borrower has given a notice thereof in accordance with
the provisions of this Agreement or (c) the making of a prepayment of Eurodollar
Loans on a day which is not the last day of an Interest Period with respect
thereto. Such indemnification may include an amount equal to the excess, if any,
of (i) the amount of interest which would have accrued on the amount so prepaid,
or not so borrowed, converted or continued, for the period from the date of such
prepayment or of such failure to borrow, convert or continue to the last day of
such Interest Period (or, in the case of a failure to borrow, convert or
continue, the Interest Period that would have commenced on the date of such
failure) in each case at the applicable rate of interest for such Loans provided
for herein (excluding, however, the Applicable Margin included therein, if any)
over (ii) the amount of interest (as reasonably determined by such Lender) which
would have accrued to such Lender on such amount by placing such amount on
deposit for a comparable period with leading banks in the interbank eurodollar
market. A certificate as to any amounts payable pursuant to this subsection
2.18, showing in reasonable detail the calculation thereof, submitted to the
Borrower or the Permitted Borrower, as applicable, by any Lender shall be
conclusive in the absence of manifest error. This covenant shall survive the
termination of this Agreement and the payment of the Loans and all other amounts
payable hereunder for a period of one month thereafter.
2.19 Change of Lending Office. Each Lender agrees that, upon the
occurrence of any event giving rise to the operation of subsection 2.16 or
2.17(a) with respect to such Lender, it will, if requested by the Borrower (for
itself or on behalf of the Permitted Borrower), use reasonable efforts (subject
to overall policy considerations of such Lender) to designate another lending
office for any Loans affected by such event with the object of avoiding the
consequences of such event, provided that such designation is made on terms that
in the reasonable judgment of such Lender, cause such Lender and its lending
office(s) to suffer no economic, legal or regulatory disadvantage, and provided
further that nothing in this subsection 2.19 shall affect or postpone any of the
obligations of the Borrower or the Permitted Borrower or the rights of any
Lender pursuant to subsection 2.16 or 2.17(a).
2.20 Replacement of Lenders under Certain Circumstances. If at any
time (a) the Borrower or the Permitted Borrower, as the case may be, becomes
obligated to pay additional amounts described in subsection 2.16 or 2.17 as a
result of any condition described in such subsections or any Lender ceases to
make Eurodollar Loans pursuant to subsection 2.16, (b) any Lender becomes
insolvent and its assets become subject to a receiver, liquidator, trustee,
custodian or other Person having similar powers, (c) any Lender becomes a
"Non-Consenting Lender" (as defined below in this subsection 2.20) or (d) any
Lender becomes a "Non-Funding Lender", then the Borrower may, on ten Business
Days' prior written notice to the Administrative Agent and such
45
Lender, replace such Lender by causing such Lender to (and such Lender shall be
obligated to) assign pursuant to subsection 10.6(b) all of its rights and
obligations under this Agreement to a Lender or other entity selected by the
Borrower and reasonably acceptable to the Administrative Agent (and in the case
of Revolving Credit Commitments or Revolving Loans, reasonably acceptable to the
Issuing Lender and the Swingline Lender) for a purchase price equal to the
outstanding principal amount of such Lender's Loans and all accrued interest and
fees and other amounts payable hereunder (including amounts payable under
subsection 2.18 as though such Loans were being paid instead of being
purchased), provided that (i) neither the Administrative Agent nor any Lender
shall have any obligation to the Borrower or the Permitted Borrower, as the case
may be, to find a replacement Lender or other such entity, (ii) in the event of
a replacement of a Non-Consenting Lender or a Lender to which the Borrower or
the Permitted Borrower, as the case may be, becomes obligated to pay additional
amounts pursuant to clause (a) of this subsection 2.20, in order for the
Borrower to be entitled to replace such a Lender, such replacement must take
place no later than 180 days after (A) the date the Non-Consenting Lender shall
have notified the Borrower and the Administrative Agent of its failure to agree
to any requested consent, waiver or amendment or (B) the Lender shall have
demanded payment of additional amounts under one of the subsections described in
clause (a) of this subsection 2.20, as the case may be, and (iii) in no event
shall the Lender hereby replaced be required to pay or surrender to such
replacement Lender or other entity any of the fees received by such Lender
hereby replaced pursuant to this Agreement. In the case of a replacement of a
Lender to which the Borrower or the Permitted Borrower, as the case may be,
becomes obligated to pay additional amounts pursuant to clause (a) of this
subsection 2.20, the Borrower shall pay such additional amounts to such Lender
prior to such Lender being replaced and the payment of such additional amounts
shall be a condition to the replacement of such Lender. In the event that (x)
the Borrower or the Administrative Agent has requested the Lenders to consent to
a departure or waiver of any provisions of the Loan Documents or to agree to any
amendment thereto, (y) the consent, waiver or amendment in question requires the
agreement of all Lenders in accordance with the terms of subsection 10.1 or all
the Lenders with respect to a certain class of the Loans and (z) Required
Lenders or more than 50% of the class of such Lenders have agreed to such
consent, waiver or amendment, then any Lender who does not agree to such
consent, waiver or amendment shall be deemed a "Non-Consenting Lender". The
Borrower's right to replace a Non-Funding Lender pursuant to this subsection
2.20 is, and shall be, in addition to, and not in lieu of, all other rights and
remedies available to the Borrower against such Non-Funding Lender under this
Agreement, at law, in equity, or by statute.
2.21 Notice of Certain Costs. Notwithstanding anything in this
Agreement to the contrary, to the extent any notice required by subsection 2.15
through and including subsection 2.18 is given by any Lender more than 90 days
after such Lender has knowledge (or should have had knowledge) of the occurrence
of the event giving rise to the additional cost, reduction in amounts, loss, tax
or other additional amounts described in such subsections, such Lender shall not
be entitled to compensation under such subsections for any such amounts incurred
or accruing prior to the giving of such notice to the Borrower.
SECTION 3. LETTERS OF CREDIT
3.1 L/C Commitment. (a) Subject to the terms and conditions hereof,
the Issuing Lender, in reliance on the agreements of the other Revolving Credit
Lenders set forth in subsection 3.4(a), agrees to issue letters of credit
("Letters of Credit") for the account of the Borrower on any Business Day during
the Revolving Credit Commitment Period in such form as may be approved from time
to time by the Issuing Lender, provided that the Issuing Lender shall not have
any
46
obligation to issue any Letter of Credit if, after giving effect to such
issuance, (i) the L/C Obligations would exceed the L/C Commitment or (ii) the
aggregate amount of the Available Revolving Credit Commitments would be less
than zero. Each Letter of Credit shall (i) be denominated in Dollars and (ii)
expire no later than the earlier of (x) the first anniversary of its date of
issuance and (y) the date which is five Business Days prior to the Scheduled
Revolving Credit Termination Date, provided that any Letter of Credit with a
one-year term may provide for the renewal thereof for additional one-year
periods (which shall in no event extend beyond the date referred to in clause
(y) above). On the Effective Date, each "Letter of Credit" under and as defined
in the Existing Credit Agreement shall automatically, and without any action on
the part of any Person, become a Letter of Credit hereunder.
(b) Each Letter of Credit shall be subject to the Uniform Customs
and, to the extent not inconsistent therewith, the laws of the State of New
York.
(c) The Issuing Lender shall not at any time be obligated to issue
any Letter of Credit hereunder if such issuance would conflict with, or cause
the Issuing Lender or any L/C Participant to exceed any limits imposed by, any
applicable Requirement of Law. To the extent that the Issuing Lender is not also
the Administrative Agent it shall promptly provide notice to the Administrative
Agent of any request for a Letter of Credit, the issuance thereof, any payments
thereunder and reimbursements of such payments and any termination, expiration
and amendment thereof.
3.2 Procedure for Issuance of Letter of Credit. The Borrower may
from time to time request that the Issuing Lender issue a Letter of Credit by
delivering to the Issuing Lender at its address for notices specified herein an
Application therefor, completed to the satisfaction of the Issuing Lender, and
such other certificates, documents and other papers and information as the
Issuing Lender may reasonably request. Upon receipt of any Application, the
Issuing Lender will process such Application and the certificates, documents and
other papers and information delivered to it in connection therewith in
accordance with its customary procedures and shall promptly issue the Letter of
Credit requested thereby (but in no event shall the Issuing Lender be required
to issue any Letter of Credit earlier than three Business Days after its receipt
of the Application therefor and all such other certificates, documents and other
papers and information relating thereto) by issuing the original of such Letter
of Credit to the beneficiary thereof or as otherwise may be agreed to by the
Issuing Lender and the Borrower. The Issuing Lender shall furnish a copy of such
Letter of Credit to the Borrower promptly following the issuance thereof. To the
extent that the Issuing Lender is not also the Administrative Agent, it shall
promptly furnish to the Administrative Agent notice of the issuance of each
Letter of Credit (including the amount thereof). The Administrative Agent will
furnish to the Revolving Credit Lenders (a) prompt notice of the issuance of
each Letter of Credit and (b) a monthly report setting forth for the relevant
month the total aggregate daily amount available to be drawn under Letters of
Credit that were outstanding during such month.
3.3 Commissions, Fees and Other Charges. (a) The Borrower will pay
to the Administrative Agent, for the account of each Revolving Credit Lender, a
commission on the average daily face amount of each Letter of Credit at a per
annum rate equal to the Applicable Margin then in effect with respect to
Eurodollar Loans under the Revolving Credit Facility, shared ratably among the
Revolving Credit Lenders and payable quarterly in arrears on each L/C Fee
Payment Date after the issuance date. In addition, the Borrower shall pay to the
Issuing Lender for its own account a fronting fee in the amount and on the dates
agreed to in writing by the Borrower and the Issuing Lender.
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(b) In addition to the foregoing fees and commissions, the Borrower
shall pay or reimburse the Issuing Lender for such normal and customary costs
and expenses as are incurred or charged by the Issuing Lender in issuing,
negotiating, effecting payment under, amending or otherwise administering any
Letter of Credit.
3.4 L/C Participations. (a) The Issuing Lender irrevocably agrees to
grant and hereby grants to each L/C Participant, and, to induce the Issuing
Lender to issue Letters of Credit hereunder, each L/C Participant irrevocably
agrees to accept and purchase and hereby accepts and purchases from the Issuing
Lender, on the terms and conditions hereinafter stated, for such L/C
Participant's own account and risk an undivided interest equal to such L/C
Participant's Revolving Credit Percentage in the Issuing Lender's obligations
and rights under and in respect of each Letter of Credit issued by the Issuing
Lender and the amount of each draft paid by the Issuing Lender thereunder. Each
L/C Participant unconditionally and irrevocably agrees with the Issuing Lender
that, if a draft is paid under any Letter of Credit issued by the Issuing Lender
for which the Issuing Lender is not reimbursed in full by the Borrower in
accordance with the terms of this Agreement, such L/C Participant shall pay to
the Administrative Agent for the account of the Issuing Lender upon demand an
amount equal to such L/C Participant's Revolving Credit Percentage of the amount
of such draft or any part thereof, which is not so reimbursed.
(b) If any amount required to be paid by any L/C Participant to the
Administrative Agent for the account of the Issuing Lender pursuant to
subsection 3.4(a) in respect of any unreimbursed portion of any payment made by
the Issuing Lender under any Letter of Credit is paid to the Issuing Lender
within three Business Days after the date such payment is due, such L/C
Participant shall pay to the Administrative Agent for the account of the Issuing
Lender on demand an amount equal to the product of (i) such amount, times (ii)
the greater of the daily average Federal Funds Effective Rate and a rate
determined by the Administrative Agent in accordance with banking industry rules
on interbank compensation during the period from and including the date such
payment is required to the date on which such payment is immediately available
to the Issuing Lender, times (iii) a fraction the numerator of which is the
number of days that elapse during such period and the denominator of which is
360. If any such amount required to be paid by any L/C Participant pursuant to
subsection 3.4(a) is not made available to the Administrative Agent for the
account of the Issuing Lender by such L/C Participant within three Business Days
after the date such payment is due, the Issuing Lender shall be entitled to
recover from such L/C Participant, on demand, such amount with interest thereon
calculated from such due date at the rate per annum applicable to ABR Loans
under the Revolving Credit Facility. A certificate of the Issuing Lender
submitted to any L/C Participant with respect to any amounts owing under this
subsection shall be conclusive in the absence of manifest error.
(c) Whenever, at any time after the Issuing Lender has made payment
under any Letter of Credit and has received from any L/C Participant its pro
rata share of such payment in accordance with subsection 3.4(a), the
Administrative Agent for the account of the Issuing Lender receives any payment
related to such Letter of Credit (whether directly from the Borrower or
otherwise, including proceeds of collateral applied thereto), or any payment of
interest on account thereof, the Administrative Agent for the account of the
Issuing Lender will distribute to such L/C Participant its pro rata share
thereof, provided, however, that in the event that any such payment received by
the Issuing Lender shall be required to be returned by the Issuing Lender, such
L/C Participant shall return to the Administrative Agent for the account of the
Issuing Lender the portion thereof previously distributed to it.
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3.5 Reimbursement Obligation of the Borrower. The Borrower agrees to
reimburse the Issuing Lender through the Administrative Agent on each date on
which the Issuing Lender notifies the Borrower of the date and amount of a draft
presented under any Letter of Credit and paid by the Issuing Lender for the
amount of (a) such draft so paid and (b) any taxes, fees, charges or other costs
or expenses incurred by the Issuing Lender in connection with such payment. The
Borrower shall make such payment (x) on the Business Day on which the Borrower
receives such notice if the Borrower shall have received such notice prior to
10:30 A.M., New York City time, on the day of receipt, or (y) on the Business
Day immediately following the Business Day on which the Borrower receives such
notice, if such notice is not received prior to 10:30 A.M., New York City time,
on the day of receipt. Each such payment shall be made to the Administrative
Agent for the account of the Issuing Lender in Dollars and in immediately
available funds. The Administrative Agent shall promptly pay such reimbursed
amounts over to the Issuing Lender on the day of receipt thereof. Interest shall
be payable on any and all amounts remaining unpaid by the Borrower under this
subsection from the date such amounts become payable (whether at stated
maturity, by acceleration or otherwise) until payment in full at the rate set
forth in subsection 2.12(c).
3.6 Obligations Absolute. The Borrower's obligations under this
Section 3 shall be absolute and unconditional under any and all circumstances
and irrespective of any setoff, counterclaim or defense to payment which the
Borrower may have or have had against the Issuing Lender (except to the extent
resulting from the gross negligence or willful misconduct of the Issuing
Lender), any beneficiary of a Letter of Credit or any other Person. The Borrower
also agrees with the Issuing Lender that, subject to the last sentence of this
subsection 3.6, the Issuing Lender shall not be responsible for, and the
Borrower's Reimbursement Obligations under subsection 3.5 shall not be affected
by, among other things, the validity or genuineness of documents or of any
endorsements thereon, even though such documents shall in fact prove to be
invalid, fraudulent or forged, or any dispute between or among the Borrower and
any beneficiary of any Letter of Credit or any other party to which such Letter
of Credit may be transferred or any claims whatsoever of the Borrower against
any beneficiary of such Letter of Credit or any such transferee. The Issuing
Lender shall not be liable for any error, omission, interruption or delay in
transmission, dispatch or delivery of any message or advice, however
transmitted, in connection with any Letter of Credit, except for errors,
omissions or delays in transmission found by a final and nonappealable decision
of a court of competent jurisdiction to have resulted from the gross negligence
or willful misconduct of the Issuing Lender. The Borrower agrees that any action
taken or omitted by the Issuing Lender under or in connection with any Letter of
Credit or the related drafts or documents, if done in the absence of gross
negligence or willful misconduct and in accordance with the standards or care
specified in the Uniform Commercial Code of the State of New York, shall be
binding on the Borrower and shall not result in any liability of the Issuing
Lender to the Borrower.
3.7 Letter of Credit Payments. If any draft shall be presented for
payment under any Letter of Credit, the Issuing Lender shall promptly (and in
any event within one Business Day) notify the Borrower and the Administrative
Agent of the date and amount thereof. The responsibility of an Issuing Lender to
the Borrower in connection with any draft presented for payment under any Letter
of Credit issued by it shall, in addition to any payment obligation expressly
provided for in such Letter of Credit, be limited to determining that the
documents (including each draft) delivered under such Letter of Credit in
connection with such presentment are substantially in conformity with such
Letter of Credit.
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3.8 Applications. To the extent that any provision of any
Application related to any Letter of Credit is inconsistent with the provisions
of this Section 3, the provisions of this Section 3 shall apply.
SECTION 4. REPRESENTATIONS AND WARRANTIES
To induce the Administrative Agent, the Lenders, the Swingline
Lender and the Issuing Lender to enter into this Agreement and to make the Loans
and issue or participate in the Letters of Credit, the Borrower and the
Permitted Borrower hereby represent and warrant to the Administrative Agent and
each Lender that:
4.1 Financial Condition. The audited consolidated financial
statements of (a) the Borrower and its consolidated Subsidiaries in each case as
of and for the fiscal year ending December 31, 2003, reported on by
PricewaterhouseCoopers LLP, and (b) the Permitted Borrower as of and for the
fiscal year ending December 31, 2003, reported on by Cardona, Irizarry & Co.
P.S.C., present fairly in all material respects the consolidated financial
condition of the Borrower and the financial condition of the Permitted Borrower,
respectively, and, in each case, the results of operations and cash flows as of
such date and for such period. The unaudited consolidated financial statements
of the Borrower and its consolidated Subsidiaries, in each case as of and for
the nine-month period ending September 30, 2004, certified by a Responsible
Officer, present fairly in all material respects the consolidated financial
condition of the Borrower and the results of operations and cash flows as of
such date and for such period (subject to normal year-end adjustments and any
other adjustments described therein and the absence of footnotes). All such
financial statements, including the related schedules and notes thereto, have
been prepared in accordance with GAAP applied consistently throughout the
periods involved (except as approved by the relevant firm of accountants and
disclosed therein and subject to normal year-end adjustments and the absence of
footnotes). The most recent audited balance sheet referred to above reflects, as
required by GAAP, any material Guarantee Obligations, contingent liabilities and
liabilities for taxes, and any long-term leases and unusual forward or long-term
commitments, including, without limitation, any interest rate or foreign
currency swap or exchange transaction or other obligation in respect of
derivatives, in each case as of the date of such balance sheet.
4.2 No Change. Since the date of the most recent audited financial
statements described in subsection 4.1, there has been no development or event
which has had or could reasonably be expected to have a Material Adverse Effect.
4.3 Corporate Existence; Compliance with Law. Each of the Borrower
and its Subsidiaries (a) is duly organized or formed, as the case may be,
validly existing and in good standing under the laws of the jurisdiction of its
organization or formation, (b) has the requisite power and authority to own and
operate its property, to lease the property it operates as lessee and to conduct
the business in which it is currently engaged as it is currently conducted, (c)
is duly qualified as a foreign corporation and in good standing under the laws
of each jurisdiction where its ownership, lease or operation of property or the
conduct of its business requires such qualification except to the extent that
the failure to so qualify could not, in the aggregate, reasonably be expected to
have a Material Adverse Effect and (d) is in compliance with all Requirements of
Law except to the extent that the failure to comply therewith could not, in the
aggregate, reasonably be expected to have a Material Adverse Effect.
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4.4 Corporate Power; Authorization; Enforceable Obligations. Each
Loan Party has the requisite power and authority to make, deliver and perform
the Loan Documents to which it is a party and, in the case of the Borrower and
the Permitted Borrower, to borrow and obtain other extensions of credit
hereunder. Each Loan Party has taken all necessary corporate or other action to
authorize the execution, delivery and performance of the Loan Documents to which
it is a party and, in the case of the Borrower and the Permitted Borrower, to
authorize the borrowings and other extensions of credit hereunder on the terms
and conditions of this Agreement. No consent or authorization of, filing with,
notice to or other act by or in respect of, any Governmental Authority is
required in connection with the borrowings and other extensions of credit
hereunder or with the execution, delivery, performance, validity or
enforceability of this Agreement or any of the other Loan Documents, except (i)
consents, authorizations, filings and notices which have been obtained or made
and are in full force and effect, and (ii) filings in respect of Liens created
pursuant to the Security Documents. Each Loan Document has been duly executed
and delivered on behalf of each Loan Party thereto. This Agreement constitutes,
and each Loan Document upon execution will constitute, a legal, valid and
binding obligation of each Loan Party thereto, enforceable against each such
Loan Party in accordance with its terms, except as enforceability may be limited
by applicable bankruptcy, insolvency, fraudulent conveyance, fraudulent
transfer, reorganization, moratorium or similar laws affecting the enforcement
of creditors' rights generally and by general equitable principles (whether
enforcement is sought by proceedings in equity or at law).
4.5 No Legal Bar. The execution, delivery and performance of this
Agreement and the Loan Documents, the issuance of Letters of Credit, the
borrowings hereunder and the use of the proceeds thereof will not violate any
Requirement of Law applicable to the Loan Parties or any material Contractual
Obligation of any of the Loan Parties and will not result in, or require, the
creation or imposition of any Lien on any of their respective properties or
revenues pursuant to any Requirement of Law or any such material Contractual
Obligation (other than the Liens created by the Security Documents).
4.6 No Material Litigation. Except as has been set forth on Schedule
4.6, no litigation, investigation or proceeding of or before any arbitrator or
Governmental Authority is pending or, to the knowledge of the Borrower,
threatened against any of the Loan Parties or against any of their respective
properties or revenues which could reasonably be expected to have a Material
Adverse Effect.
4.7 Ownership of Property; Liens. Each of the Loan Parties has title
in fee simple to, or a valid leasehold interest in, all its material real
property, and good title to, or a valid leasehold interest in, all its other
material property, and none of such property is subject to any Lien except as
permitted by subsection 7.3.
4.8 Intellectual Property. Each of the Borrower and each of the Loan
Parties owns, or is licensed to use, all trademarks, tradenames, service marks,
copyrights, technology, know-how and processes ("Intellectual Property")
necessary for the conduct of its business as currently conducted, except for
those the failure of which to own or license could not reasonably be expected to
have a Material Adverse Effect. Except as, in the aggregate, could not
reasonably be expected to have a Material Adverse Effect and to the knowledge of
the Borrower and the Permitted Borrower (a) no claim has been asserted and is
pending by any Person challenging or questioning the use of any Intellectual
Property or the validity of any Intellectual Property (nor does the Borrower
know of any valid basis for any such claim) and (b) the use of Intellectual
Property by the Borrower and the Loan
51
Parties does not infringe on the rights of, and no Intellectual Property of the
Borrower or any of the Loan Parties is being infringed upon by, any Person.
4.9 Taxes. Each of the Loan Parties has filed or caused to be filed
all Federal, Puerto Rican and all other material tax returns which are required
to be filed and has paid all taxes shown to be due and payable on said returns
or on any material assessments made against it or any of its property by any
Governmental Authority other than (a) any taxes the amount or validity of which
are currently being contested in good faith by appropriate proceedings and with
respect to which reserves in conformity with GAAP have been provided on the
books of the applicable Loan Party, and (b) taxes imposed by any Governmental
Authority with respect to which a failure to make payment could not, by reason
of the amount thereof or of the remedies available to such Governmental
Authority, reasonably be expected to have a Material Adverse Effect.
4.10 Federal Regulations. No Letters of Credit and no part of the
proceeds of any Loans will be used in a manner that creates a violation of
Regulation U of the Board. If requested by any Lender or the Administrative
Agent, the Borrower will furnish to the Administrative Agent and each Lender a
statement to the foregoing effect in conformity with the requirements of FR Form
G-3 or FR Form U-1 referred to in said Regulation U.
4.11 ERISA. Except where the liability, individually or in the
aggregate, which could reasonably be expected to result has not had or could not
reasonably be expected to have a Material Adverse Effect: (a) neither a
Reportable Event nor an "accumulated funding deficiency" (within the meaning of
Section 412 of the Code or Section 302 of ERISA) has occurred during the
five-year period prior to the date on which this representation is made or
deemed made with respect to any Single Employer Plan; (b) each Plan (other than
a Multiemployer Plan) has complied in all material respects with the applicable
provisions of ERISA and the Code; (c) no termination of a Single Employer Plan
has occurred, and no Lien in favor of the PBGC or a Single Employer Plan has
arisen and remains outstanding, during such five-year period; (d) the present
value of all accrued benefits under each Single Employer Plan (based on those
assumptions used to fund such Plans) did not, as of the last annual valuation
date prior to the date on which this representation is made or deemed made,
exceed the value of the assets of such Plan allocable to such accrued benefits
in an amount that could reasonably be expected to have a Material Adverse
Effect; (e) none of the Loan Parties nor any Commonly Controlled Entity has had
a complete or partial withdrawal from any Multiemployer Plan, and, to the
knowledge of the Loan Parties, none of the Loan Parties nor any Commonly
Controlled Entity would become subject to any liability under ERISA if the Loan
Parties or any such Commonly Controlled Entity were to withdraw completely from
all Multiemployer Plans as of the valuation date most closely preceding the date
on which this representation is made or deemed made; and (f) no such
Multiemployer Plan is in Reorganization or Insolvent.
4.12 Investment Company Act. No Loan Party is an "investment
company", within the meaning of the Investment Company Act of 1940, as amended.
4.13 Subsidiaries. The Subsidiaries listed on Schedule 4.13
constitute all the Subsidiaries of the Borrower as of the Effective Date.
4.14 Use of Proceeds. The proceeds of the Tranche A Term Loans will
be used to repay existing Indebtedness of the Borrower and its Subsidiaries and
for general corporate purposes of the Borrower and its Subsidiaries and to pay
fees and expenses related to this Credit Agreement. The proceeds of the
Revolving Credit Loans, Swingline Loans, Incremental Term Loans, Incremental
52
Revolving Loans and Letters of Credit shall be used for general corporate
purposes of the Borrower, its Subsidiaries and LIN TV.
4.15 Environmental Matters. Except for matters set forth on Schedule
4.15 and except with respect to any other matters that could not reasonably be
expected to result in a Material Adverse Effect, neither the Borrower nor any of
its Subsidiaries (a) has failed to comply with any Environmental Law or to
obtain, maintain or comply with, any permit, license or other approval required
under any Environmental Law, (b) has become subject to any Environmental
Liability, (c) has received notice of any claim with respect to any
Environmental Liability or (d) knows of any basis for any Environmental
Liability.
4.16 Accuracy of Information, etc. None of the reports, financial
statements, certificates or other written information (but excluding all
projections and pro forma financial information and other estimates covered by
the next sentence) furnished by or on behalf of any Loan Party to the
Administrative Agent or any Lender for use in connection with the transactions
contemplated by this Agreement or the other Loan Documents (taken together with
all information so furnished and as modified or supplemented by the other
information so furnished) contained as of the date such statement, information,
document or certificate was so furnished, any untrue statement of a material
fact or omitted to state a material fact necessary in order to make the
statements contained herein or therein not misleading. The projections and pro
forma financial information and other estimates and opinions contained in the
materials referenced above are based upon good faith estimates and assumptions
believed by management of the Borrower to be reasonable at the time made, it
being recognized by the Administrative Agent and the Lenders that such financial
information as it relates to future events is not to be viewed as fact and that
actual results during the period or periods covered by such projections,
financial information and other estimates and opinions may differ from the
projected results set forth therein by a material amount.
4.17 Security Documents. (a) When executed and delivered, the
Guarantee and Collateral Agreement will be effective to create in favor of the
Administrative Agent, for the benefit of the Lenders, a valid and enforceable
security interest in the collateral described therein and proceeds thereof, to
the extent contemplated by the Guarantee and Collateral Agreement. All actions
have been taken on or prior to the Effective Date which are necessary to cause
the Guarantee and Collateral Agreement to constitute, to the extent contemplated
by the Guarantee and Collateral Agreement, a fully perfected Lien on, and
security interest in, all right, title and interest of the Loan Parties in such
collateral and the proceeds thereof, as security for the Obligations (as defined
in the Guarantee and Collateral Agreement), in each case prior and superior in
right to any other Person subject, except in the case of such Pledged Stock, to
Liens permitted by subsection 7.3.
(b) Each of the Mortgages, upon execution and delivery by the
parties thereto, will be effective to create in favor of the Administrative
Agent, for the benefit of the Lenders, a valid and enforceable Lien on the
Mortgaged Properties described therein and proceeds thereof. Such Mortgages are
not required to be filed until following a request by the Administrative Agent
or the Required Lenders pursuant to subsection 10.17. If, upon such execution
and delivery, the Mortgages are immediately filed in accordance with subsection
10.17, each Mortgage shall constitute a fully perfected Lien on, and security
interest in, all right, title and interest of the Loan Parties in the Mortgaged
Properties and the proceeds thereof, as security for the Obligations (as defined
in the relevant Mortgage), in each case prior and superior in right to any other
Person, subject to Liens permitted by subsection 7.3.
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4.18 Senior Indebtedness. The Obligations of the Borrower in respect
of principal and interest hereunder constitute "Senior Indebtedness" of the
Borrower under the Senior Subordinated Notes and the Exchangeable Senior
Subordinated Debentures. The obligations of each Subsidiary Guarantor therefor
under the Guarantee and Collateral Agreement will constitute "Guarantor Senior
Indebtedness" of such Subsidiary Guarantor therefor under the Senior
Subordinated Notes and the Exchangeable Senior Subordinated Debentures.
SECTION 5. CONDITIONS PRECEDENT
5.1 Conditions to Extension of Credit on the Effective Date. The
agreement of each Lender to make the initial extension of credit required to be
made by it is subject to the satisfaction, prior to or concurrently with the
making of such extension of credit on the Effective Date, of the following
conditions precedent on the Effective Date:
(a) Loan Documents. The Administrative Agent shall have received (i)
this Agreement, executed and delivered by a duly authorized officer of the
Borrower, the Permitted Borrower and the Lenders and (ii) the Guarantee and
Collateral Agreement, executed and delivered by a duly authorized officer of the
Borrower and each Subsidiary Guarantor.
(b) Projections. The Lenders shall have received satisfactory
projections (including written assumptions) for the Borrower and its
consolidated Subsidiaries for the fourth quarter 2004 and fiscal years 2005
through 2010, which shall give effect to the making of the Tranche A Term Loans.
(c) Legal Opinion. The Administrative Agent and the Lenders shall
have received a legal opinion from Covington & Burling, counsel for the Loan
Parties, substantially in the form of Exhibit F.
(d) Repayments of Existing Credit Agreement. Except as otherwise
provided in subsection 3.1(a), the administrative agent under the Existing
Credit Agreement shall have received from the Borrower and the Permitted
Borrower an amount sufficient to pay in full the principal amount of and accrued
interest and fees on account of all commitments, loans and letters of credit
under the Existing Credit Agreement and any other amounts due thereunder
previously advised to the Borrower, and the outstanding commitments thereunder
shall have been cancelled.
(e) Closing Certificates. The Administrative Agent shall have
received (i) a certificate of each of the Borrower and the Permitted Borrower,
dated the Effective Date, substantially in the form of Exhibit C, with
appropriate insertions and attachments, including the certificate of
incorporation or formation, as applicable, certified as of a recent date by the
Secretary of State of the State of Delaware, (ii) a Compliance Certificate
containing all information necessary for determining pro forma compliance by the
Borrower and its Subsidiaries with the financial covenants set forth in
subsection 7.1 as of December 31, 2004 (assuming the ratios required for March
31, 2005 were applicable to such date and the Loans were made on such date) and
(iii) a long form good standing certificate with respect to each of the Borrower
and the Permitted Borrower issued as of a recent date by the Secretary of State
of the State of Delaware.
(f) Fees. The Administrative Agent and the Lenders shall have
received all fees and other amounts due and payable on or prior to the Effective
Date, including, to the extent invoiced, reimbursement or payment of all
out-of-pocket expenses (including fees, charges and disbursements of counsel)
required to be reimbursed or paid by any Loan Party hereunder, under the
Existing Credit
54
Agreement or under any other Loan Document and for which invoices have been
presented at least two Business Days before the Effective Date. All such amounts
will be paid with proceeds of Loans made on the Effective Date and will be
reflected in the funding instructions given by the Borrower to the
Administrative Agent on or before the Effective Date.
(g) Consents. All consents and approvals, if any, required to be
obtained from any Governmental Authority or other Person in connection with the
continuing operations of the Loan Parties and the transactions contemplated
hereby shall have been obtained, in each case without the imposition of any
burdensome conditions, except to the extent that the failure to obtain any such
consent could not reasonably be expected to have a Material Adverse Effect.
(h) Security Documents. All documents and instruments required under
the Security Documents in connection with the perfection of the Administrative
Agent's security interest in the Collateral (including delivery of any required
stock certificates and undated stock powers executed in blank but excluding the
Mortgages) shall have been executed and delivered to the Administrative Agent
and shall (to the extent applicable) be in proper form for filing.
5.2 Conditions to Each Extension of Credit. The agreement of each
Lender to make any extension of credit requested to be made by it on any date
(including, without limitation, extensions of credit on the Effective Date) is
subject to the satisfaction of the following conditions precedent:
(a) Representations and Warranties. Each of the representations and
warranties made by any Loan Party in or pursuant to the Loan Documents shall be
true and correct in all material respects on and as of such date as if made on
and as of such date except for any representation and warranty which is
expressly made as of an earlier date, which representation and warranty shall
have been true and correct in all material respects as of such earlier date.
(b) No Default. No Default or Event of Default shall have occurred
and be continuing on such date or after giving effect to the extensions of
credit requested to be made on such date.
Each borrowing by and issuance of a Letter of Credit on behalf of the Borrower
or the Permitted Borrower hereunder shall constitute a representation and
warranty by the Borrower or the Permitted Borrower, as applicable, as of the
date of such extension of credit that the conditions contained in this
subsection 5.2 have been satisfied.
SECTION 6. AFFIRMATIVE COVENANTS
Each of the Borrower and (with respect to subsections 6.2(e), 6.3,
6.4, 6.5, 6.6 and 6.8 only) the Permitted Borrower hereby agree that, so long as
the Commitments remain in effect, any Letter of Credit remains outstanding or
any Loan or other amount is owing to any Lender or the Administrative Agent
hereunder, each of the Borrower and the Permitted Borrower shall and (except in
the case of delivery of financial information reports and notices) shall cause
each of the Subsidiary Guarantors to:
6.1 Financial Statements. Furnish to the Administrative Agent which
shall in turn be promptly distributed by the Administrative Agent to the
Lenders:
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(a) as soon as available but in any event within 90 days after the
end of each fiscal year of the Borrower (i) a copy of the audited
consolidated balance sheet of each of the Borrower and its consolidated
Subsidiaries as at the end of such year and the related audited
consolidated statements of operations and of cash flows for such year, in
each case setting forth in comparative form the figures for the previous
year, and, in the case of clause (i), reported on without a "going
concern" or like qualification or exception, or qualification arising out
of the scope of the audit, by independent certified public accountants of
nationally recognized standing; and
(b) as soon as available, but in any event not later than 45 days
after the end of each of the first three quarterly periods of each fiscal
year of the Borrower, as applicable (i) the unaudited consolidated balance
sheet of each of the Borrower and its consolidated Subsidiaries as at the
end of such quarter and the related unaudited consolidated statements of
income and of cash flows for such quarter and the portion of the fiscal
year through the end of such quarter, in each case setting forth in
comparative form the figures for the corresponding period in the previous
year, certified by a Responsible Officer as being fairly stated in all
material respects (subject to normal year-end audit adjustments and the
absence of footnotes).
All such financial statements shall fairly present in all material respects the
consolidated financial condition of the Borrower and its consolidated
Subsidiaries as of such date and shall be prepared in accordance with GAAP
applied consistently throughout the periods reflected therein (except as
approved by such accountants or officer, as the case may be, and disclosed
therein and, in the case of financial statements delivered pursuant to
subsection 6.1(b), subject to normal year-end audit adjustments and the absence
of footnotes).
6.2 Certificates; Other Information. Furnish to the Administrative
Agent (which shall in turn be promptly distributed by the Administrative Agent
to the Lenders) or, in the case of clause (e), to the relevant Lender:
(a) concurrently with the delivery of any financial statements
pursuant to subsection 6.1(a) and 6.1(b),(i) a certificate of a
Responsible Officer certifying as to whether a Default has occurred and,
if a Default has occurred, specifying the details thereof and any action
taken or proposed to be taken with respect thereto and (ii) a Compliance
Certificate setting forth reasonably detailed calculations demonstrating
compliance with subsection 7.1 as of the last day of the relevant fiscal
quarter or fiscal year;
(b) as soon as available, and in any event no later than 45 days
after the end of each fiscal year of the Borrower, a detailed consolidated
budget for the Borrower and its consolidated Subsidiaries for such fiscal
year (including a projected consolidated balance sheet of the Borrower and
its Subsidiaries as of the end of such fiscal year, and the related
consolidated statements of projected cash flow, projected changes in
financial position and projected income) (collectively, the
"Projections"), which Projections shall in each case be accompanied by a
certificate of a Responsible Officer stating that such Projections are
based upon good faith estimates and assumptions believed by management of
the Borrower to be reasonable at the time made, it being recognized by the
Lenders that such financial information as it relates to future events is
not to be viewed as fact and that actual results during the period or
periods covered by such financial information may differ from the
projected results set forth therein by a material amount;
56
(c) within five days after the same are sent, copies of all
financial statements and reports which the Borrower sends to the holders
of any class of its debt securities or public equity securities and within
five days after the same are filed, copies of all financial statements and
reports which the Borrower may make to, or file with, the Securities and
Exchange Commission or any successor or analogous Governmental Authority;
(d) promptly following their submission with the FCC or any other
Federal, state or local Governmental Authority, copies of any and all
periodic or special reports filed by the Borrower or any of its
Subsidiaries, if such reports are publicly available and indicate any
material adverse change in the business, operations or financial condition
of the Borrower and its consolidated Subsidiaries taken as a whole or if
copies thereof are requested by any Lender or the Administrative Agent
(but only to the extent such reports are publicly available); and
(e) promptly, such additional financial and other information as any
Lender may from time to time reasonably request.
Documents required to be delivered pursuant to subsection 6.1 or subsection
6.2(c) (to the extent any such documents are included in materials otherwise
filed with the SEC) may be delivered electronically and if so delivered, shall
be deemed to have been delivered on the date (i) on which the Borrower posts
such documents, or provides a link thereto on the Borrower's website on the
Internet at the website address at http://www.lintv.com; or (ii) on which such
documents are posted on the Borrower's behalf on IntraLinks/IntraAgency or
another relevant website, if any, to which each Lender and the Administrative
Agent have access (whether a commercial, third-party website or whether
sponsored by the Administrative Agent).
6.3 Payment of Obligations. Pay, discharge or otherwise satisfy at
or before maturity or before they become delinquent, as the case may be, all its
material obligations of whatever nature, that, if not paid, could reasonably be
expected to result in a Material Adverse Effect, except where the amount or
validity thereof is currently being contested in good faith by appropriate
proceedings and reserves in conformity with GAAP with respect thereto have been
provided on the books of the Borrower or its Subsidiaries, as the case may be,
provided that notwithstanding the foregoing, the Borrower and each of its
Subsidiaries shall have the right to pay any such obligation and in good faith
contest, by proper legal actions or proceedings, the validity or amount of such
claims.
6.4 Conduct of Business and Maintenance of Existence, etc. (a)
Except as contemplated by subsection 7.4, (i) continue to engage in business of
the same general type as now conducted by the Borrower and its Subsidiaries,
(ii) preserve, renew and keep in full force and effect its existence and (iii)
take all reasonable action to preserve and maintain all rights, privileges,
licenses and franchises necessary or desirable in the normal conduct of its
business, except (other than with respect to the Station Licenses), in the case
of this clause (iii), to the extent that failure to do so could not reasonably
be expected to have a Material Adverse Effect and except if (A) in the
reasonable business judgment of the Borrower or such Subsidiary Guarantor, as
the case may be, it is in its best economic interest not to preserve and
maintain such privileges, rights or franchises (other than the Station
Licenses), and (B) such failure to preserve and maintain such privileges, rights
or franchises (other than the Station Licenses) would not materially adversely
affect the rights of the Lenders hereunder or the value of the collateral
security for the Loans; and (b) comply with all Requirements of Law except to
the extent that failure to comply therewith could not, in the aggregate,
reasonably be expected to have a Material Adverse Effect.
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6.5 Maintenance of Property; Insurance. (a) Keep all Property
material to the conduct of its business in good working order and condition,
ordinary wear and tear excepted, and maintain with financially sound and
reputable insurance companies insurance in at least such amounts and against at
least such risks (but including in any event public liability, product liability
and business interruption) as are usually insured against in the same general
area by companies engaged in the same or a similar business; and furnish to the
Administrative Agent, upon written request, information in reasonable detail as
to the insurance carried, except to the extent that the failure to do any of the
foregoing with respect to any such property could not reasonably be expected to
have a Material Adverse Effect.
(b) All such insurance shall (i) provide that no cancellation,
material reduction in amount or material change in coverage thereof shall be
effective until at least thirty (30) days after receipt by the Administrative
Agent of written notice thereof, and (ii) name the Administrative Agent as
insured party or loss payee.
6.6 Inspection of Property; Books and Records; Discussions. (a) Keep
proper books of records and accounts in accordance with sound business practices
and (b) upon reasonable prior notice and at any reasonable time, permit
representatives of the Administrative Agent or any Lender to visit and inspect
any of its properties and examine and, if reasonably requested, make copies of
its books and records and to discuss the business, operations, properties and
financial and other condition of the Borrower and its Subsidiaries with officers
and employees of the Borrower and its Subsidiaries and with its independent
certified public accountants, provided that the Administrative Agent or such
Lender shall notify the Borrower prior to any contact with such accountants and
give the Borrower the opportunity to participate in such discussions.
6.7 Notices. Promptly, and in any event within five Business Days,
after a Senior Responsible Officer of the Borrower becomes aware of the
occurrence thereof, give notice to the Administrative Agent and each Lender of
the occurrence of any Default or Event of Default if such Default or Event of
Default, as applicable, is then continuing. Each notice pursuant to this
subsection 6.7 shall be accompanied by a statement of a Responsible Officer
setting forth details of the occurrence referred to therein and stating what
action the Borrower or the relevant Subsidiary proposes to take with respect
thereto.
6.8 Environmental Laws. (a) Except as could not reasonably be
expected to have a Material Adverse Effect, comply with all applicable
Environmental Laws, and obtain and comply with and maintain any and all
licenses, approvals, notifications, registrations or permits required by
applicable Environmental Laws.
(b) Conduct and complete (or cause to be conducted and completed) in
all material respects all investigations, studies, sampling and testing, and all
remedial, removal and other actions required under Environmental Laws and in a
timely fashion comply in all material respects with all lawful orders and
directives of all Governmental Authorities regarding Environmental Laws, except
to the extent that the failure to do so could not be reasonably expected to have
a Material Adverse Effect.
6.9 Additional Collateral, etc. (a) With respect to any new
Subsidiary created or acquired after the Effective Date by the Borrower or any
of its Subsidiaries, promptly (i) execute and deliver to the Administrative
Agent such amendments to the Guarantee and Collateral Agreement as the
Administrative Agent deems necessary or advisable in order to grant to the
Administrative Agent,
58
for the benefit of the Lenders, a perfected first priority security interest in
the Capital Stock of such new Subsidiary which are owned by the Borrower or any
of its Subsidiaries and required to be pledged pursuant to the Guarantee and
Collateral Agreement, (ii) deliver to the Administrative Agent the certificates
representing such Capital Stock, together with undated stock powers endorsed in
blank executed and delivered by a Responsible Officer of the Borrower or such
Subsidiary, as the case may be, (iii) cause such new Subsidiary (A) to become a
party to the Guarantee and Collateral Agreement and (B) to take such actions
necessary or advisable to grant to the Administrative Agent for the benefit of
the Lenders a perfected first priority security interest in the collateral
described in the Guarantee and Collateral Agreement with respect to such new
Subsidiary as contemplated by the Guarantee and Collateral Agreement, including,
without limitation, the filing of Uniform Commercial Code financing statements
in such jurisdictions as may be required by the Guarantee and Collateral
Agreement or as may be reasonably requested by the Administrative Agent and (iv)
if reasonably requested by the Administrative Agent, deliver to the
Administrative Agent legal opinions relating to the matters described above,
which opinion shall be in form and substance, and from counsel, reasonably
satisfactory to the Administrative Agent, provided that notwithstanding the
foregoing, (i) only 65% of the voting Capital Stock of any direct foreign
Subsidiary of the Borrower or any domestic Subsidiary need be pledged under this
clause (a), (ii) no voting Capital Stock of any foreign Subsidiary other than a
direct foreign Subsidiary of the Borrower or any domestic Subsidiary need be
pledged under this clause (a) and (iii) no direct or indirect foreign Subsidiary
shall become a Guarantor or shall be required to pledge any of its assets
hereunder or under any other Loan Document.
(b) Promptly, but in any event not later than 60 Business Days after
the Effective Date, execute and deliver to the Administrative Agent a Mortgage
reasonably satisfactory to the Administrative Agent in respect of each Mortgaged
Property; and, promptly, but in any event not later than 60 Business Days after
the Administrative Agent or the Required Lenders, as applicable, shall have made
a request contemplated by subsection 10.17, provide to the Administrative Agent
in respect of each Mortgaged Property (i) a mortgagee's title insurance policy
(or policies) or marked up unconditional binder for such insurance, provided
that each such policy shall (A) be in an amount reasonably satisfactory to the
Administrative Agent with respect to each Mortgaged Property covered thereby
(but not in excess of the lesser of the fair market value thereof and the
aggregate principal amount of the Term Loans and Revolving Credit Commitments
and Incremental Revolving Loan Amounts); (B) insure that the Mortgage insured
thereby creates a valid first Lien on such Mortgaged Property free and clear of
all defects and encumbrances, except as disclosed therein or otherwise permitted
by subsection 7.3; (C) name the Administrative Agent for the benefit of the
Lenders as the insured thereunder; (D) be in the form of ALTA Loan Policy - 1992
(or equivalent policies) to the extent available in the applicable
jurisdictions; (E) contain such endorsements and affirmative coverage as the
Administrative Agent may reasonably request to the extent available in the
applicable jurisdictions and available without material cost to the Borrower or
its Subsidiaries; and (F) be issued by title companies reasonably satisfactory
to the Administrative Agent (including any such title companies acting as
co-insurers or reinsurers, at the option of the Administrative Agent) and (ii)
evidence reasonably satisfactory to it that all premiums in respect of each such
policy, all charges for mortgage recording tax, and all related expenses, if
any, have been paid or duly provided for.
(c) Upon the request of the Administrative Agent, to the extent
permitted by applicable Requirements of Law at the time of such request, grant
or cause its Subsidiaries to grant, to the Administrative Agent, a direct
security interest in the Station Licenses within 30 days after receipt of such
request, provided that to the extent FCC consent shall be required in connection
with
59
granting such security interest, such consent shall be requested within 30 days
after receipt of such request and upon receipt of such FCC consent, such
security interest shall be granted within 10 Business Days thereof.
(d) Upon the occurrence and during the continuance of (i) any Event
of Default with respect to paragraph (a) of Section 8, (ii) any payment default
with respect to any Subordinated Indebtedness or Senior Unsecured Indebtedness,
or (iii) any Event of Default with respect to subsection 7.1, promptly, but in
any event not more than 30 Business Days (subject to necessary approvals by the
FCC), following the request of the Administrative Agent, cause the assets
relating to each Station held by the Borrower to be transferred to a related
License Subsidiary or, at the election of the Administrative Agent or if there
is no License Subsidiary related to such Station, another Subsidiary that has no
other assets or liabilities.
6.10 After-Acquired Stations. Unless the Borrower and the
Administrative Agent shall otherwise agree, cause the Station Licenses relating
to each after-acquired Station to be held in one or more License Subsidiaries,
provided that to the extent the Borrower shall not have received FCC approval
with respect to the foregoing at the scheduled closing of the acquisition of
such Station, the Borrower shall comply with the foregoing requirement as soon
as practicable following such acquisition (but in any event within 60 days after
such acquisition).
SECTION 7. NEGATIVE COVENANTS
The Borrower hereby agrees that, so long as the Commitments remain
in effect, any Letter of Credit remains outstanding or any Loan or other amount
is owing to any Lender or the Administrative Agent hereunder, the Borrower shall
not, and shall not permit (except with respect to subsection 7.1) any of its
Subsidiaries to, directly or indirectly:
7.1 Financial Condition Covenants. (a) Consolidated Leverage Ratio.
Permit the Consolidated Leverage Ratio as of the last day of any Test Period set
forth below to exceed the ratio set forth below opposite such period:
Period Consolidated Leverage Ratio
- ------ ---------------------------
Effective Date to March 31, 2006 6.50:1
April 1, 2006 and thereafter 6.00:1
(b) Consolidated Interest Coverage Ratio. Permit the Consolidated
Interest Coverage Ratio as of the last day of any Test Period set forth below to
be less than the ratio set forth below opposite such period:
Period Consolidated Interest Coverage Ratio
- ------ ------------------------------------
Effective Date to March 31, 2006 2.00:1
April 1, 2006 and thereafter 2.25:1
(c) Consolidated Senior Leverage Ratio. Permit the Consolidated
Senior Leverage Ratio as of the last day of any Test Period to exceed 4.50x.
60
7.2 Limitation on Indebtedness. Create, incur, assume or suffer to
exist (in each case, to "Incur") any Indebtedness, except:
(a) Indebtedness of any Loan Party pursuant to any Loan Document;
(b) Indebtedness owed to the Borrower or any Subsidiary;
(c) purchase money Indebtedness, provided that the aggregate amount
of Indebtedness incurred pursuant to this subsection 7.2(c) shall not
exceed $30,000,000 at any one time outstanding;
(d) Capital Lease Obligations, provided that the aggregate principal
amount of Capital Lease Obligations incurred pursuant to this subsection
7.2(d) in any fiscal year of the Borrower, when added to the aggregate
amount of other Capital Expenditures made during such fiscal year pursuant
to subsection 7.7, shall not exceed the amount permitted to be expended
during such fiscal year pursuant to subsection 7.7;
(e) Indebtedness (other than any Subordinated Indebtedness)
outstanding on the Effective Date and listed on Schedule 7.2(e) and any
refinancings, refundings, renewals or extensions thereof (without any
increase in the principal amount thereof);
(f) (i) Guarantee Obligations of the Borrower or any of its
Subsidiaries in respect of any Indebtedness permitted under this
subsection 7.2 (other than Indebtedness incurred under clause (g) of this
subsection 7.2, which shall be governed by such clause (g)), (ii)
Guarantee Obligations incurred in the ordinary course of business by the
Borrower or any of its Subsidiaries, provided that the Incurrence of such
Guarantee Obligations could not reasonably be expected, individually or in
the aggregate, to have a Material Adverse Effect, (iii) Guarantee
Obligations permitted under subsection 7.8, and (iv) other Guarantee
Obligations not to exceed $100,000,000 in aggregate principal amount at
any time outstanding;
(g) (i) Subordinated Indebtedness of the Borrower, (ii) Senior
Unsecured Indebtedness of the Borrower in an aggregate principal amount
not to exceed $350,000,000, and (iii) Guarantee Obligations of any
Subsidiary Guarantor in respect of Indebtedness referred to in clause (i)
or (ii) of this subsection 7.2(g), provided that a Subsidiary Guarantor
shall not guarantee any Subordinated Indebtedness unless such guarantee of
Subordinated Indebtedness is subordinated to the guarantee of such
Subsidiary Guarantor of the Obligations on terms no less favorable to the
Lenders than the subordination provisions of the Subordinated Indebtedness
to which such guarantee relates;
(h) Indebtedness resulting from the endorsement of negotiable
instruments in the ordinary course of business or arising from the
honoring of a check, draft or similar instruments presented by the
Borrower or a Subsidiary in the ordinary course of business against
insufficient funds;
(i) Indebtedness in respect of any Interest Rate Protection
Agreements;
(j) Indebtedness (i) of the Borrower or any of its Subsidiaries to
the seller representing all or part of the purchase price in a Permitted
Acquisition or any Asset Swap
61
Transaction or assumed in connection with any Permitted Acquisition or any
Asset Swap Transaction, in an aggregate principal amount not to exceed
$75,000,000 at any time outstanding, as the same may be refinanced,
refunded, renewed or extended (without any increase in the principal
amount thereof), and (ii) of the Borrower or any of its Subsidiaries to
the seller representing all or part of the purchase price in a Permitted
Acquisition or any Asset Swap Transaction or assumed in connection with
any Permitted Acquisition or any Asset Swap Transaction, in each case, in
this clause (ii), subordinated in a manner reasonably satisfactory to the
Administrative Agent to the Obligations (except to the extent contemplated
by the proviso to this clause (ii)), in an aggregate principal amount not
to exceed $250,000,000 at any time outstanding, as the same may be
refinanced, refunded, renewed or extended (without any increase in the
principal amount thereof or change in the status thereof as subordinated
Indebtedness), provided that the aggregate principal amount of
subordinated Indebtedness incurred pursuant to this subclause (ii) that
provides for any maturity, amortization or mandatory redemption (other
than with asset sale proceeds, subject to the provisions of this
Agreement, or following a change of control) or sinking fund payment prior
to the date that is six months following the Tranche A Maturity Date shall
not exceed $100,000,000 at any time outstanding;
(k) Indebtedness of any Person that becomes a Subsidiary after the
date hereof as a result of a transaction permitted by subsection 7.4 or
subsection 7.8; provided such Indebtedness exists at the time such Person
becomes a Subsidiary and is not created in contemplation of or in
connection with such Person becoming a Subsidiary, and any refinancings,
refundings, renewals or extensions thereof (without any increase in the
principal amount thereof or overall collateral therefor or any change in
the status of any subordinated Indebtedness) but excluding any such
refinancing or refunding of any such Indebtedness that by its terms shall
become due or shall permit its holder to require repurchase by such Person
as a result of such transaction;
(l) Indebtedness secured by Liens permitted under subsections
7.3(a), (b), (c), (d), (m) and (o); and
(m) additional Indebtedness of the Borrower or any of its
Subsidiaries in an aggregate principal amount (for the Borrower and all
Subsidiaries) not to exceed $100,000,000 at any one time outstanding.
7.3 Limitation on Liens. Create, incur, assume or suffer to exist
any Lien upon any of its Property, whether now owned or hereafter acquired,
except for:
(a) Liens imposed by any Governmental Authority for taxes,
assessments or charges not yet due or which are being contested in good
faith by appropriate proceedings, provided that adequate reserves are
maintained on the books of the Borrower or one of its Subsidiaries, as the
case may be, in conformity with GAAP;
(b) carriers', landlord's, warehousemen's, mechanics',
materialmen's, repairmen's or other like Liens arising in the ordinary
course of business;
(c) pledges or deposits in connection with workers' compensation,
unemployment insurance and other social security legislation;
62
(d) deposits to secure the performance of bids, trade contracts
(other than for borrowed money), leases, statutory obligations, insurance
contracts, surety and appeal bonds, performance bonds and other
obligations of a like nature;
(e) easements, rights-of-way, restrictions, covenants, minor
exceptions to title and other similar encumbrances (i) previously or
hereinafter which, in the aggregate, are not material in amount and which,
in the case of such encumbrances on any of the Mortgaged Properties, do
not in the aggregate materially detract from the value of the Property
subject thereto or, in the case of such encumbrances on property,
materially interfere with the ordinary conduct of the business of the
Borrower and its Subsidiaries, taken as a whole, or (ii) which are set
forth in title reports delivered to the Administrative Agent on or prior
to the Effective Date or after the Effective Date pursuant to subsection
6.9(b);
(f) Liens in existence on the Effective Date listed on Schedule
7.3(f) securing Indebtedness permitted by subsection 7.2(e) (including
refinancings, refundings, renewals and extensions of such Indebtedness as
permitted by subsection 7.2(e)), provided that no such Lien is spread to
cover any additional property (other than after acquired title in or on
such property and proceeds of the existing collateral in accordance with
the instrument creating such Lien) after the Effective Date and that the
principal amount of Indebtedness secured thereby is not increased except
pursuant to the instrument creating such Lien (without any modification
thereof after the Effective Date);
(g) (i) Liens securing Indebtedness of the Borrower or any of its
Subsidiaries permitted pursuant to subsections 7.2(c) and 7.2(d) (provided
that (A) such Liens shall be created within 180 days of the acquisition of
such fixed or capital assets, and (B) such Liens do not at any time
encumber any property other than the property financed by such
Indebtedness), (ii) Liens securing Indebtedness existing on any property
or asset at the time of acquisition thereof by the Borrower or any
Subsidiary or existing on any property or asset of any Person that becomes
a Subsidiary after the Effective Date at the time such Person becomes a
Subsidiary (provided that (x) such Lien is not created in contemplation of
or in connection with such acquisition or such Person becoming a
Subsidiary, as the case may be, (y) such Lien shall not apply to any other
property or assets of the Borrower or any of its Subsidiaries and (z) such
Lien shall secure only those obligations which it secures on the date of
such acquisition or the date such Person becomes a Subsidiary, as the case
may be) (including refinancings, refundings, renewals and extensions of
such Indebtedness as permitted by subsection 7.2), and (iii) Liens
securing Indebtedness of the Borrower or any of its Subsidiaries assumed
in connection with a Permitted Acquisition or an Asset Swap Transaction in
accordance with the terms of subsection 7.2(j)(i);
(h) Liens created pursuant to the Security Documents;
(i) any obligations or duties affecting any of the Property of the
Borrower or its Subsidiaries to any municipality or public authority with
respect to any franchise, grant, license or permit;
(j) Liens imposed by operation of law with respect to any judgments
or orders not constituting an Event of Default;
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(k) Liens arising from precautionary Uniform Commercial Code
financing statement filings with respect to operating leases or
consignment arrangements entered into by the Borrower or any of its
Subsidiaries in the ordinary course of business or Liens on Property which
is the subject of a Sale permitted by subsection 7.5 relating to such Sale
(it being understood that such Liens may not be perfected on or to the
completion of such Sale except in the ordinary course of business);
(l) Liens in favor of a banking institution arising by operation of
law encumbering deposits (including the right of set-off) held by such
banking institution and which are within the general parameters customary
in the banking industry;
(m) Liens on Property of the Borrower or any of its Subsidiaries in
favor of others securing licenses, subleases and leases permitted
hereunder and granted to others and not interfering in any material
respect in the business of the Borrower or any of its Subsidiaries;
(n) Liens not otherwise permitted by this subsection 7.3 so long as
the aggregate outstanding principal amount of the obligations secured
thereby does not exceed $50,000,000 at any one time; and
(o) Liens granted by LIN Texas with respect to its interest in the
LLC to GECC in connection with the Joint Venture Loan.
7.4 Limitation on Fundamental Changes. Enter into any merger,
consolidation or amalgamation, or liquidate, wind up or dissolve itself (or
suffer any liquidation or dissolution), or convey, sell, lease, assign, transfer
or otherwise dispose of, all or substantially all of its property, business or
assets, except:
(a) any Subsidiary of the Borrower (other than, except as set forth
below, any License Subsidiary or, at any time after any of the conditions
set forth in subsection 6.9(d)(i), (ii) or (iii) shall have occurred, any
Subsidiary holding the assets and liabilities of any Station) may be
merged or consolidated with or into the Borrower (provided that the
Borrower shall be the continuing or surviving corporation) or with or into
any Subsidiary Guarantor (other than, except as set forth below, any
License Subsidiary or, at any time after any of the conditions set forth
in subsection 6.9(d)(i), (ii) or (iii) shall have occurred, any Subsidiary
holding the assets and liabilities of any Station) (provided that the
Subsidiary Guarantor shall be the continuing or surviving corporation) or
with or into any Subsidiary (provided that neither Subsidiary is a
Subsidiary Guarantor); provided, however, that (i) a License Subsidiary
and any Subsidiary holding the assets and liabilities of any Station may
take any actions otherwise prohibited by this clause (a) to the extent
such merger or consolidation occurs in contemplation of, and immediately
preceding, a sale, transfer or other disposition (including an Asset Swap
Transaction) of such License Subsidiary or other Subsidiary and (ii) any
Subsidiary may take any actions otherwise prohibited by this clause (a) to
the extent necessary to comply with the requirements of subsection 6.9(d)
or subsection 6.10;
(b) any Subsidiary of the Borrower (other than, except as set forth
below, any License Subsidiary or, at any time after any of the conditions
set forth in subsection 6.9(d)(i), (ii) or (iii) shall have occurred, any
Subsidiary holding the assets and liabilities of any Station) may sell,
lease, transfer or otherwise dispose of any or all of its assets (upon\
64
voluntary liquidation or otherwise) to the Borrower or any Subsidiary
Guarantor or, if such Subsidiary is not a Subsidiary Guarantor, to any
other Subsidiary or the Borrower; provided, however, that (i) a License
Subsidiary and any Subsidiary holding the assets and liabilities of any
Station may take any actions otherwise prohibited by this clause (b) to
the extent any sale, transfer or other disposition occurs in contemplation
of, and immediately preceding, a sale, transfer or other disposition
(including an Asset Swap Transaction) of such License Subsidiary or other
Subsidiary, and (ii) any Subsidiary may take any actions otherwise
prohibited by this clause (b) to the extent necessary to comply with the
requirements of subsection 6.9(d) or subsection 6.10;
(c) the Borrower may be merged or consolidated with or into a newly
formed limited liability company with no assets or liabilities that is a
Subsidiary of LIN TV solely for the purposes of realizing certain tax
benefits so long as LIN TV shall take such actions as would be required
under subsection 6.9(a) if such limited liability company were a
Subsidiary of the Borrower; and
(d) any Subsidiary of the Borrower may enter into any merger,
consolidation, amalgamation or sale transaction in connection with, or in
order to consummate, a transaction permitted by subsection 7.5 or
subsection 7.8.
7.5 Limitation on Sale of Assets. Convey, sell, lease, assign,
transfer or otherwise dispose of (each a "Sale") any of its property, business
or assets (including, without limitation, receivables, leasehold interests and
its interest in the LLC but excluding any sale and leaseback of assets), whether
now owned or hereafter acquired, except:
(a) Sales of obsolete or worn out property in the ordinary course of
business or Property that is no longer useful in the conduct of the
Borrower's business in the ordinary course of business;
(b) Sales resulting from any casualty or condemnation of Property or
assets;
(c) any Sale of any Property or assets, provided that the aggregate
Net Cash Proceeds of Sales made pursuant to this paragraph (c) in any
fiscal year do not exceed $100,000,000;
(d) Sales of Investments made pursuant to subsection 7.8(a), (b),
(h), (i) or (j);
(e) Sales to the Borrower or a Subsidiary (in the case of a sale by
a Subsidiary Guarantor, to the Borrower or to a Subsidiary Guarantor and
in the case of the Borrower, to a Subsidiary Guarantor);
(f) the Sale or discount of overdue accounts receivable arising in
the ordinary course of business, but only in connection with the
compromise or collection thereof;
(g) licenses or sublicenses of intellectual property and general
intangibles (other than any Station Licenses) and licenses, leases or
subleases of other Property (other than any Station Licenses), in each
case which do not materially interfere with the business of the Borrower
and its Subsidiaries;
(h) transactions permitted by subsection 7.4;
65
(i) the Sale of any Broadcasting Asset, provided that (i) after
giving effect to such Sale, no Default or Event of Default shall exist and
be continuing, (ii) at least 75% of the consideration received by the
Borrower in respect thereof shall be in the form of cash and Cash
Equivalents, (iii) if such Sale constitutes an Asset Sale, the Adjusted
Net Cash Proceeds of such Sale, if any, shall be applied in the manner
prescribed by subsection 2.9, and (iv) (A) the Consolidated EBITDA of the
Broadcasting Assets being sold on or after the Effective Date and pursuant
to this subsection 7.5(i) or exchanged pursuant to subsection 7.5(j) in
such fiscal quarter and in the immediately preceding four-fiscal-quarter
period (in each case calculated for the four fiscal quarters immediately
preceding the sale) shall not exceed 25% of the Consolidated EBITDA of the
Borrower for such four-fiscal-quarter period and (B) the Consolidated
EBITDA of the Broadcasting Assets being sold on or after the Effective
Date and pursuant to this subsection 7.5(i) or exchanged pursuant to
subsection 7.5(j) shall not exceed 50% of the Consolidated EBITDA of the
Borrower in the aggregate; and
(j) Asset Swap Transactions.
7.6 Limitation on Dividends. Declare or pay any dividend (other than
dividends payable solely in Capital Stock) on, or make any payment on account
of, or set apart assets for a sinking or other analogous fund for, the purchase,
redemption, defeasance, retirement or other acquisition of, any shares of any
class of Capital Stock of the Borrower or any warrants or options to purchase
any such Capital Stock, whether now or hereafter outstanding, or make any other
distribution in respect thereof, either directly or indirectly, whether in cash
or property or in obligations of the Borrower or any of its Subsidiaries (such
declarations, payments, setting apart, purchases, redemptions, defeasance,
retirements, acquisitions and distributions being herein called "Restricted
Payments"), except that the Borrower may make the following Restricted Payments,
so long as no Event of Default has occurred and is continuing or would be
continuing after giving effect to such Restricted Payment, provided that the
Borrower shall be permitted to make the Restricted Payments in clauses (c) and
(d) below notwithstanding any such Event of Default, unless, in the case of
clause (d), such Event of Default relates to a payment Default under subsection
8(a):
(a) payments, the proceeds of which shall be used by LIN TV to pay
administrative, legal and accounting costs and expenses of LIN TV that are
reasonable and customary and incurred in the ordinary course of business,
including franchise fees and similar costs; provided, however, any such
administrative expenses shall not exceed an aggregate amount of $3,000,000
per fiscal year;
(b) payments, the proceeds of which will be used to repurchase the
Capital Stock or other securities of LIN TV from outside directors,
employees or members of the management of LIN TV, the Borrower or any
other Subsidiary of LIN TV, at a price not in excess of fair market value,
in an aggregate amount not in excess of $15,000,000 plus the aggregate
gross proceeds received by LIN TV as a result of any resales of any such
Capital Stock or other securities;
(c) payments, the proceeds of which will be used to pay taxes of LIN
TV, the Borrower and its Subsidiaries as part of a consolidated, combined
or unitary tax filing group or of the separate operations of LIN TV;
66
(d) payments, the proceeds of which will be used to pay fees to
Hicks Muse & Co. Partners, L.P. or any of its Affiliates or Subsidiaries
in accordance with the terms of its financial advisory agreement
contemplated by subsection 7.10(b)(iv);
(e) payments, the proceeds of which are used to fulfill the
obligations of LIN TV, the Borrower or any other Subsidiary of LIN TV
under an employee stock purchase plan or similar plan covering employees
of LIN TV, the Borrower or any other Subsidiary of LIN TV as from time to
time in effect in an aggregate net amount not to exceed $15,000,000; and
(f) Restricted Payments constituting Permitted Redemptions or
Permitted Dividends.
7.7 Limitation on Capital Expenditures. (a) Make or commit to make
any Capital Expenditure, except Capital Expenditures of the Borrower and its
Subsidiaries not exceeding for any fiscal year the greater of $40,000,000 and
10% of Net Consolidated Revenue for such fiscal year, provided that 100% of any
amount not used in any fiscal year may be carried forward into the next
succeeding fiscal year (it being understood and agreed that no amount may be
carried forward beyond the year immediately succeeding the fiscal year in which
it arose).
(b) In addition to the Capital Expenditures permitted pursuant to
paragraph (a) of this subsection 7.7, to the extent the Net Cash Proceeds from
an Asset Sale or a Recovery Event are not required to be used to make
prepayments pursuant to subsection 2.9 and are not otherwise utilized pursuant
to subsection 7.8(m), the Borrower and its Subsidiaries may use such Net Cash
Proceeds to make additional Capital Expenditures (which shall not be counted in
the limitations set forth in paragraph (a) of this subsection 7.7).
7.8 Limitation on Investments, Loans and Advances. Make any advance,
loan, extension of credit or capital contribution to, or purchase any stock,
bonds, notes, debentures or other securities of or any assets constituting a
business unit of, or make any other investment in, any other Person
("Investments"), except:
(a) extensions of trade credit in the ordinary course of business;
(b) Investments in Cash Equivalents;
(c) guarantees permitted by subsection 7.2;
(d) (i) Investments in the Borrower or any of its Subsidiaries, and
(ii) Investments in LIN TV, so long as a Restricted Payment for the same
purpose would then be permitted to be made under subsection 7.6 (it being
understood that any such Investment made in reliance on this clause (ii)
shall reduce to an equivalent extent the Restricted Payments permitted by
subsection 7.6);
(e) loans and advances by the Borrower or its Subsidiaries to their
respective directors, officers and employees in an aggregate principal
amount not exceeding $5,000,000 at any one time outstanding;
(f) Investments in existence on the Effective Date and listed on
Schedule 7.8(f), and extensions, renewals, modifications or restatements
or replacements thereof, provided that no such extension, renewal,
modification or restatement shall (i) increase the amount of the original
Investment or (ii) adversely affect the interests of the Lenders with
respect to such
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original Investment or the interests of the Lenders under this Agreement
or any other Loan Document in any material respect;
(g) Investments permitted by subsections 7.2(b), (d), (f) and (l),
subsections 7.4 and 7.6 and Investments constituting Capital Expenditures
permitted by subsection 7.7;
(h) Capital Stock, promissory notes and other similar non-cash
consideration received by the Borrower or any of its Subsidiaries in
connection with any Sale permitted by subsection 7.5, including Capital
Stock, promissory notes and other similar non-cash consideration received
in connection with Permitted Acquisitions or Asset Swap Transactions;
(i) Investments in Interest Rate Protection Agreements relating to
the businesses and finances of the Borrower or any of its Subsidiaries and
not for purposes of speculation;
(j) Investments (including debt obligations and Capital Stock)
received in connection with the bankruptcy or reorganization of suppliers
and customers and in settlement of delinquent obligations of, and other
disputes with, customers and suppliers arising in the ordinary course of
business;
(k) in addition to Investments otherwise expressly permitted by this
subsection, Investments made after the Effective Date by the Borrower and
its Subsidiaries in an aggregate amount not exceeding $100,000,000 (valued
at cost, without regard to any write down or write up thereof) at any one
time outstanding, provided that after giving effect thereto no Default or
Event of Default shall have occurred and be continuing at the time of
commitment by the Borrower or its Subsidiary to such Investment
(including, without limitation, pursuant to subsection 7.1);
(l) Investments after the Effective Date by the Borrower and its
Subsidiaries constituting Permitted Acquisitions or Asset Swap
Transactions;
(m) Investments of Net Cash Proceeds not required to be applied to
the prepayment of Term Loans pursuant to subsection 2.9 and not otherwise
utilized pursuant to subsection 7.7(b);
(n) Investments in the Joint Venture solely for the purpose of
curing any event of default under the Joint Venture Loan;
(o) Investments constituting Permitted Redemptions; and
(p) Investments acquired in exchange for the issuance of Capital
Stock of LIN TV and which, to the extent initially acquired by LIN TV, are
contributed to the Borrower as equity.
7.9 Limitation on Optional Payments. (a) Make any optional payment
or prepayment on or redemption of or any payments in redemption, defeasance or
repurchase of (A) Subordinated Indebtedness (except pursuant to a Permitted
Redemption or in connection with refinancing of Subordinated Indebtedness with
other Subordinated Indebtedness permitted hereunder) or (B) Senior Unsecured
Indebtedness incurred pursuant to subsection 7.2(g)(ii) (except pursuant to a
Permitted Redemption or a refinancing of the Senior Unsecured Indebtedness with
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other Subordinated Indebtedness or Subordinated Indebtedness or other Senior
Unsecured Indebtedness incurred pursuant thereto and permitted hereunder),
except in each case mandatory payments of interest, fees and expenses required
by the terms of the agreement governing or instrument evidencing such
Indebtedness, but only to the extent permitted under the subordination
provisions, if any, applicable thereto.
(b) Make any optional payment or prepayment on or redemption of or
any payments in redemption, defeasance or repurchase of any Indebtedness that is
subordinated in right of payment to the Obligations and that is incurred or
assumed in connection with a Permitted Acquisition or an Asset Swap Transaction
pursuant to subsection 7.2(j)(ii) (except pursuant to a refinancing of such
Indebtedness with other Indebtedness permitted hereunder), except (i) mandatory
payments of interest, fees and expenses required by the terms of the agreement
governing or instrument evidencing such Indebtedness but only to the extent
permitted under the subordination provisions, if any, applicable thereto, and
(ii) the Borrower and its Subsidiaries may make voluntary prepayments on such
Indebtedness in an aggregate principal amount, which, when added to the
aggregate amount (excluding any accrued interest) of all prior prepayments of
such Indebtedness under this subsection 7.9(b) and to the scheduled installments
or such Indebtedness due prior to the date that is six months following the
Tranche A Maturity Date, shall not exceed $100,000,000.
7.10 Limitation on Transactions with Affiliates. (a) Enter into any
transaction, including, without limitation, any purchase, sale, lease or
exchange of Property or the rendering of any service, with any Affiliate unless
such transaction is (i) otherwise permitted under this Agreement, or (ii) upon
fair and reasonable terms no less favorable to the Borrower or such Subsidiary,
as the case may be, than it would obtain in a comparable arm's length
transaction with a Person which is not an Affiliate.
(b) In addition, notwithstanding the foregoing, the Borrower and its
Subsidiaries shall be entitled to make the following payments and/or to enter
into the following transactions:
(i) transactions between or among the Borrower and its Subsidiaries;
(ii) the payment of reasonable and customary fees and reimbursement
of expenses payable to directors of LIN TV, the Borrower and the Permitted
Borrower; and
(iii) employment arrangements with respect to the procurement of
services of directors, officers and employees in the ordinary course of business
and the payment of reasonable fees in connection therewith; and
(iv) a financial advisory agreement with Hicks, Muse & Co. Partners
L.P. or any of its Affiliates or Subsidiaries in a form approved by the board of
directors of LIN TV and the payment of fees and expenses in connection
therewith.
7.11 Limitation on Sales and Leasebacks. Enter into any arrangement
with any Person providing for the leasing by the Borrower or any Subsidiary of
real or personal, immovable or movable, property which has been or is to be sold
or transferred by the Borrower or such Subsidiary to such Person or to any other
Person to whom funds have been or are to be advanced by such Person on the
security of such property or rental obligations of the Borrower or such
Subsidiary, provided that this subsection 7.11 shall not prohibit any sale and
leaseback resulting from the incurrence of
69
any lease in respect of any capital asset entered into within 180 days of the
acquisition of such capital asset for the purpose of providing permanent
financing of such capital asset.
7.12 Limitations on Change in Holding Company Status. Permit LIN TV
to engage in any activities, make any Capital Expenditures, or incur any
Indebtedness or Guarantee Obligations other than (a) activities customarily
carried out or required of a publicly-owned company (including in connection
with any issuance of Capital Stock and the appointment and employment of
officers and employees), (b) performance of its obligations pursuant to each of
(i) the Joint Venture Loan Guarantee, (ii) the Stock Pledge Agreement and (iii)
the Parent Guarantee, (c) other activities incidental to its ownership of the
Capital Stock and obligations of the Borrower and its Subsidiaries permitted
hereunder and the management thereof (including in connection with guarantees of
obligations of the Borrower and its Subsidiaries), and (d) activities
contemplated by subsection 7.6 or subsection 7.8(o) or (p) and the ownership and
management of cash and Cash Equivalents and like assets and other assets
incidental to the conduct of its activities as a publicly owned company.
SECTION 8. EVENTS OF DEFAULT
If any of the following events shall occur and be continuing:
(a) The Borrower or the Permitted Borrower, as applicable, shall
fail to pay any principal of any Loan or Reimbursement Obligation when due in
accordance with the terms hereof; or the Borrower shall fail to pay any interest
on any Loan or Reimbursement Obligation, or any other amount payable hereunder
or under any other Loan Document, and such failure continues for a period of (i)
in the case of fees and interest payable under subsections 2.6, 2.12 and 3.3(a),
five Business Days after such fees or interest become due, and (ii) in the case
of any other fees, interest or other amounts, five Business Days after the day
on which written notice of such failure shall have been given to the Borrower by
the Administrative Agent or any Lender; or
(b) Any representation or warranty made or deemed made by any Loan
Party herein or in any other Loan Document or which is contained in any
certificate delivered pursuant to subsection 6.2(a) or contained in any
amendment or waiver of any Loan Document or in any Incremental Term Loan
Activation Notice or Incremental Revolving Loan Activation Notice shall prove to
have been inaccurate in any material respect on or as of the date made or deemed
made; or
(c) The Borrower shall default in the observance or performance of
any agreement contained in subsection 6.4(a)(ii) (as to the continued existence
of the Borrower only) or subsection 6.7, subsection 6.9 (d) or Section 7 (other
than Section 7.12) of this Agreement; or
(d) The Borrower, any of its Subsidiaries or LIN TV shall default in
the observance or performance of any other agreement contained in this Agreement
or any other Loan Document (other than as provided in paragraphs (a) through (c)
of this subsection), and such default shall continue unremedied for a period of
30 days after written notice thereof from the Administrative Agent to the
Borrower; or
(e) The Borrower, any Subsidiary Guarantor or LIN TV shall (i)
default in making any payment of any principal of or interest on any
Indebtedness (other than pursuant to
70
the Loan Documents) beyond the period of grace, if any, provided in the
instrument or agreement under which such Indebtedness was created; or (ii)
default in the observance or performance of any other agreement or condition
relating to any such Indebtedness or contained in any instrument or agreement
evidencing, securing or relating thereto, or any other event shall occur or
condition exist, the effect of which default or other event or condition is to
cause, or to permit the holder or beneficiary of such Indebtedness (or a trustee
or agent on behalf of such holder or beneficiary) to cause such Indebtedness to
become due prior to its stated maturity, provided that a default, event or
condition described in clause (i) or (ii) of this paragraph (e) shall not at any
time constitute an Event of Default under this Agreement unless, at such time,
one or more defaults, events or conditions (without duplication as to the same
item of Indebtedness) of the type described in clauses (i) and (ii) of this
paragraph (e) shall have occurred and be continuing with respect to Indebtedness
the outstanding principal amount of which exceeds in the aggregate $25,000,000;
or
(f) (i) The Borrower, any Subsidiary Guarantor or LIN TV shall
commence any case, proceeding or other action (A) under any existing or future
law of any jurisdiction, domestic or foreign, relating to bankruptcy,
insolvency, reorganization or relief of debtors, seeking to have an order for
relief entered with respect to it, or seeking to adjudicate it a bankrupt or
insolvent, or seeking reorganization, winding up, liquidation, dissolution,
composition or other relief with respect to it or its debts, or (B) seeking
appointment of a receiver, trustee, custodian, conservator or other similar
official for it or for all or substantially all of its assets, or the Borrower,
any Subsidiary Guarantor or LIN TV shall make a general assignment for the
benefit of its creditors; or (ii) there shall be commenced against the Borrower,
any Subsidiary Guarantor or LIN TV any case, proceeding or other action of a
nature referred to in clause (i) above which (A) results in the entry of an
order for relief or any such adjudication or appointment or (B) remains
undismissed, undischarged or unbonded for a period of 90 days; or (iii) there
shall be commenced against the Borrower or any Subsidiary Guarantor any case,
proceeding or other action seeking issuance of a warrant of attachment,
execution, distraint or similar process against all or substantially all of its
assets which results in the entry of an order for any such relief which shall
not have been vacated, discharged, or stayed or bonded pending appeal within 90
days from the entry thereof, or (iv) the Borrower, any Subsidiary Guarantor or
LIN TV shall take any corporate action in furtherance of, or indicating its
consent to, approval of, or acquiescence in, any of the acts set forth in clause
(i), (ii), or (iii) above; or (v) the Borrower or any Subsidiary Guarantor shall
not, or shall be unable to, or shall admit in writing its inability to,
generally pay its debts (other than intercompany debt) as they become due; or
(g) (i) The Borrower or the Permitted Borrower shall engage in any
"prohibited transaction" (as defined in Section 406 of ERISA or Section 4975 of
the Code) involving any Plan, (ii) any "accumulated funding deficiency" (as
defined in Section 302 of ERISA) whether or not waived shall exist with respect
to any Plan or any Lien in favor of the PBGC or a Plan shall arise on the assets
of the Borrower or any Commonly Controlled Entity, (iii) a Reportable Event
shall occur with respect to, or proceedings shall commence to have a trustee
appointed (or a trustee shall be appointed) to administer, or to terminate, any
Single Employer Plan, which Reportable Event or commencement of proceedings or
appointment of a trustee is likely to result in the termination of such Plan for
purposes of Title IV of ERISA, (iv) any Single Employer Plan shall terminate for
purposes of Title IV of ERISA and (v) the Borrower or the Permitted Borrower
shall incur any liability in connection with a withdrawal from, or the
Insolvency or
71
Reorganization of, a Multiemployer Plan; and in each case in clauses (i) through
(v) above, such event or condition, together with all other such events or
conditions, if any, could reasonably be expected to have a Material Adverse
Effect; or
(h) One or more judgments or decrees shall be entered against the
Borrower, any Subsidiary Guarantor or LIN TV involving in the aggregate a
liability (not paid or fully covered by insurance) of $25,000,000 or more, and
all such judgments or decrees shall not have been vacated, discharged, stayed or
bonded pending appeal within 60 days from the entry thereof; or
(i) Any Loan Document shall, at any time, cease to be in full force
and effect (unless released by the Administrative Agent at the direction of the
Required Lenders or all Lenders (to the extent required by subsection 10.1) or
as otherwise permitted under this Agreement or the other Loan Documents) or
shall be declared null and void (and, if such invalidity is such so as to be
amenable to cure without materially disadvantaging the position of the
Administrative Agent and the Lenders thereunder, the relevant Loan Party shall
have failed to cure such invalidity within 30 days after notice from the
Administrative Agent), or the validity or enforceability thereof shall be
contested by any Loan Party, or any of the Liens intended to be created by any
Security Document (including, without limitation, any Mortgage filed pursuant to
subsection 10.17) shall cease to be or shall not be a valid and perfected Lien
having the priority contemplated thereby (and, if such invalidity is such so as
to be amenable to cure without materially disadvantaging the position of the
Administrative Agent and the Lenders as secured parties thereunder, the relevant
Loan Party shall have failed to cure such invalidity within 30 days after notice
from the Administrative Agent); or
(j) A Change of Control shall occur or LIN TV shall fail to own
directly or indirectly, beneficially and of record, 100% of the Capital Stock of
the Borrower free and clear of all Liens other than Liens in favor of the
Lenders pursuant to the Loan Documents; or
(k) The principal broadcasting licenses of any Station, or any other
material authorizations, licenses or permits issued by the FCC, shall be revoked
or canceled or expire by its terms and not be renewed, or shall be modified, in
each case in a manner which would have a Material Adverse Effect; or
(l) Any event of default shall have occurred and be continuing under
the Joint Venture Loan and the lender thereunder shall have instituted
proceedings against LIN TV with respect to the Joint Venture Loan Guarantee, the
outcome of which could reasonably be expected to have a Material Adverse Effect.
then (A) if such event is an Event of Default specified in clause (i) or (ii) of
paragraph (f) above with respect to the Borrower or the Permitted Borrower,
automatically the Commitments shall immediately terminate and the Loans
hereunder (with accrued interest thereon) and all other amounts owing under this
Agreement and the other Loan Documents (including, without limitation, all
amounts of L/C Obligations, whether or not the beneficiaries of the then
outstanding Letters of Credit shall have presented the documents required
thereunder) shall immediately become due and payable, and (B) if such event is
any other Event of Default, either or any of the following actions may be taken:
(i) with the consent of the Majority Revolving Credit Facility Lenders, the
Administrative Agent may, or upon the request of the Majority Revolving Credit
Facility Lenders, the Administrative Agent shall, by notice to the Borrower
declare the Revolving Credit Commitments to
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be terminated forthwith, whereupon the Revolving Credit Commitments shall
immediately terminate and (ii) with the consent of the Required Lenders, the
Administrative Agent may, or upon the request of the Required Lenders, the
Administrative Agent shall, by notice to the Borrower, declare the Loans
hereunder (with accrued interest thereon) and all other amounts owing under this
Agreement and the other Loan Documents (including, without limitation, all
amounts of L/C Obligations, whether or not the beneficiaries of the then
outstanding Letters of Credit shall have presented the documents required
thereunder) to be due and payable forthwith, whereupon the same shall
immediately become due and payable. With respect to all Letters of Credit with
respect to which presentment for honor shall not have occurred at the time of an
acceleration pursuant to this paragraph, the Borrower shall at such time deposit
in a cash collateral account opened by the Administrative Agent an amount equal
to the aggregate then undrawn and unexpired amount of such Letters of Credit.
Amounts held in such cash collateral account shall be applied by the
Administrative Agent to the payment of drafts drawn under such Letters of
Credit, and the unused portion thereof after all such Letters of Credit shall
have expired or been fully drawn upon, if any, shall be applied to repay other
obligations of the Borrower hereunder and under the other Loan Documents. After
all such Letters of Credit shall have expired or been fully drawn upon, all
Reimbursement Obligations shall have been satisfied and all other obligations of
the Borrower hereunder and under the other Loan Documents shall have been paid
in full, the balance, if any, in such cash collateral account shall be returned
to the Borrower (or such other Person as may be lawfully entitled thereto).
Except as otherwise expressly provided above in this Section 8, the Borrower
waives presentment, demand, protest or other notice of any kind.
SECTION 9. THE ADMINISTRATIVE AGENT
9.1 Appointment. Each Lender hereby irrevocably designates and
appoints the Administrative Agent as the agent of such Lender under this
Agreement and the other Loan Documents, and each Lender irrevocably authorizes
the Administrative Agent, in such capacity, to take such action on its behalf
under the provisions of this Agreement and the other Loan Documents and to
exercise such powers and perform such duties as are expressly delegated to the
Administrative Agent by the terms of this Agreement and the other Loan
Documents, together with such other powers as are reasonably incidental thereto
to the extent permitted by applicable law. Notwithstanding any provision to the
contrary elsewhere in this Agreement, the Administrative Agent shall not have
any duties or responsibilities, except those expressly set forth herein, or any
fiduciary relationship with any Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or any other Loan Document or otherwise exist against the
Administrative Agent.
9.2 Delegation of Duties. The Administrative Agent may execute any
of its duties under this Agreement and the other Loan Documents by or through
agents or attorneys-in-fact and shall be entitled to advice of counsel
concerning all matters pertaining to such duties. The Administrative Agent shall
not be responsible for the negligence or misconduct of any agents or
attorneys-in-fact selected by it with reasonable care.
9.3 Exculpatory Provisions. Neither the Administrative Agent nor any
of its officers, directors, employees, agents, attorneys-in-fact or affiliates
shall be (a) liable for any action lawfully taken or omitted to be taken by it
or such Person under or in connection with this Agreement or any other Loan
Document (except to the extent that any of the foregoing are found by a final
and nonappealable decision of a court of competent jurisdiction to have resulted
from its or such Person's own gross negligence or willful misconduct) or (b)
responsible in any manner to any of the Lenders
73
for any recitals, statements, representations or warranties made by any Loan
Party or any officer thereof contained in this Agreement or any other Loan
Document or in any certificate, report, statement or other document referred to
or provided for in, or received by the Administrative Agent under or in
connection with, this Agreement or any other Loan Document or for the value,
validity, effectiveness, genuineness, enforceability or sufficiency of this
Agreement or any other Loan Document or for any failure of any Loan Party a
party thereto to perform its obligations hereunder or thereunder. The
Administrative Agent shall not be under any obligation to any Lender to
ascertain or to inquire as to the observance or performance of any of the
agreements contained in, or conditions of, this Agreement or any other Loan
Document, or to inspect the properties, books or records of any Loan Party.
9.4 Reliance by Administrative Agent. The Administrative Agent shall
be entitled to rely, and shall be fully protected in relying, upon any
instrument, writing, resolution, notice, consent, certificate, affidavit,
letter, telecopy, telex or teletype message, statement, order or other document
or conversation believed by it to be genuine and correct and to have been
signed, sent or made by the proper Person or Persons and upon advice and
statements of legal counsel (including, without limitation, counsel to the
Borrower), independent accountants and other experts selected by the
Administrative Agent. The Administrative Agent may deem and treat the payee of
any Note as the owner thereof for all purposes unless a written notice of
assignment, negotiation or transfer thereof shall have been filed with the
Administrative Agent. The Administrative Agent shall be fully justified in
failing or refusing to take any action under this Agreement or any other Loan
Document unless it shall first receive such advice or concurrence of the
Required Lenders (or, if so specified by this Agreement, all Lenders) as it
deems appropriate or it shall first be indemnified to its satisfaction by the
Lenders against any and all liability and expense which may be incurred by it by
reason of taking or continuing to take any such action. The Administrative Agent
shall in all cases be fully protected in acting, or in refraining from acting,
under this Agreement and the other Loan Documents in accordance with a request
of the Required Lenders (or, if so specified by this Agreement, all Lenders),
and such request and any action taken or failure to act pursuant thereto shall
be binding upon all the Lenders and all future holders of the Loans.
9.5 Notice of Default. The Administrative Agent shall not be deemed
to have knowledge or notice of the occurrence of any Default or Event of Default
hereunder unless the Administrative Agent has received notice from a Lender or
the Borrower referring to this Agreement, describing such Default or Event of
Default and stating that such notice is a "notice of default". In the event that
the Administrative Agent receives such a notice, the Administrative Agent shall
give notice thereof to the Lenders. The Administrative Agent shall take such
action with respect to such Default or Event of Default as shall be reasonably
directed by the Required Lenders (or, if so specified by this Agreement, all
Lenders), provided that unless and until the Administrative Agent shall have
received such directions, the Administrative Agent may (but shall not be
obligated to) take such action, or refrain from taking such action, with respect
to such Default or Event of Default as it shall deem advisable in the best
interests of the Lenders.
9.6 Non-Reliance on the Administrative Agent and Other Lenders. Each
Lender expressly acknowledges that neither the Administrative Agent nor any of
its respective officers, directors, employees, agents, attorneys-in-fact or
affiliates have made any representations or warranties to it and that no act by
the Administrative Agent hereafter taken, including any review of the affairs of
a Loan Party or any affiliate of a Loan Party, shall be deemed to constitute any
representation or warranty by the Administrative Agent to any Lender. Each
Lender represents to the Administrative Agent that it has, independently and
without reliance upon the Administrative Agent
74
or any other Lender, and based on such documents and information as it has
deemed appropriate, made its own appraisal of and investigation into the
business, operations, property, financial and other condition and
creditworthiness of the Loan Parties and their affiliates and made its own
decision to make its Loans hereunder and enter into this Agreement. Each Lender
also represents that it will, independently and without reliance upon the
Administrative Agent or any other Lender, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit analysis, appraisals and decisions in taking or not taking action under
this Agreement and the other Loan Documents, and to make such investigation as
it deems necessary to inform itself as to the business, operations, property,
financial and other condition and creditworthiness of the Loan Parties and their
affiliates. Except for notices, reports and other documents expressly required
to be furnished to the Lenders by the Administrative Agent hereunder, the
Administrative Agent shall not have any duty or responsibility to provide any
Lender with any credit or other information concerning the business, operations,
property, condition (financial or otherwise), prospects or creditworthiness of
any Loan Party or any affiliate of a Loan Party which may come into the
possession of the Administrative Agent or any of its officers, directors,
employees, agents, attorneys-in-fact or affiliates.
9.7 Indemnification. The Lenders agree to indemnify the
Administrative Agent in its capacity as such (to the extent not reimbursed by
the Borrower and without limiting the obligation of the Borrower to do so),
ratably according to their pro rata share of the aggregate Revolving Credit
Exposure, Term Loans outstanding and unused Commitments in effect on the date on
which indemnification is sought under this subsection 9.7 (or, if
indemnification is sought after the date upon which the Commitments shall have
terminated and the Loans shall have been paid in full, ratably in accordance
with such share immediately prior to such date), from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind whatsoever which may at any time
(including, without limitation, at any time following the payment of the Loans)
be imposed on, incurred by or asserted against the Administrative Agent in any
way relating to or arising out of, the Commitments, this Agreement, any of the
other Loan Documents or any documents contemplated by or referred to herein or
therein or the transactions contemplated hereby or thereby or any action taken
or omitted by the Administrative Agent under or in connection with any of the
foregoing, provided that no Lender shall be liable for the payment of any
portion of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements which are found by a final
and nonappealable decision of a court of competent jurisdiction to have resulted
from the Administrative Agent's gross negligence or willful misconduct. The
agreements in this subsection 9.7 shall survive the payment of the Loans and all
other amounts payable hereunder.
9.8 Agent in Its Individual Capacity. The Administrative Agent and
its affiliates may make loans to, accept deposits from and generally engage in
any kind of business with any Loan Party as though the Administrative Agent were
not an Agent. With respect to its Loans made or renewed by it and with respect
to any Letter of Credit issued or participated in by it, the Administrative
Agent shall have the same rights and powers under this Agreement and the other
Loan Documents as any Lender and may exercise the same as though it were not an
Agent, and the terms "Lender" and "Lenders" shall include the Administrative
Agent in its individual capacity.
9.9 Successor Administrative Agent. The Administrative Agent may
resign as Administrative Agent upon 30 days' notice to the Lenders. If the
Administrative Agent shall resign as Administrative Agent under this Agreement
and the other Loan Documents, then the Required Lenders shall appoint from among
the Lenders a successor agent for the Lenders, which successor
75
agent shall be approved by the Borrower (which approval shall not be
unreasonably withheld or delayed), whereupon such successor agent shall succeed
to the rights, powers and duties of the Administrative Agent, and the term
"Administrative Agent" shall mean such successor agent effective upon such
appointment and approval, and the former Administrative Agent's rights, powers
and duties as Administrative Agent shall be terminated, without any other or
further act or deed on the part of such former Administrative Agent or any of
the parties to this Agreement or any holders of the Loans. After any retiring
Administrative Agent's resignation as Administrative Agent, the provisions of
this Section 9 shall inure to its benefit as to any actions taken or omitted to
be taken by it while it was Administrative Agent under this Agreement and the
other Loan Documents.
9.10 Documentation Agents, Co-Documentation Agents and Syndications
Agent. Neither the Documentation Agents or the Co-Documentation Agents or the
Syndication Agent shall have any duties or responsibilities hereunder in their
respective capacities as such.
SECTION 10. MISCELLANEOUS
10.1 Amendments and Waivers. Neither this Agreement, any other Loan
Document, nor any terms hereof or thereof may be amended, supplemented or
modified except in accordance with the provisions of this subsection 10.1. The
Required Lenders and each Loan Party to the relevant Loan Documents may, or,
with the written consent of the Required Lenders, the Administrative Agent and
each Loan Party to the relevant Loan Document may, from time to time, (a) enter
into written amendments, supplements or modifications hereto and to the other
Loan Documents for the purpose of adding any provisions to this Agreement or the
other Loan Documents or changing in any manner the rights of the Lenders or of
the Loan Parties hereunder or thereunder or (b) waive, on such terms and
conditions as the Required Lenders or the Administrative Agent, as the case may
be, may specify in such instrument, any of the requirements of this Agreement or
the other Loan Documents or any Default or Event of Default and its
consequences; provided, however, that no such waiver and no such amendment,
supplement or modification shall (i) forgive the principal amount or extend the
final scheduled date of maturity of any Loan, extend the scheduled date of any
amortization payment in respect of any Term Loan or Incremental Term Loan,
reduce the stated rate of any interest, fee or letter of credit commission
payable hereunder or extend the scheduled date of any payment thereof, or
increase the amount or extend the expiration date of any Lender's Revolving
Credit Commitment, Tranche A Term Loan Facilities, Incremental Term Loan
Facilities or Incremental Revolving Facilities, in each case without the consent
of each Lender directly affected thereby; (ii) amend, modify or waive any
provision of this subsection 10.1 or reduce any percentage specified in the
definition of Required Lenders, consent to the assignment or transfer by the
Borrower of any of its rights and obligations under this Agreement and the other
Loan Documents, release all or substantially all of the collateral or release
all or substantially all of the Subsidiary Guarantors from their obligations
under the Guarantee and Collateral Agreement other than pursuant to a
transaction permitted by this Agreement, in each case without the written
consent of all Lenders; (iii) amend, modify or waive any condition precedent to
any extension of credit under the Revolving Credit Facility or Incremental
Revolving Loan Facility set forth in subsection 5.2 without the written consent
of the Majority Facility Lenders for such Facility; (iv) change the allocation
of payments among the Tranche A Term Loan Facilities and the Incremental Term
Loan Facilities, as applicable, specified in subsection 2.15(b) or the
allocation of payments between the Facilities pursuant to subsection 2.9(b), in
each case without the consent of the Majority Facility Lenders in respect of
each Facility adversely affected thereby; (v) amend the definition of the term
"Majority Facility Lenders" or "Majority Revolving Credit Facility Lenders" or
modify in any other manner the number, percentages or class of Lenders required
to make any determinations or waive any rights hereunder
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or to modify any provision hereof without the consent of each Lender directly
affected thereby; (vi) amend, modify or waive any provision of Section 9 without
the written consent of the Administrative Agent; (vii) amend, modify or waive
any provision of Section 3 without the written consent of the Issuing Lenders;
or (viii) amend, modify or waive any provision of subsection 2.4(c) without the
written consent of the Swingline Lender. In furtherance of clause (iii) of this
subsection 10.1, no amendment to or waiver of any representation or warranty or
any covenant contained in this Agreement or any other Loan Document, or of any
Default or Event of Default, shall be deemed to be effective for purposes of
determining whether the conditions precedent set forth in subsection 5.2 to the
making of any extension of credit after the Effective Date have been satisfied
unless the Majority Facility Lenders for the Revolving Credit Facility or any
Incremental Revolving Loan Facility, as the case may be, shall have consented to
such amendment or waiver. Any waiver and any amendment, supplement or
modification in accordance with this subsection 10.1 shall apply equally to each
of the Lenders and shall be binding upon the Loan Parties, the Lenders, the
Administrative Agent and all future holders of the Loans. In the case of any
waiver, the Loan Parties, the Lenders and the Administrative Agent shall be
restored to their former position and rights hereunder and under the other Loan
Documents, and any Default or Event of Default waived shall be deemed to be
cured and not continuing; but no such waiver shall extend to any subsequent or
other Default or Event of Default, or impair any right consequent thereon.
10.2 Notices. All notices, requests and demands to or upon the
respective parties hereto to be effective shall be in writing (including by
telecopy and, in the case of the Administrative Agent, by email in a pdf
attachment), and, unless otherwise expressly provided herein, shall be deemed to
have been duly given or made when delivered, or, in the case of telecopy or
email notice, when received, addressed as follows in the case of the Borrower,
the Permitted Borrower and the Administrative Agent, and as set forth on the
signature pages hereto, in an administrative questionnaire provided to the
Administrative Agent or in any Assignment and Acceptance in the case of the
Lenders, or to such other address as may be hereafter notified by the respective
parties hereto:
The Borrower and the Permitted c/o LIN Television Corporation
Borrower: 1 Richmond Square, Suite 230E
Providence, Rhode Island 02906
Attention: Vincent Sadusky
Telecopy: 401-454-0089
The Administrative JPMorgan Chase Bank, N.A.
Agent: 1111 Fannin Street, 10th Floor
Houston, Texas 77002
Attention: Christie Vo,
Account Manager
Telecopy: 713-750-2358
with a copy to: JPMorgan Chase Bank, N.A.
270 Park Avenue, 4th Floor
New York, New York 10017
Attention: Tracey Ewing
Telecopy: 212-270-5127
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Deutsche Bank Trust Company For standby Letters of Credit:
Americas, as Issuing Lender Deutsche Bank Trust Company
Americas
60 Wall Street
New York, New York 10005
MS NYC 60-2708
Attention: Global Loan Operations,
Standby Letter of Credit
For trade Letters of Credit:
Deutsche Bank Trust Company
Americas
60 Wall Street
New York, New York 10005
MS NYC 60-2708
Attention: Trade and Risk
Services, Import LC
10.3 No Waiver; Cumulative Remedies. No failure to exercise and no
delay in exercising, on the part of any party hereto, any right, remedy, power
or privilege hereunder or under the other Loan Documents shall operate as a
waiver thereof, nor shall any single or partial exercise of any right, remedy,
power or privilege hereunder preclude any other or further exercise thereof or
the exercise of any other right, remedy, power or privilege. The rights,
remedies, powers and privileges herein provided are cumulative and not exclusive
of any rights, remedies, powers and privileges provided by law.
10.4 Survival of Representations and Warranties. All representations
and warranties made hereunder, in the other Loan Documents and in any document,
certificate or statement delivered pursuant hereto or in connection herewith
shall survive the execution and delivery of this Agreement and the making of the
Loans hereunder.
10.5 Payment of Expenses and Taxes. The Borrower agrees (a) to pay
or reimburse the Administrative Agent for all its reasonable out-of-pocket costs
and expenses incurred in connection with the development, preparation and
execution of, and any amendment, supplement or modification to, this Agreement
and the other Loan Documents and any other documents prepared in connection
herewith or therewith, and the consummation and administration of the
transactions contemplated hereby and thereby, including, without limitation, the
reasonable fees and disbursements of a single counsel to the Administrative
Agent, (b) to pay or reimburse each Lender and the Administrative Agent for all
its reasonable costs and expenses incurred in connection with the enforcement of
any rights under this Agreement, the other Loan Documents and any such other
documents, including, without limitation, the reasonable fees and disbursements
of counsel to the Administrative Agent and, at any time after and during the
continuance of an Event of Default, of one counsel of all the Lenders, (c) to
pay, indemnify, and hold harmless each Lender, the Administrative Agent and each
Joint Lead Arranger from and against any and all recording and filing fees and
any and all liabilities with respect to, or resulting from any delay in paying,
stamp, excise and other similar taxes, if any, which may be payable or
determined to be payable in connection with the execution and delivery of, or
consummation or administration of any of the transactions contemplated by, or
any amendment, supplement or modification of, or any waiver or consent under or
in respect of, this Agreement, the other Loan Documents and any such other
documents, and (d) to pay, indemnify and hold harmless each Lender and the
Administrative Agent and their respective officers, directors, trustees,
professional advisors, employees, affiliates, agents and controlling
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persons (each, an "indemnitee") from and against any and all other liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever with respect to the
execution, delivery, enforcement, performance and administration of this
Agreement, the other Loan Documents and any such other documents, including,
without limitation, any of the foregoing relating to the use of proceeds of the
Loans or the violation of, noncompliance with or liability under, any
Environmental Law applicable to the operations of the Borrower, any of its
Subsidiaries or any of the facilities or properties owned, leased or operated by
the Borrower or any of its Subsidiaries (all the foregoing in this clause (d),
collectively, the "indemnified liabilities"), provided that the Borrower shall
have no obligation hereunder to any indemnitee with respect to indemnified
liabilities to the extent such indemnified liabilities are found by a final and
nonappealable decision of a court of competent jurisdiction to have resulted
from the gross negligence or willful misconduct of such indemnitee or, in the
case of indemnified liabilities arising under this Agreement, any Notes and the
other documents, from material breach by the indemnitee of this Agreement, any
Notes or the other Loan Documents, as the case may be. The agreements in this
subsection 10.5 shall survive repayment of the Loans and all other amounts
payable hereunder.
10.6 Successors and Assigns; Participations and Assignments. (a) The
provisions of this Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and assigns permitted hereby
(including any affiliate of any Issuing Lender that issues any Letter of
Credit), except that (i) neither the Borrower nor the Permitted Borrower may
assign or otherwise transfer any of its rights or obligations hereunder without
the prior written consent of each Lender (and any attempted assignment or
transfer by the Borrower or the Permitted Borrower without such consent shall be
null and void) and (ii) no Lender may assign or otherwise transfer its rights or
obligations hereunder except in accordance with this subsection.
(b) (i) Subject to the conditions set forth in paragraph (b)(ii)
below, any Lender may assign to one or more assignees (each, an "Assignee") all
or a portion of its rights and obligations under this Agreement (including all
or a portion of its Commitments and the Loans at the time owing to it) with the
prior written consent (such consent not to be unreasonably withheld) of:
(A) the Borrower, provided that no consent of the Borrower shall be
required for an assignment to a Lender, an affiliate of a Lender, an
Approved Fund (as defined below) or, if an Event of Default under
subsection 8(a) or (f) has occurred and is continuing, any other Person;
(B) the Administrative Agent, provided that no consent of the
Administrative Agent shall be required for an assignment of (x) any
Revolving Credit Commitment or an Incremental Revolving Loan Amount to an
assignee that is a Lender with a Revolving Credit Commitment or an
Incremental Revolving Loan Amount immediately prior to giving effect to
such assignment or (y) all or any portion of a Term Loan to a Lender, an
Affiliate of a Lender or an Approved Fund; and
(C) the Issuing Lenders, provided that no consent of the Issuing
Lenders shall be required for an assignment of all or portion of a Term
Loan or an Incremental Revolving Loan Amount.
(ii) Assignments shall be subject to the following additional
conditions:
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(A) except in the case of an assignment to a Lender, an affiliate of
a Lender or an Approved Fund or an assignment of the entire remaining
amount of the assigning Lender's Commitments or Loans under any Facility,
the amount of the Commitments or Loans of the assigning Lender subject to
each such assignment (determined as of the date the Assignment and
Acceptance with respect to such assignment is delivered to the
Administrative Agent) shall not be less than $5,000,000 (or, in the case
of the Tranche A Term Loan Facility or any Incremental Term Loan Facility,
$1,000,000) unless each of the Borrower and the Administrative Agent
otherwise consent, provided that (1) no such consent of the Borrower shall
be required if an Event of Default under subsection 8(a) or (f) has
occurred and is continuing and (2) such amounts shall be aggregated in
respect of each Lender and its affiliates or Approved Funds, if any;
(B) assignments need not be ratable as among the Facilities,
provided that any assignment with respect to the Tranche A Term Loan
Facility shall be made ratably as between the Tranche A Term Loans of the
Borrower and the Tranche A Term Loans of the Permitted Borrower;
(C) the parties to each assignment shall execute and deliver to the
Administrative Agent an Assignment and Acceptance, together with a
processing and recordation fee of $3,500; and
(D) the Assignee, if it shall not be a Lender, shall deliver to the
Administrative Agent an administrative questionnaire.
For the purposes of this subsection 10.6, the terms "Approved Fund"
has the following meaning:
"Approved Fund" means any Person (other than a natural person) that
is engaged in making, purchasing, holding or investing in bank loans and
similar extensions of credit in the ordinary course of its business and
that is administered or managed by (a) a Lender, (b) an Affiliate of a
Lender or (c) an entity or an Affiliate of an entity that administers or
manages a Lender.
(iii) Subject to acceptance and recording thereof pursuant to
paragraph (b)(iv) below, and subject to paragraph (b)(vi) below, from and after
the effective date specified in each Assignment and Acceptance the Assignee
thereunder shall be a party hereto and, to the extent of the interest assigned
by such Assignment and Acceptance, have the rights and obligations of a Lender
under this Agreement, and the assigning Lender thereunder shall, to the extent
of the interest assigned by such Assignment and Acceptance, be released from its
obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all of the assigning Lender's rights and obligations under
this Agreement, such Lender shall cease to be a party hereto but shall continue
to be entitled to the benefits of subsections 2.16, 2.17, 2.18 and 10.5). Any
assignment or transfer by a Lender of rights or obligations under this Agreement
that does not comply with this subsection 10.6 shall be treated for purposes of
this Agreement as a sale by such Lender of a participation in such rights and
obligations in accordance with paragraph (c) of this subsection.
(iv) The Administrative Agent, acting for this purpose as an agent
of the Borrower, shall maintain at one of its offices a copy of each Assignment
and Acceptance delivered to it and a register for the recordation of the names
and addresses of the Lenders, and the Commitments of, and
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principal amount of the Loans and L/C Obligations owing to, each Lender pursuant
to the terms hereof from time to time (the "Register"). The entries in the
Register shall be conclusive, and the Borrower, the Administrative Agent, the
Issuing Lender and the other Lenders may treat each Person whose name is
recorded in the Register pursuant to the terms hereof as a Lender hereunder for
all purposes of this Agreement, notwithstanding notice to the contrary. The
Register shall be available for inspection by the Borrower, the Issuing Lender
and any other Lender, at any reasonable time and from time to time upon
reasonable prior notice.
(v) Upon its receipt of a duly completed Assignment and Acceptance
executed by an assigning Lender and an Assignee, the Assignee's completed
administrative questionnaire (unless the Assignee shall already be a Lender
hereunder), the processing and recordation fee referred to in paragraph (b) of
this subsection and any written consent to such assignment required by paragraph
(b) of this subsection, the Administrative Agent shall accept such Assignment
and Acceptance and record the information contained therein in the Register. No
assignment shall be effective for purposes of this Agreement unless it has been
recorded in the Register as provided in this paragraph.
(vi) Any Assignee that is a Non-U.S. Lender shall not be entitled to
the benefits of subsection 2.17 unless such Assignee complies with subsection
2.17(b). In no event shall an Assignee be entitled to receive any greater
payment under subsection 2.16, 2.17 or 2.18 than the applicable Lender would
have been entitled to receive as of the date of the assignment with respect to
the Loan, Commitment or L/C Obligation (or portion of any thereof) sold to such
Assignee (other than as a result of an adoption of or change in any Requirement
of Law occurring after the date of the assignment).
(c) (a)Any Lender may, without the consent of the Borrower or the
Administrative Agent, sell participations to one or more banks or other entities
(a "Participant") in all or a portion of such Lender's rights and obligations
under this Agreement (including all or a portion of its Commitments and the
Loans owing to it); provided that (A) such Lender's obligations under this
Agreement shall remain unchanged, (B) such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations
and (C) the Borrower, the Permitted Borrower, the Administrative Agent, the
Issuing Lenders and the other Lenders shall continue to deal solely and directly
with such Lender in connection with such Lender's rights and obligations under
this Agreement. Any agreement pursuant to which a Lender sells such a
participation shall provide that such Lender shall retain the sole right to
enforce this Agreement and to approve any amendment, modification or waiver of
any provision of this Agreement; provided that such agreement may provide that
such Lender will not, without the consent of the Participant, agree to any
amendment, modification or waiver that (1) requires the consent of each Lender
directly affected thereby pursuant to the proviso to the second sentence of
subsection 10.1 and (2) directly affects such Participant. Subject to paragraph
(c)(ii) of this subsection, the Borrower agrees that each Participant shall be
entitled to the benefits of subsections 2.16, 2.17 and 2.18 to the same extent
as if it were a Lender and had acquired its interest by assignment pursuant to
paragraph (b) of this subsection. To the extent permitted by law, each
Participant also shall be entitled to the benefits of subsection 10.7(b) as
though it were a Lender, provided such Participant shall be subject to
subsection 10.7(a) as though it were a Lender.
(ii) Any Participant that is a Non-U.S. Lender shall not be entitled
to the benefits of subsection 2.17 unless such Participant complies with
subsection 2.17(b). In no event shall a Participant be entitled to receive any
greater payment under subsection 2.16, 2.17 or 2.18 than the
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applicable Lender would have been entitled to receive with respect to the
participation sold to such Participant.
(d) Any Lender may at any time pledge or assign a security interest
in all or any portion of its rights under this Agreement to secure obligations
of such Lender, including any pledge or assignment to secure obligations to a
Federal Reserve Bank, and this subsection shall not apply to any such pledge or
assignment of a security interest; provided that no such pledge or assignment of
a security interest shall release a Lender from any of its obligations hereunder
or substitute any such pledgee or Assignee for such Lender as a party hereto.
Any Approved Fund may, without the consent of the Borrower or Administrative
Agent, pledge all or any portion of its rights under this Agreement, including
the Loans or any other instrument evidencing its rights as a Lender under this
Agreement, to any holder of, trustee for, or any other representative of holders
of, obligations owed or securities issued, by such fund, as security for such
obligations or securities; provided that any foreclosure or similar action by
such trustee or representative shall be subject to the provisions of this
subsection 10.6(b) concerning assignments.
(e) Each of the Borrower and the Permitted Borrower, upon receipt of
written notice from the relevant Lender and in order to facilitate transactions
of the type described in paragraph (d) above, agree to execute and deliver to
such Lender (i) a promissory note evidencing the Revolving Credit Loans of such
Lender, substantially in the form of Exhibit I-1 (each as amended, supplemented,
replaced or otherwise modified from time to time, a "Revolving Credit Note"),
and/or (ii) a promissory note evidencing the applicable Term Loan of such
Lender, substantially in the form of Exhibit I-2 (each as amended, supplemented,
replaced or otherwise modified from time to time, a "Term Note"), and/or (iii) a
promissory note evidencing the Swingline Loans of the Swingline Lender,
substantially in the form of Exhibit I-3 (as amended, supplemented, replaced or
otherwise modified from time to time, the "Swingline Note").
(f) The Borrower and the Permitted Borrower authorizes each Lender
to disclose to any Participant or Assignee (each, a "Transferee") and any
prospective Transferee any and all financial information concerning the Loan
Parties and their respective affiliates which has been delivered to such Lender
by or on behalf of any Loan Party pursuant to this Agreement or any other Loan
Document or which has been delivered to such Lender by or on behalf of any Loan
Party in connection with such Lender's credit evaluation of the Loan Parties and
their respective affiliates, under the condition that such Transferee or
prospective Transferee shall previously have agreed to be bound by the
provisions of subsection 10.15.
10.7 Adjustments; Set-off. (a) Except to the extent that this
Agreement provides for payments to be allocated to the Lenders under a
particular Facility, if any Lender (a "Benefited Lender") shall at any time
receive any payment of all or part of its Loans or the Reimbursement Obligations
owing to it, or interest thereon, or receive any collateral in respect thereof
(whether voluntarily or involuntarily, by set-off, pursuant to events or
proceedings of the nature referred to in subsection 8(f), or otherwise), in a
greater proportion than any such payment to or collateral received by any other
Lender, if any, in respect of such other Lender's Loans or the Reimbursement
Obligations owing to such other Lender, or interest thereon, such Benefited
Lender shall purchase for cash from the other Lenders a participating interest
in such portion of each such other Lender's Loans and/or of the Reimbursement
Obligations owing to each such other Lender, or shall provide such other Lenders
with the benefits of any such collateral, or the proceeds thereof, as shall be
necessary to cause such Benefited Lender to share the excess payment or benefits
of such collateral or proceeds ratably with each of the Lenders; provided,
however, that if all or any portion of such
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excess payment or benefits is thereafter recovered from such Benefited Lender,
such purchase shall be rescinded, and the purchase price and benefits returned,
to the extent of such recovery, but without interest.
(b) In addition to any rights and remedies of the Lenders provided
by law, each Lender shall have the right, upon any amount becoming due and
payable by the Borrower or the Permitted Borrower hereunder (whether at the
stated maturity, by acceleration or otherwise) to set off and appropriate and
apply against such amount any and all deposits (general or special, time or
demand, provisional or final), in any currency, and any other credits,
indebtedness or claims, in any currency, in each case whether direct or
indirect, absolute or contingent, matured or unmatured at any time held or owing
by such Lender or any branch or agency thereof to or for the credit or the
account of the Borrower or the Permitted Borrower, as applicable. Each Lender
agrees promptly to notify the Borrower and the Administrative Agent after any
such setoff and application made by such Lender, provided that the failure to
give such notice shall not affect the validity of such setoff and application.
10.8 Counterparts. This Agreement may be executed by one or more of
the parties to this Agreement on any number of separate counterparts (including
by telecopy), and all of said counterparts taken together shall be deemed to
constitute one and the same instrument. A set of the copies of this Agreement
signed by all the parties shall be lodged with the Borrower, the Permitted
Borrower and the Administrative Agent.
10.9 Severability. Any provision of this Agreement which 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 hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
10.10 Integration. This Agreement, the other Loan Documents, any
Incremental Revolving Loan Activation Notice and any Incremental Term Loan
Activation Notice represent the entire agreement of the Borrower, the Permitted
Borrower, the Administrative Agent and the Lenders with respect to the subject
matter hereof and thereof, and there are no promises, undertakings,
representations or warranties by the Administrative Agent or any Lender relative
to the subject matter hereof or thereof not expressly set forth or referred to
herein or in the other Loan Documents.
10.11 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS
OF THE PARTIES UNDER THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
10.11 Submission To Jurisdiction; Waivers. Each party hereto hereby
irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or
proceeding relating to this Agreement and the other Loan Documents to
which it is a party, or for recognition and enforcement of any judgment in
respect thereof, to the non-exclusive general jurisdiction of the Courts
of the State of New York, the courts of the United States of America for
the Southern District of New York, and appellate courts from any thereof,
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(b) consents that any such action or proceeding may be brought in
such courts and waives any objection that it may now or hereafter have to
the venue of any such action or proceeding in any such court or that such
action or proceeding was brought in an inconvenient court and agrees not
to plead or claim the same;
(c) agrees that service of process in any such action or proceeding
may be effected by mailing a copy thereof by registered or certified mail
(or any substantially similar form of mail), postage prepaid, to such
party, as applicable, at its address set forth in subsection 10.2 or at
such other address of which the Administrative Agent shall have been
notified pursuant thereto;
(d) agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by law or shall limit the
right to sue in any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law, any right
it may have to claim or recover in any legal action or proceeding referred
to in this subsection 10.12 any special, exemplary, punitive or
consequential damages.
10.12 Acknowledgments. Each party hereto hereby acknowledges that:
(a) it has been advised by counsel in the negotiation, execution and
delivery of this Agreement and the other Loan Documents;
(b) neither the Administrative Agent nor any Lender has any
fiduciary relationship with or duty to either the Borrower or the
Permitted Borrower arising out of or in connection with this Agreement or
any of the other Loan Documents, and the relationship between the
Administrative Agent and Lenders, on one hand, and the Borrower and the
Permitted Borrower, on the other hand, in connection herewith or therewith
is solely that of debtor and creditor; and
(c) no joint venture is created hereby or by the other Loan
Documents or otherwise exists by virtue of the transactions contemplated
hereby among the Lenders or among the Borrower and the Lenders.
10.14 WAIVERS OF JURY TRIAL. THE BORROWER, THE PERMITTED BORROWER.
THE ADMINISTRATIVE AGENT AND THE LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY
WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT
OR ANY OTHER LOAN DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
10.15 Confidentiality. The Administrative Agent and each Lender
agrees to keep information obtained by it pursuant hereto and the other Loan
Documents confidential in accordance with such Lender's customary practices and
agrees that it will only use such information in connection with the
transactions contemplated by this Agreement and not disclose any of such
information other than (a) to such Lender's employees, representatives,
directors, attorneys, auditors, agents, professional advisors, trustees or
affiliates who are advised of the confidential nature of such information or to
any direct or indirect contractual counterparty in swap agreements or such
contractual counterparty's professional advisor (so long as such contractual
counterparty or professional advisor to such contractual counterparty agrees to
be bound by the provision of this
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subsection 10.15), (b) to the extent such information presently is or hereafter
becomes available to such Lender on a non-confidential basis from any source or
such information is in the public domain at the time of disclosure, (c) to the
extent disclosure is required by law (including applicable securities laws),
regulation, subpoena or judicial order or process (provided that notice of such
requirement or order shall be promptly furnished to the Borrower unless such
notice is legally prohibited) or requested or required by bank, securities,
insurance or investment company regulations or auditors or any administrative
body or commission (including the National Association of Securities Dealers and
the Securities Valuation Office of the National Association of Insurance
Commissioners) to whose jurisdiction such Lender may be subject, (d) to any
rating agency to the extent required in connection with any rating to be
assigned to such Lender, (e) to Transferees or prospective Transferees who agree
to be bound by the provisions of this subsection 10.15, (f) to the extent
required in connection with any litigation between any Loan Party and any Lender
with respect to the Loans or this Agreement and the other Loan Documents or (g)
with the Borrower's prior written consent. The agreements in this subsection
10.15 shall survive repayment of the Loans and all other amounts payable
hereunder.
10.16 FCC Compliance. Notwithstanding anything to the contrary
contained herein or in any other agreement, instrument or document executed in
connection herewith, no party hereto shall take any actions hereunder that would
constitute or result in a transfer or assignment of any Station License, permit
or authorization or a change of control over such Station License, permit or
authorization requiring the prior approval of the FCC without first obtaining
such prior approval of the FCC.
10.17 Filing of Mortgages. Notwithstanding anything to the contrary
contained in this Agreement, it is understood and agreed that (a) the Mortgages
will not be filed on, or within 60 Business Days after, the Effective Date and
(b) at any time after the delivery thereof in accordance with subsection 6.9(b),
at the request of the Administrative Agent or the Required Lenders, the
Mortgages shall be filed in the offices specified therein.
SECTION 11. CROSS-GUARANTEE
11.1 Guarantee. (a) The Borrower hereby unconditionally and
irrevocably guarantees to the Administrative Agent, for the ratable benefit of
the Tranche A Term Loan Lenders and their respective successors, indorsees,
transferees and assigns, the prompt and complete payment by the Permitted
Borrower when due (whether at the stated maturity, by acceleration or otherwise)
of the Permitted Borrower's Obligations.
(b) Anything herein or in any other Loan Document to the contrary
notwithstanding, the maximum liability of the Borrower under this subsection
11.1 shall (i) in no event exceed the amount which can be guaranteed by the
Borrower under applicable federal and state laws relating to the insolvency of
debtors and (ii) be limited to an aggregate amount equal to the largest amount
that would not render its obligations hereunder subject to avoidance under
Section 548 of the United States Bankruptcy Code or any applicable provisions of
any applicable state law.
(c) The Borrower agrees that the Permitted Borrower's Obligations
may at any time and from time to time exceed the amount of the liability of the
Borrower hereunder without impairing the guarantee contained in this subsection
11.1 or affecting the rights and remedies of the Administrative Agent or any
Lender hereunder.
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(d) The guarantee contained in this subsection 11.1 shall remain in
full force and effect until all the Permitted Borrower's Obligations shall have
been satisfied by payment in full.
(e) No payment made by the Permitted Borrower, any of the
Guarantors, any other guarantor or any other Person or received or collected by
the Administrative Agent or any Lender from the Permitted Borrower, any of the
Guarantors, any other guarantor or any other Person by virtue of any action or
proceeding or any set-off or appropriation or application at any time or from
time to time in reduction of or in payment of the Permitted Borrower's
Obligations shall be deemed to modify, reduce, release or otherwise affect the
liability of the Borrower hereunder which shall, notwithstanding any such
payment, remain liable for the Permitted Borrower's Obligations up to the
maximum liability of the Borrower hereunder until the Permitted Borrower's
Obligations are paid in full.
11.2 No Subrogation. Notwithstanding any payment made by the
Borrower under subsection 11.1 or any set-off or application of funds of the
Borrower by the Administrative Agent or any Lender, the Borrower shall not be
entitled to be subrogated to any of the rights of the Administrative Agent or
any Lender against the Permitted Borrower or any collateral security or
guarantee or right of offset held by the Administrative Agent or any Lender for
the payment of the Permitted Borrower's Obligations, nor shall the Borrower seek
or be entitled to seek any contribution or reimbursement from the Permitted
Borrower in respect of payments made by the Borrower under subsection 11.1,
until all amounts owing to the Administrative Agent and the Lenders by the
Permitted Borrower on account of the Permitted Borrower's Obligations are paid
in full. If any amount shall be paid to the Borrower on account of such
subrogation rights at any time when all of the Permitted Borrower's Obligations
shall not have been paid in full, such amount shall be held by the Borrower in
trust for the Administrative Agent and the Lenders, segregated from other funds
of the Borrower, and shall, forthwith upon receipt by the Borrower, be turned
over to the Administrative Agent in the exact form received by the Borrower
(duly indorsed by the Borrower to the Administrative Agent, if required), to be
applied against the Permitted Borrower's Obligations, whether matured or
unmatured, in such order as the Administrative Agent may determine.
11.3 Amendments, etc. with respect to the Borrower Obligations. The
Borrower shall remain obligated under Section 11 notwithstanding that, without
any reservation of rights against the Borrower and without notice to or further
assent by the Borrower, any demand for payment of any of the Permitted
Borrower's Obligations made by the Administrative Agent or any Lender may be
rescinded by the Administrative Agent or such Lender and any of the Permitted
Borrower's Obligations continued, and the Permitted Borrower's Obligations, or
the liability of any other Person upon or for any part thereof, or any
collateral security or guarantee therefor or right of offset with respect
thereto, may, from time to time, in whole or in part, be renewed, extended,
amended, modified, accelerated, compromised, waived, surrendered or released by
the Administrative Agent or any Lender, and any provision of this Agreement and
the other Loan Documents and any other documents executed and delivered in
connection therewith may be amended, modified, supplemented or terminated, in
whole or in part, as the Administrative Agent (or the Required Lenders or all
Lenders, as the case may be) may deem advisable from time to time, and any
collateral security, guarantee or right of offset at any time held by the
Administrative Agent or any Lender for the payment of the Permitted Borrower's
Obligations may be sold, exchanged, waived, surrendered or released. Neither the
Administrative Agent nor any Lender shall have any obligation to protect,
secure, perfect or insure any Lien at any time held by it as security for the
Permitted Borrower's Obligations or for the guarantee contained in this Section
11 or any property subject thereto.
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11.4 Guarantee Absolute and Unconditional. The Borrower waives any
and all notice of the creation, renewal, extension or accrual of any of the
Permitted Borrower's Obligations and notice of or proof of reliance by the
Administrative Agent or any Lender upon the guarantee contained in this Section
11 or acceptance of the guarantee contained in this Section 11; the Permitted
Borrower's Obligations, and any of them, shall conclusively be deemed to have
been created, contracted or incurred, or renewed, extended, amended or waived,
in reliance upon the guarantee contained in this Section 11; and all dealings
between the Permitted Borrower and the Borrower, on the one hand, and the
Administrative Agent and the Lenders, on the other hand, likewise shall be
conclusively presumed to have been had or consummated in reliance upon the
guarantee contained in this Section 11. The Borrower waives diligence,
presentment, protest, demand for payment and notice of default or nonpayment to
or upon the Permitted Borrower with respect to the Permitted Borrower's
Obligations. The Borrower understands and agrees that the guarantee contained in
this Section 11 shall be construed as a continuing, absolute and unconditional
guarantee of payment without regard to (a) the validity or enforceability of
this Agreement or any other Loan Document, any of the Permitted Borrower's
Obligations or any other collateral security therefor or guarantee or right of
offset with respect thereto at any time or from time to time held by the
Administrative Agent or any Lender, (b) any defense, set-off or counterclaim
(other than a defense of payment or performance) which may at any time be
available to or be asserted by the Permitted Borrower or any other Person
against the Administrative Agent or any Lender, or (c) any other circumstance
whatsoever (with or without notice to or knowledge of the Permitted Borrower or
such Guarantor) which constitutes, or might be construed to constitute, an
equitable or legal discharge of the Permitted Borrower for the Permitted
Borrower's Obligations, or of the Borrower under the guarantee contained in this
Section 11, in bankruptcy or in any other instance. When making any demand
hereunder or otherwise pursuing its rights and remedies hereunder against the
Borrower, the Administrative Agent or any Lender may, but shall be under no
obligation to, make a similar demand on or otherwise pursue such rights and
remedies as it may have against the Permitted Borrower, any other Guarantor or
any other Person or against any collateral security or guarantee for the
Permitted Borrower's Obligations or any right of offset with respect thereto,
and any failure by the Administrative Agent or any Lender to make any such
demand, to pursue such other rights or remedies or to collect any payments from
the Permitted Borrower, any other Guarantor or any other Person or to realize
upon any such collateral security or guarantee or to exercise any such right of
offset, or any release of the Permitted Borrower, any other Guarantor or any
other Person or any such collateral security, guarantee or right of offset,
shall not relieve the Borrower of any obligation or liability under this Section
11, and shall not impair or affect the rights and remedies, whether express,
implied or available as a matter of law, of the Administrative Agent or any
Lender against the Borrower. For the purposes hereof "demand" shall include the
commencement and continuance of any legal proceedings.
11.5 Reinstatement. The guarantee contained in this Section 11 shall
continue to be effective, or be reinstated, as the case may be, if at any time
payment, or any part thereof, of any of the Permitted Borrower's Obligations is
rescinded or must otherwise be restored or returned by the Administrative Agent
or any Lender upon the insolvency, bankruptcy, dissolution, liquidation or
reorganization of the Permitted Borrower or any Guarantor, or upon or as a
result of the appointment of a receiver, intervenor or conservator of, or
trustee or similar officer for, the Permitted Borrower or any Guarantor or any
substantial part of its property, or otherwise, all as though such payments had
not been made.
11.6 Payments. The Borrower hereby guarantees that payments under
this Section 11 will be paid to the Administrative Agent in Dollars without
set-off or counterclaim.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered by their proper and duly authorized officers as
of the day and year first above written.
LIN TELEVISION CORPORATION
By: ___________________________
Name:
Title:
TELEVICENTRO OF PUERTO RICO, LLC
BY: LIN TELEVISION OF SAN JUAN, INC., its
managing member
By:___________________________
Name:
Title:
[Signature Page to LIN TV Credit Agreement]
JPMORGAN CHASE BANK, N.A., individually and as
Administrative Agent, Swingline Lender and Issuing
Lender
By:___________________________
Name:
Title:
[Signature Page to LIN TV Credit Agreement]
DEUTSCHE BANK TRUST COMPANY AMERICAS,
individually and as Syndication Agent
and an Issuing Lender
By:___________________________
Name:
Title:
[Signature Page to LIN TV Credit Agreement]
BANK OF AMERICA, N.A., individually and as Documentation
Agent
By:___________________________
Name:
Title:
[Signature Page to LIN TV Credit Agreement]
THE BANK OF NOVA SCOTIA, individually and as
Documentation Agent
By:___________________________
Name:
Title:
[Signature Page to LIN TV Credit Agreement]
WACHOVIA BANK, NATIONAL ASSOCIATION,
individually and as Documentation Agent
By:___________________________
Name:
Title:
[Signature Page to LIN TV Credit Agreement]
SUNTRUST BANK, individually and as Co-Documentation
Agent
By:___________________________
Name:
Title:
[Signature Page to LIN TV Credit Agreement]
SUMITOMO MITSUI BANKING CORPORATION,
as Lender
By:___________________________
Name:
Title:
[Signature Page to LIN TV Credit Agreement]
UFJ BANK, as Lender
By: ___________________________
Name:
Title:
[Signature Page to LIN TV Credit Agreement]
MIZUHO CORPORATE BANK, LTD., as Lender
By: ___________________________
Name:
Title:
[Signature Page to LIN TV Credit Agreement]
U.S. BANCORP, as Lender
By: ___________________________
Name:
Title:
[Signature Page to LIN TV Credit Agreement]
BANK OF TOKYO-MITSUBISHI TRUST
COMPANY, as Lender
By: ___________________________
Name:
Title:
[Signature Page to LIN TV Credit Agreement]
UNION BANK OF CALIFORNIA, N.A., as Lender
By: ___________________________
Name:
Title:
[Signature Page to LIN TV Credit Agreement]
THE BANK OF NEW YORK, as Lender
By: ___________________________
Name:
Title:
[Signature Page to LIN TV Credit Agreement]
MORGAN STANLEY, as Lender
By: ___________________________
Name:
Title:
3
EXHIBIT B
FORM OF COMPLIANCE CERTIFICATE
To: The Lenders Parties to the
Credit Agreement Described Below
This Compliance Certificate is furnished pursuant to Section 6.2(a)
of the Credit Agreement, dated as of March ___, 2005, among LIN Television
Corporation (the "Borrower"), Televicentro of Puerto Rico, LLC, the several
banks and other financial institutions from time to time parties thereto,
JPMorgan Chase Bank, N.A., as administrative agent, issuing lender and swingline
lender, and the other parties named therein (as amended, supplemented or
otherwise modified from time to time, the "Credit Agreement"). Unless otherwise
defined herein, capitalized terms used in this Compliance Certificate have the
meanings ascribed to them in the Credit Agreement.
THE UNDERSIGNED HEREBY CERTIFIES AS OF THE DATE HEREOF THAT:
1. I am the duly elected ____ of the Borrower;
2. I have reviewed the terms of the Credit Agreement and I have
made, or have caused to be made under my supervision, a detailed review of the
financial condition of the Borrower and its Subsidiaries;
3. Except as set forth below, to the best of my knowledge, no
Default has occurred and is continuing; and
4. Schedule I attached hereto sets forth reasonably detailed
calculations demonstrating compliance with subsection 7.1 of the Credit
Agreement as of [insert date of most recently ended quarter].
Described below are any Defaults that have occurred and are
continuing and any action which the Borrower or the relevant Subsidiary has
taken, is taking, or proposes to take with respect to each Default:
The foregoing certifications, together with the calculations set
forth in Schedule I hereto and the financial statements delivered with this
Certificate, are made and delivered in my capacity described in paragraph 1
above for and on behalf of the Borrower this ___ day of ________, 200_.
LIN TELEVISION CORPORATION
By ____________________________
Name:
Title:
SCHEDULE I TO COMPLIANCE CERTIFICATE
EXHIBIT C
FORM OF CLOSING CERTIFICATE
[NAME OF LOAN PARTY]
This Certificate is given by [ ] (the "Company") pursuant to Section
5.1(e) of the Credit Agreement, dated as of March __, 2005 (the "Credit
Agreement"; terms defined therein being used herein as therein defined), among
LIN Television Corporation, as Borrower, Televicentro of Puerto Rico, LLC, the
several banks and other financial institutions from time to time parties
thereto, JPMorgan Chase Bank, N.A., as administrative agent, issuing lender and
swingline lender and the other parties named therein (as amended, supplemented
or otherwise modified from time to time, the "Credit Agreement"). Unless
otherwise defined herein, capitalized terms used in this Closing Certificate
have the meanings ascribed to them in the Credit Agreement.
The undersigned, [insert name], [insert title], of the Company does hereby
certify on behalf of the Company as of the date hereof that:
5. [ ] is and at all times since [_______ __, 200_] has been, the
duly elected and qualified [Assistant] Secretary of the Company and the
signature set forth for such officer below is such officer's true and genuine
signature;
and the undersigned [Assistant] Secretary of the Company does hereby certify on
behalf of the Company as of the date hereof that:
6. There are no liquidation or dissolution proceedings pending or to
my knowledge threatened against the Company, nor has any other event occurred
adversely affecting or threatening the continued corporate existence of the
Company after the date hereof;
7. Attached hereto as Annex I is a correct and complete copy of
resolutions duly adopted by the Board of Directors of the Company on [_________
__, 200_ ]authorizing (i) the execution, delivery and performance of the Loan
Documents to which it is a party and (ii) the transactions contemplated by the
Loan Documents to which it is a party; such resolutions have not in any way been
amended, modified, revoked or rescinded and have been in full force and effect
since their adoption to and including the date hereof and are now in full force
and effect; such resolutions are the only [corporate] proceedings of the Company
now in force relating to or
3
affecting the matters referred to therein; attached hereto as Annex 2 is a
correct and complete copy of the [By-Laws] of the Company as in effect at all
times since __________ __, 200_ to and including the date hereof, and such
[By-Laws] have not been amended, repealed, modified or restated; attached hereto
as Annex 3 is a correct and complete copy of the [Certificate of Incorporation]
of the Company as in effect at all times since [_________ __, 200_] to and
including as of the date hereof, and such Certificate of Incorporation has not
been amended, repealed, modified or restated;
8. Each person who, as an officer of the Company signed the Credit
Agreement, the Guarantee and Collateral Agreement or any other document
delivered prior hereto or on the date hereof pursuant to, or in connection with,
the Credit Agreement or the transactions contemplated thereby, was at the
respective times of such signing and delivery, and is now, duly elected or
appointed, qualified and acting as such officer, and the signatures of such
persons appearing on such documents are their genuine signatures.
IN WITNESS WHEREOF, the undersigned have hereunto set our names as of the
date set forth below.
By: _______________________________ By:______________________________
Name: Name:
Title: Title: [Assistant] Secretary
Date: March __, 2005
4
Annex I
Resolutions
5
Annex 2
[By-Laws]
6
Annex 3
Certificate of [Incorporation]
Exhibit E
FORM OF ASSIGNMENT AND ACCEPTANCE
Reference is made to the Credit Agreement, dated as of March ___, 2005 (as
amended, supplemented or otherwise modified from time to time, the "Credit
Agreement"), among LIN Television Corporation (the "Borrower"), Televicentro of
Puerto Rico, LLC (the "Permitted Borrower"), the several lenders from time to
time parties thereto, and JPMorgan Chase Bank, N.A., as Administrative Agent, as
Issuing Lender and as Swingline Lender. Unless otherwise defined herein, terms
defined in the Credit Agreement and used herein shall have the meanings given to
them in the Credit Agreement.
The Assignor named on Schedule 1 (the "Assignor") and the Assignee named
on Schedule 1 (the "Assignee") agree as follows:
9. The Assignor hereby irrevocably sells and assigns to the Assignee
without recourse to the Assignor, and the Assignee hereby irrevocably purchases
and assumes from the Assignor without recourse to the Assignor, as of the
Effective Date (as defined below), an interest as specified in Schedule 1 (the
"Assigned Interest") in and to the Assignor's rights and obligations under the
Credit Agreement with respect to those Facilities described on Schedule 1
(individually, an "Assigned Facility"; collectively, the "Assigned Facilities"),
in a principal amount for each Assigned Facility as set forth on Schedule 1.
10. The Assignor (a) represents and warrants that (i) it is legally
authorized to enter into this Assignment and Acceptance, (ii) it is the legal
and beneficial owner of the interest being assigned by it hereunder and (iii)
such interest is free and clear of all liens and encumbrances; (b) makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with the
Credit Agreement or any other Loan Document or any other instrument or document
furnished pursuant thereto or with respect to the execution, legality, validity,
enforceability, genuineness, sufficiency or value of the Credit Agreement, any
other Loan Document or any other instrument or document furnished pursuant
thereto, other than that it is the legal and beneficial owner of the
8
Assigned Interest, that it has not created any adverse claim upon the Assigned
Interest and that the Assigned Interest is free and clear of any such adverse
claim; and (c) makes no representation or warranty and assumes no responsibility
with respect to the financial condition of the Borrower, the Permitted Borrower
or any of their Subsidiaries or the performance or observance by the Borrower,
the Permitted Borrower or any other Loan Party of any of their respective
obligations under the Credit Agreement or any other Loan Document or any other
instrument or document furnished pursuant thereto.
11. The Assignee (a) represents and warrants that it is legally
authorized to enter into this Assignment and Acceptance; (b) confirms that it
has received a copy of the Credit Agreement, together with copies of the most
recent financial statements referred to in subsections 4.1 and 6.1 thereof and
such other documents and information as it has deemed appropriate to make its
own credit analysis and decision to enter into this Assignment and Acceptance;
(c) agrees that it will, independently and without reliance upon the Assignor,
the Administrative Agent or any other Lender or agent and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under the Credit
Agreement, the other Loan Documents or any other instrument or document
furnished pursuant hereto or thereto; (d) appoints and authorizes the
Administrative Agent to take such action as agent on its behalf and to exercise
such powers and discretion under the Credit Agreement, the other Loan Documents
and any other instrument or document furnished pursuant hereto or thereto as are
delegated to the Administrative Agent by the terms thereof, together with such
powers as are incidental thereto; and (e) agrees that it will be bound by the
provisions of the Credit Agreement and the other Loan Documents and will perform
in accordance with its terms all the obligations which by the terms of the
Credit
9
Agreement and the other Loan Documents are required to be performed by it as a
Lender including, if it is organized under the laws of a jurisdiction outside
the United States, its obligation pursuant to subsection 2.17(b) of the Credit
Agreement.
12. The effective date of this Assignment and Acceptance shall be as
specified on Schedule 1 (the "Effective Date"). Following the execution of this
Assignment and Acceptance, it will be delivered to the Administrative Agent for
acceptance by it and recording by the Administrative Agent pursuant to
subsection 10.6(b) of the Credit Agreement, effective as of the Effective Date
(which shall not, unless otherwise agreed to by the Administrative Agent, be
earlier than five Business Days after the execution hereof).
13. Upon such acceptance and recording, from and after the Effective
Date, the Administrative Agent shall make all payments in respect of the
Assigned Interest (including payments of principal, interests, fees and other
amounts) to the Assignee. The Assignor and the Assignee shall make all
appropriate adjustments in payments by the Administrative Agent for periods
prior to the Effective Date or with respect to the making of this assignment
direct.
14. From and after the Effective Date, (a) the Assignee shall be a
party to the Credit Agreement and, to the extent provided in this Assignment and
Acceptance, have the rights and obligations of a Lender thereunder and under the
other Loan Documents and shall be bound by the provisions thereof and (b) the
Assignor shall, to the extent provided in this Assignment and Acceptance,
relinquish its rights and be released from its obligations under the Credit
Agreement and the other Loan Documents (other than any such rights which
expressly survive the termination thereof).
15. This Assignment and Acceptance shall be governed by and
construed in accordance with the laws of the State of New York.
10
IN WITNESS WHEREOF, the parties hereto have caused this Assignment and
Acceptance to be executed as of the date first above written by their respective
duly authorized officers on Schedule 1 hereto.
SCHEDULE 1
TO ASSIGNMENT AND ACCEPTANCE
RELATING TO THE CREDIT AGREEMENT,
DATED AS OF MARCH ___, 2005,
AMONG
LIN TELEVISION CORPORATION,
TELEVICENTRO OF PUERTO RICO, LLC,
THE LENDERS FROM TIME TO TIME PARTIES THERETO,
AND JPMORGAN CHASE BANK, N.A., AS ADMINISTRATIVE AGENT,
AS ISSUING LENDER AND AS SWINGLINE LENDER.
Name of Assignor:
Name of Assignee:
Effective Date of Assignment:
Principal Commitment Percentage Assigned
Facility Assigned Amount Assigned (if applicable)
- ----------------- --------------- ------------------------------
$_________ __________%
$_________ __________%
The terms set forth above and in the Assignment and Acceptance to which this
Schedule I is attached are hereby agreed to:
[Consented to and]* Accepted for the
Recordation in the Register:
_____________, as Assignor JPMORGAN CHASE BANK, N.A.,
as Administrative Agent
By: By:
Name: Name:
Title: Title:
[Consented to]*
______________, as Assignee [LIN TELEVISION CORPORATION]
By: By:
Name: Name:
Title: Title:
- ----------
* To be completed only if consents are required under Subsection 10.6(b).
Exhibit F
FORM OF LEGAL OPINION
OF COVINGTON & BURLING
March 11, 2005
The Lenders party to the Credit Agreement
referred to below and JPMorgan Chase Bank, N.A.,
as Administrative Agent
c/o JPMorgan Chase Bank, N.A.
270 Park Avenue, 4th Floor
New York, NY 10017
Ladies and Gentlemen:
We have acted as special New York counsel to LIN Television Corporation, a
Delaware corporation (the "Borrower"), and Televicentro of Puerto Rico, LLC, a
Delaware limited liability company (the "Permitted Borrower"), in connection
with (i) the Credit Agreement, dated as of March 11, 2005 (the "Credit
Agreement"), among the Borrower and the Permitted Borrower, the several banks
and other financial institutions or entities from time to time parties thereto,
JPMorgan Chase Bank, N.A., as administrative agent (the "Administrative Agent"),
as an issuing lender and as swingline lender, Deutsche Bank Trust Company
Americas, as syndication agent and as an issuing lender, Bank of America, The
Bank of Nova Scotia and Wachovia Bank, National Association, as documentation
agents, Suntrust Bank, as co-documentation agent, and J.P. Morgan Securities
Inc. and Deutsche Bank Securities Inc., as joint lead arrangers and joint
bookrunners, (ii) the Guarantee and Collateral Agreement, dated as of March 11,
2005 (the "Guarantee and Collateral Agreement"), made by the Borrower, the
Permitted Borrower and certain other subsidiaries of the Borrower in favor of
the Administrative Agent, (iii) the Guarantee, dated as of March 11, 2005 (the
"Parent Guarantee"), made by LIN TV Corp. (the "Parent" and, together with the
Borrower and the Permitted Borrower, the "LIN Parties") in favor of the
Administrative Agent, and (iv) the Stock Pledge Agreement, dated as of March 11,
2005 (the "Parent Pledge Agreement" and, together with the Credit Agreement, the
Guarantee and Collateral Agreement and the Parent Guarantee, the "Loan
Documents"), made by the Parent in favor of the Administrative Agent. This
letter is delivered to you pursuant to Section 5.1(c) of the Credit Agreement.
Unless otherwise defined herein, capitalized terms used herein have the meanings
provided in the Credit Agreement.
March 11, 2005
Page 2
We have reviewed the Loan Documents, the forms of UCC-1 financing
statements (collectively, the "Financing Statements") to be filed in the office
of the Secretary of State of Delaware pursuant to the Guarantee and Collateral
Agreement and the Parent Pledge Agreement, and such corporate records,
certificates and other documents, and such questions of law, as we have deemed
necessary or appropriate for the purposes of this opinion.
We have assumed that all signatures are genuine, that all documents
submitted to us as originals are authentic and that all copies of documents
submitted to us conform to the originals. We have assumed further that each of
the parties to the Loan Documents (other than the LIN Parties) has duly
authorized, executed and delivered each of the Loan Documents to which it is a
party and that each of the Loan Documents is the valid and binding obligation of
each party thereto (other than the LIN Parties), enforceable against such party
in accordance with its terms. We have assumed further that the execution and
delivery of the Loan Documents by the LIN Parties and the performance by the LIN
Parties of their respective obligations thereunder do not and will not violate
or contravene any judgment, order, decree or permit issued by any court,
arbitrator or governmental or regulatory authority, or conflict with or result
in the breach of, or constitute a default under, any contract or other
instrument binding on or affecting the LIN Parties or any of their respective
properties or assets (other than those agreements listed on Schedule A). We have
assumed further the accuracy of the representations and compliance with the
covenants set forth in the Loan Documents.
For purposes of the opinion set forth in paragraph 5(iii) below, we have
assumed that, after giving effect to any borrowing by the Borrower or the
Permitted Borrower under the Credit Agreement, the aggregate principal amount of
all Indebtedness outstanding under the Credit Agreement will not exceed
$570,000,000.
We have relied as to certain matters on information obtained from public
officials, officers of each of the LIN Parties and other sources believed by us
to be responsible. We have made no investigation for the purpose of verifying
the assumptions set forth herein.
Based upon the foregoing, and subject to the qualifications set forth
below, we are of the opinion that, insofar as the law of the State of New York,
the Delaware General Corporation Law (the "DGCL"), the Delaware Limited
Liability Company Act (the "DLLCA"), and the Federal law of the United States of
America are concerned:
1. Each of the Borrower and the Parent is a corporation duly
incorporated, validly existing and in good standing under the laws of the State
of Delaware and has the corporate power and authority to execute and deliver the
Loan Documents to which it is party and to consummate the transactions
contemplated thereby.
2. The Permitted Borrower is a limited liability company duly
formed, validly existing and in good standing under the laws of the State of
Delaware and has the power and authority under the DLLCA to execute, deliver and
perform the Loan Documents to which it is party and to consummate the
transactions contemplated thereby.
March 11, 2005
Page 3
3. Each LIN Party has duly authorized, executed and delivered the
Loan Documents to which it is a party and each of such Loan Documents
constitutes the valid and binding obligation of such LIN Party, enforceable
against such LIN Party in accordance with its terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and other laws of
general applicability relating to or affecting creditors' rights and to general
equity principles.
4. No consent, approval, authorization or other action by or filing
with any governmental agency or instrumentality of the State of New York or the
United States of America or under the DGCL or the DLLCA is required on the part
of any LIN Party for the execution and delivery by such LIN Party of the Loan
Documents to which it is a party or the consummation of the transactions
contemplated thereby in accordance with the terms thereof, except (i) such
filings and other actions as are required to perfect the security interests and
liens granted under the Security Documents, and (ii) those required under
Federal and state securities laws.
5. The execution and delivery of the Loan Documents by the LIN
Parties and the consummation by the LIN Parties of the transactions contemplated
thereby in accordance with the terms thereof do not and will not (i) breach the
provisions of the certificate of incorporation, certificate of formation,
by-laws or limited liability company agreement, as applicable, of any of the LIN
Parties, (ii) violate the DGCL, the DLLCA or any New York or Federal statute,
law, rule or regulation known to us to which any of the LIN Parties is subject,
or (iii) breach the provisions of, or cause a default under, any agreement
listed on Schedule A.
6. The Guarantee and Collateral Agreement creates, in favor of the
Administrative Agent for the benefit of the Secured Parties (as defined in the
Guarantee and Collateral Agreement), a valid security interest under Article 9
of the New York Uniform Commercial Code (the "New York UCC") in the rights of
the Borrower and the Permitted Borrower in the Collateral (as defined in the
Guarantee and Collateral Agreement) to secure the Obligations (as defined in the
Guarantee and Collateral Agreement), to the extent that a security interest in
the Collateral may be created under Article 9 of the New York UCC. The Parent
Pledge Agreement creates, in favor of the Administrative Agent for the benefit
of the Secured Parties (as defined in the Parent Pledge Agreement), a valid
security interest under Article 9 of the New York UCC in the rights of the
Parent in the Collateral (as defined in the Parent Pledge Agreement) to secure
the Guarantee Obligations (as defined in the Parent Pledge Agreement), to the
extent that a security interest in the Collateral may be created under Article 9
of the New York UCC.
7. The Financing Statements are in proper form for filing in the
office of the Secretary of State of the State of Delaware. Upon the due filing
of the Financing Statements in the office of the Secretary of State of the State
of Delaware, the security interests described in paragraph 6 above will be
perfected to the extent that a security interest in the Collateral may be
perfected under Article 9 of the Delaware Uniform Commercial Code (the "Delaware
UCC") by filing a financing statement in such office.
March 11, 2005
Page 4
The foregoing opinion is subject to the following qualifications:
(a) The enforceability of rights and remedies purported to be
granted under the Loan Documents may be limited by applicable law, but those
limitations (exclusive of the matters referred to in the other qualifications
set forth herein) do not make the rights and remedies afforded under the Loan
Documents inadequate for the practical realization of the principal benefits
intended to be provided by the Loan Documents.
(b) We express no opinion as to the existence and adequacy of
consideration received for the Loan Documents. As contemplated by paragraph 3
above, we express no opinion regarding the effect of fraudulent transfer laws
upon the Loan Documents.
(c) We express no opinion as to any right of setoff, bankers lien,
netting or counterclaim or right to the application of property in the
possession or control of the Administrative Agent, any Lender or any
Participant.
(d) We express no opinion as to (i) waivers of defenses, subrogation
and related rights, rights to trial by jury, rights to object to venue, or other
rights or benefits bestowed by operation of law, (ii) exclusive jurisdiction or
venue provisions, (iii) releases or waivers of unmatured claims or rights, (iv)
indemnification, contribution or exculpation provisions to the extent they
purport to indemnify any party against, or release or limit any party's
liability for, its own breach or failure to comply with statutory obligations,
or to the extent such provisions are contrary to public policy, (v) grants of
powers of attorney or proxies, (vi) provisions for liquidated damages and
penalties, penalty interest and interest on interest, (vii) provisions
purporting to govern post-judgment interest, (viii) provisions purporting to
require any LIN Party to confess judgment, (ix) provisions purporting to require
a prevailing party in a dispute to pay attorneys' fees and expenses, or other
costs, to a non-prevailing party, (x) provisions purporting to supersede
equitable principles, including without limitation provisions requiring
amendments and waivers to be in writing and provisions making notices effective
even if not actually received, (xi) provisions purporting to make a party's
determination conclusive, or (xii) provisions in the Loan Documents requiring
compliance with the terms of any agreement or other instrument that is not a
Loan Document.
(e) We express no opinion as to (i) the ownership of or title to, or
rights in, any property, or as to the adequacy of any description of any
property, (ii) any security interest or lien, other than as specifically set
forth in paragraphs 6 and 7 above, or (iii) the priority of any security
interest or lien.
(f) We express no opinion as to the creation, legality, validity,
binding effect, perfection or enforceability of (i) any security interest in any
property to the extent Article 9 of the New York UCC (or, in the case of
perfection of a security interest perfected by filing a financing statement,
Article 9 of the Delaware UCC) does not apply to or does not govern such
property or the creation, legality, validity, binding effect, perfection and
enforceability of such security interest; (ii) any security interest in proceeds
other than identifiable cash proceeds to the
March 11, 2005
Page 5
extent provided in Section 9-315 under the New York UCC; (iii) any security
interest in money or deposit accounts; (iv) any security interest to the extent
limited by Section 552 of the Federal Bankruptcy Code; (v) any security interest
or other right or interest in rights upon condemnation, expropriation, takings
or similar actions of governments, or in any proceeds of any exercise of such
rights; (vi) any security interest or lien in real property, fixtures or
interests therein; (vii) any security interest or other right or interest in
insurance policies or proceeds; (viii) any security interest in uncertificated
securities; (ix) any security interest in any right the assignment of which
requires the consent of another person which has not been duly obtained; (x) any
security interest or lien in any domestic or foreign patents, copyrights, trade
names, trademarks, service marks, trade dress, open records of invention and
registrations and applications for any of the foregoing; or (xi) any security
interest or lien in farm products, timber, or oil, natural gas or minerals or
other as-extracted collateral.
(g) We express no opinion as to any legal requirements or
restrictions applicable to the Administrative Agent or any Lender.
(h) Our opinions in paragraphs 4 and 5(ii) above are limited to
laws, rules and regulations normally applicable to transactions of the type
contemplated by the Loan Documents and do not extend to the Federal
Communications Act or the rules, regulations or policies of the Federal
Communications Commission ("FCC") promulgated thereunder, any other FCC rule,
regulation or policy or any laws, rules or regulations relating to, or to
licenses, permits, approvals and filings necessary for, the conduct of the
business of any of the LIN Parties, or to any environmental laws, rules or
regulations.
(i) We express no opinion as to any Federal or state securities or
Blue Sky laws, any commodities laws, any insurance laws, any tax laws or the
Employee Retirement Income Security Act of 1974 or any regulations thereunder.
We are members of the bar of the State of New York. We do not express any
opinion herein on any laws other than the law of the State of New York, the
DGCL, the DLLCA and the Federal law of the United States of America. Our opinion
in paragraph 7 above is based solely on our review of Article 9 of the Delaware
UCC as reported by The LexisNexis Group pursuant to an online search performed
on March 10, 2005.
This opinion is given solely for your benefit and may not be relied upon
by any other person without our prior written consent.
Very truly yours,
SCHEDULE A
1. Indenture, dated as of May 12, 2003, as supplemented by the First
Supplemental Indenture, dated as of March [ ], 2005, among LIN Television
Corporation, the guarantors named therein and The Bank of New York, as
trustee, relating to $375,000,000 in aggregate principal amount of 6 -1/2%
Senior Subordinated Notes due 2013.
2. Indenture, dated as of May 12, 2003, as supplemented by the First
Supplemental Indenture, dated as of March [ ], 2005, among LIN Television
Corporation, the guarantors named therein and The Bank of New York, as
trustee, relating to $125,000,000 in aggregate principal amount of 2.50%
Exchangeable Senior Subordinated Debentures due 2033.
Exhibit G -1
[Form of Incremental Revolving Loan Activation Notice]
INCREMENTAL REVOLVING LOAN ACTIVATION NOTICE
To: JPMorgan Chase Bank, N.A.,
as Administrative Agent under the Credit Agreement referred to below
Reference is hereby made to the Credit Agreement dated as of March
___, 2005 (as modified and supplemented and in effect from time to time, the
"Credit Agreement"), among LIN Television Corporation (the "Borrower"),
Televicentro of Puerto Rico, LLC, the several banks and other financial
institutions from time to time parties thereto, and JPMorgan Chase Bank, N.A.,
as administrative agent, issuing lender and swingline lender and the other
parties named therein (as amended, supplemented or otherwise modified from time
to time, the "Credit Agreement"). Unless otherwise defined herein, capitalized
terms used in this Incremental Revolving Activation Notice have the meanings
ascribed to them in the Credit Agreement.
This notice is the Incremental Revolving Loan Activation Notice
referred to in the Credit Agreement, and the Borrower and each of the banks or
other financial institutions signatory hereto (the "Incremental Lenders") hereby
notify you that they intend to establish an Incremental Revolving Loan Facility:
16. The Incremental Revolving Loan Amount of each Incremental Lender
under such Incremental Revolving Loan Facility is set forth opposite such
Incremental Lender's name on the signature pages hereof under the caption
"Incremental Revolving Loan Amount".
17. The Incremental Revolving Loan Closing Date for such Incremental
Revolving Loan Facility is ________.
18. The Incremental Revolving Loan Maturity Date for such
Incremental Revolving Loan Facility is _________.
The Applicable Margin and Commitment Fee Rate for such Incremental
Revolving Loan Facility shall be as set forth in Annex A attached hereto.
LIN TELEVISION CORPORATION
By ____________________________________
Name:
Title:
4
Incremental Revolving Loan Amount [NAME OF INCREMENTAL LENDER]
$
By _____________________________________
Name:
Title:
CONSENTED TO:
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent
By _____________________________
Name:
Title:
Exhibit G-2
[Form of Incremental Term Loan Activation Notice]
INCREMENTAL TERM LOAN ACTIVATION NOTICE
To: JPMorgan Chase Bank, N.A.,
as Administrative Agent under the Credit Agreement referred to below
Reference is hereby made to the Credit Agreement dated as of March
___, 2005 (as modified and supplemented and in effect from time to time, the
"Credit Agreement"), among LIN Television Corporation, a Delaware corporation
(the "Borrower"), Televicentro of Puerto Rico, LLC, a Delaware limited liability
company, the several banks and other financial institutions from time to time
parties thereto (the "Lenders"), and JPMorgan Chase Bank, N.A., as
administrative agent, issuing lender and swingline lender and the other parties
named therein(as amended, supplemented or otherwise modified from time to time,
the "Credit Agreement"). Unless otherwise defined herein, capitalized terms used
herein have the meanings ascribed to them in the Credit Agreement.
This notice is the Incremental Term Loan Activation Notice referred
to in the Credit Agreement, and the Borrower and each of the banks or other
financial institutions signatory hereto (the "Incremental Lenders") hereby
notify you that they intend to establish an Incremental Term Loan Facility under
the Credit Agreement and that:
19. The Incremental Term Loan Amount of each Incremental Lender
under such Incremental Term Loan Facility is set forth opposite such Incremental
Lender's name on the signature pages hereof under the caption "Incremental Term
Loan Amount".
20. The Incremental Term Loan Closing Date for such Incremental Term
Loan Facility is ___________________.
21. The Incremental Term Loan Maturity Date is ________________.
Annex A sets forth (a) the amortization schedule relating to such
Incremental Term Loan Facility and (b) the Applicable Margin for such
Incremental Term Loan Facility.
LIN TELEVISION CORPORATION
By ____________________________________
Name:
Title:
7
Incremental Term Loan Amount [NAME OF INCREMENTAL LENDER]
$
By _____________________________________
Name:
Title:
CONSENTED TO:
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent
By _____________________________
Name:
Title:
EXHIBIT H
FORM OF SWINGLINE LOAN PARTICIPATION CERTIFICATE
_______________ __, _____
[Name of Revolving Credit Lender]
[Address of Revolving Credit Lender]
Ladies and Gentlemen:
Pursuant to subsection 2.4 of the Credit Agreement, dated as of
March __, 2005 (as amended, amended and restated, supplemented or otherwise
modified from time to time, the "Credit Agreement"; unless otherwise defined
herein, terms defined in the Credit Agreement are used herein as therein
defined), among LIN Television Corporation, a Delaware corporation, Televicentro
of Puerto Rico, LLC, a Delaware limited liability company, the several banks and
other financial institutions from time to time parties thereto, and JPMorgan
Chase Bank, N.A., as administrative agent, issuing lender and swingline lender
and the other parties named therein, the undersigned, as Swingline Lender under
the Credit Agreement, hereby acknowledges receipt from you on the date hereof of
_________ DOLLARS (________) as payment for a participating interest in the
following Swingline Loan:
Date of Swingline Loan: ________________
Principal Amount of Swingline Loan
Participating Interest: $_______________
Very truly yours,
JPMORGAN CHASE BANK, N.A.
By: ________________________________
Name:
Title:
EXHIBIT I-1
[FORM OF REVOLVING CREDIT NOTE]
THIS NOTE MAY NOT BE TRANSFERRED EXCEPT IN COMPLIANCE WITH THE TERMS AND
PROVISIONS OF THE CREDIT AGREEMENT REFERRED TO BELOW. TRANSFERS OF THIS NOTE
MUST BE RECORDED IN THE REGISTER MAINTAINED BY THE ADMINISTRATIVE AGENT PURSUANT
TO THE TERMS OF SUCH CREDIT AGREEMENT.
REVOLVING CREDIT NOTE
$_________________
New York, New
York
FOR VALUE RECEIVED, the undersigned, LIN Television Corporation, a
Delaware corporation (the "Borrower"), hereby unconditionally promises to pay to
the order of [ ] (the "Lender") or its registered assigns, at the office of
JPMorgan Chase Bank, N.A., located at 270 Park Avenue, New York, New York 10017,
in lawful money of the United States of America and in immediately available
funds, on the Revolving Credit Termination Date, the principal amount of
__________________ DOLLARS ($______), or, if less, the aggregate unpaid
principal amount of all Revolving Credit Loans (as defined in the Credit
Agreement (as defined below); capitalized terms used herein but not defined have
the meanings given to them in the Credig Agreement) made by the Lender to the
Borrower pursuant to subsection 2.4 of the Credit Agreement (as defined below).
The Borrower further agrees to pay interest in like money at such office on the
unpaid principal amount of Revolving Credit Loans made by the Lender from time
to time outstanding at the rates and on the dates specified in subsection 2.12
of the Credit Agreement.
The holder of this Note is authorized to endorse on the schedules
annexed hereto and made a part hereof, or on a continuation thereof which shall
be attached hereto and made a part hereof, the date, Type and amount of each
Revolving Credit Loan made by the Lender and the date and amount of each payment
or prepayment of principal thereof, each conversion of all or a portion thereof
to another Type, each continuation of all or a portion thereof as the same Type
and, in the case of Eurodollar Loans, the length of each Interest Period and the
Eurodollar Rate with respect thereto, provided that the failure to make any such
endorsement or any error in such endorsement shall not affect the obligation of
the Borrower under the Credit Agreement.
This Note (a) is one of the Revolving Credit Notes referred to in
the Credit Agreement, dated as of March __, 2005 (as the same may be amended,
supplemented or otherwise modified from time to time, the "Credit Agreement"),
among the Borrower, Televicentro of Puerto Rico, LLC, the banks, financial
institutions and other entities from time to time parties thereto, and JPMorgan
Chase Bank, N.A., as administrative agent, issuing lender and swingline lender
and the other parties named therein, (b) is subject to the provisions of the
Credit Agreement and (c) is subject to optional and mandatory prepayment in
whole or in part as
3
provided in the Credit Agreement. This Note is secured and guaranteed as
provided in the Loan Documents. Reference is hereby made to the Loan Documents
for a description of the properties and assets in which a security interest has
been granted, the nature and extent of the security and the guarantees, the
terms and conditions upon which the security interests and each guarantee were
granted and the rights of the holder of this Note in respect thereof.
Upon the occurrence of any one or more of the Events of Default
specified in the Credit Agreement, all amounts then remaining unpaid on this
Note shall become, or may be declared to be, immediately due and payable, all as
provided in the Credit Agreement. All parties now and hereafter liable with
respect to this Note, whether maker, principal, surety, guarantor, endorser or
otherwise, hereby waive presentment, demand, protest and all other notices of
any kind (except as expressly provided in the Credit Agreement and the Loan
Documents, including, without limitation, Section 8 of the Credit Agreement).
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
LIN TELEVISION CORPORATION
By: ________________________________
Title:
Schedule A
to Revolving Credit Note
LOANS, CONTINUATIONS, CONVERSIONS AND REPAYMENTS OF ABR LOANS
Amount of ABR Loans
Amount Converted Amount of Principal Converted to Eurodollar Unpaid Principal
Date Amount of ABR Loans to ABR Loans of ABR Loans Repaid Loans Balance of ABR Loans Notation Made By
- ---- ------------------- ---------------- ------------------- ----------------------- -------------------- ----------------
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Schedule B
to Revolving Credit Note
LOANS, CONVERSIONS AND REPAYMENTS OF EURODOLLAR LOANS
Amount of Amount of
Amount of Amount Converted to Interest Period and Principal Eurodollar Loans Unpaid Principal
Eurodollar or Continued as Eurodollar Rate with of Eurodollar Converted to ABR Balance of
Date Loans Eurodollar Loans Respect Thereto Loans Prepaid Loans Eurodollar Loans Notation Made By
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EXHIBIT I-2
[FORM OF TERM NOTE]
THIS NOTE MAY NOT BE TRANSFERRED EXCEPT IN COMPLIANCE WITH THE TERMS AND
PROVISIONS OF THE CREDIT AGREEMENT REFERRED TO BELOW. TRANSFERS OF THIS NOTE
MUST BE RECORDED IN THE REGISTER MAINTAINED BY THE ADMINISTRATIVE AGENT PURSUANT
TO THE TERMS OF SUCH CREDIT AGREEMENT.
$______________ New York, New
York
FOR VALUE RECEIVED, the undersigned, [LIN Television Corporation, a
Delaware corporation (the "Borrower")] [Televicentro of Puerto Rico, LLC, a
Delaware limited liability company (the "Permitted Borrower"], hereby
unconditionally promises to pay to the order ________ of (the "Lender") or its
registered assigns, at the office of JPMorgan Chase Bank, N.A., located at 270
Park Avenue, New York, New York 10017, in lawful money of the United States of
America and in immediately available funds, the principal amount of
__________________ DOLLARS ($______), or, if less, the unpaid principal amount
of the [Tranche A] [Incremental] Term Loan (the "Term Loan") (as defined in the
Credit Agreement (as defined below); capitalized terms used herein but not
defined have the meanings given to them in the Credit Agreement) made by the
Lender pursuant to subsection 2.1 of the Credit Agreement (as defined below).
The principal amount of the Term Loan made by the Lender shall be paid in the
amounts and on the dates specified in subsection 2.3 of the Credit Agreement.
The Borrower further agrees to pay interest in like money at such office on the
unpaid principal amount of the Term Loan made by the Lender from time to time
outstanding at the rates and on the dates specified in subsection 2.12 of the
Credit Agreement.
The holder of this Note is authorized to endorse on the schedules
annexed hereto and made a part hereof, or on a continuation thereof which shall
be attached hereto and made a part hereof, the date, Type and amount of the Term
Loan made by the Lender and the date and amount of each payment or repayment of
principal with respect thereto, each conversion of all or a portion thereof to
another Type, each continuation of all or a portion thereof as the same Type
and, in the case of Eurodollar Loans, the length of each Interest Period and the
Eurodollar Rate with respect thereto, provided that the failure to make any such
endorsement or any error in such endorsement shall not affect the obligation of
the Borrower under the Credit Agreement.
This Note (a) is one of the Term Notes referred to in the Credit
Agreement, dated as of March __, 2005 (as the same may be amended, supplemented
or otherwise modified from time to time, the "Credit Agreement"), among the
Borrower, the Permitted Borrower, the Lender, the other banks, financial
institutions and other entities from time to time parties thereto, and JPMorgan
Chase Bank, N.A., as administrative agent, swingline lender and issuing lender
and the other parties named therein (b) is subject to the provisions of the
Credit Agreement and (c) is subject to optional and mandatory prepayment in
whole or in part as provided in the Credit Agreement. This Note is secured and
guaranteed as provided in the Loan Documents.
7
Reference is hereby made to the Loan Documents for a description of the
properties and assets in which a security interest has been granted, the nature
and extent of the security and the guarantees, the terms and conditions upon
which the security interests and each guarantee were granted and the rights of
the holder of this Note in respect thereof.
Upon the occurrence of any one or more of the Events of Default
specified in the Credit Agreement, all amounts then remaining unpaid on this
Note shall become, or may be declared to be, immediately due and payable, all as
provided in the Credit Agreement. All parties now and hereafter liable with
respect to this Note, whether maker, principal, surety, guarantor, endorser or
otherwise, hereby waive presentment, demand, protest and all other notices of
any kind (except as expressly provided in the Credit Agreement and the Loan
Documents, including, without limitation, Section 8 of the Credit Agreement).
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
[LIN TELEVISION CORPORATION]
[TELEVICENTRO OF PUERTO RICO,LLC]
By: ________________________________
Title:
Schedule A
to Term Note
LOANS, CONVERSIONS AND REPAYMENTS OF ABR LOANS
Amount of ABR Loans
Amount Converted Amount of Principal Converted to Eurodollar Unpaid Principal
Date Amount of ABR Loans to ABR Loans of ABR Loans Repaid Loans Balance of ABR Loans Notation Made By
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Schedule B
to Term Note
LOANS, CONTINUATIONS, CONVERSIONS AND REPAYMENTS OF EURODOLLAR LOANS
Interest Period Amount of
Amount of Amount Converted to and Eurodollar Amount of Principal Eurodollar Unpaid Principal
Eurodollar or Continued as Rate with Respect of Eurodollar Loans Loans Converted Balance of
Date Loans Eurodollar Loans thereto Repaid to ABR Loans Eurodollar Loans Notation Made By
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11
EXHIBIT I-3
[FORM OF SWINGLINE NOTE]
THIS NOTE MAY NOT BE TRANSFERRED EXCEPT IN COMPLIANCE WITH THE TERMS AND
PROVISIONS OF THE CREDIT AGREEMENT REFERRED TO BELOW. TRANSFERS OF THIS NOTE
MUST BE RECORDED IN THE REGISTER MAINTAINED BY THE ADMINISTRATIVE AGENT PURSUANT
TO THE TERMS OF SUCH CREDIT AGREEMENT.
$__________ New York, New York
FOR VALUE RECEIVED, the undersigned, LIN Television Corporation, a
Delaware corporation (the "Borrower"), hereby unconditionally promises to pay to
the order of JPMorgan Chase Bank, N.A. (the "Swingline Lender") and its
registered assigns, on the Revolving Credit Termination Date, as defined in the
Credit Agreement referred to below, at its office located at 270 Park Avenue,
New York, NY 10017, in lawful money of the United States of America and in
immediately available funds, the aggregate unpaid principal amount of all
Swingline Loans made by the Swingline Lender to the Borrower pursuant to
subsection 2.4 of the Credit Agreement (as defined below). The Borrower further
agrees to pay interest in like money at such office on the unpaid principal
amount of Swingline Loans made by the Lender from time to time outstanding at
the rates and on the dates specified in subsection 2.12 of the Credit Agreement.
The holder of this Swingline Note is authorized to record the date and the
amount of each Swingline Loan made by the Swingline Lender pursuant to
subsection 2.4 of the Credit Agreement and the date and amount of each payment
or prepayment of the principal hereof on Schedule I annexed hereto and made a
part hereof, provided that the failure to make any such recordation (or any
error in such recordation) shall not affect the obligations of the Borrower
under the Credit Agreement.
This Swingline Note is the Swingline Note referred to in the Credit
Agreement, dated as of March ___ , 2005 among the Borrower, Televicentro of
Puerto Rico, LLC, a Delaware limited liability company, the several banks and
other financial institutions from time to time parties thereto, and JPMorgan
Chase Bank, N.A. as administrative agent, swingline lender and issuing lender
and the other parties named therein (as the same may from time to time be
amended, amended and restated, supplemented or otherwise modified from time to
time, the "Credit Agreement"; capitalized terms used herein but not defined
shall have the meanings given to them in the Credit Agreement), is entitled to
the benefits thereof, is secured as provided therein and is subject to optional
and mandatory prepayment in whole or in part as provided therein.
Upon the occurrence of any one or more of the Events of Default
specified in the Credit Agreement, all amounts then remaining unpaid on this
Swingline Note shall become, or may be declared to be, immediately due and
payable as provided therein. All parties now and hereafter liable with respect
to this Note, whether maker, principal, surety, guarantor, endorser or
otherwise, hereby waive presentment, demand, protest and all other notices of
any kind (except as expressly provided in the Credit Agreement and the Loan
Documents, including, without limitation, Section 8 of the Credit Agreement).
12
THIS SWINGLINE NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
LIN TELEVISION CORPORATION
By: _______________________________
Title:
13
Schedule A
to Term Note
LOANS, CONVERSIONS AND REPAYMENTS OF SWINGLINE LOANS
Amount of Principal of Unpaid Principal Balance of
Date Amount of Swingline Loans Swingline Loans Repaid Swingline Loans Notation Made By
- ---- ------------------------- ---------------------- --------------------------- ----------------
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EXHIBIT J
FORM OF BORROWING NOTICE
JPMorgan Chase Bank, N.A., as Administrative Agent for
the Lenders referred to below,
270 Park Avenue
New York, NY 10017
Attention of [ ]
[Date]
Ladies and Gentlemen:
The undersigned, [LIN Television Corporation] [Televicentro of Puerto
Rico, LLC] (the "Company"), refers to the Credit Agreement dated as of March __,
2005 (the "Credit Agreement"), among [LIN Television Corporation], as Borrower,
[Televicentro of Puerto Rico, LLC], as Permitted Borrower, the several banks and
other financial institutions from time to time parties thereto, JPMorgan Chase
Bank, N.A., as administrative agent, issuing lender and swingline lender and the
other parties named therein (as amended, supplemented or otherwise modified from
time to time, the "Credit Agreement"). Unless otherwise defined herein,
capitalized terms used in this Borrowing Request have the meanings ascribed to
them in the Credit Agreement. The Company hereby gives you notice pursuant to
subsection [2.2] [2.4] [2.5] of the Credit Agreement that it requests a
borrowing under the Credit Agreement, and in that connection sets forth below
the terms on which such borrowing is requested to be made:
(A) Date of Borrowing (which is a Business Day) _______________________
(B) Form of Borrowing(1) _______________________
(C) Principal Amount of Borrowing(2) _______________________
(D) Interest rate basis(3) _______________________
(E) Interest Periods and the last days _______________________
thereof(4)
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(1) Revolving Credit, Incremental Term Loan, Incremental Revolving Loan or
Swingline Loan.
(2) In the case of Eurodollar Loans, an integral multiple of $100,000 and not
less than $5,000,000 and in the case of ABR Loans, an integral multiple of
$100,000 and not less than $1,000,000, and in the case of Swingline Loans,
an integral multiple of $25,000 and not less than $100,000, but in any
event not exceeding the remaining available balance of the applicable
Commitment. In the case of Eurodollar Loans, also set forth the respective
amounts of each such Type of Loan.
(3) Eurodollar Loans or ABR Loans.
15
(F) Funds are requested to be disbursed to the Company's account with JP
Morgan Chase Bank (Account No. ).
- ----------
(4) Which shall be subject to the definition of "Interest Period" and end not
later than the Revolving Credit Termination Date or Incremental Maturity
Date, as applicable (applicable for Eurodollar Loans only). In the case of
Eurodollar Loans, also set forth the respective amounts of each such Type
of Loan.
Upon acceptance of any or all of the Loans offered by the Lenders in
response to this request, the Company shall be deemed to have represented and
warranted that the conditions to lending specified in subsection 5.2 of the
Credit Agreement have been satisfied.
LIN TELEVISION CORPORATION,
By ________________________________
Name:
Title: [Responsible Officer]
EXHIBIT K
JOINDER/INCREASE AGREEMENT
Reference is made to the Credit Agreement, dated as of March ___,
2005 (as heretofore amended, supplemented or otherwise modified, the "Credit
Agreement"), among LIN TELEVISION CORPORATION (the "Borrower"), TELEVICENTRO OF
PUERTO RICO, LLC (the "Permitted Borrower"), the several banks and other
financial institutions or entities from time to time parties thereto (the
"Lenders"), and JPMORGAN CHASE BANK, N.A., as Administrative Agent (in such
capacity, the "Administrative Agent"), as Issuing Lender (as defined in the
Credit Agreement) and as Swingline Lender (as defined in the Credit Agreement).
Terms defined in the Credit Agreement and used herein without
definition shall have the meaning given to them in the Credit Agreement.
Upon execution and delivery of this Joinder/Increase Agreement by
the parties hereto as provided in Section 2.4 of the Credit Agreement, (i) if
the undersigned is not a Lender under the Credit Agreement, the undersigned
hereby shall become a Lender thereunder having the Commitments set forth in
Schedule 1 hereto, effective as of the date hereof, or (ii) to the extent the
undersigned is a Lender under the Credit Agreement, the undersigned hereby
agrees to increase its Commitments as set forth in Schedule 1 hereto, effective
as of the date hereof.
THIS JOINDER/INCREASE AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
This Joinder/Increase Agreement may be executed by one or more of
the parties hereto on any number of separate counterparts, and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument. Delivery of an executed signature page hereof by facsimile
transmission shall be effective as delivery of a manually executed counterpart
hereof.
19
IN WITNESS WHEREOF, the parties hereto have caused this Joinder/Increase
Agreement to be duly executed and delivered by their proper and duly authorized
officers as of this __ day of _______, 200_.
___________________________________
Name of Lender
By ________________________________
Name:
Title:
Accepted and agreed:
LIN TELEVISION CORPORATION
By ________________________________
Name:
Title:
JPMORGAN CHASE BANK, N.A., as
Administrative Agent
By ________________________________
Name:
Title:
Schedule 1
COMMITMENTS AND NOTICE ADDRESS
22. Name of Lender: __________________________
Notice Address: __________________________
__________________________
__________________________
Attention: __________________________
Telephone: __________________________
Facsimile: __________________________
23. Revolving Credit Commitment:
SCHEDULE 1.1A
LOANS AND COMMITMENTS
PERMITTED BORROWER
BORROWER TRANCHE TRANCHE A TERM
A TERM LOAN LOAN COMMITMENT REVOLVING CREDIT
LENDER COMMITMENT COMMITMENT
------ ---------------- ------------------ ----------------
JPMorgan Chase Bank, N.A. $ 4,924,242.42 $ 11,818,181.82 $ 15,757,575.76
Deutsche Bank Trust
Company Americas 4,924,242.42 11,818,181.82 15,757,575.76
Bank of America, N.A. 4,545,454.55 10,909,090.91 14,545,454.55
The Bank of Nova Scotia 14,545,454.55
Scotiabanc Inc. 4,545,454.55 10,909,090.91
Wachovia Bank, National Association 4,545,454.55 10,909,090.91 14,545,454.55
Suntrust Bank 4,545,454.55 10,909,090.91 14,545,454.55
Sumitomo Mitsui Banking Corporation 3,030,303.03 7,272,727.27 9,696,969.70
UFJ Bank 3,030,303.03 7,272,727.27 9,696,969.70
Mizuho Corporate Bank, Ltd. 3,030,303.03 7,272,727.27 9,696,969.70
U.S. Bancorp. 3,030,303.03 7,272,727.27 9,696,969.70
The Bank of New York 3,030,303.03 7,272,727.27 9,696,969.70
Bank of Tokyo-
Mitsubishi Trust Company 3,030,303.03 7,272,727.27 9,696,969.70
Union Bank of California, N.A. 2,272,727.27 5,454,545.45 7,272,727.27
Morgan Stanley 1,515,151.52 3,636,363.64 4,848,484.85
================ ================== ================
TOTALS $ 50,000,000.00 $ 120,000,000.00 $ 160,000,000.00
SCHEDULE 1.1B
MORTGAGED PROPERTIES
1. Providence County, Rhode Island
(Record Description)
That certain tract or parcel of land with all buildings and improvements
thereon, situated on the northwesterly side of Catamore Boulevard, and Jordan
Street in the City of East Providence, State of Rhode Island, comprising Lots
Nos. 2 (two and 3 (three) on plat entitled "Waterman Eng. Co. East Providence
Industrial Paik Section "A" East Providence, R.I. Belonging to East Providence
Industrial Park Associates, March, 1970" which plat is recorded with the Records
of Land Evidence in said City of East Providence in Plat Book 20 at Page 35 and
(copy) on Plat Card 345.
Subject to Declaration of Protective Covenants dated November 20, 1970, and
recorded in said records in Book 278 at Page 1002, as amended by instrument
dated May 22, 1972, and recorded in said records in Book 287 at Page 184.
Subject, also to and together with the benefits of restrictions, easements and
provisions concerning screen fence and gate set forth or delineated on said
plat.
And also known as:
(Description prepared by E. Otis Dyer R.P.I.S. on a survey entitled "Land Owned
by Clear Channel Television, Inc., in East Providence, Rhode Island, dated
February 23, 2001):
Beginning at a pipe in the northwesterly line of Catamore Boulevard and at the
southerly corner of land owned by Newington Holding L.L.C.; thence
S25deg-13'-00"W 415.00 feet bounded by the said Boulevard to a pipe at a point
of curvature; thence southwesterly 39.27 feet along the arc of a curve to the
right of 25.00 foot radius bounded by the said Boulevard and by Jordan Street to
a pipe at a point of tangency; thence N64deg-47'00"W 324.99 feet bounded by said
Jordan Street to a pipe at a corner of land owned by Evergreen Medical Investors
Trust; thence N25deg-15'-00"E 399.29 feet bounded by the said trust Land and
partly following a stonewall to a pipe at a corner of land owned by James P.
Hermonian & Shelly A. Rezendes-Hermonian; thence S65deg-17'-20"E203.80 feet
bounded partly by the said Hermonian land and partly by Skycrest Avenue to a
pipe for a corner, thence N24deg-42'40"E 40.00 feet bounded by the Skycrest
Avenue to a pipe for a corner, then N24deg-42'40"E 40.00 fet bounded by the said
Avenue to an iron rod in line of land owned by James L. Swallow and Frances E.
Swallow; then S65deg-17'-20"E 80.00 feet bounded by the said Swallow land to an
iron rod at a corner of the said Newington Holding L.L.C. land; thence
S63deg-14'34"E66.57 feet bounded by the last mentioned land to a pipe at the
point of beginning: containing about 3.35 acres.
23
2. Montgomery County, Ohio
PARCEL I
Situated in the City of Moraine, County of Montgomery, State of Ohio, and being
Part of Lot Numbers 3475 and 3476, now known as Lot Number 5145, of the revised
and consecutive Lot Numbers on the Plat of the City of Moraine, more
particularly described as follows:
Beginning at a 5/8" iron pin set at the westernmost corner of said Lot 3475,
said point being at the intersection of the southeast right-of-way line of
Kettering Boulevard and the northeast right-of-way line of Winwood Avenue;
Thence along the northwest line of said Lot 3475 and the southeast right-of-way
line of Kettering Boulevard, along a curve to the right a distance of 101.35
feet (Radius: 4267.19 feet; I-Angle; 01 degrees 21'39"; Chord Bearing: North
29 degrees 21'00" East; Chord Length; 101.35 feet) to an iron pin found;
Thence continuing along the northwest line of said Lot 3475 and the southeast
right-of-way line of Kettering Boulevard; North 38 degrees 01'00" East a
distance of 258.88 feet to an iron pin found at a corner of Lot Number 3477;
Thence along said Lot 3477, South 78 degrees 01'00" East a distance of 95.37
feet to an iron pin found;
Thence continuing along said Lot 3477, South 50 degrees 01'33" East, passing a
5/8" iron pin set at 302.71 feet, a total distance of 335.71 feet to a railroad
spike set on the centerline of Dayton & Cincinnati Pike;
Thence along the centerline of Dayton & Cincinnati Pike, South 38 degrees 59'00"
West a distance of 203.93 feet to a railroad spike set;
Thence continuing along the centerline of Dayton & Cincinnati Pike, South
44 degrees 44'07" West a distance of 231.43 feet to a railroad spike set on the
eastward extension of the north right-of-way line of Winwood Avenue and the
south line of said Lot 3475;
Thence along the north right-of-way line of Winwood Avenue and the south line of
said Lot 3475, North 45 degrees 15'53" West, passing an iron pin found at 33.00
feet total distance of 378.47 feet to the place of the beginning.
Containing 3,901 acres, more or less.
Basis of Bearings, MF 97-596C12
A (5/8" iron pin set) refers to a 30" long rebar with a plastic identification
cap stamped "S.W.D. 6819".
This description is based upon a field survey conducted under the supervision of
John P. Haley Registered Surveyor, Ohio License Number 6819, in May of 1998.
24
PARCEL II
Situated in Section 12, Town 3, Range 5 East, Township of Jefferson, County of
Montgomery, State of Ohio, and being more particularly described as follows:
Beginning at a PK nail set at the centerline intersection of Soldiers Home -
West Carrollton Road and Frytown Road, thence along the centerline of Soldiers
Home - West Carrollton Road, North 10 degrees 45'00" West a distance of 564.96
feet to a railroad spike found at the TRUE PLACE OF BEGINNING.
Thence continuing along the centerline of Soldiers Home - West Carrollton Road,
North 10 degrees 45'00" West a distance of 160.00 feet to a railroad spike found
at the southwest corner of a 2.38 acre tract conveyed to Frank E. and Sylvia
Smith in Deed Book 2458, Page 83;
Thence along the south line of said 2.38 acre tract, North 84 degrees 42'44"
East, passing a 5/8" iron pin set at 15.03 feet, a total distance of 565.00 feet
to an iron pipe found at the southeast corner of said 2.38 acre tract;
Thence along the east line of said 2.38 acre tract, North 10 degrees 44'57" West
a distance of 194.86 feet to an iron pipe found at the northeast corner of said
2.38 acre tract;
Thence along the north line of said 2.38 acre tract, South 82 degrees 36'00"
West, passing a 5/8" iron pin set at 548.37 feet, a total distance of 563.40
feet to a railroad spike found on the centerline of Soldiers Home - West
Carrollton Road;
Thence along the centerline of Soldiers Home - West Carrollton Road, North 10
degrees 45'00" West a distance of 230.00 feet to a railroad spike found at the
southwest corner of a 29.828 acre tract conveyed to Steve R. Rauch in MF
87-754D05;
Thence along the south line of said 29.828 acre tract, North 82 degrees 36'50"
East, passing a 5/8" iron pin set at 15.03 feet, a total distance of 1279.14
feet to an iron pipe found at the northwest corner of a 3.587 acre tract
conveyed to Waste Management of Ohio in MF 92-537E04;
Thence along the west line of said 3.587 acre tract and its southern extension
South 02 degrees 18'35" East a distance of 609.50 feet to a 5/8" iron pin set at
the northeast corner of a 11.10 acre tract conveyed to Hearst-Argyle Stations in
MF 97-596C12;
Thence along the north line of said 11.10 acre tract and its western extension,
South 84 degrees 43'54" West, passing a 5/8" iron pin set at 1176.74 feet, a
total distance of 1192.93 feet to the place of beginning.
Containing 14,220 acres, more or less.
Basis of bearings: MF 97-596C12
25
A (5/8" iron pin set) refers to a 30" long rebar with a plastic identification
cap stamped "S.W.D. 6819"
This description is based upon a field survey conducted under the supervision of
John P. Haley, Registered Surveyor, Ohio License Number 6819, May of 1998.
PARCEL III
Situated in the Township of Jefferson, in the County of Montgomery and State of
Ohio, to-wit:
Being part of the southeast quarter of Section Twelve (12), Town Three (3),
Range Five (5) east, and beginning in the south line of said Section Twelve
(12), at a point five hundred fifty-five and seventy-two hundredths (555.72)
feet west of the southeast corner of said section; thence South 88 deg. west
along the south Section Line (being along the center of Frytown Road), a
distance of eight hundred feet (800') to a point; thence north 2 deg. 33 min.
west (N. 2 deg. 33' W), five hundred eighty-four and thirty-six hundredths
(584.36) feet to a point; thence north 84 deg. 41 min. east (N. 84 deg. 41' E),
eight hundred and ninety hundredths (800.90) feet to a point; thence south 2
deg. 33 min. east (S.2 deg. 33' E) six hundred and thirty and seventy hundredths
(630.70) feet to the place of beginning.
Containing 11.10 acres, more or less.
PARCEL IV
Together with a perpetual easement and right of way as contained in a deed from
Crosley Broadcasting Corporation to Empire Investment Corporation dated October
27, 1955, filed for record October 28, 1955 at 3:59 p.m., and recorded in Deed
Volume 1736, Page 102 of the Montgomery County, Ohio Records.
SCHEDULE 1.1D
STATIONS AND LICENSED SUBSIDIARIES
February 28, 2005
I. LIN WHOLLY-OWNED BROADCAST STATIONS
1. INDIANA BROADCASTING, LLC FRN: 0004-0893-30
WISH-TV (39269) Ch. 8 Indianapolis, IN 08/01/2005
WISH-DT Ch. 9 Indianapolis, IN 08/01/2005
WIIH-CA (39271) Ch. 17 Indianapolis, IN 08/01/2005
Broadcast Auxiliaries............................ 08/01/2005
KA59097 TV Pickup (modification pending)
KA59098 TV Pickup
KA59099 TV Pickup
KA59100 TV Pickup
KC4923 TV Pickup
KC4924 TV Pickup
KC26219 TV Pickup
KRC70 TV STL
KSM24 TV STL
WMV656 TV STL
WPJC728 TV STL (for WIIH-CA)
WCQ487 TV Intercity Relay
WHG-375 TV Intercity Relay
WHG-376 TV Intercity Relay
WLF679 TV Intercity Relay
WLF680 TV Intercity Relay
WLO372 TV Intercity Relay
WPJD631 TV Intercity Relay (used with WIIH-CA)
WPWI213 TV Intercity Relay
WPWI233 TV Intercity Relay
WPWI234 TV Intercity Relay
WPWI235 TV Intercity Relay
WPWI239 TV Intercity Relay
WPWI240 TV Intercity Relay
KA21499 Remote Pickup
KC27795 Remote Pickup Mobile System
KPF801 Remote Pickup Automatic Relay
KSJ780 Remote Pickup Base Mobile System
WQA953 Remote Pickup
WQA962 Remote Pickup Base Mobile System
BLP00582 Low Power Broadcast Auxiliary
BLP00613 Low Power Broadcast Auxiliary
BLP01114 Low Power Broadcast Auxiliary
2
1. INDIANA BROADCASTING, LLC - CONTINUED
Domestic Satellite Authorizations
E900626 Transmit/Receive Transportable Earth Station 09/21/2010
E030295 Transmit/Receive Fixed Earth Station 12/23/2018
E030316 Transmit Only Transportable Earth Station 01/06/2019
Private Radio Authorization
KKS-259 Radiolocation Station (Weather Radar) 11/26/2010
3
2. WTNH BROADCASTING, INC. FRN: 0003-5941-16
WTNH (74109) Ch. 8 New Haven, CT 04/01/2007
WTNH-DT Ch. 10 04/01/2007
WCTX (33081) Ch. 59 New Haven, CT 04/01/2007
WCTX-DT Ch. 39 BMPCDT-20030224AAX 07/09/2004*
* License application BLCDT-20040507AAZ is pending
Broadcast Auxiliaries.................................. 04/01/2007
KCA60 TV STL
KW4111 TV Pickup
KW4113 TV Pickup
WBG556 TV Inter-City Relay
WCQ504 TV Inter-City Relay
WHQ271 TV Inter-City Relay
WHQ273 TV Inter-City Relay
WLF366 TV Relay
WLJ370 TV Relay
WLJ685 TV Relay
WLJ686 TV Relay
WLO523 TV Relay
KAK599 Remote Pickup Base/Mobile System
KTE766 Remote Pickup Base
BLP01394 Low Power Broadcast Auxiliary
BLP00808 Low Power Broadcast Auxiliary
BLP01115 Low Power Broadcast Auxiliary
WPWI211 TV Intercity Relay
WPWI212 TV Intercity Relay
WPWI756 TV STL
WPWI757 TV STL
WPXX622 TV Intercity Relay
KA74855 TV Pickup
WMV462 TV STL (WCTX)
WQAL498 TV Inter-city Relay
Domestic Satellite Authorizations
E6883 Receive-Only Fixed Earth Station 03/02/2019
E030218 Transmit Only Transportable Earth Station 11/19/2018
E030234 Transmit Only Transportable Earth Station 12/11/2018
E050003 Transmit Only Transportable Earth Station 02/14/2020
Private Radio Authorization
WPJU561 Radiolocation Station (Weather Radar) 10/30/2011
4
3. WOOD LICENSE COMPANY, LLC FRN: 0003-5938-03
WOOD-TV (36838) Ch. 8 Grand Rapids, MI 10/01/2005
WOOD-DT Ch. 7 10/01/2005
WOTV (10212) Ch. 41 Battle Creek, MI 10/01/2005
WOTV-DT Ch. 20 Battle Creek, MI 10/01/2005
WOKZ-CA (36841) Ch. 50 Kalamazoo, MI (UPN) 10/01/2005
WXSP-CA (36851) Ch. 15 Grand Rapids, MI (UPN) 10/01/2005
WOMS-CA (67895) Ch. 29 Muskegon, MI (UPN) 10/01/2005
WOLP-CA (36839) Ch. 27 Grand Rapids, MI (UPN) 10/01/2005
STA to operate at Middleville site (BESTA-20041115AHF) 05/29/2005
WOBC-CA (67001) Ch. 14 Battle Creek, MI (UPN) 10/01/2005
WOGC-CA (17203) Ch. 25 Holland, MI (WOOD) 10/01/2005
WOHO-CA (28926) Ch. 33 Holland, MI (UPN) 10/01/2005
W46DD (STA) Ch. 46 Muskegon, MI (WOOD) 01/17/2005*
* Extension file 01/06/2005
Broadcast Auxiliaries used with WOOD-TV............... 10/01/2005
KX8040 TV Pickup
KX8041 TV Pickup
KX8042 TV Pickup
KX8043 TV Pickup
KB97303 TV Pickup
KQJ92 TV STL Main & Alt. Main
WLI720 TV Pickup
WLI721 TV Pickup
WGV736 TV Intercity Relay
WLO703 TV Pickup
WMF352 TV Intercity Relay
WMF353 TV Intercity Relay
WMF372 TV Intercity Relay
KEH405 Remote Pickup Base Mobile System
KEH406 Remote Pickup Automatic Relay
KPE522 Remote Pickup Base Mobile System
WPNI765 TV Relay
WPNI766 TV Relay
WPNI767 TV Relay
WPNG419 TV Relay
WPOL563 TV STL for WOWD-CA
WPOL564 TV STL for WOMS-CA
5
3. WOOD LICENSE COMPANY, LLC - CONTINUED
Broadcast Auxiliaries used with WOOD-TV - continued...... 10/01/2005
WPOL565 TV STL for WOMS-CA
WPYX326 TV STL for W46DD
Broadcast Auxiliaries used with WOTV...................... 10/01/2005
KPG595 Remote Pickup
KPG599 Remote Pickup Base/Mobile System
WLE623 TV STL
WLE638 TV Intercity Relay
WEF85 TV STL
WPXH691 TV Relay
WPYC468 TV Relay
WPYC542 TV Relay
Domestic Satellite Authorizations
E8173 Receive-Only Fixed Earth Station 12/28/2019
E900983 Transportable Earth Station 11/23/2010
Private Radio Authorizations
KIP327 Radiolocation Station (Weather Radar) 07/21/2005
WPVZ642 Radiolocation (Weather Radar) of WOTV 09/20/2012
WNEM522 OFS Microwave 01/14/2009
WPQL787 OFS Microwave 05/25/2010
Note: WOOD-TV also uses OFS Microwave stations WPNH820 and WPNH821, licensed to
LCH Communications, Inc., that expires 12/18/2012. WOTV also uses Private
OFS Microwave station WPNH781, licensed to LIN Michigan Broadcasting, that
expires 11/06/2012.
6
4. WAVY BROADCASTING, LLC FRN: 0003-7613-50
WAVY-TV (71127) Ch. 10 Portsmouth, VA 10/01/2004*
WAVY-DT Ch. 31 Portsmouth, VA 10/01/2004*
*Renewal BRCT-20040528AJP is pending
WVBT(TV) (65387) Ch. 43 Virginia Beach, VA 10/01/2004*
WVBT-DT Ch. 29 Virginia Beach, VA 10/01/2004*
*Renewal BRCT-20040528AJS is pending
WCTX-CA (71130) Ch. 35 Virginia Beach, VA (WAVY) 10/01/2012
WITD-CA (71119) Ch. 65 Chesapeake, VA (WAVY) 10/01/2012
CP for switch to Ch. 23 (BPTTA-20020624AAQ) 06/16/2006
WKTD-CA (71121) Ch. 17 Portsmouth, VA (WAVY) 10/01/2012
On-channel DTV conversion BMPTTA-20050121ALA 10/04/2007
WNLO-CD (13060) Ch. 45 Norfolk, VA (WAVY) 10/01/2012
WPMC-CA (71125) Ch. 36 Mappsville, VA (WAVY) 10/01/2012
WBTD-LP (71124) Ch. 52 Suffolk, VA (WAVY) 10/01/2012
Application for conversion to Class A (BLTTA-20001207AEJ) is pending
WTTD-LP (71122) Ch. 53 Hampton, VA (WAVY) 10/01/2012
Application for conversion to Class A (BLTTA-20001207AEK) is pending
Broadcast Auxiliaries................................... 10/01/2004*
KIT72 TV STL
WPJE694 TV STL
WPJE695 TV STL for WBTD-LP
KQ8490 TV Pickup
KQ8491 TV Pickup
WHA840 TV Intercity Relay
WLL452 TV Intercity Relay
KIK261 Remote Pickup Base Station
KB55956 Remote Pickup Mobile System
KPJ823 Remote Pickup Base/Mobile System
KPK426 Remote Pickup Automatic Relay
KPL537 Remote Pickup Base Station
KPL541 Remote Pickup Automatic Relay
KC23099 Remote Pickup Mobile System
BLP00690 Low Power Broadcast Auxiliary
WPJE756 TV STL (WVBT)
0002053591 TV STL (WKTD-CD & WNLO-CD)
Private Radio Authorizations
WNSR247 Radiolocation Station (Weather Radar) 07/03/2005
7
5. WIVB BROADCASTING, LLC FRN: 0004-8966-84
WIVB-TV (7780) Ch. 4 Buffalo, NY 06/01/2007
WIVB-DT Ch. 39 Buffalo, NY 06/01/2007
WNLO (71905) Ch. 23 Buffalo, NY 06/01/2007
WNLO-DT Ch. 32 Buffalo, NY 06/01/2007
Broadcast Auxiliaries.................................. 06/01/2007
KED76 TV STL
KB55415 Remote Pickup Base/Mobile System
KR4772 Remote Pickup
KJG593 Remote Pickup
KPE698 Remote Pickup
KK4702 TV Pickup
KR7938 TV Pickup
WMG306 TV Intercity Relay
BLP00821 Low Power Auxiliary
BLQ324 Low Power Auxiliary
BLP01490 Low Power Auxiliary
BLP01209 Low Power Auxiliary
KOA31 TV STL (WNLO)
WLJ792 TV Intercity Relay (WNLO)
WLJ796 TV Intercity Relay (WNLO)
Domestic Satellite Authorizations
E960237 Receive/Transmit Transportable Earth Station 07/26/2006
WF64 Transmit/Receive Satellite Earth 12/14/2010
Private Radio Authorizations
KNNP370 Radiolocation Station (Weather Radar) 03/25/2011
8
6. TVL BROADCASTING OF RHODE ISLAND, LLC FRN: 0007-5176-34
WPRI-TV (47404) Ch. 12 Providence, RI 04/01/2007
WPRI-DT Ch. 13 Providence, RI 04/01/2007
Broadcast Auxiliaries used with WPRI-TV
KA35276 TV Pickup
KA35277 TV Pickup
KA88937 TV Pickup
KCG23 TV STL
WFW630 TV STL
WGI200 TV Intercity Relay
KGQ694 Remote Pickup
KJU388 Remote Pickup
KPJ328 Remote Pickup
KU2164 Remote Pickup
BLP01245 Low Power Auxiliary
Domestic Satellite Authorizations of WPRI-TV*
E7762 Receive-Only Satellite Earth Station 03/23/2005
E990501 Transmit-Only Transportable Earth Station 01/05/2010
* Earth stations are not licensed to TVL Broadcasting of Rhode Island, LLC
Private Radio Authorization of WPRI-TV
WPYW785 Radiolocation (Weather Radar) (RS) 11/18/2013
9
7. KXAN, INC. FRN: 0003-4770-72
KXAN-TV (35920) Ch. 36 Austin, TX 08/01/2006
KXAN-TV (Auxiliary Antenna) 08/01/2006
KXAN-DT Ch. 21 Austin, TX *
STA to operate with checklist facilities (BEDSTA-20040423ABN) 06/16/2005
*DTV CP extended until further action by the FCC
KXAM-TV (35909) Ch. 14 Llano, TX 08/01/2006
KXAM-DT Ch. 27 (BPCDT-19991018AAV) 11/12/2005
STA extension (BEDSTA-20040818ACW) 03/15/2005
KHPM-CA (35921) Ch. 40 San Marcos, TX (Telefutura) 08/01/2006
KBVO-CA (35918) Ch. 51 Austin, TX (Telefutura) 08/01/2006
KHPL-CA (35913) Ch. 40 La Grange, TX (Telefutura) 08/01/2006
KHPG-CA (35916) Ch. 31 Giddings, TX (Telefutura) 08/01/2006
CP to switch from Ch. 21 to Ch. 31 (BPTTL-19981120JG) 09/29/2003*
*License application (BLTTA-20020913AAQ) pending
KHPX-CA (35911) Ch. 28 Georgetown, TX (Telefutura) 08/01/2006
KHPF-CA (35923) Ch. 44 Fredericksburg, TX (KXAM) 08/01/2006
KHPZ-CA (35910) Ch. 15 Round Rock, TX (Telefutura) 08/01/2006
KHPB-CA (35912) Ch. 45 Bastrop, TX (Telefutura) 08/01/2006
Broadcast Auxiliaries.............................. 08/01/2006
KRN93 TV STL
KTZ24 TV STL
KA21438 TV Pickup
KA35128 TV Pickup
KA35129 TV Pickup
KA35220 TV Pickup
KE5905 TV Pickup
KJ3178 TV Pickup
KY2881 TV Pickup
KFY879 Remote Pickup Base Mobile System
KGJ532 Remote Pickup Automatic Relay
KPL407 Remote Pickup Automatic Relay
WLE730 TV STL for KXAM-TV
WHB256 TV Intercity Relay
WLI264 TV Intercity Relay
10
7. KXAN, INC. FRN: 0003-4770-72 (CONTINUED)
Broadcast Auxiliaries used with KXAN-TV - continued
WLQ913 TV Intercity Relay
WLQ912 TV Intercity Relay
WLQ914 TV Intercity Relay
WLQ916 TV Intercity Relay
WLI972 TV Intercity Relay
WMU603 TV Relay
WMU604 TV Relay
WMU605 TV Relay
WMU606 TV Relay
WMV596 TV Relay
WMV597 TV Relay
WMV599 TV Relay
WMV600 TV Relay
WMV601 TV Relay
WMV602 TV Relay
WMV603 TV Relay
WMV604 TV Relay
WMV605 TV Relay
WMV606 TV Relay
WPNA875 TV Relay
WPNI812 TV Relay
WPOR936 TV Relay
Domestic Satellite Authorizations
E910002 Transmit\Receive Fixed Earth Station 11/30/2010
E020054 Transmit/Receive Transportable Earth Station 04/24/2017
Private Radio Authorizations
WNTJ851 OFS Microwave (23,175 MHz) 09/16/2011
WNTJ852 OFS Microwave (21,975 MHz) 09/16/2011
WPEP593 Radiolocation (Weather Radar/Austin) 04/04/2014
WPOX732 Radiolocation (Weather Radar/Llano) 08/26/2014
WPOU886 OFS Microwave (21,975 MHz) 08/18/2009
11
8. WDTN BROADCASTING, LLC FRN: 0007-5177-58
WDTN (65690) Ch. 2 Dayton, OH 10/01/2005
WDTN-DT Ch. 50 BPCDT-19991020ABX *
Modification to maximize (BMPCDT-20030604ACN) 08/20/2004*
STA extension (BEDSTA-20040806AGM) 03/09/2005
*DTV CP extended until further action of the FCC
Broadcast Auxiliaries used with WDTN
KS2929 Remote Pickup
KS3413 Remote Pickup
KVX642 Remote Pickup
KB55261 TV Pickup
KB96270 TV Pickup
KC26174 TV Pickup
KK2350 TV Pickup
KQ5598 TV Pickup
KR7807 TV Pickup
KUQ43 TV STL
WDT821 TV Intercity Relay
WGZ598 TV Intercity Relay
WLJ325 TV Intercity Relay
WMV770 TV Intercity Relay
WGZ599 TV Intercity Relay
WZB758 Remote Pickup
Domestic Satellite Authorization of WDTN
E4494 Receive-Only Satellite Earth Station 08/06/2017
E020247 Transportable Satellite Earth Station 10/28/2017
Private Radio Authorizations of WDTN
WPOU230 Private OFS Microwave (MG) 07/08/2009
WPSJ384 Private OFS Microwave (MG) 05/18/2011
WQAI808 Radiolocation Weather Radar (RS) 06/09/2014
Note: STA authorization for weather radar station WPZQ662 has been cancelled.
12
9. WUPW BROADCASTING, LLC FRN: 0007-5178-32
WUPW (19190) Ch. 36 Toledo, OH 10/01/2005
WUPW-DT Ch. 46 Toledo, OH 10/01/2005
Broadcast Auxiliaries used with WUPW
WLF382 TV STL
WLF402 TV Intercity Relay
WMF215 TV Intercity Relay
WPUK454 TV Pickup
WPWA211 TV Pickup
Private Radio Authorizations of WUPW
WPUK560 Private OFS Microwave (MG) 03/21/2012
WPUK561 Private OFS Microwave (MG) 03/21/2012
WPSE574 Business Radio (IG) 03/28/2011
13
10. INDIANA BROADCASTING, LLC (WANE-TV) FRN: 0004-0893-30
WANE-TV (39270) Ch. 15 Fort Wayne, IN 08/01/2005
WANE-DT Ch. 4 BPCDT-19991018AAQ *
STA for Ch. 31 DTV (BEDSTA-20040902ACS) 03/30/2005
Switch to DTV Ch. 31(MM 01-302) effective 10/25/2002.
Application to switch to Ch. 31(BMPCDT-20021002ACJ) pending
* DTV CP extended until further action by the FCC
Broadcast Auxiliaries.................................... 08/01/2005
BLP00609 Low Power Broadcast Auxiliary
BLP01241 Low Power Broadcast Auxiliary
KA44298 Remote Pickup Mobiles
KA62421 Remote Pickup Base Mobile System
KA74817 TV Pickup
KB96691 TV Pickup
KB96692 TV Pickup
KJC728 Remote Pickup Base
WMU701 TV Relay
WQB214 Remote Pickup Base Mobile System
Private Radio Authorizations
WPEE984 Radiolocation (Weather Radar) 09/20/2014
14
11. WWLP BROADCASTING, LLC FRN: 0004-9928-71
WWLP (6868) Ch. 22 Springfield, MA 04/01/2007
WWLP-DT Ch. 11 BPCDT-19991024ADM *
Modification of CP to maximize (BPCDT-20010926ABO) 11/28/2004*
STA extension for DTV (BMDSTA-20041203AFS) 06/22/2005
*DTV CP extended until further action of the FCC
Broadcast Auxiliaries...................................... 04/01/2007
KLE450 Remote Pickup Base/Mobile System
KA44229 TV Pickup
KG2404 TV Pickup
KW8508 TV Pickup
KW8509 TV Pickup
KY2893 TV Pickup
KY2892 TV Pickup
WBE814 TV Intercity Relay
WCD932 TV Intercity Relay
WPNM836 TV Intercity Relay
WPNM837 TV Intercity Relay
WPNM838 TV Intercity Relay
WPNM839 TV Intercity Relay
WPQP632 TV STL
WPQP633 TV Intercity Relay
WPQP634 TV Intercity Relay
WPQP572 TV STL
WPQR291 TV Intercity Relay
WPWI230 TV STL
WPWI231 TV intercity Relay
Domestic Satellite Authorizations
E020171 Transmit/Receive Transportable Earth Station 08/13/2017
E030311 Transmit/Receive Transportable Earth Station 01/06/2019
Private Radio Authorization
WPYR578 Radiolocation Weather Radar (RS) 10/07/2013
15
12. PRIMELAND TELEVISION, INC. FRN: 0004-8196-29
WLFI-TV (73204) Ch. 18 Lafayette, IN 12/01/2005
WLFI-DT Ch. 11 CP (BMPCDT-20030116ABG) 07/15/2004*
*License application (BLCDT-20040520AIX) is pending
Broadcast Auxiliaries................................. 08/01/2005
KSI69 TV STL
WCZ72 TV STL
KZ4872 TV Pickup
WMV734 TV Intercity Relay
WXX209 Remote Pickup
WHE942 Remote Pickup
Private Radio Authorizations
WPRU946 Radiolocation (Weather Radar) 02/28/2011
16
13. TELEVICENTRO OF PUERTO RICO, LLC FRN: 0004-3433-23
WAPA-TV (52073) Ch. 4 San Juan, PR 02/01/2005*
WAPA-DT Ch. 27 BPCDT-19991027ABH **
STA to operate WAPA-DT 11/20/2003***
*Renewal is pending
**DTV CP extended until further action of the FCC.
***BEDSTA-20030527AKE is pending
WIRS (39887) Ch. 42 Yauco, PR 02/01/2005*
*Renewal is pending
STA of WIRS (BSTA-20040506ACE) 12/23/2004
Modification of STA (BMSTA-20040730BGY) pending
WIRS-DT Ch. 41 BMPCDT-20040430AGV 01/22/2005**
STA to operate DTV at low power (BEDSTA-20030827ARB) 03/16/2004***
STA for DTV to be off-air (BSTA-20040120AGX 05/10/2004****
**DTV CP extended until further action of the FCC
***Extension request (BEDSTA-20040316AMI) is pending
****Extension request (BESTA-20040507ACH) is pending
WTIN (26681) Ch. 14 Ponce, PR 02/01/2005*
*Renewal is pending
WTIN-DT Ch. 15 BPCDT-19991101ADR 01/23/2005
W49AC (52072) Ch. 49 Adjuntas, PR 02/01/2005*
W43AA (52070) Ch. 43 Utuado, PR 02/01/2005*
W56AA (52071) Ch. 56 Orocovis, PR 02/01/2005*
Broadcast Auxiliaries used with WAPA-TV.................... 02/01/2005
KHI20 Main & Alternate Main TV STL
KP9655 TV Pickup
KA88562 TV Pickup
KP7888 TV Pickup
WPNH464 TV Intercity Relay
WPNH465 TV Intercity Relay
WPNH466 TV Intercity Relay
WPNH467 TV Intercity Relay
KPK917 Remote Pickup
KPK910 Remote Pickup Automatic Relay
KPI267 Remote Pickup
KE8358 Remote Pickup
WGI232 TV Intercity Relay
WLG928 TV Intercity Relay
Domestic Satellite Authorizations
E900627 Receive-Only Satellite Earth Station 10/19/2010
Private Radio Authorizations
WPRF962 Radiolocation (Weather Radar) 09/06/2005
17
14. WNJX-TV, INC. FRN: 0003-7532-25
WNJX-TV (73336) Ch. 22 Mayaguez, PR 02/01/2005*
*Renewal is pending
WNJX-DT Ch. 23 BMPCDT-20040115ACG 07/29/2004**
STA extension (BEDSTA-20041112AFI) 06/16/2005
**DTV CP extended until further action of the FCC
Broadcast Auxiliaries.............................. 02/01/2005*
WLP999 TV Intercity Relay
WLP462 TV STL
WLG323 TV STL
Antenna Structure Registration
1010495 Maricao, PR (leased)
15. S&E NETWORK, INC. FRN: 0001-8330-52
WJPX (58340) Ch. 24 San Juan, PR 02/01/2005*
*Renewal is pending
WJPX-DT Ch. 21 BMPCDT-20020228ABT **
**DTV CP extended until further action of the FCC
STA to operate at low power 07/09/2004***
***Extension (BESTA-20040702AGA) is pending
WKPV (58341) Ch. 20 Ponce, PR 02/01/2005*
*Renewal is pending
WKPV-DT Ch. 19 BMPCDT-20040318ABY 10/13/2004**
**DTV CP extended until further action of the FCC
STA for DTV (BEDSTA-20041028AKU) 05/31/2005
WJWN-TV (58342) Ch. 38 San Sebastian, PR 02/01/2005*
*Renewal is pending
WJWN-DT Ch. 39 BMPCDT-20020423AAB **
**DTV CP extended until further action of the FCC
Modification of STA for DTV (BMDSTA-20040930BZW) 05/09/2005
Broadcast Auxiliaries
KC26277 TV Pickup
WMV806 TV Intercity Relay
WMV807 TV Intercity Relay
WMV808 TV Intercity Relay
WMV809 TV Intercity Relay
WMV810 TV Intercity Relay
WMV811 TV Intercity Relay
WPJA639 TV Intercity Relay
WPNF849 TV STL
WPNK615 TV Intercity Relay
18
II. OTHER BROADCAST STATIONS IN WHICH LIN HAS AN ATTRIBUTABLE INTEREST
1. WAND(TV) PARTNERSHIP FRN: 0003-7802-02
WAND (70852) Ch. 17 Decatur, IL 12/01/2005
Main and Auxiliary Antenna
WAND-DT Ch. 18 Decatur, IL 12/01/2005
W31BX (70853) Ch. 31 Danville, IL 12/01/2005
Broadcast Auxiliaries........................... 12/01/2005
BLP00730 Low Power Broadcast Auxiliary
BLP00732 Low Power Broadcast Auxiliary
KB96449 TV Pickup
KIA942 Remote Pickup Base/Mobile System
KQ6893 TV Pickup
KQ8451 TV Pickup
KVF22 TV STL
KVY747 Remote Pickup Base/Mobile System
WHA823 TV Intercity Relay
Domestic Satellite Authorizations
E4707 Receive-Only Fixed Earth Station 09/03/2017
E8151 Receive-Only Fixed Earth Station 12/21/2019
E980363 Transmit/Receive Fixed Earth Station 11/18/2008
E030138 Transportable Earth Station UpLink 08/05/2018
Private Radio Authorizations
WPED991 Radiolocation (Weather Radar) 02/10/2014
19
III. LOWER 700 MHZ BAND AUTHORIZATIONS (WZ)
1. LIN TELEVISION CORPORATION FRN: 0003-7803-68
WPWV366 CMA032 Hartford-New Britain-Bristol, CT 01/01/2015
WPWV367 CMA038 Providence-Warwick-Pawtucket, RI 01/01/2015
WPWV368 CMA042 Bridgport-Stamford-Norwalk-Danbury, CT 01/01/2015
WPWV369 CMA049 New Haven-West Haven-Waterbury-Meriden, CT 01/01/2015
WPWV370 CMA063 Springfield-Chicopee-Holyoke, MA 01/01/2015
WPWV371 CMA075 Austin, TX 01/01/2015
WPWV372 CMA076 New Bedford-Fall River, MA 01/01/2015
WPWV373 CMA154 New London-Norwich, CT 01/01/2015
WPWV374 CMA160 Killeen-Temple, TX 01/01/2015
WPWV375 CMA213 Pittsfield, MA 01/01/2015
WPWV376 CMA357 Connecticut 1-Litchfield 01/01/2015
WPWV377 CMA358 Connecticut 2-Windham 01/01/2015
WPWV378 CMA470 Massachusetts 1-Franklin 01/01/2015
WPWV379 CMA471 Massachusetts 2-Barnstable 01/01/2015
WPWV380 CMA624 Rhode Island 1-Newport 01/01/2015
WPWV381 CMA660 Texas 9-Runnels 01/01/2015
WPWV382 CMA666 Texas 15-Concho 01/01/2015
WPWV383 CMA667 Texas 16-Burleson 01/01/2015
WPZA215 CMA064 Grand Rapids, MI 01/01/2015
WPZA216 CMA096 Fort Wayne, IN 01/01/2015
WPZA217 CMA132 Kalamazoo, MI 01/01/2015
WPZA218 CMA177 Battle Creek, MI 01/01/2015
WPZA219 CMA181 Muskegon, MI 01/01/2015
WPZA220 CMA194 Waco, TX 01/01/2015
WPZA221 CMA223 Elkhart-Goshen, IN 01/01/2015
WPZA222 CMA236 Muncie, IN 01/01/2015
WPZA223 CMA247 Lafayette, IN 01/01/2015
WPZA224 CMA404 Indiana 2 - Kosciusko 01/01/2015
WPZA225 CMA479 Michigan 8 - Allegan 01/01/2015
WPZA226 CMA480 Michigan 9 - Cass 01/01/2015
WPZA227 CMA585 Ohio 1 - Williams 01/01/2015
20
IV. LMA STATIONS
1. 54 BROADCASTING, INC. (LMA/KXAN-TV)
KNVA (144) Ch. 54 Austin, TX 08/01/2006
KNVA-DT Ch. 49 (BPCDT-19991025ADB) *
STA extension (BEDSTA-20041207ADL) 07/05/2005
*DTV CP extended until further action of the FCC
CP for new Auxiliary Antenna at KXAN-TV site 08/13/2000
(BPCT-980220KH) was granted 8/13/1998
Broadcast Auxiliaries.......................... 08/01/2006
KPN712 Remote Pickup
WMV231 TV STL
2. WNAC, LLC FRN: 0007-1128-99
WNAC-TV (73311) Ch. 64 Providence, RI 04/01/2007
WNAC-DT Ch. 54 Providence, RI 04/01/2007
Broadcast Auxiliaries................... 04/01/2007
WQCA936 TV Intercity Relay (TI)
WQCA934 TV STL (TS)
V. OTHER STATIONS IN WHICH LIN PRINCIPALS HAVE AN INTEREST
1. WLBB BROADCASTING, LLC FRN: 0004-2849-23
KWCV (72348) Ch. 33 Wichita, KS 06/01/2006
KWCV-DT Ch. 31 Wichita, KS 06/01/2006
Broadcast Auxiliaries................................. 06/01/2006
WPTG345 TV STL
WPVU258 TV STL (STA that is no longer needed)
WPWH319 TV STL
21
2. BANKS-BOISE, INC. FRN: 0005-0084-79
KNIN-TV (59363) Ch. 9 Caldwell, ID 10/01/2006
KNIN-DT Ch. 10 BMPCDT-20011022AAK *
Modified STA for KNIN-DT (BEDSTA-20041119AGH) 06/27/2005
* DTV CP extended until further action of the FCC
Broadcast Auxiliaries...................... 10/01/2006
WMF734 TV STL
WPNI876 TV STL
VI. WAPA AMERICA, INC. FRN: 0011-5153-43
E040420 Domestic Satellite C-Band Earth Station 12/15/2019
Uplink at Chicopee, MA (for cable programming service)
SCHEDULE 4.6
LITIGATION
None
SCHEDULE 4.13
SUBSIDIARIES
Airwaves, Inc.
Indiana Broadcasting LLC
KXAN, Inc.
KXTX Holdings, Inc.
LIN Airtime, LLC
LINBENCO, Inc.
LIN Sports, Inc.
LIN Television of San Juan, Inc.
LIN Television of Texas, Inc.
LIN Television of Texas, L.P.
North Texas Broadcasting Corporation
Primeland Television, Inc.
Providence Broadcasting, LLC
S&E Network, Inc.
Televicentro of Puerto Rico, LLC
TVL Broadcasting, Inc.
TVL Broadcasting of Rhode Island, LLC
WAPA America, Inc.
WAVY Broadcasting, LLC
WDTN Broadcasting, LLC
WIVB Broadcasting, LLC
WNJX-TV, Inc.
WOOD License Co., LLC
WOOD Television, Inc.
WTNH Broadcasting, Inc.
24
WUPW Broadcasting, LLC
WWHO Broadcasting, LLC
WWLP Broadcasting, LLC
SCHEDULE 4.15
ENVIRONMENTAL MATTERS
None
SCHEDULE 7.2(e)
EXISTING INDEBTEDNESS
None
SCHEDULE 7.3(f)
EXITING LIENS
None
SCHEDULE 7.8(f)
EXISTING INVESTMENTS
$3,000,000 investment in Gannaway Web Holdings LLC dba WorldNow
$100,000 investment in CouponBug
$125,000 investment in Global Translations, Inc.
$2,200,000 investment in 54 Broadcasting, Inc.
$2,500,000 loan to WNAC, LLC
20.38% membership interest in Station Venture Holdings LLC
33.33% partnership interest in WAND (TV) Partnership
50% non-voting equity interest in Banks Broadcasting